SUNIL KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) 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 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.