RAM NARESH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard learned counsel appearing for the petitioner and learned counsel appearing for the State. This application, filed under Section 482 of the Cr.P.C., is directed against the order dated 21.09.1998 passed by Additional Judicial Commissioner, Ranchi in Sessions Trial No.453 of 1998, whereby and whereunder the application filed by the petitioner, under Section 227 of the Cr.P.C. for discharging the petitioner from the case, was rejected. The facts giving rise this application are that the informant lodged a case before Bariatu police station putting allegations that the petitioner had taken her daughter with him for taking household work for his son-in-law, but the petitioner never allowed her to meet her daughter nor the petitioner did pay money to her. On such allegations, Bariatu (Gonda) P.S. Case No.40 of 1995 was instituted under Section 367 of the Indian Penal Code against the petitioner. The matter was taken up for investigation. After completion of the investigation, the police submitted charge-sheet against the petitioner under Section 367 of the Indian Penal Code. When the case was committed to the court of Sessions, an application was filed under Section 227 of the Cr.P.C. for discharging the petitioner from the case, which application was rejected vide order dated 21.09.1998 holding therein that the girl Seema Kumari was compelled to do the domestic work and was subjected to assault and thereby sufficient material is there for framing charge under Section 367 of the Indian Penal Code. That order has been challenged in this application. Having heard counsels for the parties and on perusal of the F.I.R. and also the statement made by the girl Seema Kumari under Section 164 of the Cr.P.C., I do find that the complainant allowed her daughter to go with this petitioner for doing domestic work of the son-in-law of the petitioner. Thus, when the complainant and also the girl Seema Kumari went willingly, the question of commission of offence under Section 367 of the Indian Penal Code does not arise. The provision as contained under Section 367 of the Indian Penal Code reads as follows:-

(2.) From its perusal, it is evident that whoever kidnaps or abducts any person with a view to put him in danger of being subjected to grievous hurt or slavery, or to the unnatural lust of any person, he shall be punished under Section 367 of the Indian Penal Code. Therefore, in order to secure conviction or held him guilty under Section 367 of the Indian Penal Code, the prosecution needs to establish that the person has been kidnapped for the purpose as stated above. Definition of kidnapping from lawful guardianship has been given under Section 361 of the Indian Penal Code, which reads as follows:-

(3.) From its perusal, it is evidently clear that in order to prove the case of kidnapping, the prosecution needs to establish that accused must takes away or entices away any minor from the lawful guardian with the consent of said guardian.