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2024 DIGILAW 724 (KER)

ASWIN v. State Of Kerala

2024-06-25

A.BADHARUDEEN

body2024
ORDER : This Criminal Revision Petition has been filed under Section 397 read with 401 of the Code of Criminal Procedure, 1973, challenging the order dated 07.06.2024 in C.M.P. No.105 of 2024 in S.C. No.357 of 2024 on the files of the Fast Track Special Court-II, Thrissur 2. Heard the learned counsel for the petitioner as well as the learned Public Prosecutor. Perused the relevant materials available. 3. In this matter, the prosecution allegation is that, at about 11.00 am on 02.01.2024, the accused herein kidnapped the victim from the lawful custody of CW2 and took her to Thrissur on a motor bike bearing registration No.KL-08-BR-9863. Thereafter, the victim was taken to Apartment No.3D of Elite Enclave, bearing building No.TC35/4283 and at about 17.00 hours the accused committed penetrative sexual assault and rape on the victim aged 16 years. It is on this premise, the prosecution alleges commission of offences punishable under Sections 363, 376(3) of IPC as well as under Section 3(a) read with 4(2) of the Protection of Children from Sexual Offences Act (hereinafter referred as the ‘POCSO Act’ for short). 4. The learned counsel for the petitioner argued that, even though the discharge sought for before the Special Court as such could not succeed, there are no materials in this matter to see commission of offence punishable under Section 363 of IPC. Therefore, the Special Court ought to have discharged the accused for the said offence. The learned counsel for the petitioner pointed out the ingredients to attract offence punishable under Section 363 of IPC and he has placed decision of the Apex Court reported in [1964 SCC OnLine SC 36] S. Varadarajan v. State of Madras to contend that it is for the prosecution to establish that immediately prior to the minor leaving the father’s protection, no active part has played by the accused to attract the offence punishable under Section 363 of IPC. 5. In this matter, the learned counsel for the petitioner is aggrieved by the order of the Special Court in C.M.P. No.105 of 2024 in S.C. No.357 of 2024, since the discharge plea with regard to offence under Section 363 of IPC was disallowed, though he is not aggrieved of the denial of discharge for the other offences. 6. 5. In this matter, the learned counsel for the petitioner is aggrieved by the order of the Special Court in C.M.P. No.105 of 2024 in S.C. No.357 of 2024, since the discharge plea with regard to offence under Section 363 of IPC was disallowed, though he is not aggrieved of the denial of discharge for the other offences. 6. Opposing the said contention, the learned Public Prosecutor read out the definition of the term ‘kidnapping from the lawful custody’ as defined under Section 361 of IPC and submitted that taking a minor under 18 years, if she is a female alone would be sufficient to attract offence punishable under Section 363 of IPC as defined under Section 361 of IPC. Section 361 of IPC provides 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 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. 7. Thus, the ingredients to attract the offence under Section 363 of IPC are as embodied in the statutory provision and one among the ingredients; is taking a female under the age of 18 years out of the keeping of the lawful guardian of such minor without the consent of such guardian. Once the said aspect is proved an offence of kidnapping said to be committed by the accused. In the present case, admittedly, the victim is a minor aged 16 years and taking her from the lawful custody alone is sufficient to attract offence punishable under Section 363 as defined under Section 361 of IPC and the said materials could be read out from the prosecution records. 8. In the present case, admittedly, the victim is a minor aged 16 years and taking her from the lawful custody alone is sufficient to attract offence punishable under Section 363 as defined under Section 361 of IPC and the said materials could be read out from the prosecution records. 8. Therefore, discharge plea at the instance of the accused with regard to the offence punishable under Section 363 of IPC could not succeed as rightly done by the learned Special Judge. Thus, the impugned order does not require interference. 9. Accordingly, this criminal revision petition stands dismissed confirming the order under challenge, with liberty to the petitioner to raise his contentions during trial, as per law. Registry is directed to forward a copy of this order to the trial court, within three days, for information and further steps.