Punjab-Haryana High Court
Loveleen Saini Alias Loveleen ... vs State Of Punjab And Another on 13 December, 2013
Author: Sabina
Bench: Sabina
Crl. Misc. No. M-19273 of 2009 (O&M) -1 -
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Misc. No. M-19273 of 2009 (O&M)
Date of Decision: 13.12.2013.
Loveleen Saini alias Loveleen Chaudhary ........Petitioners
and others
Vs.
State of Punjab and another ......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Atul Lakhanpal, Senior Advocate with
Ms. Bubly Kumari, Advocate
for the petitioners.
Mr. Deep Singh, AAG, Punjab.
Mr. R.P.S.Ahluwalia, Advocate
for respondent No. 2.
.....
SABINA, J.
Petitioners have filed this petition under Section 482 of the Code of Criminal Procedure, 1973 for quashing of FIR No. 183 dated 14.10.2007, under Section 452, 363, 323, 504, 506, 148, 149 of the Indian Penal Code ('IPC' for short), registered at Police Station City Gurdaspur, District Gurdaspur (Annexure P-7) and all the subsequent proceedings arising therefrom.
Learned senior counsel for the petitioners has submitted that petitioner No. 1 was the mother of the minor child and could not be attributed criminal intent to commit the offence of kidnapping. Respondent No. 2 had filed a petition seeking Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -2 - divorce against petitioner No. 1. The said petition was dismissed. During the pendency of the said petition, respondent No. 2 was not granted the custody of the child. Respondent No. 2 had not sought custody of the child by approaching the Civil Court. The FIR in question was an outcome of matrimonial discord between petitioner No. 1 and respondent No. 2. In support of his argument, learned senior counsel has placed reliance on 'Chandarkala Menon versus Capt. Vipin Menon' 1993 (2) R.C.R. (Criminal) 5, wherein it was held as under:-
"He further directed that if Vipin Menon failed to produce the child before the police then the police should register a case against him and also proceed to declare him a proclaimed offender. Vipin Menon challenged the order of the Magistrate by way of petition under Section 482, Criminal Procedure Code. The High Court quashed the order of the Magistrate by reaching a finding that Vipin Menon being a natural guardian of Soumya could not be charged with the offence of kidnapping. This appeal by Chandarkala and her father is against the order of the High Court.
We are of the view that in the facts and circumstances of this case the High Court was justified in quashing the criminal proceedings against respondent Vipin Menon. No fault can be found with the High Court order and we uphold the same."
Learned senior counsel has next placed reliance on 'Sehnaz alias Santosh Gupta versus State of Punjab and another', 2007(1) R.C.R. (Criminal) 990, wherein it was held as Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -3 - under:-
"I have considered the rival contentions raised before me by the respective counsels. It has not appealed to my senses that mother can really be accused of kidnapping of her own child. Can the divorce granted between the couple lead to severance of relation of mother and child ? This relationship in fact would continue to subsist irrespective of the fact whether the marriage is subsisting or not. It is conceded by respondent No.2 that petitioner-mother was visiting and meeting the child. Even if, on some weaker moment, the petitioner happened to take the child along with her, this would be more out of love and affection rather than with any intention to kidnap the child. What motive can be attributed to the mother for taking the child is really not understood. It cannot be anything but love and affection. Can she thus be accused of an offence of kidnapping, which per force has to have some mens rea in case allegations are to be pursued. No such mens rea or motive can really be alleged against the petitioner. In addition, she is claiming that she had taken prior permission of the husband for taking the child with her. It would rather be difficult to deprive the mother to forgo her love and affection for her own child. Making allegations of kidnapping in this background certainly cannot be sustained. The allegation is really far fetched and appear to be made by respondent husband out of spite and vengeance. A natural guardian cannot be Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -4 - accused of an offence of kidnapping and in this regard, reference can be made to decision of Hon'ble Supreme Court in the case of Chandrakala Menon Versus Capt. Vipin Menon 1993 (2) R.C.R. (Criminal) 5 (SC). This was a case where a girl child aged 7-1/2 years was residing with maternal grand parents when her father came to see her and took her to Bombay. A complaint was lodged with the police. Magistrate took cognizance of the matter and directed the father to produce the child on a particular date. He did not do so claiming that he was held up in Bombay due to unavoidable reasons. Adjournment sought by the father was declined and he was directed to hand over the custody of the child to the police so that it could be restored to the grand parents. When the father failed to produce the child before the police, a case was registered and father was declared proclaimed offender. This order was challenged under Section 482 Cr.PC. The High Court quashed the order of Magistrate by recording a finding that accused being natural guardian could not be charged with an offence of kidnapping. This order of the High Court was challenged before Hon'ble Supreme Court by the wife and her parents and it was held by the Hon'ble Supreme Court that in view of the facts and circumstances of this case, the High Court was justified in quashing the criminal proceedings against the Singh Gurpreet respondent-father. It was further held that no fault can 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -5 - be found with the High Court order and the same was upheld. Even this Court in Harbans Singh and Ors.
Vs. Jaswant Singh 1987 (1) RCR (Criminal) 628 (P&H) had the occasion of dealing with a similar case where the wife had left the house along with minor child against the wishes of her husband and the allegation of abduction was made against the parents of wife as she was staying with them. This was a case where the parents and young unmarried sister of the mother of the child were summoned by the Judicial Magistrate Ist Class to face trial under Sections 363 and 366 Indian Penal Code. It was held that mother of the minor is equally competent legal guardian. Not only the complaint and the summoning order qua these petitioners were quashed but the submission that minor son of the complainant was taken away from the custody of natural guardian without his consent and would reveal an offence under section 363 Indian Penal Code was also not accepted. Single Judge of this Court held that there was no merit in the stand in view of the fact that mother of a minor too is an equally competent legal guardian of the said minor. Ultimately, the Court found that complaint was complete misuse of the process of Court and complainant could have resorted to remedies under Hindu Marriage Act or in the Civil Court instead of choosing the petitioners in the said case for this harassment. It is nobody's case that Singh Gurpreet mother even if she had voluntarily given up the custody 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -6 - of the child to her former husband would be debarred from the custody of the minor child being a natural guardian for all times to come. Under these circumstances, it can be said that no offence of kidnapping under Section 363 Indian Penal Code or for that matter under section 365 Indian Penal Code would be made out against the petitioner, who had taken her child being a natural guardian. Present FIR and the subsequent proceedings taken against her are nothing but abuse of process of court and they need to be quashed. It is ordered accordingly."
Learned State counsel as well as counsel for respondent No. 2, on the other hand, have opposed the petition.
Learned counsel for respondent No. 2 has submitted that the child had been kidnapped by ther petitioners in connivance with each other when respondent No. 2 was not present at home.
In the case of State of Haryana vs. Bhajan Lal,, 1992 Supp(1) Supreme Court Cases 335, the Apex Court has held as under:-
"The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482, Cr.P.C. Can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently chennelised and Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -7 - inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:-
(1) Where the allegations made in the first information report or the complainant/respondent No.2, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1)of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do no disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -8 - complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted)to the institution and continuance of the proceedings and/or where there is specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." Prosecution story, in brief, is that complainant- Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -9 - respondent No. 2 Parmesh Chaudhary, who was a practicing lawyer, got married to petitioner No. 1 Loveleen Saini alias Loveleen Chaudhary on 26.2.2001. Out of the said wedlock, a son and a daughter were born. Son was in the custody of the complainant whereas daughter was in the custody of petitioner No. 1. Relations between petitioner No. 1 and respondent No. 2 had become strained and petitioner No. 1 had left the matrimonial home in June 2003 and since then she was residing with her parents. Efforts regarding reconciliation had proved futile. Respondent No. 2 had filed a divorce petition against petitioner No. 1 seeking a decree of divorce. On 9.10.2007, at about 4.00 A.M., mother of the complainant told him (complainant) that on 8.10.2007, at about 12.40 P.M., minor son of the complainant had returned from school. At that time all the petitioners and two unknown persons came and forcibly took away the minor son of the complainant. Hence, the FIR in question was got registered by the complainant.
During the course of arguments, it has transpired that the divorce petition filed by respondent No. 2 was dismissed and appeal against the said judgment/decree is pending in this Court. It has also transpired during the course of arguments that the application moved by the complainant seeking custody of his minor son, was dismissed in the divorce proceedings. Admittedly, respondent No. 2-complainant has not sought custody of the child by filing an appropriate petition in this regard before the competent Court.
Admittedly, initially cancellation report was submitted by the police and the same was challenged by the complainant. Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -10 - It is only on the basis of the protest petition filed by the complainant, Chief Judicial Magistrate rejected the cancellation report submitted by the police and directed the Senior Superintendent of Police to further investigate the matter vide order dated 20.12.2008. Thereafter, challan was presented.
Sections 361 IPC and 363 IPC read as under:-
"361 IPC 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.
363 IPC Punishment for kidnapping.
Whoever kidnaps any person from [India] or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Thus, to constitute an offence under Section 363 IPC, whoever entices a minor from the custody of lawful guardian can be said to have committed the offence. Petitioner No.1 is none other than the mother of the minor child.
Admittedly, the child has been taken away by petitioner No. 1 on 8.10.2007. The case of petitioner No. 1 is that she had taken away the child on the request of mother of respondent No. 2 as she was an old lady aged about 75 years and was not keeping good health and was unable to take care of Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh Crl. Misc. No. M-19273 of 2009 (O&M) -11 - the child whereas the case of the complainant is that on 8.10.2007, petitioner No. 1 had kidnapped the child. Be that as it may, petitioner No. 1, who is the mother of the child, cannot be attributed criminal intent to kidnap the child. Petitioner No. 1 might have taken the child out of love and affection for the said child. It is possible that at some weaker moment petitioner No. 1 took her child. Assuming that allegation levelled by the complainant that petitioner No. 1 forcibly took away the child, is correct, even then petitioner No. 1 cannot be said to be having any bad intention towards her own child. It appears that the FIR in question has been lodged by respondent No. 2 to settle scores with petitioner No. 1 on account of matrimonial discord between them. Respondent No.2 could have resorted to his remedy by filing a petition seeking custody of the children. Instead of doing that respondent No. 2 has involved the petitioners in criminal litigation. In the facts and circumstances of the present case, continuation of criminal proceedings against the petitioners would be nothing but an abuse of process of law.
Accordingly, this petition is allowed. FIR No. 183 dated 14.10.2007, under Section 452, 363, 323, 504, 506, 148, 149 IPC, registered at Police Station City Gurdaspur, District Gurdaspur (Annexure P-7) and all the consequential proceedings, arising therefrom, are quashed.
(SABINA) JUDGE December 13, 2013 Gurpreet Singh Gurpreet 2013.12.20 15:28 I attest to the accuracy and integrity of this document chandigarh