No Kidnapping When Minor Who Is Of Age Of Discretion Leaves Guardians' House With Accused On Her Own Will: Punjab & Haryana High Court

The Punjab and Haryana High Court has said that a person will not be liable for kidnapping if a minor girl of "age of discretion" leaves her guardian's house along with him on her own volition.

The Court granted 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.

Justice Manisha Batra said,"The well settled proposition of law is also that the accused must have played an active role in minor's leaving the custody of her lawful guardian to prove the offence under Section 363 of IPC and 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."

The Court noted that the prosecutrix who was 17 years and 4 months old i.e. of "age of discretion" and at the verge of attaining majority, did not attribute any active role to the petitioner in leaving the custody of her lawful guardian.

Therefore, the question that as to whether 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, is such a question which can be decided only on the basis of thorough assessment and evaluation of the evidence which will be led by the prosecution during the course of trial, it added.

These observations were made while hearing the plea for pre-arrest bail of man booked for kidnapping a 17-year-old girl by inciting on the pretext of marrying her or seducing her to illicit intercourse, under Sections 363 and 366 of IPC at Punjab's Fatehgarh Sahib.

However, in a statement recorded under Section 164 CrPC, the alleged prosecutrix said that she had left her home at her own volition.

After hearing the submissions, the Court said, to constitute the offence of kidnapping as defined under Section 361 of IPC which is punishable under Section 363 of IPC, it is for the prosecution to establish the element of taking away.

"The well settled proposition of law is that the question whether there was “taking” must be decided with reference to all the circumstances of the case including the question whether the girl was of sufficient maturity and intellectual capacity to think for herself and make up her own mind, the circumstances under which and the object for which, she felt it necessary and worthwhile to leave her guardian's protection," it added.

Justice Batra explained that where the prosecutrix leaves her guardian/father's house at her own accord and willingly accompanies the accused, the part played by the accused then can be regarded as facilitating the fulfillment of the desire of the prosecutrix and 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.

The Court noted that the the prosecutrix in her statement recorded under Section 164 of Cr.P.C. disclosed that she had left her house at her own volition.

Adding that it is not a case where the custodial interrogation of the petitioner is required or any recovery is to be effected from him, the Court said "it is a fit case for exercising powers under Section 438 of Cr.P.C. and for extending benefit of pre arrest bail to the petitioner."

In the light of the above, the Court granted pre-arrest bail to the accused.

Advocate Vishal Goel represented the accused.

Sr. DAG Ruchika Sabherwal represented the State of Punjab.

Advocate Sukhdeep Singh represented the complainant.

 Title: XXX v. XXX

Citation: 2024 LiveLaw (PH) 129