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Delhi District Court

State vs . Imran Khan & Ors. on 10 August, 2015

  IN THE COURT OF SH. AKASH JAIN, MM­06, PATIALA HOUSE COURT, 
                      NEW DELHI DISTRICT, NEW DELHI


FIR No.22/10
PS Vasant Vihar
State vs. Imran Khan & Ors.

10.08.2015

                             ORDER ON CHARGE

1.

In brief the facts of the present case as per prosecution are that on 18.01.2010, at about 05:30 PM, complainant alongwith his brother, mother and son (Mihir Kohli) had gone to meet National Commission of Women's lawyer namely Sidharth near Mother Dairy, Katwaria Sarai. It is the case of prosecution that son of complainant was playing alone in the park nearby and when complainant came back after meeting the lawyer in 10­15 minutes, she saw that her son was kidnapped by accused Abhishek Jain @ Ranu and Sumit Kohli @ Monu.

2. Thereafter, complainant made a complaint to Women Commission on 19.01.2010 and also filed a complaint with the police on 22.01.2010. A case under Section 363/34 IPC was consequently registered by the police vide FIR no.22/10. During investigation, police interrogated accused Ashwani Jain, Imran Khan and Abhishek Jain who disclosed that they kidnapped son of complainant at the instance of Shammi Kohli, Mohit Bhardwaj and Sumit Kohli for which purpose they took Rs.30,000/­ in advance from accused Shammi Kohli. It was further transpired during investigation that accused Sumit Kohli admitted the fact of having custody of victim Mihir Kohli, who is also son of accused Sumit Kohli, FIR No.22/10 State vs. Imran Khan & Ors. Page 1 of 5 before Family Court Agra.

3. On filing of the charge sheet, Ld. Predecessor Court took cognizance of the offences in question against all the accused persons. Upon appearance of the accused persons, copy of documents were supplied to them. During course of proceedings of the case accused Shammi Kohli and Mohit Bhardwaj passed away, as such, present case proceedings stood abated against them. Moreover, accused Imran Khan stopped appearing in the court, as such vide order dated 16.07.2012, he was declared proclaimed offender by Ld. Predecessor Court. After scrutiny of documents, the matter proceeded further for arguments on the point of charge.

4. It is argued on behalf of accused persons that even if allegations of the complainant are presumed to be true, then also prima facie case for alleged offence of kidnapping is not made out against them. It is argued that accused Sumit Kohli who has allegedly taken away boy namely Mihir Kohli alongwith accused Abhishek Jain from the spot of incident on 18.01.2010 is also his father and lawful guardian. So long as there is no divestment of the right of guardianship of the father, a father cannot be held liable for offence of kidnapping under Section 361/363 IPC. It is argued that in the absence of any separation order between complainant and accused Sumit Kohli, on the date of incident i.e. 18.01.2010, accused Sumit Kohli was natural and lawful guardian of son of complainant and therefore cannot be said to have kidnapped him out of the keeping of complainant for the purpose of Section 361 IPC.

5. Per contra, it is argued by Ld. APP for State that the relationship between complainant and accused Sumit Kohli was already strained at the time of incident in question and both of them were living separately. It is argued that the accused Sumit Kohli in furtherance of his common intention with other accused persons secretly took away son of complainant out of the keeping of his mother i.e. complainant. As such, there is sufficient material on record against the accused persons for proceeding further with the charge u/s 363/365 IPC.

6. Before discussing the rival contentions of the parties and material on record, it is imperative to refer to the judgment of Hon'ble Supreme Court in the matter of Union of India vs. Prafulla Kumar Samal and Anrs. reported as AIR 1979 SC 366, wherein Hon'ble Apex Court enunciated following 4 principles for determining whether in a given case accused is to be discharged or not (Para 10):­ ".........1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:

2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.

3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

4) That in exercising his jurisdiction under section 227 of the Code the judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth FIR No.22/10 State vs. Imran Khan & Ors. Page 3 of 5 piece 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 appearing in the case and so on. This however, does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial......."

7. During course of arguments on charge in the present case, it has been fairly conceded by Ld. APP for State that besides disclosure statements, no substantive piece of evidence has been brought on record by the investigating agency against accused persons. The factum of taking alleged sum of Rs.30,000/­ on one occasion and Rs.50,000/­ on another occasion from accused Mohit Bhardwaj and Shammi Kohli respectively could not be substantiated by any independent piece of evidence. Moreover, nothing incriminating was recovered from the possession of accused persons.

8. For the sake of arguments, even if allegations of the complainant are believed on their face value that she had seen accused Sumit Kohli and Abhishek Jain kidnapping her son on 18.01.2010, it is pertinent to note that accused Sumit Kohli himself is father of said boy namely Mihir Kohli and thus cannot be said to have committed an offence of kidnapping his son from the custody of his mother for the purposes of Section 361 IPC. The said proposition is duly acknowledged and affirmed in the case of Khyali Ram & Ors. vs. State of U.P. & Ors., 1971 Crl. L.J. 1365.

9. Moreover, in the case of Chandrakala Menon (Mrs.) & Anr. vs. Vipin Menon (Capt.) & Anr., (1993) 2 Supreme Court Cases 6, it was FIR No.22/10 State vs. Imran Khan & Ors. Page 4 of 5 held by Hon'ble Supreme court that High Court was justified in quashing the order of Magistrate on finding that the father being natural guardian of the child could not be charged with the offence of kidnapping.

10. It is well settled that the court cannot act merely as a post office or a mouth piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before it, while exercising its jurisdiction u/s 227/239 Cr.P.C.. As such, keeping in view the facts of the case, material on record and aforesaid observations, this court is of the view that no offence u/s 363/365/34 IPC is made out against the accused persons. Accordingly, accused persons namely Sumit Kohli, Ashwani Jain and Abhishek Jain are discharged in the present case in terms of Section 239 Cr.P.C..

Fresh bail bond to the tune of Rs.20,000/­ each in terms of Section 437A Cr.PC. furnished on behalf of accused persons. Same are accepted for the period of six months from today.

(Akash Jain) MM­06/PHC/ND/10.08.2015 FIR No.22/10 State vs. Imran Khan & Ors. Page 5 of 5