Kerala High Court
Unknown vs By Advs.Sri.James Abraham ... on 5 February, 2018
Author: Sunil Thomas
Bench: Sunil Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY, THE 5TH DAY OF FEBRUARY 2018 / 16TH MAGHA, 1939
Crl.MC.No. 3272 of 2014
( AGAINST THE ORDER/JUDGMENT IN CC 1591/2008 of J.M.F.C.-II, ERNAKULAM
CRIME NO. 39/2008 OF ERNAKULAM CENTRAL POLICE STATION , ERNAKULAM)
PETITIONER(S)/ACCUSED
SUNIL KUMAR,
S/O.THEVAN, PERUMBALAM, CHERTHALA, ALAPPUZHA DISTRICT.
BY ADVS.SRI.JAMES ABRAHAM (VILAYAKATTU)
SRI.P.BALAN (VYTTILA)
RESPONDENT(S)/COMPLAINANT:
STATE OF KERALA
REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM.
R BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 01-02-2018,
THE COURT ON 5/2/2018 PASSED THE FOLLOWING:
CRL.M.C.NO.3272/2014
APPENDIX
PETITIONER'S EXHIBITS:
ANNEXURE A1: COPY OF THE FINAL REPORT IN CR.NO.39/2008
RESPONDENTS EXHIBITS: NIL
/TRUE COPY/ P.S. TO JUDGE.
SUNIL THOMAS, J.
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Crl.M.C.No. 3272 of 2014
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Dated this the 5th day of February, 2018
ORDER
The petitioner herein stands arrayed as the sole accused in CC No.1591/2008 of the Judicial First Class Magistrate Court-II, Ernakulam for offences punishable under sections 448 and 511 of 363 IPC.
2. The petitioner herein is the husband of one Rathi. In the matrimonial relationship, a child was born. On 24/11/2007, the wife and the child were missing. Crime No.460/2007 was registered by the Udayamperoor police. Subsequently, on 5/1/2008, the said Rathi, along with the child voluntarily appeared before the court. It is alleged that, while she was waiting inside the court hall for her case to be taken up, the petitioner herein allegedly rushed into the court hall, tried to take the child held by Rathi and to kidnap the child. The Magistrate, before whom the incident happened, directed the police to arrest him and thereafter laid a complaint before the Sub Inspector of Police, Central Police Station, Ernakulam, by communication dated 5/1/2008, to register Crl..MC.No.3272/2014 2 case against him. Accordingly, crime was registered as Crime No.39/2008 of Central Police Station, Ernakulam. After investigation final report was laid. The petitioner herein challenges his prosecution on the ground that none of the ingredients of the sections alleged against him are made out.
3. It was vehemently contended by the learned counsel for the petitioner that, offence under section 511 of 363 cannot survive against him. It was contended by the learned counsel that, he had only taken the child from the shoulder of the wife. It cannot be considered as an instance of taking a minor out of the custody of the lawful guardian. It was, hence, contended that offence under section 363 IPC is not sustainable against him and consequently, offence under section 511 of 363 IPC will not lie.
4. It was contended by the learned counsel for the petitioner that, according to the law applicable to the parties, the petitioner herein is the lawful guardian of the minor child. If that be so, removing of his own child from the shoulder of his wife will not amount to either removing the minor out of the custody of the lawful guardian or one of kidnapping. To support this argument, learned counsel relied on the decision of this court in Ismail Aboobacker v. State of Kerala (1967 KHC 201), wherein the court held that, offence under section 361 IPC will not be attracted if the husband tried to remove the child to distant place. This decision was reiterated in Vipin Menon Capt. v. State of Crl..MC.No.3272/2014 3 Karnataka and Another ( 1992 KHC 1734) in relation to the question whether removal of the child by the father amounts to removing from the lawful custody of the child and he will not be guilty even if he takes away the child from the mother.
5. In Ashok Kumar Seth v. State of Orissa (2003 KHC 2122) , the Orissa High Court had taken a similar view wherein the husband took away the minor child from the custody of the wife. It was held that, prima facie offence of kidnapping was not made out and the cognizance under section 363 IPC was held to be illegal. These decisions clearly show that offence under section 363 IPC is not sustainable against the petitioner herein. Evidently, offence under section 511 of section 361 IPC will not hence lie.
6. It was contended by the learned counsel for the petitioner that section 448 IPC will also not apply, since the act did not constitute house trespass. The court hall does not fall within the definition of house as defined under the Act. It was contended that, even assuming that section 447 is applicable, still the court hall was a public place and entry to that hall, which was a public place cannot be said to be trespass. Further, even assuming that even after legally entering the court hall, he commits offence, it may fall within the definition of trespass. However, in the light of the fact that the offence against him under section 511 of section 363 IPC is found to be sustainable, even prosecution under section 447 IPC will not survive.
Crl..MC.No.3272/2014 4
7. Having considered the above facts, I am satisfied that the prosecution of the petitioner herein is not legally sustainable and hence, all further proceedings are liable to be quashed.
Accordingly, Crl.M.C.allowed. All further proceedings pursuant to CC No.1591/2008 (Crime No.39/2008 of Central Police station, Ernakulam) of the Judicial First Class Magistrate Court -II, stand quashed.
Sd/-
SUNIL THOMAS Judge dpk /true copy/ PS to Judge.