# Julius Masih @ Sintu Masih @ Ajay Revisionist v. State of U.P. & Anr

- **Citation:** (2024) 12 ILRA 460
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-12-17
- **Case number:** Criminal Revision No. 4107 of 2023
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/julius-masih-sintu-masih-ajay-revisionist-v-state-of-u-p-anr-51221
- **Pages:** 12

## Headnote

A. Criminal Law - Criminal Procedure
Code,1973- Section 397-Indian Penal
Code,1860-Sections
363
&
366Kidnapping and POCSO Act-section 8Framing of charges-Prima facie caseVictim's
age
disputed
based
on
contradictory documents(school record
Vs birth certificate)-Victim's consent and
volition emphasized in statements-No
evidence of inducement or force by the
accused-Held, prima facie case u/s 363
IPC made out based on strong suspicion
but no case u/s 366 IPC and 8 of POCSO
Act due to the victim's voluntary conduct
and
absence
of
evidence
showing
coerciionn or sexual intent-Trial court to
reconsider discharge application afresh.
(Para 1 to 20)

The revision is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,858 of 41,301. This is a partial read: ask again with offset=39858 for what follows._

460 INDIAN LAW REPORTS ALLAHABAD SERIES
to the concerned court to pass reasoned
order after considering the evidence of
complainant, his witnesses, injury report
and other relevant documents which are
available on record.
----------
(2024) 12 ILRA 460
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.12.2024

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 4107 of 2023

Julius Masih @ Sintu Masih @ Ajay
 ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Araf Khan

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code,1973- Section 397-Indian Penal
Code,1860-Sections
363
&
366Kidnapping and POCSO Act-section 8Framing of charges-Prima facie caseVictim's
age
disputed
based
on
contradictory documents(school record
Vs birth certificate)-Victim's consent and
volition emphasized in statements-No
evidence of inducement or force by the
accused-Held, prima facie case u/s 363
IPC made out based on strong suspicion
but no case u/s 366 IPC and 8 of POCSO
Act due to the victim's voluntary conduct
and
absence
of
evidence
showing
coerciionn or sexual intent-Trial court to
reconsider discharge application afresh.
(Para 1 to 20)

The revision is partly allowed. (E-6)

List of Cases cited:
1. S. Varadrajan Vs St. of Mad. (1965) AIR SC 942

2. Arjun Kr. Vs St. of UP. & ors Misc. bench
No. 25403 of 2018

3. Alamelu & Anr. St. Rep. by Ins. of Police
(2011) 2 SCC 385

4. Sonu Paswan Vs St. of U.P. & anr.(2013)
31 LCD 1107

5. St. of Haryana Vs Raja Ram (1973) AIR SC
819

6. UOI Vs Prafulla Kr. Samal & anr. (1979) 3
SCC 4

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionist,
learned
counsel
for
the
respondent No.2, learned AGA for the
State and perused the material placed on
record.

2.
Pleadings
have
already
been
exchanged between the parties.

2. Instant criminal revision has been
preferred against the order dated 19.7.2023,
passed by the Special Judge (POCSO Act),
Hamirpur, in Special Sessions Trial No.397
of 2020, arising out of Case Crime No.241
of 2020, under sections 363, 366 IPC and
Section 8 of POCSO Act, Police Station
Maudaha, District Hamirpur (State of UP
vs. Julius Masih @ Sintu Masih @ Ajay).
By the impugned order learned Special
Judge has disposed of application 25-Kha
with finding that a prima facie case is made
out against the accused Julius Masih @
Sintu Masih @ Ajay to put him on trial for
charge under sections 363, 366 IPC and
Section 8 of POCSO Act. The learned court
below has also observed that on perusal of
academic documents produced on behalf of
12 All. Julius Masih @ Sintu Masih @ Ajay Vs. State of U.P. & Anr.
461
the prosecution, the date of birth of victim
is found to be 25.11.2004. Accordingly, she
was of 15 years, 7 months of age on the
date of incident.

3. Learned counsel for the revisionist
submitted that according to the the
prosecution version the informant Prakash
Soni lodged an FIR on the basis of written
report at police station Maudaha, District
Hamipur on 12.6.2020 that his daughter
whose date of birth is 25.11.2004 had gone
to purchase some household goods on
11.6.2020, at 5:00 PM at a grocery shop
lying on the side of road, but she did not
come back; the informant tried to gather
her whereabouts and he came to know that
his daughter was seen in the company of
Julius Masih @ Sintu Masih @ Ajay as
both were moving towards Bada Chauraha.
He believed that his minor daughter was
seduced and kidnapped by accused Chintu
Masih and any untoward incident might
have occurred with her. The FIR was
lodged against named accused under
Section 363 and 366 IPC. The police
investigated
the
case
and
recorded
statement of victim twice under Section
161 Cr.P.C. and her statement was also
recorded by learned Judicial Magistrate
under Section 164 Cr.P.C. during the
course of investigation. In statement under
Section 164 Cr.P.C. she categorically stated
that her age is 19 years as per her date of
birth recorded in Birth Certificate by Nagar
Palika, Hamirpur issued on 21.9.2019,
which is 13.1.2001. In fact, her date of
birth in her High School Marksheet shown
as 25.12.2004 has been wrongly recorded
on the information supplied by her parents.
She willingly accompanied the accused.
She herself called the accused Julius Masih
@ Sintu Masih @ Ajay on 11.6.2020 when
she went out of her house on pretext of
purchasing some household goods. When
the accused visited her, they went together.
They had already solemnized marriage on
27.1.2020 and got the marriage registered
on 17.3.2020 with Registrar of Marriages.
She has also stated that they left their home
with intention that they would live together.
He
had
not
kidnapped
her.
She
accompanied him on her own volition. She
has studied up to class 11th and she is
ready to get herself medically examined.
Similar statements were give by her to the
Investigating Officer and a video CD has
been prepared of her statement under
Section 161 Cr.P.C. The revisionist got
converted to Hindu religion by remnciating
Christianity prior to solemnize marriage at
Arya Samaj in accordance with Hindu rites
and rituals.

4. Learned counsel for the revisionist
further submitted that nevertheless the
Investigating Officer submitted chargesheet
against the revisionist for charges under
Section 363, 366, 376(3) IPC and Section
4(2) of POCSO Act only due to the fact
that as per the school record, the victim was
minor. He next submitted that the trial
judge has not placed reliance on the
conclusion of Investigating Officer with
regard to charges for which the revisionist
has been sent up for trial by the
Investigating Officer and dropped the
charge under Section 376(3) IPC and a
major charge under Section 4(2) of POCSO
Act has been diluted under Section 8 of
POCSO Act in impugned order, after initial
charge framing order dated 24.9.2020 was
set aside by this Court in Criminal Revision
No.1539 of 2021, by order dated 15.9.2021
and remanded the matter to trial court for
deciding the issue of framing of charge
afresh. He further submitted that on proper
analysis of the facts and circumstances of
the case and on application of law thereon
it is crystal clear that even charges under
462 INDIAN LAW REPORTS ALLAHABAD SERIES
Sections 363, 366 IPC and Section 8 of
POCSO Act are not made out and learned
trial judge has wrongly given a finding that
these charges are made out against the
revisionist accused and there are sufficient
ground to frame charges against him under
these penal sections. He further submitted
that for that Hon'ble Apex Court in
S.Vardarajan vs. State of Madras, AIR
1965 SC 942 has considered the scope of
Section 363 IPC meticulously and has
observed as under:-

9. It must, however, be borne in
mind that there is a distinction between
"taking"
and
allowing
a
minor
to
accompany a person. The two expressions
are not synonymous though we would like
to guard ourselves from laying down that in
no conceivable circumstance can the two
be regarded as meaning the same thing for
the purposes of s. 361 of the Indian Penal
Code. We would limit ourselves to a case
like the present where the minor alleged to
have been taken by the accused person left
her father's protection knowing and having
capacity to know the full import of what she
was doing voluntarily joins the accused
person. In such a case we do not think that
the accused can be said to have taken her
away from the keeping of her lawful
guardian. Something more has to be shown
in a case of this kind and that is some kind
of inducement held out by the accused
person or an active participation by him in
the formation of the intention of the minor
to leave the house of the guardian.

10.
It
would,
however,
be
sufficient if the prosecution establishes that
though immediately prior to the minor
leaving the father's protection no active
part was played by the accused, he had at
some earlier stage solicited or persuaded
the minor to do so. In our, opinion if
evidence to establish one of those things is
lacking it would not be legitimate to infer
that the accused is guilty of taking the
minor out of the keeping of the lawful
guardian merely because after she has
actually left her guardian's house or a
house where her guardian had kept her,
joined the accused and the accused helped
her in her design not to return to her
guardian's house by taking her along with
him from place to place. No doubt, the part
played by the accused could be regarded as
facilitating the fulfillment of the intention of
the girl. That part, in our opinion, falls
short of an inducement to the minor to slip
out of the keeping of her lawful guardian
and is, therefore, not tantamount to
"taking".

13. While, therefore, it may
perhaps be argued on the basis of the two
Madras decisions that the word "taking"
occurring in ss. 497 and 498 of the Indian
Penal Code should be given a wide
interpretation so as to effectuate the object
underlying these provisions there is no
reason for giving to that word a wide
meaning in the context of the provisions of
s. 361 and cognate sections.

14. The last case relied upon by
the High Court is Ramaswami Udayar v.
Raju Udayar(2) which is also a case under
s. 498, I.P.C. In that case the High Court
has followed the two earlier decisions of
that Court to which we have made
reference but in the course of the judgment
the learned Judge has observed that it is
not open to a minor in law to abandon her
guardian, and that, therefore, when the
minor leaves the guardian of her own
accord and when she comes into the
custody of the accused person, it is not
necessary that the latter should be shown to
have committed an overt act before he
could be convicted under s. 498. The
learned Judge has further observed :
12 All. Julius Masih @ Sintu Masih @ Ajay Vs. State of U.P. & Anr.
463

"A woman's free will, or her
being a free agent, or walking out of her
house of her own accord are absolutely
irrelevant and immaterial for the offence
under s. 498."

Whatever may be the position
with respect to an offence under that
,section and even assuming that a minor
cannot in law abandon the guardianship of
her lawful guardian, for the reason which
we have already stated, the accused person
in whose company she is later found cannot
be held guilty of having taken her out of the
keeping of her guardian unless something
more is established.

18. Relying upon both these
decisions and two other decisions, the law
in England is stated thus in Halsbury's
Laws of England, 3rd edition, Vol. 10, at p.
758 :

"The defendant may be convicted,
although he took no part in the actual
removal of the girl, if he previously
solicited her to leave her father, and
afterwards received and har- boured her
when she did so. If a girl leaves her father
of her own accord, the defendant taking no
active part in the matter and not
persuading or advising her to leave, he
cannot be convicted of this offence, even
though he failed to advise her not to come,
or to return, and afterwards harboured
her."

On behalf
of
the
appellant
reliance was placed before us upon the
decisions in Rajappan v. State of Kerala(1)
and Chathu v. Govindan Kutty (2). In both
the cases the learned Judges have held that
the expression "taking out of the keeping of
the lawful guardian" must signify some act
done by the accused which may be
regarded as the proximate cause of the
person going out of the keeping of the
guardian; or, in other words an act but for
which the person would not have gone out
of the keeping of the guardian as he or she
did. In taking this view the learned Judge
followed, amongst other decisions, the two
English decisions to which we have
adverted. More or less to the same effect is
the decision in Nura v. Rex(3). We do not
agree with everything that has been said in
these decisions and would make it clear
that the mere circumstance that the, act of
the accused was not the immediate cause of
the girl leaving her father's protection
would not absolve him if he had at an
earlier stage solicited her or induced her in
any manner to take this step.

5. Learned counsel for the revisionist
emphasized the provisions of Section 8 of
POCSO Act, which reads as under:-

"Whoever,
commits
sexual
assault,
shall
be
punished
with
imprisonment of either description for a
term which shall not be less than three
years but which may extend to five years,
and shall also be liable to fine."

6. Sexual assault as such has been
defined under Section 7 of POCSO Act,
2012 reads as under:-

"Whoever, with sexual intent,
touches the vagina, penis, anus or breast of
the child or makes the child touch the
vagina, penis, anus or breast of such
person or any other person, or does any
other act with sexual intent which involves
physical contact without penetration is said
to commit sexual assault."

7. Learned counsel for the revisionist
lastly submitted that in fact no offence is
made out against the revisionist on the facts
of the case and he has been wrongly put on
trial. Learned trial court has failed to
consider the legal and factual aspects of the
464 INDIAN LAW REPORTS ALLAHABAD SERIES
case in proper perspective and has recorded
a wrong finding that a case under Section
363 and 366 IPC and Section 8 of POCSO
Act is made out against the revisionist. The
impugned order is liable to be set aside and
the revisionist deserves to be discharged
and the entire criminal proceeding, which is
being initiated against him before trial
court is liable to be set aside.

8. Learned counsel for the revisionist
also placed reliance on a judgment of this
Court in Arjun Kumar vs. State of UP
and others, Misc. Bench No.25403 of
2018, in which an FIR lodged against the
petitioner for charge under Section 363 and
366 IPC was quashed by this Court vide
judgement dated 11.2.2019 placing reliance
on statement of victim recorded under
Section 164 Cr.P.C. In this judgement, this
Court placed reliance on a judgement of
Hon'ble Apex Court in Alamelu and
Another
vs.
State
represented
by
Inspector of Police, (2011) 2 SCC 385,
wherein Hon'ble Apex court observed as
under:-

"39. We will first take up the
issue with regard to the age of the girl. The
High Court has based its conclusion on the
transfer
certificate,
Ex.P16
and
the
certificate
issued
by
PW8
Dr.
Gunasekaran,
Radiologist,
Ex.P4
and
Ex.P5.

40. Undoubtedly, the transfer
certificate, Ex.P16 indicates that the girl's
date of birth was 15th June, 1977.
Therefore, even according to the aforesaid
certificate, she would be above 16 years of
age (16 years 1 month and 16 days) on the
date of the alleged incident, i.e., 31st July,
1993. The transfer certificate has been
issued by a Government School and has
been duly signed by the Headmaster.
Therefore, it would be admissible in
evidence under Section 35 of the Indian
Evidence Act. However, the admissibility of
such a document would be of not much
evidentiary value to prove the age of the
girl in the absence of the material on the
basis of which the age was recorded. The
date of birth mentioned in the transfer
certificate would have no evidentiary value
unless the person, who made the entry or
who gave the date of birth is examined.

42. Considering the manner in
which the facts recorded in a document
may be proved, this Court in the case of
Birad Mal Singhvi Vs. Anand Purohit1,
observed as follows:-

"14.....The
date
of
birth
mentioned in the scholars' register has no
evidentiary value unless the person who
made the entry or who gave the date of
birth is examined .................. Merely
because the documents Exs. 8, 9, 10, 11,
and 12 were proved, it does not mean that
the contents of documents were also
proved. Mere proof of the documents Exs.
8, 9, 10, 11 and 12 would not tantamount to
proof of all the contents or the correctness
of date of birth stated in the documents.
Since the truth of the fact, namely, the date
of birth of Hukmi Chand and Suraj Prakash
Joshi was in issue, mere proof of the
documents as produced by the aforesaid
two witnesses does not furnish evidence of
the truth of the facts or contents of the
documents. The truth or otherwise of the
facts in issue, namely, the date of birth of
the two candidates as mentioned in the
documents could be proved by admissible
evidence i.e. by the evidence of those
persons who could vouchsafe for the truth
of the facts in issue. No evidence of any
such kind was produced by the respondent
to prove the truth of the facts, namely, the
date of birth of Hukmi Chand and of Suraj
Prakash Joshi. In the circumstances the
dates of birth as mentioned in the aforesaid
12 All. Julius Masih @ Sintu Masih @ Ajay Vs. State of U.P. & Anr.
465
documents 1988 (Supp) SCC 604 have no
probative value and the dates of birth as
mentioned therein could not be accepted."

43. The same proposition of law
is reiterated by this Court in the case of
Narbada Devi Gupta Vs. Birendra Kumar
Jaiswal2, where this Court observed as
follows:-

"The legal position is not in
dispute that mere production and marking
of a document as exhibit by the court
cannot be held to be a due proof of its
contents. Its execution has to be proved by
admissible evidence, that is, by the
"evidence of those persons who can
vouchsafe for the truth of the facts in
issue".

44. In our opinion, the aforesaid
burden of proof has not been discharged by
the prosecution. The father says nothing
about the transfer certificate in his
evidence. The Headmaster has not been
examined at all. Therefore, the entry in the
transfer certificate can not be relied upon
to definitely fix the age of the girl.

45. In fixing the age of the girl as
below 18 years, the High Court relied
solely on the certificate issued by PW8 Dr.
Gunasekaran. However, the High Court
failed to notice that in his evidence before
the Court, PW8, the X-ray Expert had
clearly stated in the cross-examination that
on the basis of the medical evidence,
generally, the age of an (2003) 8 SCC 745
individual could be fixed approximately.
He had also stated that it is likely that the
age may vary from individual to individual.
The doctor had also stated that in view of
the
possible
variations
in
age,
the
certificate mentioned the possible age
between one specific age to another
specific age. On the basis of the above, it
would not be possible to give a firm
opinion that the girl was definitely below
18 years of age.

46. In addition, the High Court
failed to consider the expert evidence given
by PW13 Dr. Manimegalaikumar, who had
medically examined the victim. In his crossexamination, he had clearly stated that a
medical examination would only point out
the age approximately with a variation of
two years. He had stated that in this case,
the age of the girl could be from 17 to 19
years. This margin of error in age has
been judicially recognized by this Court in
the case of Jaya Mala Vs. Home
Secretary, Government of Jammu &
Kashmir & Ors.3. In the aforesaid
judgment, it is observed as follows:-

"......However, it is notorious and
one can take judicial notice that the margin
of error in age ascertained by radiological
examination is two years on either side."

9. This Court in Arjun Kumar vs.
State of UP and others (supra), observed
in paragraph Nos.9, 12, 15 and 16 as
under:-

"9. We find that essentially the
first information report was registered for
committing offence under Sections 363 and
366 Indian Penal Code.

Section 363 Indian Penal Code is
required to be read in conjunction with
Section 359 Indian Penal Code and Section
361 Indian Penal Code. The said three
provisions read as under :-

"359.
Kidnapping.--Kidnapping
is of two kinds: kidnapping from India, and
kidnapping from lawful guardianship.

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
466 INDIAN LAW REPORTS ALLAHABAD SERIES
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 lawful
custody of such child, unless such act is
committed for an immoral or unlawful
purpose.

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."

12. From the statement of victim
of offence it becomes evident that she of her
own left her parental home, went out of the
keeping of her lawful guardian without
inducement or coercion. Rather, going by
the statement of the victim we find that it
was on her asking, Arjun came to Huzurpur
where the victim joined him and they went
to live as husband and wife. It is, therefore,
evident that ingredients of Section 363
Indian Penal Code read in conjunction
with Section 361 Indian Penal Code are not
satisfied. Section 361 Indian Penal Code
inheres that offence would be committed if
a minor is taken out of the keeping of the
lawful guardian of such minor either by
coercion or inducement.

15. So far as Section 366 Indian
Penal Code is concerned, the said
provision is required to be read in
conjunction with Section 362 Indian Penal
Code. The said two provisions read as
under:-

"362. Abduction.--Whoever by
force compels, or by any deceitful means
induces, any person to go from any place,
is said to abduct that person.

366. Kidnapping, abducting or
inducing woman to compel her mar-riage,
etc.--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,
or knowing it to be likely that she will be
forced or seduced to illicit intercourse,
shall be punished with imprisonment of
either description for a term which may
extend to ten years, and shall also be liable
to fine; and whoever, by means of criminal
intimidation as defined in this Code or of
abuse of authority or any other method of
compulsion, induces any woman to go from
any place with intent that she may be, or
knowing that it is likely that she will be,
forced or seduced to illicit intercourse with
another person shall be punishable as
aforesaid."

16. Statement of the victim 'A'
recorded under Section 164 Cr.P.C., to
which reference has been made in extenso
hereinabove indicates that the said offence
has not been committed. The victim of her
own volition on account of her love affair
called Arjun; she left her own house to join
the company of Arjun and went with him to
contract marriage and thereafter lived with
him as his wife."

9. Per contra, learned counsel for the
opposite party No.2 as well as learned
AGA submitted that according tot the date
of birth recorded in school records of the
victim, she was minor on the date of
incident and was merely of 15 years, 7
months old. She was enticed and taken
away
by
the
accused
from
lawful
12 All. Julius Masih @ Sintu Masih @ Ajay Vs. State of U.P. & Anr.
467
guardianship of her father. He also
instigated her to marry him after enticing
her away and this is trite law that minor's
consent is no consent. It is accused
revisionist who has been instrumental in
taking
the
victim
out
of
lawful
guardianship of her father, the informant.
Therefore, it cannot be held that the act of
taking the victim with him without consent
of the guardian and out of keeping of
lawful guardianship is innocent act. The
impugned order passed by the learned trial
court is well reasoned and perfectly legal
and no interference needs in impugned
order in present criminal revision.

10. In instant case, by the impugned
order learned trial court has given finding
that on the basis of statement of victim
under Section 161 and 164 Cr.P.C.,
recovery memo and other prosecution
papers, a prima facie case is made out
against the revisionist to the effect that he
had kidnapped the victim, who is a minor
girl by enticing away her from lawful
guardianship of her parents. Therefore, the
charges under Sections 363, 366 IPC and
Section 8 of POCSO Act are liable to be
framed against him. In FIR lodged at the
instance of father of the victim, it is stated
that the date of birth of his minor daughter
is 25.11.2004. On 11.6.2020, she left the
home to bring some grocery items from a
grocery shop situated on side of main road
and when she did not come back, he went
into search of her and then the people
apprised him that they had seen her in
company of Shintu Masih @ Ajay while
moving towards main crossing from behind
Ragaur Kirana Shop and then he believed
that said Shintu Masih @ Ajay had enticed
away his minor daughter. The victim was
recovered by the police during course of
investigation and her statement under
Section 161 Cr.P.C. was recorded on
16.6.2020, in which she stated that she left
her home on pretext of purchasing some
household goods at around 4-5 PM on
11.6.2020. Julius Masih came there and
both of them are known to each other from
long time. She had gone with him with
intention to solemnize marriage but police
intercepted both of them. Her statement
was recorded by the Judicial Magistrate
thereafter under Section 164 Cr.P.C. on
15.6.2020, wherein she has stated that her
age is 19 years, however, in High School
Marksheet, her date of birth is mentioned
as 25.11.2004. In Aadhar Card her date of
birth is mentioned as 13.1.2001. On
11.6.2020, she left her home around 4-5
PM on pretext of buying some goods and
she came to big crossing where she called
Julius
Masih.
He
came
there.
She
solemnized marriage with him out of her
own volition on 27.1.2020 and she called
him on that day to live together. They went
from home with intention to live together.
He had not kidnapped her. She had gone
one her sweet will. Her actual age is 19
years. She has studied up to class 11th. In
the High School Marksheet, her age is
recorded lesser. She want her medical
examination to ascertain her age.

11. Learned counsel for the revisionist
placed reliance on a Division Bench
Judgement of this Court in Habeas Corpus
No.247 of 2015 (Smt. Ramsati @
Shyamsati Throu. Her Husband Jitendra
vs. State of UP Throu. Prin. Secy. Home
Deptt. Lko. And others). The facts of the
case were that Smt. Ramsati @ Shyamsati
through her husband Jitendra pleaded that
she got married to Jitendra of her free will
and accord. The petitioner was tormented
because her father and brother had taken
some money to get her marriage with an
aged person. The petitioner registered said
matrimonial alliance, however, the father
468 INDIAN LAW REPORTS ALLAHABAD SERIES
did not agree. It has been stated that the
petitioner got marriage to Jitendra. She
alongwith Jitendra flies earlier also for the
same reason as marriage of the petitioner
with Jitendra was not accepted by his
father. He lodged an FIR against him under
Section 364, 506 IPC at police station
concerned. It was contended that the
petitioner had neither being kidnapped nor
abducted and therefore, the charges as
levelled against Jitendra were false. The
petitioner was housed in a Government
Woman Protection Home after recovery
during investigation of the case. This court
allowed the Habeas Corpus Petition and a
direction was issued to release her in the
company of Jitendra. This court placed
reliance on an earlier judgement given by
Justice Ajay Lamba, reported in 2013 (31)
LCD 1107, Sonu Paswan vs. State of UP
and Another, whereby this Court observed
that even if the detenue is a minor, her
marriage cannot be said to be void ab initio
under the provisions of Hindu Marriage
Act and thereby directed for release of the
detenue. The Court observed that marriage
of a minor would be voidable under Child
Marriage Prevention Act, 2006. Section 3
of the Act, 2006, at the option of
contracting party being a child i.e. below
than 18 years of age, if a female and not
below than 21 years, if the contracting
party is a male. This Court in Sonu
Paswan vs. State of UP and Another
(supra) observed in paragraph Nos. 18, 22,
23, 24, 25 and 28 as under:-

18.
Petitioner
No.1
the
victim/prosecutrix would be the best
witness,
rather
the
only
witness
of
commission of offence under Sections
363/366 I.P.C. Surely, the victim will not
support the prosecution case, as has been
made evident by her in her statement,
recorded in the course of investigation
under Section 164 Cr.P.C., and therefore
the trial would result in acquittal. During
course of trial, considerable number of
man hours would be wasted in prosecution/
defending and judging the case. No useful
purpose would be served and the entire
exercise of trial would be in futility because
the victim has declared that she was not
victimised or kidnapped.

22. If a minor, of her own,
abandons the guardianship of her parents
and joins a boy without any role having
been played by the boy in her abandoning
the guardianship of her parents and
without her having been subjected to any
kind of pressure, inducement, etc and
without any offer or promise from the
accused, no offence punishable under
Section 363 I.P.C. will be made out when
the girl is aged more than 17 years and is
mature enough to understand what she is
doing. Of course, if the accused induces or
allures the girl and that influences the
minor in leaving her guardian's custody
and the keeping and going with the
accused, then it would be difficult for the
Court to accept that minor had voluntarily
come to the accused. In case the victim/
prosecutrix willingly, of her own accord,
accompanies the boy, the law does not cast
a duty on the boy of taking her back to her
father's house or even of telling her not to
accompany him.

23. A girl who has attained the
age of discretion and was on the verge of
attaining majority and is capable of
knowing what was good and what was bad
for her, cannot be said to be a victim of
inducement, particularly when the case of
the victim/girl herself is that it was on her
initiative and on account of her voluntary
act that she had gone with the boy and got
married to him. In such circumstances,
desire of the girl/victim is required to be
seen. Ingredients of Section 361 I.P.C. are
12 All. Julius Masih @ Sintu Masih @ Ajay Vs. State of U.P. & Anr.
469
required to be considered accordingly, and
not
in
mechanical
or
technical
interpretation.

24. Ingredients of Section 361
I.P.C. cannot be said to be satisfied in a
case where the minor having attained age
of discretion, alleged to have been taken by
the accused person, left her guardian's
protection knowingly (having capacity to
know the full import of what she was doing)
and voluntarily joins the accused person. In
such a case, it cannot be said that the
victim had been taken away from the
keeping of her lawful guardian.

25. So as to show an act of
criminality on the part of the accused, some
kind of inducement held out by the accused
person or an active participation by him in
the formation of the intention of the minor
to leave the house of the guardian, is
required to be shown. Conclusion might be
different in case evidence is collected by
the investigating agency to establish that
though immediately prior to the minor
leaving the guardian's protection, no active
part was played by the accused, he had at
some earlier stage solicited or persuaded
the minor to do so. ( The Court in above
regards takes a cue from the judgment
rendered by Hon'ble Supreme Court of
India reported in (1965)1 SCR 243 S.
Varadarajan versus State of Madras).

28. In view of the facts and
circumstances of the case noted above, the
Court is convinced that the impugned
proceedings have been initiated in abuse of
process of the Court and process of the
law. A personal grudge against marriage of
choice of the daughter is being settled by
virtue of initiating impugned criminal
proceedings,
which
would
not
be
permissible in law. Such prosecution would
abrogate constitutional right vested in the
petitioners to get married as per their
discretion, particularly when there is no
evidence to indicate that the marriage is
void.

12. A birth certificate of the revisionist
issued by Nagar Palika Parishad, Maudaha,
Hamirpur with regard to the victim has
been filed as Annexure No.2 to the
affidavit, in which date of birth of victim is
recorded as 13.1.2001 and this birth
certificate has been registered on 21.9.2019
and the birth certificate was issued on
25.9.2019, prior to the date of birth pleaded
by the revisionist and in her statement
under Section 164 Cr.P.C., however, it
appears that this birth certificate is not part
of case diary. The revisionist has also filed
marriage
certificate
and
marriage
photographs of the victim and revisionist,
which are also not part of case diary. The
earlier order of framing of charge dated
24.9.2020, under Section 363, 366, 376 IPC
and Section 3/4 of POCSO Act has been set
aside by this Court's order dated 15.9.2021
in Criminal Revision No.1539 of 2021 and
matter was remanded to trial court to
decide the question of framing of charge
afresh. This Court placed reliance on
statements
of
victim
recorded
under
Sections 161 and 164 Cr.P.C. wherein she
stated her age as 19 years and has levelled
no allegations against the revisionists. The
learned trial court heard the discharge
application 25-kha in the light of order
dated 24.9.2020 passed in said criminal
revision
and
disposed
of
discharge
application 25-Kha with finding that a
prima facie case is made out against the
applicant under Sections 363, 366 IPC and
Section 8 of POCSO Act and the trial court
fixed a date for framing of charge.

13. In instant case, there is no material
in support of the charge of commission of
Sexual assault by the revisionist against the
victim as the victim has stated in her
470 INDIAN LAW REPORTS ALLAHABAD SERIES
statement recorded under Section 164
Cr.P.C.
that
she
herself
solemnized
marriage with him out of her free will and
she had called him on date of incident in
the present case to accompany her, so that
they could live together. Therefore, in the
absence of any supporting material charge
under Section 8 of POCSO Act is not made
out altogether.

14.
Section
366
IPC
may
be
reproduced as under:-

S. 366 Kidnapping, abducting or
inducing woman to compel her to
marriage, etc.- "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, or knowing it to be likely that
she will be forced or seduced to illicit
intercourse,
shall
be
punished
with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to fine;

And whoever, by means of
criminal intimidation as defined in this
Code or of abuse of authority or any other
method of compulsion, induces any woman
to go from any place with intent that she
may be, or knowing that it is likely that she
will be, forced or seduced to illicit
intercourse with another person shall also
be punishable as aforesaid."

15. In present case, the victim has
levelled
no
allegations
against
the
revisionist that he kidnapped or abducted
her with intent that she may be compelled
or knowing it to be likely that she will be
compelled to marry him against her will, or
in order that they may be forced or suggest
to illicit intercourse or knowing it to be
likely that she will be forced to seduce to
illicit intercourse. Therefore, for want of
evidence or material in support of this
charge, no prima facie case is made out for
charge under Section 366 IPC against the
revisionist.

16. Offence of kidnapping is defined
under Section 359, 360 and 361 IPC.
Section 361 IPC is relevant here, which
defines
kidnapping
from
lawful
guardianship.
The
following
are
the
essentials of this offence:- "1. Offence is
committed by "taking or inducing of a
minor person or a person of unsound mind
2. Person kidnapped must (a) under age of
16 years male (b) under age of 18 years, if
female (c) or, a person of unsound mind; 3.
Taking or inducing must also be without
the consent of the guardian; 5. The consent
of minor is immaterial. Hon'ble Supreme
Court in State of Haryana v. Raja Ram
A.I.R. 1973 S.C. 819, held that the consent
of the minor is immaterial for charge under
Section 363 IPC.

17. The motive or intention of the
kidnapper is immaterial. If the kidnapped
girl turns out to be under 18 years of age,
the kidnapper must take the consequences.
Even though, he bonafidely believed and
had reasonable grounds for believing that
she was over 18. The word "taking or
inducing" used in Section 361 IPC are
relevant
and
both
have
different
connotations. These two words are also
used in section 498 IPC. In State of
Haryana v. Raja Ram (surpa), Hon'ble
Supreme Court held that the object of
Section 361 IPC is not only to protect the
minor person or person of unsound mind
from being seduced for immoral or illegal
purpose but also to protect the guardians'
right to have custody or charge over their
wards. For the purpose of taking or
12 All. Niraj Tyagi & Anr. Vs. State of U.P. & Ors.
471
inducing the minor, it is not necessary to
carry out actual physical removal of a person
of a minor age, it is sufficient if the offender
pursuits a minor or a person of unsound
mind, so as to create willingness to leave
his/her house where he/she was in the
custody of the guardian. If the prosecution
did not adduce any evidence establishing
their allegations that the accused performed
some active role, which can be said to be the
element of persuasion upon the minor or
unsound person to leave her house, then the
Court cannot take the presumption that the
accused committed the offence of kidnapping
only on the basis that such a minor or
unsound person met the accused immediately
after his/her coming out of the keeping of
his/her guardian or just because the accused
helped that person in that process of leaving
her house.

18. The law is very settled that for the
discharge of an accused, it is esential that
upon consideration of the record of the case
and the documents submitted therewith and
after hearing the submissions of the accused
and prosecution in this behalf, the judge
considers that there is no sufficient grounds
for proceeding against the accused. The law
is well settled in Union of India vs.
Prafulla Kumar Samal and Another
(1979) 3 SCC 4 that if the court comes to
the conclusion of strong prima facie case or
strong suspicion, the charges will be framed.
At the stage of framing of charge the court
has the power to sift and weigh the evidence
for the limited purpose of finding out
whether or not a prima facie case is made
out against the accused. However, the court
is not supposed to delve deeply into the
materials of the matter. Thus, at the time of
framing of charge, the court is not supposed
to look into the evidence of the case in detail
and is only to consider whether there is
strong suspicion against the accused.

19.