JUDGMENT
Abdul Hadi, J.
1. This petition is for issue of a writ of Habeas Corpus to direct the respondents to produce the body of Sellammal, the mother of the petitioners, said to be confined in illegal custody by the respondents and set her at liberty.
2. The allegations in the affidavit dated 8-11-1993 filed in support of the petition are briefly as follows :- The petitioner’s father died in April, 1989. The abovesaid Sellammal is their mother, aged about 85 years. The 1st respondents was married to their younger brother Srinivasan, who had his homicidal death and the criminal case relating thereto is pending. The 1st respondent lived away from their family and from her husband. Difference of opinion persisted between nick-named Paltu. Investigation was undertaken on the premises that commission of offence covered under section 363 of the Indian Penal Code, 1860 (in short, ‘IPC’) was disclosed. While the matter was pending before learned SDJM, petitioner No. 2 filed several documents and affidavits stating that she was major and married to petitioner No. 1 and the allegation that she had been forcibly kidnapped was factually incorrect.
3. In the present application it has been stated that in view of the fact that petitioner No. 2 has clearly stated that she is major, ingredients necessary to attract application of Section 363, IPC, alleging commission of which first information report has been filed, are non-existent, and continuance of the proceeding would be sheer abuse of process of the Court. In spite of notice, opposite party No. 3 has not entered appearance.
4. Mr. D. R. Mohapatra, learned counsel for petitioners submitted that in order to constitute an offence under section 363, IPC, the evidence must show that the person who is alleged to have been kidnapped was at the time of commission of offence a minor under 16 years of age if a male, or under 18 years of age if a female, or that such person was of unsound mind. Age of the girl has to be proved by the prosecution, and in view of the undisputed positions petitioner No. 2 was much above 18 years, no offence is made out.
Learned counsel for State on the other hand submitted that at this juncture it would not be proper to interfere with the continuance of proceeding.
5. Section 363 specifies punishment for the offences defined in Sections 360 and 361. The former relates to kidnappping from India, whereas the latter relates to kidnapping from lawful guardianship. Section 359, IPC defines ‘kidnapping’ to be of two kinds, i.e., kidnapping from India, and kidnapping from lawful guardianship. In order to constitute an offence punishable under section 361, four essentials are to be satisfied. They are – (a) taking or enticing away a minor or a person of unsound mind; (b) such minor must be under sixteen years of age, if a male, or under eighteen years of age, if a female; (c) the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; and (d) such taking or enticing must be without the consent of such guardian. The important expression in Section 361 is ‘takes or entices any minor’. There must be taking of the minor out of possession of the guardian. The word “take” means to cause to go, to escort or to get into possession. Enticing is an act of the accused by which the person kidnapped is induced of his or her own accord to go to the kidnapper. It is not necessary that taking or enticing should be shown to have been by means of force or fraud. It is clearly stipulated in Section 361 itself that where the minor kidnapped is a girl she should be under 18 years of age. If the girl is not under 18 years, no offence is committed under section 361.
6. In view of the documents already on record, and the undisputed position, age of the girl (petitioner No. 2) was certainly more than 18 years at the time of alleged commission of offence. In the first information report also there is no mention that the girl was a minor. A mention has been made about her inability to take a right decision very often. That does not make her a person of unsound mind. Undisputedly she had gone to appear at the M.A. Examination when alleged incident took place. A person, more particularly a girl is not normally allowed to go unescorted if she is of unsound mind.
7. In Halsbury’s Laws of England (3rd Edition, Vol. 10, at page 758), it is said that if a girl leaves her father of her own accord, the defendant (accused) taking no active part in the matter and not persuading or advising her to leave, he cannot be convicted of the offence (kidnapping) even though he failed to advise her not to come, or to return, and afterwards harboured her. The statement of law is based upon the decision in R. V. Robb, (1864) 5 F&F 59, Russell on Crimes 10th Edition at page 837 has stated the law to be that if going away was entirely voluntary on the part of the girl, the prisoner could not be guilty of an offence under the statute (kidnapping or abduction). In the case at hand, stand of petitioner No. 2 is that she of her own free-will without any persuasion from the accused abandoned the guardianship of her parents, and joined the accused. That is an additional factor to show that further proceedings in the case would be an exercise in futile.
8. In the background what has been stated above, continuance of the proceeding will not be in the interest of justice. The proceeding in G.R. Case No. 676 of 1993 pending in the Court of SDJM, Balasore is quashed.
The application is disposed of.
8. Application allowed.