Written submission on behalf of Petitioner.

Before

THE HON’BLE HIGH COURT OF JHARKHAND

W.P. No. ______ of 2023.

(Under S.482 of Criminal Procedure Code, 1973)

IN THE MATTER BETWEEN

Parminder Kaur and Faisal Khan ……………………………………………(Petitioners)

V.

State of Jharkhand……………………………………………………………(Respondent)

-On The Submission Before The Registry Of The Court-

Memorandum on behalf of the Petitioners

Barani Viknesh.S

40718341021

V B.B.A.LL.B.

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 Written submission on behalf of Petitioner.

Table of Contents

1.INDEX OF AUTHORITIES..................................................................................................... 3

2.STATEMENT OF JURISDICTION......................................................................................... 4

3.STATEMENT OF FACTS..........................................................................................................5

4.STATEMENT OF ISSUES .....................................................................................................6

5.ARGUMENTS ADVANCED...................................................................................................7

6.PRAYER…………………………………………………………………………………….14

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 Written submission on behalf of Petitioner.

INDEX OF AUTHORITIES

[STATUTES]
1.Indian Penal Code,1860.
2.Criminal Procedure Code,1973.

[BOOKS]
1.The Indian Penal Code by Ratanlal and Dhirajlal

[WEBSITE REFFERED]
1.www.scconline.com

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 Written submission on behalf of Petitioner.

STATEMENT OF JURISDICTION

The Petitioners have approached the Hon’ble Court under S.482 of the Criminal Procedure
Code,1973, which reads as hereunder,

S.482.Saving of inherent powers of High Court.

“ Nothing in this Code shall be deemed to limit or affect the inherent powers of the High
Court to make such orders as may be necessary to give effect to any order under this Code or
to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

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 Written submission on behalf of Petitioner.

STATEMENT OF FACTS

1.Jasleen Kaur, aged 15, was living under the guardianship of her father, Happy Singh. She
had lost her mother at a very young age and had abusive relationship with her step mother.
She was close to her maternal aunt, Parminder Kaur alias Pammi. Happy Singh did not
approve of Jasleen’s association with any of his relations from previous marriage.
2.On 01/04/2023, owing to differences with her stepmother, Jasmeen Kaur voluntarily left the
house of her father and went to the house of Pammi. She also informed Pammi that she had
left the house of her father for good and has come to live with her.
Parminder Kaur didn’t approve of Jasleen’s act, yet, neither did she tell Jasleen to return nor
inform Happy Singh about his daughter’s whereabouts.
3.On 02/04/2023, Jasleen Kaur on the pretext of visiting a friend went out from her aunt’s
house to the local phone booth and called up her beau, Faisal Khan, aged 21 years, and
narrated to him about the whole incident.
4.Both decided to meet at a scheduled place and when Jasleen reached the designated place
she found Faisal Khan, waiting for her in a car. Faisal then drove her to a nearby inn, Hotel
Yellow Sunflower, Ranchi, where they spent the night together.
5.On the same day, Happy Singh, having failed in his efforts to trace his daughter registered a
FIR with the Ranchi Police Station about his missing daughter. Based on the FIR, the case
was investigated into and the police finally recovered Jasleen Kaur from Hotel Yellow
Sunflower, that very night.
6.Medical Examination of Jasleen revealed no external injury on her person. Her hymen was
intact and there was nothing to suggest that she was subject to rape. She was also wearing the
same clothes that she had worn while leaving the house of her aunt.
7.A Case was instituted against Parminder Kaur and Faisal Khan and the Trial Court by order
dated 01/07/2023 ordered framing of charges against the accused, Parminder Kaur, for the
alleged offence under Section 363 of the Indian Penal Code and against the accused, Faisal
Khan, for the alleged offence under Section 363 of the Indian Penal Code or in the alternative
under Section 366 of the Indian Penal Code.
8.Aggrieved both the accused, Parminder Kaur and Faisal Khan, have approached the
Hon’ble High Court of Jharkhand, Ranchi, invoking Section 482 of the Code of Criminal
Procedure on the ground that no ingredient constituting the alleged offences have been made
out. The cases have been consolidated and have been ordered to be heard together.

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 Written submission on behalf of Petitioner.

STATEMENT OF ISSUES

1.Whether the accused, Parminder Kaur alias Pammi, and Faisal Khan are guilty for offence
under S.363 of IPC,1860?

2.Whether the accused, Faisal Khan, is guilty for offence and in the alternative under S.366 of
IPC, 1860?

3.Whether the FIR’s filed and the chargesheet submitted against the petitioners are liable to
be quashed under S. 482 of the Criminal Procedure Code, 1973?

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 Written submission on behalf of Petitioner.

ARGUMENTS ADVANCED

ISSUE 1.Whether the accused, Parminder Kaur alias Pammi, and Faisal Khan are guilty
for offence under S.363 of IPC,1860?

It is humbly submitted before the court that the accused, Parminder Kaur alias Pammi, and
Faisal Khan are not guilty of an offence of kidnapping from lawful guardianship.
Section 361 of Indian Penal Code,1860, provides,
[s 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 said to kidnap such minor or person from
lawful guardianship.
This section has four essentials 1. .—
(1) Taking or enticing away a minor or a person of unsound mind.
(2) Such minor must be under 16 years of age, if a male, or under 18 years of age, if a female.
(3) The taking or enticing must be out of the keeping of the lawful guardian of such minor or
person of unsound mind.
(4) Such taking or enticing must be without the consent of such guardian
The Supreme Court considered the interpretation of expression 'takes or entices' in S
Varadarajan v State of Madras,2. and State of Haryana v Rajaram. 3.
In Varadarajan, the Supreme Court had occasion to consider this.
“whereas section 361 IPC, 1860 and other cognate sections of the IPC, 1860 are intended
more for the protection of minors and persons of unsound mind than the rights of the
guardians of such persons.”
But in Rajaram, the Supreme Court held that:
“The object of this section seems as much 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 ages 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

1
Restated in Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).
2
S.Varadarajan V. State of Madras, AIR 1965 SC 942 [LNIND 1964 SC 223] : 1965 (2) Cr LJ 33.

3
State of Haryana v Rajaram, AIR 1973 SC 819 [LNIND 1972 SC 508] : 1973 (1) SCC 544 [LNIND 1972 SC
508] : 1973 Cr LJ 651 .

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 Written submission on behalf of Petitioner.

of the keeping of the lawful guardian of such minor' in S. 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 appears 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 necessity arises. On 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 force or fraud. Persuasion by the accused person
which creates willingness on the part of the minor to be taken out of the keeping of the lawful
guardian would be sufficient to attract the section.”
A person who allows such a minor who is already out of the keeping of the guardian to
accompany him commits no offence under section 361 IPC, 1860. That alone is the dictum in
Varadarajan. So, the accused Parminder Kaur is not guilty of offence under S.363 of
IPC,1860.
A two-Judge Bench in T D Vadgama v State of Gujarat, 4 ascertained the precise distinction in
the dictum between the three-Judge Benches in Varadarajan and Rajaram. The dictum in
Varadarajan turned on its own peculiar facts. It was held:
“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 fulfilment 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'.”
The intention with which kidnapping is effected can be ascertained from the circumstances
of the offence at the time of occurrence or prior or subsequent to it. A kidnapping does not
per se lead to any inference of intent or purpose of kidnapping5.
Persuasion by the accused which created willingness on the part of the minor to be taken out
of the keeping of the lawful guardian was held by the Supreme Court to be enough to attract
section 361. The Supreme Court also restated the ingredients 6.But in the present case it is
clear that Jasleen Kaur herself telephoned Faisal Khan and there was no persuasion from the
petitioner.

4
T D Vadgama v State of Gujarat, AIR 1973 SC 2313 [LNIND 1973 SC 187] : 1973 (2) SCC 413 [LNIND 1973
SC 187] .

5
Badshah v State of UP, (2008) 3 SCC 681 [LNIND 2008 SC 310] : 2008 Cr LJ 1950 : (2008) 3 All LJ 524.
6
Prakash v State of Haryana, (2004) 1 SCC 339 [LNIND 2003 SC 1045] : AIR 2004 SC 227 [LNIND 2003 SC
1045] : 2004 Cr LJ 595 .

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 Written submission on behalf of Petitioner.

According to S.363 of IPC,1860,

[s 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.

In Omi v State of UP7, the court held acquittal of accused from charges of kidnapping and
rape since the story of the victim not reliable and medical evidence also did not rape.
The counsel for petitioners would like to submit that the Medical Examination of Jasleen
revealed no external injury on her person. Her hymen was intact and there was nothing to
suggest that she was subject to rape. She was also wearing the same clothes that she had worn
while leaving the house of her aunt.
In Suresh Babu v State of Kerala8, 2001 Cr LJ 1483 (Ker), where a girl of about 16 years old
was in love with the accused and the evidence showed that she left her home on her own
accord and joined the accused for getting their marriage registered and lived as husband and
wife thereafter. Conviction of the accused was set aside because it could not be said that he
kidnapped her.
The counsel for petitioners would like to submit that Jasleen Kaur had left the house of her
father out of her own will and then left the house of her aunt by her own will. There was no
forceful compulsion or inducement by deceitful means by Parminder Kaur or Faisal Khan to
kidnap Jasleen Kaur.
The counsel for petitioners would like to humbly submit that Jasleen Kaur had left the house
of Happy Singh out of her own will and that the act of taking or enticing away of her by
Parminder Kaur and Faisal Khan were not unlawful. The alleged victim willingly
accompanied the accused and that there was no intent to commit a criminal act by both the
petitioners.

7
1994 Cr LJ 155
8
2001 Cr LJ 1483 (Ker)

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 Written submission on behalf of Petitioner.

2.Whether the accused, Faisal Khan, is liable for offence under S.363 of IPC,1860, and
in the alternative under S.366 of IPC, 1860?
Section 366 of the Indian Penal Code, 1860, provides that,
[s 366] Kidnapping, abducting or inducing woman to compel her 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.
The section requires.— 1. Kidnapping or abducting of any woman. 2. Such kidnapping or
abducting must be— (i) 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 (ii) 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; or (iii) by means of criminal intimidation or otherwise by
inducing any woman to go from any place with intent that she may be, or knowing that she
will be, forced or seduced to illicit intercourse.
In order to establish an offence under section 366 IPC, 1860 it must first be established that
the offence of kidnapping under section 361 IPC, 1860 has been proved. It must then be
shown that such kidnapping was with the contumacious intent referred to under section 366
IPC, 18609. If the girl kidnapped is below 18 years, consent is immaterial for the offence to
be made out10.
If the girl was 18 years old or over, she could only be abducted and not kidnapped, but if she
was under eighteen she could be kidnapped as well as abducted, if the taking was by force or
the taking or enticing was by deceitful means11.
In Fiyaz Ahmad v State of Bihar12, There was nothing to show that the confinement was
either to compel her to marry or to submit to sexual intercourse against her wish.
In Sachindra Nath13, A girl of 18 years old left home, in the absence of her father, of her own
choice with cash and gold and joined the accused who took her to various places and
subjected her to sex, no offence made out against the accused.
In Keshav v State14, the victim aged about 18 years, evidence showed that she had voluntarily
gone with the accused and of her own free will, acquittal because the offence not made out.
In Mehmood v State15, the girl had voluntarily gone with the accused. Hence the was
acquittal.

9
Shajahan v State, 2011 Cr LJ 573 . 1117. Brij Lal Sud v State of Punjab, (1970) 3 SC 808
10
Brij Lal Sud v State of Punjab, (1970) 3 SC 808
11
Prafullakumar Basu, (1929) 57 Cal 1074 , 1079.
12
1990 Cr LJ 2241 : AIR 1990 SC 2147
13
1978 Cr LJ 1494 (Cal).
14
2001 Cr LJ 1201 (Del)
15
1998 Cr LJ 2408 (Del)

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 Written submission on behalf of Petitioner.

The counsel for petitioner, Faisal Khan would like to submit that there is no fulfilment of
essential ingredients of S.366 of IPC, 1860 as Jasleen Kaur was not compelled by force to go
from her aunt’s place and there was no inducement by deceitful means.

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 Written submission on behalf of Petitioner.

Issue 3.Whether the FIR’s filed and the chargesheet submitted against the petitioners
are liable to be quashed under S. 482 of the Criminal Procedure Code, 1973?

It is humbly submitted that the FIRs filed and the charge sheet submitted against the
petitioners are liable to be quashed u/s 482 of Cr.P.C., 1973 because the first parameter to
quash an F.I.R./Charge sheet given in the landmark case of Bhajan Lal is attracted.

The said parameter allows the quashment of the FIRs and the charge sheet if the
allegations mentioned in it do not constitute the prima facie ingredients of the offences. As
proved in the previous issues, the charges u/ss. 363 and 366 of IPC, 1860 are not attracted
against the Petitioners in the present matter, thereby leading to the quashment of the
impugned FIRs and the charge sheet.

The Counsel for the Petitioners would like to humbly submit that the Hon'ble HC is
vested with the inherent powers to do complete justice u/s 482 of the Cr.P.C, 197316.

The HC can use this extraordinary power to protect anyone from a criminal complaint
filed merely for the purpose of harassment or wreaking personal vengeance17 .

Therefore, any person aggrieved by an FIR filed with an intent to oppress or exasperate
him can resort to the remedy u/s 482 to quash it and any subsequent proceeding that has
arisen thereof18 .

The Counsel for the Petitioners would also like to humbly submit that the Hon'ble HC is
vested with inherent powers u/s 482 of the Cr.P.C., 1973 that can be exercised by the Court
“to prevent any abuse of the process of law”, “to secure the ends of justice” or “to give effect
to any order under this Code”19.

In the present matter, the FIRs and the charge sheet filed against the accused are false and
motivated by ulterior motives, such as personal vendetta or revenge.

Being aggrieved with the filing of impugned FIRs and the charge sheet submitted
thereof, the Petitioners have an undisputed right to approach the Hon'ble HC and seek for
their quashment u/s 482 of the Cr.P.C., 1973.

16
Anil Kumar v. State of U.P, (2009) 9 ADJ 1, ¶ 7, 12

17
Annie Besant v. Advocate-General of Madras, AIR 1919 PC 31, ¶ 53
18
Avadh Narayan v. State, 1986 Cri LJ 1233 (SC) ¶ 6
19
N Soundaram v. PK Pounraj, (2014) 10 SCC 616, ¶ 13, 14

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 Written submission on behalf of Petitioner.

It is to be noted by this Hon'ble HC that its inherent jurisdiction u/s 482 of Cr.P.C., 1973
can be exercised “to prevent any abuse of the process of law”, “to secure the ends of justice”
or “to give effect to an order under the Code”20.

For the purpose of quashment of FIRs u/s 482, the Apex Court of India in the case
of State of Haryana v. Ch. Bhajan Lal21 has laid down seven distinct parameters, which
includes that “where the allegations made in the first information report or the complaint,
even if they are taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused”, then the FIR and any
subsequent proceeding taken thereof is liable to be quashed.

In the present matter, a prima facie case is not made out against the Petitioner on the bare
perusal of the FIR. filed and the Chargesheet submitted. Therefore, the essential parameters
for the quashment of the FIR. and charge sheet u/s 482 of the Cr.P.C, 1973 are met.

The Counsel would like to draw the attention of this Hon'ble Court towards the fact that
the presence of an alternative remedy is not an absolute bar to the jurisdiction of the Hon'ble
HC u/s 482 of the Cr.P.C, 197322 .

In the present case, there is no alternative remedy present with the Petitioners to quash the
frivolous FIRs filed and charge sheet submitted thereof, except u/s 482 of the Cr.P.C, 1973.

Hence, in the light of aforementioned contentions, the present Crl. Misc. Petition filed u/s
482 of the Cr.P.C, 1976 is maintainable.

PRAYER

20
Aveek Sarkar v. State of WB, (2014) 4 SCC 257, ¶ 21, 24
21
Azizul Haque K Naquvi v. State, AIR 1980 All 149, ¶ 57
22
Babab Khalil Ahamad v. State, AIR 1960 All 715, ¶ 10, 10a

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 Written submission on behalf of Petitioner.

Wherefore in light of the issues raised, arguments advanced and authorities cited, it is
humbly and respectfully submitted that this Honourable Court may be pleased to:

1.ACQUIT THE ACCUSED, PARMINDER KAUR, FOR KIDNAPPING UNDER

SECTION 363 OF IPC.

2.ACQUIT THE ACCUSED, FAISAL KHAN, FOR KIDNAPPING UNDER SECTION

363 OF IPC AND IN THE ALTERNATIVE UNDER SECTION 366 OF IPC.

3.QUASH FIR’S AND CHARGESHEET SUBMITTED AGAINST THE PETITIONER’S

UNDER S.482 OF CRIMINAL PROCEDURE CODE OF 1973.

And pass any other order that this Honourable Court may deem fit in the interests of
justice, equity and good conscience.

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