The consent of the legal guardian is essential for quashing FIRs related to kidnapping under IPC, as the minor's consent is immaterial.

JUDGMENT :

Rakesh Kainthla, J.

The petitioners have filed the present petition for quashing of FIR No. 41/2023, dated 2.10.2023, registered at Women Police Station, Baddi, District Solan, H.P. for the commission of offences punishable under Sections 363 and 366 of the Indian Penal Code and Section 6 of Protection of Children from Sexual Offences Act (POCSO). It has been asserted that petitioners No. 1 and 2 were in love with each other. Respondent No.2, the informant, did not approve of their relationship. petitioner No.2 left her home, and the informant lodged a false FIR against Petitioner No.1. Petitioner No.2 had accompanied Petitioner No.1 out of her own free will. They solemnised marriage on 21.8.2023 as per Hindu rites and ceremonies. They are living happily as husband and wife. The petitioners tried to contact the informant, but she did not pick up their call. Petitioner No.2 denied the allegations of the prosecution in her statement recorded under Section 164 of the CrPC. Therefore, the present petition for quashing of the FIR has been filed.

2. Since the petitioners had not arrayed the informant, the legal guardian of petitioner No.2, therefore, the parties were heard on the maintainability of the petition.

3. I have heard Ms. Deeksha Thakur, learned Counsel for the petitioners and Mr. Tarun Pathak, learned Deputy Advocate General for respondent No.1/State.

4. Ms. Deeksha Thakur, learned counsel for the petitioner, submitted that the petitioners have married each other. They are residing happily. No fruitful purpose would be served by the continuation of proceedings. Therefore, she prayed that the present petition be allowed and the FIR be ordered to be quashed.

5. Mr. Tarun Pathak, learned Deputy Advocate General for respondent No.1/State, submitted that the offence of kidnapping is committed against the guardian, and only she can enter into a compromise. Since the guardian had not entered into a compromise, therefore, the FIR should not be quashed based on the compromise.

6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

7. Section 361 of IPC defines kidnapping as a lawful guardian who takes or entices any minor under 18 years of age, if a female, out of the keeping of the lawful guardian of such minor, is said to kidnap that person. Therefore, the offence of kidnapping is committed against the legal guardian from whose custody the minor is taken out. It was laid down by the Hon’ble Supreme Court in Prakash vs. State of Haryana (2004) 1 SCC 399 that the offence of kidnapping is for the protection of the minor, and the only consent of the guardian can take it out of the purview of section 361. It was observed:

The object of this section seems to protect the minor children from being seduced for improper purposes, as to protect the rights and privileges of guardians having the lawful charge or custody of their minor wards. The gravamen of this offence lies in the taking or enticing of a minor under the age specified in this section, out of the keeping of the lawful guardian without the consent of such guardian. The words "takes or entices any minor ......... out of the keeping of the lawful guardian of such minor" in Section 361 are significant. The use of the word "Keeping" in the context connotes the idea of charge, protection, maintenance and control; further, the guardian's charge and control appear to be compatible with the independence of action and movement in the minor, the guardian's protection and control of the minor being available, whenever the necessity arises. On a plain reading of this section, the consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's consent, which takes the case out of its purview. Nor is it necessary that the taking or enticing must be shown to have been by means of the force of fraud. Persuasion by the accused person, which creates willingness on the part of the minor to be taken out