JUDGMENT 1. - Aggrieved by the order dated 13.8.2010 passed by the Additional Sessions Judge (Fast Track) No. 1, Jodhpur, whereby the learned Judge has framed charges for offences under Sections 363 and 366 I.P.C, the petitioner has approached this Court. 2. The brief facts of the case are that on 1.2.2009, Smt. Lila Devi lodged a report at Police Station Mandore, District Jodhpur wherein she claimed that her brother's daughter, Mafli, had come to stay with her. On 27.1.2009, while Lila Devi had gone to Balwara, she had left Mafli with her daughters. Around 4 0' clock, she received a call from her daughter informing her that Mafli had left the house in the morning and has not come back home so far. When she came back to her house, she tried to locate Mafli. She also her sons to look for Mafli. But, they could not discover her. Around 8.00 PM, her neighbour, Geeta received an anonymous call from a person who informed her that Mafli and petitioner, Pintu, were seen at Merta Railway Station and they were planning to go somewhere else. Geeta informed the person that they are brother and sister. She also informed the anonymous person that Pintu and Mafli will go to Bikaner. The complainant further alleged that she was informed by Geeta about the said conversion. She further alleged that Pintu's father happens to be Geeta's brother. Pintu's parents had gone to Bikaner. Pintu's mother has come back to Jodhpur. But, Pintu's father has not returned. Hence, she claimed that she suspects that Pintu has enticed and taken away her niece, Mafli. 3. On the basis of the said report, a formal F.I.R, F.I.R. No. 15/2009, was chalked out for offences under Sections 363 and 366 I.P.C. Subsequently, the petitioner was arrested and the charge-sheet was filed for the afore-mentioned offences. Vide order dated 13.8.2010, the learned Judge has framed the charges as aforementioned. Hence, this petition before this Court. 4. Mr. Abdul Salim, the learned counsel for the petitioner, has vehemently contended that Mafli both in her statements recorded under Sections 161 and 164 Cr.P.C. has clearly revealed her age as eighteen years old. Moreover, in both these statements, she has clearly stated that she knew Pintu on intimate terms. It is she who convinced Pintu to go with her to Bikaner. Moreover, in both these statements, she has clearly stated that she knew Pintu on intimate terms. It is she who convinced Pintu to go with her to Bikaner. Although, he had refused to do so, she had forced him to go with her to Bikaner. She has further stated that Pintu neither enticed, nor took her to Bikaner. She has clearly stated that Pintu has not misbehaved with her. Lastly, she expressed her desire to marry Pintu. She refused to go to her aunt's house. The learned counsel has contended that considering the statement given by the prosecutrix, no case is made out for offences under Sections 363 and 366 I.P.C. yet the learned Judge has framed the charges for aforementioned offences. In order to buttress this contention, the learned counsel has relied upon the case of S. Varadarajan v. State of Madras, AIR 1965 SC 942 and the case of Shyam Sunder v. The State of Rajasthan, 1991 Cr.L.R. (Raj.) 555 . 5. On the other hand, the learned Public Prosecutor has vehemently contended that according to the complainant, the prosecutrix happens to be a minor and she is merely twelve years old. Thus, the question of her giving consent does not even arise. Moreover, even according to the medical evidences, she is between the ages of fifteen to seventeen years. Therefore, she is not major. 6. Heard the learned counsel for the parties and perused the impugned judgment. Section 361 I.P.C. is as under: 361. Kidnapping from lawful guardianship. - Whoever takes or entices any minor under [sixteen] years of age if a male, or under [eighteen] years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation. - The words "lawful guardian" in this section include any person lawfully entrusted with the case of custody of such minor or other person. Exception. - This section does not extend to the act of any person who is good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitles to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. 7. Exception. - This section does not extend to the act of any person who is good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitles to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. 7. The words "taking" and "enticing" evidently have two different connotations. Neither of the words would have any applications if the girl has, of her own accord, come out of the custody of her lawful guardians, and if thereafter, she has gone with the accused to some other place. In order to hold that the accused has "enticed", it is necessary that there should be some evidence to the effect that the accused had given her some temptation, or made a promise or given assurance or allurement which had the effect of an irresistible force upon the girl. 8. However, these elements are conspicuously missing in the present case. According to Mafli, she has known Pintu for last two months. Whenever he would come back from his job, as a labourer, she would go to meet him. According to her, both of them were living in the same colony. According to her, on 27.1.2009, she asked Pintu to go with her on a sojourn. However, Pintu refused to do so. According to her, she forced him to accompany her; after some forcing, he agreed to do so. She further claims that they took Mukesh, Pintu's cousin, aged about 5 to 6 years, and reached the Jodhpur Railway Station at 10.00 AM. She further claims that she had about Rs. 200/- with her, from which they bought the tickets. They reached Bikaner Railway Station around 9-10:00 PM. For about four nights, they stayed at Bikaner Railway Station. She further claims that subsequently Pintu's aunt, Geeta, reached Bikaner and took them to the house of Pintu's sister in Bikaner. Subsequently, Geeta, Pintu and Mafli came back to Jodhpur. She has stated that Pintu has not physically abused her. Lastly, Mafli in her statement recorded under Section 161 Cr.P.C., has stated that she had gone with Pintu "of her own volition". The prosecutrix gives a similar statement under Section 164 Cr. P.C. Thus, apparently, the petitioner has neither "tempted", nor "promised", nor "allured" the prosecutrix. In fact, it is the prosecutrix who had pressurised Pintu to go with her. Lastly, Mafli in her statement recorded under Section 161 Cr.P.C., has stated that she had gone with Pintu "of her own volition". The prosecutrix gives a similar statement under Section 164 Cr. P.C. Thus, apparently, the petitioner has neither "tempted", nor "promised", nor "allured" the prosecutrix. In fact, it is the prosecutrix who had pressurised Pintu to go with her. Hence, the criminal elements of offence under Sections 363 Cr.P.C., are conspicuously missing. 9. As far as the age of the prosecutrix is concerned, according to the medical evidence, she is between the age of fifteen to seventeen years, whereas according to the prosecutrix she is eighteen years old. In the case of S. Varadarajan (supra), the Supreme Court has clearly opined as far back as 1985, that girls tend to mature too early these days. The said observation is more pertinent today, than it was about five decades back. Therefore, the prosecutrix, who is at the verge of becoming a major, would certainly realise what is good or what is bad for her. As mentioned above, the prosecutrix has categorically stated in her statements that she had left her aunt's house and had gone with Pintu of her own accord; she wanted to marry him. Thus, it cannot be said that she was either taken away, or enticed by the petitioner. Hence, the ingredients of the offence are missing in the present case. 10. In the case of Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC 368 the Hon'ble Supreme Court has reiterated the principles which should govern the framing of charge by the learned trial Court. It would be beneficial to reproduce as under: On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the chares under Section 227 Cr.P.C. has the undoubted power to sift and weight the evidence for the limited purpose of finding out whether or not a prima facie case against the accuse has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be full justified in framing a charge and proceeding with the trial. The test to determine prima facie case would depend upon the facts of each case. (ii) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained, the Court will be full justified in framing a charge and proceeding with the trial. (iii) The Court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the Court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accuse has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the Court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accuse was possible. (vi) At the stage of Sections 227 and 228, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal. 11. In the present case, since the ingredients of the offence are not made out the learned Judge has erred in framing the charges for offences under Sections 363 and 366 I.P.C. 12. 11. In the present case, since the ingredients of the offence are not made out the learned Judge has erred in framing the charges for offences under Sections 363 and 366 I.P.C. 12. For the reasons stated above, the order dated 13.8.2010 is, hereby, quashed and set aside.Revision petition allowed. *******