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Corrigendum as per order dated 20.05.2025 HIGH COURT OF DELHI
JUDGMENT
& CRL.M.A. 23882/2024 MANISH @ MAHESH .....Petitioner
Through: Mr Akshya, Adv.
Through: Mr. Naresh Kumar Chahar, APP for the State along with
SI Priyanka Saini.
Mr. Abhishek Mahajan, Amicus Curiae for prosecutrix
1. By way of the present revision petition, the petitioner seeks setting aside of the order dated 15.01.2024 [hereafter ‗impugned order‘] passed by the learned Additional Sessions Judge (FTSC) (POCSO), Dwarka Court, Delhi in S.C. No. 162/2023, whereby charges were framed against the petitioner for offence under Section 363/34 of the Indian Penal Code, 1860 [hereafter ‘IPC’].
2. Briefly stated, facts of the present case are that on 21.01.2023, an information through DD no. 104A was received in Police Station Najafgarh, Delhi. Thereafter, the police officials had reached the spot in question, where the complainant, Mxxxx W/o Rxxxx, disclosed that on 21.01.2023, at around 4 PM, her 15-year-old daughter had gone missing from her home and the complainant had a suspicion that her daughter might have been enticed away by some unknown person. On the basis of this information, the present FIR bearing NO. 46/2023 was registered at P.S. Najafgarh, Delhi for offence under Section 363 of IPC.
3. During the course of investigation, the minor child was found in a park in front of Sai Baba Mandir, Delhi, with two boys, later identified as Raju and Manish @ Mahesh, both residents of Najafgarh. Subsequently, the statement of child victim was recorded, and counseling was conducted, through a Child Welfare Committee (CWC) counsellor, and MLC No. 286/23 was obtained, wherein the Urine Pregnancy Test (UTP) of the child victim was found positive, after which the child victim was referred to DDU Hospital, Delhi. The statement of the child victim was then recorded before the learned Magistrate, under Section 164 of the Code of Criminal Procedure, 1973 [hereafter ‗Cr.P.C.‘] wherein she had revealed that she had voluntarily left her home due to anger and had met coaccused Raju, who along with his friend i.e. the petitioner Manish, had taken her to an OYO Hotel. There, the child victim was allegedly intoxicated, and sexually assaulted by Raju during the night and after checking-out from the said Hotel the next morning, the police had recovered the victim and the accused persons from the park, and the accused persons were arrested.
4. After completion of investigation, charge sheet was filed against all the accused persons. On the basis of the aforesaid allegations, vide impugned order dated 15.01.2024, charges under Section 363 read with Section 34 of IPC were framed against the present petitioner.
5. The learned counsel appearing for the petitioner argues that the petitioner has been falsely implicated in the present case. It is argued that in the statements recorded under Section 161 and 164 of Cr.P.C., the child victim had levelled no allegations against the petitioner regarding any sexual force or coercion by the petitioner herein, which is an essential ingredient for even prima-facie making out a case under Section 363 of IPC. It is further argued that the petitioner herein had only accompanied the co-accused Raju and the child victim, and had left the hotel room at 1:00 AM. The learned counsel further submits that the petitioner did not share any common intention with other accused persons, and was not even aware or having any knowledge whatsoever as to the likelihood of commission of any crime. It is contended that the impugned order is erroneous and bad in law and therefore, the same be set aside.
6. The learned APP for the State, who is assisted by the learned amicus for the complainant, submits that at the stage of framing charges, a court of law is not required to conduct a mini-trial or a detailed inquiry into the facts of the case; instead, the court‘s primary function at this juncture is to prima facie assess the material available on the record, including the statements of witnesses, documents, and other relevant evidence. It is contended that the investigation conducted in this case and presented in the form of chargesheet clearly makes out a case of kidnapping against the present petitioner, and he has been rightly charged for offence under Section 363/34 of IPC. It is therefore prayed that the present petition be dismissed.
7. This Court has heard arguments addressed on behalf of both the parties and has perused the material placed on record.
8. First, it shall be relevant to succinctly discuss the well-settled law on charge, since the petitioner has assailed the impugned order vide which charge has been framed against him.
9. The Hon‘ble Supreme Court in Ghulam Hassan Beigh v. Mohd. Maqbool Magrey: (2022) 12 SCC 657, after discussing several judicial precedents, has summed up the law regarding framing of charge as under: ―Thus, from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material that is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini-trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice…‖
10. Similarly, in the case of Bhawna Bai v. Ghanshyam: (2020) 2 SCC 217, the Hon‘ble Supreme Court has observed as under: ―13....At the time of framing the charges, only prima facie case is to be seen; whether case is beyond reasonable doubt, is not to be seen at this stage. At the stage of framing the charge, the court has to see if there is sufficient ground for proceeding against the accused. While evaluating the materials, strict standard of proof is not required; only prima facie case against the accused is to be seen.‖
11. Thus, at the stage of framing charges, the Court only needs to see whether there is enough material to show that a prima facie case exists against the accused. It is also well established that if an accused files a petition under Section 482 of Cr.P.C. or a revision under Sections 397/401 of Cr.P.C. to quash the charges, the Court should not interfere unless there are strong grounds to believe that continuing the case would be unjust or would amount to misuse of the Court‘s process [Ref: Manendra Prasad Tiwari v. Amit Kumar Tiwari and Anr.: 2022 SCC OnLine SC 1057].
12. Now, it shall also be apposite to take note of Section 363 of IPC, and the essentials of offence of kidnapping – prima facie fulfilment of which would be necessary for framing a charge against the accused for the said offence. Section 363 of IPC reads as under: ―363. Punishment for kidnapping.—Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.‖
13. The offence of ‗kidnapping from lawful guardianship‘ is defined under Section 361 of IPC, which is set out below: ―361. Kidnapping from lawful guardianship. Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful guardianship. Explanation.—The words ―lawful guardian‖ in this section include any person lawfully entrusted with the care or custody of such minor or other person. Exception.—This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.‖
14. The observations of the Hon‘ble Supreme Court, in the case of Venkatesha v. State of Karnataka: 2025 SCC OnLine SC 129, insofar as essential ingredients of offence of kidnapping are concerned, are extracted hereunder: ―9. It can thus be seen that an offence punishable under Section 361 IPC would be made out only when a person takes or entices any minor under the age of 16 years, if he is a male or under 18 years, if female. Section 361 IPC, defines kidnapping from lawful guardianship and Section 363 IPC provides a sentence for the offence of kidnapping a person from lawful guardianship..‖ ***
12. This Court in the case of Sannaia Subba Rao and Ors. v. State of Andhra Pradesh has observed thus: The ingredients of Section 363 IPC involve an act of kidnapping of any person from the lawful guardianship. Kidnapping from the lawful guardianship is defined under Section 361 IPC, where it is stated that whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian, a case of kidnapping is made out…‖
15. Thus, the essential ingredients of the offence of kidnapping from lawful guardianship under Section 361 of IPC, can be summarised as follows:
(i) The victim must be a minor (i.e., under 16 years if male, under 18 years if female), or a person of unsound mind.
(ii) The minor or person of unsound mind must be taken or enticed away.
(iii) Such taking or enticing must be out of the keeping of the lawful guardian.
(iv) The act must be done without the consent of the lawful guardian.
16. Coming to the merits of the case, the primary argument advanced by the learned counsel for the petitioner is that the petitioner had merely accompanied the co-accused and the victim to the OYO hotel, and that he had left the hotel room at around 01:00 AM in the night. On this basis, it was contended that he had no role in the commission of the alleged offence, and therefore, no case of kidnapping could be made out against him.
17. Upon consideration of the material on record, this Court notes that the prosecution‘s case is that the minor victim had left her home during the night and subsequently met co-accused Raju, who had taken her on his Bullet motorcycle. The petitioner Manish is stated to have accompanied them to the OYO hotel, where the victim had stayed for the entire night. It is specifically alleged, and is an admitted fact, that the present petitioner had remained at the hotel until 01:00 AM, after which he had left. Furthermore, the victim had also disclosed that she and the petitioner Manish had waited for coaccused Raju at a park near the Sai Baba Temple the next day, where they were ultimately located and the victim was recovered by the police.
18. The contention of the petitioner that he had simply accompanied the victim and co-accused, and therefore could not be charged with any offence, is unmerited. Significantly, the victim had disclosed that when they had reached the hotel, the hotel manager had asked for identity proof. As neither the victim nor co-accused Raju had any identification documents, it was the petitioner Manish who had provided his own identity card to the hotel manager for the purpose of booking the room. Also, the petitioner herein had not, raised any objection and had knowing that the petitioner herein was being taken out of lawful guardianship, had accompanied them to the hotel and had assisted the co-accused in getting a room booked in the hotel.
19. This Court has already discussed the essential ingredients of the offence of kidnapping. The learned Trial Court, in the impugned order, has rightly observed that to make out a case under Sections 363/34 IPC, a person who assists or aids the main accused in the commission of kidnapping may also be held liable, provided there is a shared common intention. In the present case, it cannot be assumed at this stage that the petitioner had merely accompanied the victim and the co-accused, particularly in light of the fact that he had stayed at the hotel until 01:00 AM and facilitated the room booking by providing his identity card. It has also been alleged that when the hotel manager had inquired about the victim‘s age in the presence of the petitioner and co-accused Raju, the victim had clearly disclosed that she was 13 years old. This prima facie indicates that the petitioner was aware of the victim‘s minor status and the fact that she had been taken away from her lawful guardians without their consent.
20. In view of the foregoing discussion, this Court is of the considered opinion that there is sufficient material on record to prima facie indicate the petitioner‘s involvement in the commission of the offence of kidnapping. Thus, this Court finds no infirmity in the impugned order framing charge against the petitioner under Section 363 read with Section 34 of the IPC.
21. The petition, being devoid of merit, is accordingly dismissed. Pending applications also stand dismissed.
22. It is, however, clarified that nothing expressed hereinabove shall tantamount to an expression of opinion on merits of the case.
23. The judgment be uploaded on the website forthwith. DR.
SWARANA KANTA SHARMA, J APRIL 21, 2025