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Rajasthan High Court · body

2005 DIGILAW 1381 (RAJ)

Ashok Goydani v. State of Rajasthan

2005-05-09

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-This criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (for short the Code hereinafter) is directed against the order dated 24.08.2002 passed by Additional Chief Judicial Magistrate (Railway), Jodhpur (for short, the trial Court hereinafter) in criminal case No. 1277/2001whereby the trial Court framed the charges against the petitioner for the offence under Section 363, IPC. Aggrieved by the order framing charge, petitioner has filed the instant revision petition. 2. The facts and circumstances giving rise to the instant revision petition are that on 30.05.2005, non-petitioner No. 2 submitted a written report to G.R.P. Police Station, Jodhpur, inter alia, alleging therein that on 29.05.2001 at 8.15 a.m., he came to Jodhpur by train, Mandore Express from Delhi alongwith his son Subham Mehra aged 9 years and he stayed in retiring room No. 9 at Railway Station, Jodhpur. It was alleged that at about 9.15 a.m., petitioner came in the retiring room and told him that his son Subham is very nice in study and, therefore, he advised him (complainant) to pursue the study of his son at Chennai. However, complainant went to take cold drinks from a stall at railway platform and when he returned, he found Shubham and the petitioner missing. On this report, police investigated the matter and submitted a negative final report. However, the trial Court took cognizance of offence against the petitioner. Statement of minor Shubham was recorded by the police on 29.06.2001. He clearly stated in his statement that he has been pursuing his study in Chennai for two years; in the month of February, there was a function of marriage of Kusum, at that time his father non-petitioner No. 2 forcibly took him to the function and thereafter to Jodhpur and from Jodhpur to Jaisalmer; his father wanted that he should study in a school at Jaisalmer but the did not agree, thereafter, he came alongwith his father to Jodhpur. He stayed for a month at Jodhpur and thereafter, he came alongwith his maternal uncle, the petitioner from Jodhpur to Chennai. He further stated that neither he went to Jodhpur nor was kidnapped by his maternal uncle . He has been pursuing his study at Chennai and residing with his mother and maternal uncle. He stayed for a month at Jodhpur and thereafter, he came alongwith his maternal uncle, the petitioner from Jodhpur to Chennai. He further stated that neither he went to Jodhpur nor was kidnapped by his maternal uncle . He has been pursuing his study at Chennai and residing with his mother and maternal uncle. He categorically stated that he is not willing to live with his father, on the contrary, expressed his desire to live his mother at Chennai and pursue his study there. The trial Court framed the charges on the statement of non-petitioner No. 2 and some witnesses. 3. I have heard learned Counsel for the parties. Perused the order impugned. I have carefully gone through the record of the trial Court particularly the statement of minor Shubham. There is no evidence that Shubham was kidnapped from lawful guardianship of non-petitioner No. 2. On the contrary, the statement of Shubham goes to show that he has been residing at Chennai with his mother and pursuing his study. 4. During the course of arguments, learned Counsel for non-petitioner No. 2 admtted that Shubham has been residing at Chennai since 2001 with his mother and maternal uncle, the petitioner and pursuing his study in a school at Chennai. There is absolutely no evidence of taking away minor Shubham from the lawful guardianship of non-petitioner No. 2. On the contrary, from perusal of the statement of minor Shubham, it appears that he had been living with his mother and petitioner at Chennai. Not only this, minor Shubham expressed his desire to live with his mother at Chennai and specifically stated that he does not wish to live with his father, non-petitioner No. 2. .5. In Smt. Nagawwa vs. Veeranna Shivallingappa Konjalgi, 1976 (3) SCC 736 , the Honble Supreme Court held that where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused, the process issued by the Magistrate can be quashed on such case being. The guidelines have been given by the Honble Apex Court in Smt. Nagawwas case (Supra) that in the following cases, the order of Magistrate issuing process can be quashed or set-aside:- .(1) where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused; .(2) where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused; .(3) where the discretion exercised by the Magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant of inadmissible; and .(4) where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of complaint by legally competent authority and the like. 6. In Madhvrao Jiwajirao Scindia & Ors. vs. Sambhajirao Chandrojirao Angre, 1996(1) SCC 692, the Honble Supreme Court held that the legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the Court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the Court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 7. Keeping in view the above proposition of law and the fact that minor Shubham has categorically stated that after February, he never came to Jodhpur or stayed in retiring room at Railway Station, Jodhpur. 7. Keeping in view the above proposition of law and the fact that minor Shubham has categorically stated that after February, he never came to Jodhpur or stayed in retiring room at Railway Station, Jodhpur. On the contrary, he has stated that he has been pursuing his study at Chennai and living with his mother and maternal uncle, petitioner. From his statement, the very essential ingredients of offence of kidnapping have not at all been made out and, therefore, in my considered view, the trial Court fell in error in framing the charge against the petitioner for the offence under Section 363, IPC. 8. Consequently, the revision petition succeeds and is allowed. Order impugned dated 24.08.2002 framing charge against the petitioner is set aside and the proceeding against the petitioner is hereby quashed.