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2024 DIGILAW 178 (RAJ)

Siddharth Pokharna v. State of Rajasthan

2024-01-29

KULDEEP MATHUR

body2024
ORDER : Kuldeep Mathur, J. - With the consent of learned counsel appearing for the parties, the matter is taken up for final disposal. 2. The present criminal misc. petition has been preferred by the petitioner praying for the following reliefs:- "It is, therefore most humbly and respectfully prayed that this misc. petition may kindly be allowed and the impugned FIR and further investigation in pursuance of the FIR No.0461/2023 lodged on 13.07.2023 at Police Station Amba Mata, District Udaipur as well as "Look-Out-Circular" issued by the official respondents may kindly be quashed and set aside in toto. Any other appropriate order which this Hon'ble Court deems fit any proper in the facts and circumstances of the case may kindly be passed." 3. Learned counsel for the petitioner submitted that the petitioner who is the father of minor children namely Master Arjun Pokharna and Master Krishna Pokharna cannot be charged for the offences of kidnapping of his minor children, as defined under Section 361 IPC, punishable under Section 363 IPC. 4. Learned counsel submitted that the marriage between petitioner and respondent No.5 was solemnized as per Hindu rites and rituals on 12.11.2016. The parties are therefore governed under the Hindu law. Drawing attention of the Court towards Section 361 IPC, learned counsel submitted that the petitioner who is the biological father of children namely Master Arjun Pokharna and Master Krishna Pokharna, cannot be alleged to have kidnapped them on 23.06.2023. 5. Drawing further attention of the Court towards the F.I.R., learned counsel for the petitioner submitted that as a matter fact, the petitioner took lawful custody of the children on 23.06.2023 with due permission of her wife. It was urged that act and action of the petitioner in taking away the children from the mother with her due permission on 23.06.2023, does not amount to an offence of kidnapping as defined under Section 361 of the Indian Penal Code. 6. Learned counsel for the petitioner submitted that as per the settled law, no offence can be said to have been made out against the petitioner and therefore, it is a fit case to exercise inherent powers vested with this Court under Section 482 Cr.P.C. Reliance was placed on the following judgments:- 1. Shri. Ashish v. State of Maharashtra & Anr. (Criminal Application No.552 of 2023) (decided on 06.10.2023) passed by Hon'ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur. Shri. Ashish v. State of Maharashtra & Anr. (Criminal Application No.552 of 2023) (decided on 06.10.2023) passed by Hon'ble High Court of Judicature at Bombay, Nagpur Bench, Nagpur. 2. Geeta v. State of Haryana & Anr. (CRM-M-35177-2022 (O & M) (decided on 05.01.2024), passed by Hon'ble High Court of Punjab and Haryana at Chandigarh. 3. Maunish Dinkar Shaw & 1 other v. State of Gujarat & 1 Other (R/Criminal Misc. Application No.1341 of 2016) (decided on 03.03.2023), passed by Hon'ble High Court of Gujarat at Ahmedabad. 4. Shri. Ashok Kumar Seth v. State of Orissa reported in 2002 SCC Online Ori 138 7. Per contra, learned Public Prosecutor and learned counsel for the respondent No.5 submitted that respondent No.5 is natural guardian of her two minor sons namely Master Arjun Pokharna and Master Krishna Pokharna. Learned counsel submitted that on 23.06.2023, respondent No.5 handed over two minor sons to the petitioner on an assurance that both the minor sons will be dropped at the house of respondent No.5 (Udaipur) on 01.07.2023. However, the custody of the minor children was not handed over to the respondent No.5 by the petitioner which clearly demonstrates that he had forcibly taken them away or rather kidnapped the minor children. 8. Drawing attention of the Court towards section 6 of the Hindu Minority and Guardianship Act, 1956, learned counsel submitted that as per sub clause (a) of section 6 of the Hindu Minority and Guardianship Act, 1956, custody of a minor who has not completed the age of five years shall ordinarily be with the mother. It was urged that in the present case, Master Krishna is aged about 3.5 years and therefore, it is a clear case where his custody was taken away illegally by the petitioner. 9. Learned counsel submitted that Master Arjun who is just six years of age is suffering from "AUTISM" for which he needs constant supervision of her mother and also requires regular therapy at Udaipur. 10. Learned counsel vehemently submitted that a bare reading of the F.I.R. clearly shows that the petitioner is guilty of removing minor children from lawful custody of respondent No.5 and therefore he has committed an offence of kidnapping as defined under Section 361 IPC. 11. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the respondent No.5. Perused the material available on record. 12. 11. Heard learned counsel for the petitioner, learned Public Prosecutor and learned counsel for the respondent No.5. Perused the material available on record. 12. Section 361 of the IPC and section 6 of the Hindu Minority and Guardianship Act, 1956 are reproduced herein below for ready reference: "Section 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 care or custody of such minor or other person. Exception.--This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose." "6. Natural guardians of a Hindu minor. The natural guardians of a Hindu minor; in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property), are- (a) in the case of a boy or an unmarried girl-the father and after him, the mother: provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother; (b) in the case of an illegitimate boy or an illegitimate unmarried girl-the mother and after her, the father; (c) in the case of a married girl the husband: Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section- (a) if he has ceased to be a Hindu, or (b) if he has completely and finally renounced the world by becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi). Explanation.-In this section, the expressions "father" and "mother" do not include a step-father and a stepmother." 13. It is not in dispute before this Court that presently, Master Arjun Pokharna and Master Krishna Pokharna are in the custody of their mother i.e. the respondent No.5 herein. 14. Explanation.-In this section, the expressions "father" and "mother" do not include a step-father and a stepmother." 13. It is not in dispute before this Court that presently, Master Arjun Pokharna and Master Krishna Pokharna are in the custody of their mother i.e. the respondent No.5 herein. 14. It is also not in dispute before this Court that on 23.6.2023, the respondent No.5 out of her free will handed over the custody of her minor children to their biological father i.e. the present petitioner. 15. It is also not in dispute before this Court that it is not a case where the respondent No.5 was lawfully entrusted with the care or custody of her minor children by the order of any competent criminal court. 16. section 6 of the Hindu Minority and Guardianship Act, 1956 categorically states that the father is the natural and lawful guardian of the minor children, however, the custody of a minor upto age of 5 years shall ordinarily be with the mother. 17. Since the biological father of the minor child is also a lawful guardian alongwith the mother, the effect of biological father taking away the child from custody of the mother in real sense amounts to taking a child from the lawful guardian of a mother to another lawful guardianship of father and therefore, in the present case, it cannot be said that the petitioner, who is father of the minor children Master Arjun and Master Krishna has committed the offence under Section 361 of IPC, punishable under Section 363 IPC on taking away his minor children from the custody of their mother, that too with her consent on 23.6.2023. 18. In view of the facts and circumstances of the case and the discussion made hereinabove, this Court is of the opinion that no case for the offence punishable under Section 363 IPC is made out against the petitioner as the ingredients of the offence of kidnapping are not fully satisfied. The continuance of prosecution against the petitioner would thus amount to the abuse of process of the Court. 19. Accordingly, the instant criminal misc. petition is allowed. The FIR No.0461/2023 lodged on 13.07.2023 at Police Station Amba Mata, District Udaipur and all subsequent proceedings emanating therefrom are hereby quashed and set aside. 20. Stay petition and any other applications if any, are accordingly disposed of. 21. 19. Accordingly, the instant criminal misc. petition is allowed. The FIR No.0461/2023 lodged on 13.07.2023 at Police Station Amba Mata, District Udaipur and all subsequent proceedings emanating therefrom are hereby quashed and set aside. 20. Stay petition and any other applications if any, are accordingly disposed of. 21. It is however made clear that the findings/observations made hereinabove are for limited purpose of adjudication of the present criminal misc. petition. The various cases pending between the parties before different forums shall not get prejudiced by the same.