Victim's consent negates charges of kidnapping under IPC, emphasizing equity over technicality in legal proceedings.

1. Shaheen Parveen and Mohd. Sarfaraj have approached this Court to seek a writ in the nature of CERTIORARI to quash First Information Report bearing Case Crime No. - 121 of 2014 under S.363/366 of the Indian Penal Code , Police Station Madiyawan, District Lucknow (Annexure - 1).

2. Case set up by the petitioners is that the petitioners having attained marriageable age got married. Marriage, however, is not being accepted by respondent No.4 who happens to be the mother of petitioner No.1. Under the circumstances, aggrieved by the fact that the petitioner No.1 got married of her own accord, impugned criminal proceedings have been initiated.

3. Short counter affidavit on behalf of the Prosecuting Agency has been filed today alongwith medical examination report of the victim / prosecutrix and also the statement of prosecutrix recorded under S.164 Cr.P.C. on 8.5.2015, which is taken on record.

4. In the short counter affidavit, it has been stated that the prosecutrix / victim is carrying a pregnancy of 31 weeks (Annexure No. - SCA - 2). In paragraph 4 of the affidavit, it has been admitted that the prosecutrix / victim did not support the prosecution case in her statement recorded under S.164 Cr.P.C. (Annexure No. - SCA - 3). The Investigating Agency, however, is concluding that offence has been committed, on the ground that at the point in time when the prosecutrix went in the company of petitioner no. - 2, she was less than 18 years of age.

5. We have heard learned Counsel for the petitioners, Sri Deep Kamal, learned Counsel for respondent no. - 4 and also the learned Counsel for the Prosecuting Agency.

6. Petitioner no. - 2 is accused of committing an offence under S.363/366 of the Indian Penal Code .

7. S.363 of the Indian Penal Code inheres that whoever kidnaps any person from lawful guardianship shall be punished in terms of sentence provided in the provision.

8. "Kidnapping from lawful guardianship" has been defined under S.361 of the Indian Penal Code . The provision when extracted reads as under: -
"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."

9. S.366 of the Indian Penal Code inheres that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, shall be punished with a sentence, as provided in the provision.

10. At the time of considering whether on admitting the allegations made in the F.I.R., offence has been committed or not, the ingredients of the offence are required to be considered, in context of the evidence collected during the course of investigation.

11. In the peculiar facts and circumstances of this case, the Court has minutely examined the facts that have emerged on investigation of the case.

12. Documents placed collectively as Annexure SCA - 2 indicate that the vi