The Punjab and Haryana High Court recently observed that when a minor who is of the “age of discretion” willingly leaves the house of her parents with the accused, he cannot be charged with the offence of kidnapping.Justice Manisha Batra made the observation while granting anticipatory bail to an accused who was booked by Fatehgarh Sahib Police for allegedly kidnapping a 17-year-old girl to compel her to marry him. The Court said it was well settled law that the question of “taking” of the minor from her lawful guardianship must be decided with reference to all the circumstances including whether the girl was of sufficient maturity and intellectual capacity to think for herself and make up her own mind.It further opined that when the girl leaves the guardian’s or father’s house willingly and accompanies the accused, his act then can only be regarded “as facilitating the fulfillment of the desire of the prosecutrix”.“It falls short of an inducement to the prosecutrix to slip out of keeping of her lawful guardian and does not tantamount to “taking” within the meaning of definition of kidnapping under Section 361 of IPC,” Justice Batra said.The well settled proposition of law also is that the accused must have played an active role in the minor’s leaving the custody of her lawful guardian, the Court further said.“Where the minor is of the age of discretion leaves the house of her parents of her own accord and goes with the accused, the accused cannot be charged with the offence of kidnapping.”In the present case, the accused was booked in January this year on the complaint moved by the girl’s father.The accused said that he was falsely implicated in the case. He submitted that he was in a relationship with the girl and they wanted to marry each other but her family members were against it.The Court noted that the girl, who was studying in Class XII, in her statement recorded under Section 164 of Code of Criminal Procedure disclosed that she had left her house at her own volition.“Meaning thereby she did not impute any role to the petitioner in leaving of her house by her,” the Court concluded.While granting relief to the accused, the Court reasoned that since the girl was 17 years and 4 months old, she was of the age of discretion and at the verge of attaining majority. In this backdrop, the Court opined the question as to whether it was “a case for kidnapping by way of enticing her to marry with the petitioner or force or seduce her to illicit intercourse has been made out or not” can be decided during the course of trial.The Court thus said it was not a case where the custodial interrogation of the accused was required or any recovery was to be done from him. It, therefore, granted the accused pre-arrest bail and directed him to join the investigation.Advocate Vishal Goel represented the accused.Senior Deputy Advocate General Ruchika Sabherwal represented the State of Punjab.Advocate Sukhdeep Singh represented the complainant.
TAGS: Punjab and Haryana High Court anticipatory bail minor kidnapping Justice Manisha Batra
