Madras High Court
Suresh Vishwanath @ Karuthupandi vs The State on 10 September, 2018
Equivalent citations: AIRONLINE 2018 MAD 1056
Author: N.Anand Venkatesh
Bench: N.Anand Venkatesh
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10.09.2018 ORDERS RESERVED ON : 04.09.2018 ORDERS PRONOUNCED ON : 10.09.2018 CORAM THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH CrlOP(MD)No.3358 of 2018 and CrlOP(MD)No.1561 of 2018 Suresh Vishwanath @ Karuthupandi ... Petitioner Vs 1.The State represented by its Inspector of Police, Uthumalai Police Station, Tirunelveli District. [Crime No.251 of 2015] 2.Saravanavel Murugaiah ... Respondents PRAYER:- Petition filed under Section 482 of Criminal Procedure Code, to call for the records of the proceedings in S.C.577 of 2017 on the file of the District Mahila Court, Tirunelveli and to quash the same as illegal as against the petitioner and without jurisdiction. For Petitioner :Mr.Karthick, Senior Counsel, for S.Sundarapandian For Respondent No.1 :Mr.M.Chandrasekaran, Additional Public Prosecutor For Respondent No.2 :Mr.Niranjan S.Kumar :ORDER
This petition has been filed seeking to quash the criminal proceedings pending in SC No.577 of 2017, on the file of the District Mahila Court, Tirunelveli.
2.The petitioner is the fourth accused in SC No.577 of 2017. The de facto complainant gave a complaint before the first respondent Police, alleging that his daughter who was aged about 19 years at the time of occurrence, was abducted by seven accused persons on 29.10.2015 at about 1.30 pm and was taken away in a Car. Before leaving the place, the accused persons abused the de facto complainant and also threatened him with dire consequences. The complaint was taken on file and an FIR was registered in Crime No.251 of 2015 for an offence under Sections 147, 148, 448, 294(b), 323, 506(ii) and 363 of IPC, against all the seven accused persons. The victim girl returned home on 31.10.2015 and statement was also taken from her by the respondent Police. Thereafter, the case was investigated and a final report was filed by the first respondent before the Judicial Magistrate, Tenkasi for the offence under Sections 147, 148, 448, 294(b), 323, 506(ii) and Section 366 of IPC. The said final report was taken on file in PRC No.13 of 2017 on 15.02.2017. Thereafter, the case was committed to the District Mahila Court, Tirunelveli and was numbered as SC No.577 of 2017. This final report is now being challenged by the petitioner, who has been arrayed as A-4 in this case.
3.The learned Senior Counsel for the petitioner has fairly submitted that the petitioner is not questioning the final report insofar as the offence under Sections 147, 148, 448, 294(b),323 and 506(ii) of IPC is concerned and the entire argument is confined only to the offence under Section 366 of IPC, which has been added in the final report.
4.The learned Senior Counsel would submit that a reading of the final report and the statement given by the victim girl, who was examined at the time of investigation, even if it is taken as it is, will only amount to abduction. The learned Senior Counsel would submit that abduction by itself is not an offence per se punishable under the Indian Penal Code. Abduction will become punishable only when it is accompanied by any one of the three intentions described in Sections 364, 365 and 366 of IPC is made out.
5.According to the learned Senior Counsel the final report and the statement taken by the Police do not satisfy the requirements under Sections 364, 365 and 366 of IPC and therefore, the final report has to be quashed insofar as adding the offence under Section 366 of IPC.
6.To substantiate the said argument, the learned Senior Counsel read the statement taken from the victim girl Maheswari and submitted that her statement does not make out an offence under Section 366 of IPC. The learned Senior Counsel also relied upon the commentaries of Ratanlal & Dirajlal's Law of Crimes and the commentaries of R A Nelson's, Indian Penal Code in order to substantiate his argument that abduction by itself is not an offence punishable under IPC. The learned Senior Counsel also relied upon a judgment of the this Court in Arusami Goundan, In re reported in 72 LW Page 74.
7.Per contra, the learned Additional Public Prosecutor appearing for the first respondent would submit that the abduction has been carried out with a motive by all the accused persons and therefore, it must be left to the wisdom of the Mahila Court, which will frame charges based on the final report and the statements taken from the witnesses and such an exercise should not be done by this Court under Section 482 of CrPC.
8.The learned Counsel appearing for the second respondent / de facto complainant would submit that even though it is true that abduction per se is not punishable under the Indian Penal Code, the trial Court must be allowed to frame charges in this case based on the final report and the materials collected by the respondent Police. The learned Counsel would further submit that in view of Sections 216, 221 and 228 of CrPC, the trial Court has vide powers to decide upon the provisions under which the accused persons will have to be prosecuted and there is no necessity for this Court at this stage to entertain the petition under Section 482 of CrPC, more particularly, since only one offence is being questioned by the petitioner and only one accused person has approached this Court. The learned Counsel would further submit that the nature of allegations that have been made against the accused persons are very serious and the Court below must be permitted to proceed further with the framing of charges and conduct the trial and only based on the evidence adduced before the Court, the Court will be able to reach a conclusion with regard to the actual offence committed by the accused persons.
9.This Court has carefully considered the submissions made on either side and also the materials placed on record.
10.A reading of the allegations made in the final report and the statement given by the victim girl Maheswari along with the statement given by other witnesses, clearly makes out an offence under Sections 147, 148, 448, 294(b), 323 and 506(ii) of IPC. The final report has also been filed including the offence under Section 366 of IPC.
11.In order to attract the provisions of Section 366 of IPC, an abduction of a woman must be carried out by force with an intent that the victim must be seduced to illicit intercourse as a result of her abduction. So far as the charge under Section 366 of IPC is concerned, a mere finding that the woman was abducted is not enough. It must further be proved that the accused person abducted the woman with an intention that she may be compelled or forced or seduced to illicit intercourse. Unless these ingredients are present, the charge under Section 366 of IPC will not be maintainable.
12.It is relevant to extract the relevant commentaries from Ratanlal & Dirajlal's Law of Crimes in this regard and the same is as follows:
?COMMENTS
2.'Abduction': Meaning: 'To 'abduct' means carry off or kidnap a person illegally by force or deception. Under this Section 'abduction' means to compel by force or deceitful means to induce a person to go from one place to another.
Section 362 is a definition section which defines abduction occurring in some of the sections of the Penal Code and is not a substantive offence. Therefore, the sentence awarded under Section 362 to an accused is liable to be set aside.
3.Scope.- This section merely gives definition of the word 'abduction', which occurs in some of the penal provisions which follow. Under the Code, kidnapping from lawful guardianship is a substantive offence, but 'abduction' is an auxiliary act, not punishable by itself, but made criminal when it is done with one or other or the intents specified in the following sections, viz 364, 365 and 366.?
13.The commentary of R A Nelson's Indian Penal Code in this regard is extracted hereunder:
?1.Scope This Section merely defines ?abduction? is. It does not define as offence Abduction becomes an offence only when it is accompanies by one of the three intentions described in Section 364, 365, 366 of IPC. Apart from the elements or force or fraud, which may be involved in abduction and which may attract punishment under other Sections of the Code, abduction, per se, of an adult person is not punishable under this Code. If kidnapping is accompanied by any of the said intentions., it is more severally punished, in consequence, under same section. The offences of kidnapping and abduction are kindred or cognate offences. The abduction of minors or persons of unsound mind from lawful guardianship may constitute a species of kidnapping (differing from the usual form of the offence in the nature of the means employed), if they are removed from the keeping of their guardians without the latter's consent, and is punishable under Section 363. There may be cases in which an act falls under both offences, eg, when force or deceit is employed in removing a female minor from the custody of the guardian with intent to murder her, or to force her to illicit intercourse, etc. However, in the majority of cases, the act, while coming within the purview of one of the offences, will not attract the provisions of the other. There may be abduction without the removal of a person from lawful guardianship. It may also be observed that the words ?kidnapping? and ? abduction? do not include the offence of wrongful confinement of a kidnapped person.
14.This Court in Arusami Goundan, In re reported in 72 LW Page 74, has held as follows:
Now, S,363 can have no application whatever to a case of this kind. That Section deals with the kidnapping any person from India or from lawful guardianship Kolandaiappa Goundar, the deceased, was certainly not a minor to be kidnapped from lawful guardianship; nor was it anybody's case that he was kidnapped from India. Apart from the elements of force or fraud that may be involved in abduction and which elements may attract punishment under other section of the Code.S.364, IPC, deals with cases of kidnapping or abduction in order that the person may be murdered or may be so disposed of as to be put in danger of being murdered. S.365 of IPC deals with the kidnapping or abduction with intent to cause that person to be secretly and wrongfully confined. S.366, IPC deals with the kidnapping or abduction of a woman in order that one or other of the various offences enumerated against her S.367 deals with the kidnapping or abduction of a person that he may be subjected to grievous hurt, slavery etc., S.369, IPC deals with the kidnapping or abduction of children under ten years of age.
15.It is clear from the above commentaries and the judgment of this Court that the abduction by itself is not a substantive offence under the Indian Penal Code. It is only an ?Auxiliary act? not punishable by itself, but made criminal, only when it is done with one or other or the intents specified under Sections 364, 365 and 366 of IPC.
16.In order to attract the offence under Section 364 of IPC, materials must be available on record to the effect that the accused persons had an intention at the time of abduction that the person abducted would be murdered or would be so disposed of as to be put in danger of being murdered.
17.Section 364(A) deals with the offence of abduction of any person kept continuously under detention under the threat to cause death or hurt on such a person detained in order to compel to do or abstain from doing any act by the Government or pay ransom as demanded by the accused.
18.Section 365 of IPC is attracted when the kidnapping or abduction is committed with an intention to secretly and wrongfully confine the victim. The intention of the abductors has to be judged from the facts and circumstances of the case including what the abductors did at the time of abduction and immediately thereafter.
19.The final report is now before the Special Court along with all the materials collected by the respondent Police. Only one of the accused persons has approached this Court and rest of all the six accused persons have not challenged the final report. The Special Court will have to now frame charges in exercise of its powers under Section 228 of CrPC, at which point of time, the Court is obliged to see whether there is prima facie evidence in support of the charges levelled against the accused persons. Obviously while framing the charges, the learned Mahila Court Judge, will keep in mind all that has been stated herein above with regard to the abduction and will frame charge or refuse to frame charge, if the offence is not made out.
20.This Court does not want to exercise its powers under Section 482 of CrPC at this stage, since the specific power with regard to framing of charges has been given to the Court below under Section 228 of CrPC. On the facts and circumstances of the case, this Court does not want to resort to this power, since there is a specific provision in the Code of Criminal Procedure to deal with the situation.
21.This Court is convinced that the power under this provision should be exercised very sparingly to prevent the abuse of process of any Court or otherwise to secure the ends of justice. The facts and circumstances of this case does not fall within this category.
22.This Court is therefore of the considered view that the final report filed by the respondent Police, pending before the District Court Mahila Court, Tirunelveli in SC No.577 of 2017, need not be quashed for the reasons stated herein above.
23.In the result, the criminal original petition is dismissed. Consequently, CrlOP(MD)No.1561 of 2018 is closed.
To
1.The District Mahila Court, Tirunelveli.
2.Inspector of Police, Uthumalai Police Station, Tirunelveli District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.