Delhi High Court: In a petition filed under Section 482 of the Criminal Procedure Code, 1973 seeking to quash the FIR registered for the offence punishable under Section 363 of the Penal Code, 1860 (‘IPC’), Swarana Kanta Sharma, J.*, opined that the acceptance of such settlements could contribute to the perpetuation of a culture where the rights and dignity of a children were subjugated to negotiation and compromise. The Court opined that such practice of compromising cases which involved kidnapping of innocent minor child could not be allowed and based on such settlements, criminal proceedings could not be quashed and it was crucial to set a precedent that unequivocally condemned the acts of kidnapping and trafficking of children. Thus, the Court opined that it found no reasons to quash the present FIR and dismissed the present petition.
Background
On 13-12-2017, the complainant filed a missing report of his daughter, whereby he informed the police that he had three children, one son and two daughters and on 13-12-2017, when he went for work, his wife stayed at home, his eldest daughter went to school and his second daughter and son went to his elder brother. Thereafter, the complainant stated that when his second daughter and son were coming back home, they went missing and some unknown person might had kidnapped his second daughter and son.
Thus, the present FIR was registered under Section 363 of the IPC. Further, the police tried to find the missing children, but they were not found. However, the complainant informed the police that on 17-12-2017, he had found his missing son, but the daughter could not be traced by the police. Subsequently, after three years, while carrying out the investigation of another registered FIR, the police arrested three accused persons, i.e. present petitioners in connection with the present case and also recovered the complainant’s daughter from them.
Thereafter, the petitioners filed the present petition under Section 482 of the CrPC to quash the registered FIR. The petitioner stated that the matter was settled between the parties and no purpose would be served by continuing the present proceedings. Further, it was stated that for the child’s welfare, the petitioners should not undergo trial as they had been taking care of the child. It was also stated that Petitioners 2 and 3 were not aware that the child was kidnapped and since, because of some medical problems, they could not become the biological parents, lenient view might be taken and the registered FIR should be quashed.
However, the respondent contended that the allegations in the present FIR were serious in nature and the kidnapped child had been recovered after a long period of about three years. Further, Petitioners 2 and 3 were aware about the kidnapping of the child as they bought the child for Rs. 20,000 from Petitioner 1.
Analysis, Law, and Decision
The Court opined that the current development in the present case was concerning as the parents of the minor girl, who was kidnapped when she was three years old, entered into a settlement with the accused persons. They had no objection if Petitioners 2 and 3, who currently had the unlawful custody of the kidnapped child, continued to have her custody and adopt her. Thus, the case at had presented unique circumstances. The Court opined that such circumstances forced the Court to reinforce through this judgment that the society, by its very nature, relied on certain fundamental principles to function cohesively. One of these principles was the recognition and protection of the rights of its most vulnerable members, i.e. the children.
The Court further opined that “at its core, this case brings to light the critical question of the commodification of children, a practice that goes against the moral values and ethical standards of the society. The idea that a girl child can be subjected to a transaction, where her custody is negotiated as if it was a piece of property, challenges the very principles of rule of law. The Court’s role in such a situation is pivotal, as it must grapple with the desire of the parties and the broader societal implications of accepting such settlements.”
The Court opined that the present case was one of the few cases, where the Courts and Judges were faced with a dilemma. On one hand, the child was being looked after by kidnappers and the parents did not want the child back, whereas, on the other hand, the child was kidnapped and bought by the kidnappers, as one of the accused was unable to give birth to a child, due to some medical infirmity. However, the Court opined that the law could not side with those who were on the opposite side of the law. The Judges, though faced with such dilemmas, had to still stand firm on one side of the law and while making every effort to balance the victims rights, it could not lose sight of the larger implication of such settlements on the society as a whole.
The Court opined that one had to appreciate and imagine the trauma, stress, agony of the three-year-old child, that she went through after being kidnapped from lawful guardianship of her parents. The Court must also consider the long-term psychological impact and impact on overall development on the girl child. The Court opined that placing a child in a situation where her lawful custody was being determined through settlement, where the child after being kidnapped had remained out of lawful custody of her parents for three years, also raised serious concerns about the child’s future and well-being.
The Court opined that “in the face of a crime against a minor girl child, the Court’s duty is to ensure that justice is not only served, but the sanctity of child’s rights is preserved, reinforcing the unequivocal message that children are not tradable entities, and their safety and well-being is non-negotiable.” The Court opined that the offence of kidnapping and trafficking of the children were serious offences, which impacts the society at large.
The Court noted that the parent’s decision to reach a settlement and opined that it could not condone a practice that treated a minor girl as tradeable commodity. Such a settlement raised ethical and legal concerns as it involved a practice where a child was effectively being treated as a commodity, which jeopardized the child’s well-being and contravened the basic principles of law. Moreover, the acceptance of such settlements could contribute to the perpetuation of a culture where the rights and dignity of a children were subjugated to negotiation and compromise. The Court opined that quashing criminal proceedings in such cases would send a message to the society that the severity of crimes against children, including kidnapping and trafficking could be mitigated or overlooked through private agreements, thereby eroding the very foundation of rule of law.
The Court opined that such practice of compromising cases which involved kidnapping of innocent minor child could not be allowed and criminal proceedings could not be quashed based on such settlements and it was crucial to set a precedent that unequivocally condemned the acts of kidnapping and trafficking of children. Thus, the Court opined that it found no reasons to quash the present FIR and dismissed the present petition.
[Rubina v. State (NCT of Delhi), 2023 SCC OnLine Del 7703, decided on 01-12-2023]
*Judgment authored by- Justice Swarana Kanta Sharma
Advocates who appeared in this case :
For the Petitioners: R.P.S. Bhati, Advocate;
For the Respondents: Naresh Kumar Chahar, APP for the State; Ashok Kumar Mahoor, Advocates
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