STATE OF GUJARAT Vs. MAHESH NAGARDAS THAKORE

JUDGEMENT

(1.) Can a man in the name of love affair be permitted to elope with a minor girl of nearly 111/2 years and claim immunity from the clutches and rigours of the machinery of criminal law ? This is one of the main questions arising in this petition under Sec. 439(2) of the Criminal Procedure Code, 1973 ('the Cr. P. C.' for brief).

(2.) The facts giving rise to this petition may be summarised thus : One minor girl named Sharda aged about 111/2 years was said to have left her parental home under some pretext. The respondent herein was suspected to have enticed her away. The necessary complaint was lodged by the father of the girl charging the respondent herein with the offences punishable under Secs. 363 and 366 of the Indian Penal Code, 1860 ('the I.P.C.' for brief). It appears that the respondent was arrested in connection with the offence registered against him at the instance of the father of the minor girl in question. The respondent herein appears to have moved the learned Sessions Judge of Ahmedabad for bail. His application came to be registered as Criminal Miscellaneous Application No. 2514 of 1992. It appears to have been assigned to the learned Additional Sessions Judge of Court No. 9 at Ahmedabad for hearing and disposal. By his reasoned order passed on 17/12/1992 below the bail application registered as Criminal Miscellaneous Application No. 2514 of 1992, the respondent has been enlarged on bail. The aggrieved State of Gujarat has preferred this petition before this Court by invoking its powers under Sec. 439(2) of the Cr. P. C. for cancellation of the bail granted in favour of the respondent.

(3.) A xerox copy of the School Leaving Certificate is found in the police papers. Her birth date is shown to be 12/06/1981 therein. The date of the incident mentioned in the First Information Report is 24/11/1992. She would therefore be about 111/2 years old on the date of the incident. At that stage she could not be said to be possessing any mature sense of understanding as to what is good or bad for. In fact, at that stage she had not entered even her teens. At that stage a child-is prone or susceptible to any kind of allurement, inducement or temptation. It is not necessary to have any overt act or allurement, inducement or temptation. Some conduct on the part of a person can also provide such allurement and the like. Such person could also be the one having eloped with her. One such conduct could be to draw that minor girl to fall in love. At that stage, a minor girl might be reading certain fairy tales and might be thinking of her dream prince who would come to her rescue in the hour of need, more particularly when she is not treated well in her parental home. A show of sympathy can easily win over a girl below the age of 12 years. This exactly appears to have happened in the present case.