The essential ingredients of the offences under Sections 368 and 380 of the Indian Penal Code were not satisfied in this case, and the petitioner's actions did not constitute kidnapping, abduction, or theft.

The present hearing arises out of an application under Section 482 of the Code of Criminal Procedure, 1973, whereby the petitioner Manju Rani Gharami has prayed for quashing of proceedings in G.R. Case No. 2201 of 2002 pending before the Sub-Divisional Judicial Magistrate, Barrackpore under Sections 363/365/366/368/380/120B of the Indian Penal Code.

2. Shortly put the background leading to the filing of the present petition is as follows :–

That the petitioner is legally married wife of the defacto-complainant of the aforesaid case Supriti Ranjan Gharami of Sukantanagore, P.S. Kharda, District-North 24-Parganas. On or about 1997 while living with her husband, she gave birth to a child Sarnali Gharami @ Rini. It is alleged that the matrimonial life of the said couple was not at all happy as the husband used to subject the petitioner to mental and physical torture on various grounds. The people of the locality including Dr. Shankar Prosad Das protested against such conduct of the petitioner's husband Supriti Ranjan Gharami (O.P.2), who took out an application under Section 156 subsection (3) of the Code of Criminal procedure before the S.D.J.M., Barrackpore alleging commission of offences as noted above against the petitioner as well as against the said Dr. Sankar Prosad Das alleging, inter alia, that on 20.11.99, the said Dr. Sankar Prosad Das and the petitioner left the residence or the defacto-complainant with the minor child and various gold ornaments and that Dr. Das has kept the petitioner and the minor child wrongfully confined in a secret place after kidnapping them. It is further alleged that pursuant to such direction of the S.D.J.M., Barrackpore, P.S. Kharda Case No. 222 dated 18.6.2000 under the aforesaid sections of the Indian Penal Code was started and the police after investigation submitted chargesheet dated 31.7.2000 against the petitioner and the said Dr. S.P. Das. Now the petitioner has come up, with the present application contending that the allegations made in the impugned charge-sheet even if accepted to be true in their entirety do not disclose the essential ingredients of the offences alleged.

3. The only point for consideration here is whether in the facts and circumstances of the case, the charge-sheet in question should be quashed or not ? I have heard the learned Advocate for both sides. The learned Advocate for the petitioner submits that in the instant case, the petitioner left her matrimonial home with the child on her own volition and the very element of force and deceitful means are missing in the facts and circumstances of the case. It is further contended that the condition precedent of the offence under Section 368 is kidnapping or abduction and if the same is missing there cannot be any offence under Section 368 I.P.C. Regarding the allegation of theft of some gold ornaments, it is submitted by the learned Advocate for the petitioner that the mere removal of the gold ornaments cannot constitute an offence. There must be a dishonest intention for the purpose of removal of those articles. On the other hand, if the article is removed under bona fide claim it is not theft. The learned Advocate for the O.P. No.2 husband has submitted that the petitioner committed the offence punishable under Section 368 I.P.C. in respect of the child. It is further submitted that strong suspicion can be the basis of a charge in respect of an offence punishable under Section 380 I.P.C. In support of such contention, the learned Advocate for the O.P. has placed his reliance on the case of Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja & Ors. reported in 1979 Cr. L.J. 1390. It is further submitted that the instant case is not a case where the charge-sheet should be quashed. In this respect, the learned Advocate for the O.P. No.2 has mainly relied on the allegation regarding theft of some gold ornaments from the house of O.P. No.2. The learned Advocate appearing for the State of W.S. (