#medicalinfirmity

[seemabhatnagar]

Impossible for law and ethics to accept compromise with Child's kidnappers

Smt. Rubina & Others v. The Govt. of NCT & Others

Crl. M C no. 8609/2023

Before Delhi High Court

The Bench of Hon’ble Madam Justice Swarna Kanta Sharma J pronounced the judgement on 01.12.2023 holding that ‘A practice of compromising cases which involves kidnapping of innocent minor children cannot be allowed and the criminal proceedings cannot be quashed based on settlements reached between the Kidnapper and the biological parents.

It is crucial to set a precedent that unequivocally condemns the act of kidnapping and trafficking of children, ensuring that rule of law prevails in the society.’

  Facts:

1.      Inherent power of the High Court is invoked u/s 482 Cr PC for quashing the FIR for offence of kidnapping & proceedings emanating therefrom.

2.      Complainant father lodged missing report of his daughter and son on 13.12.2017 when he had gone for work at Mukundpur leaving behind wife, one son & two daughters.

3.      Eldest daughter had gone to school where as his son and other daughter had gone to the house of his elder brother which was behind his house.

4.      Thereafter his son and daughter had gone missing. He filed a complaint that some unknown person might have kidnapped his son and daughter.

5.      FIR u/s 363 was registered.

6.      Police tried to find out the missing children but could not trace out them.

7.      However, on 17.12.2017 complainant informed police that he has found his missing son.

8.      Daughter still was not found.

9.      Three years later while carrying out investigation U/S 363/365/368/370/120B/34 of IPC at Police Station Bhalswa Dairy, Delhi, the police had arrested three accused persons in connection with the present case i.e. Rubina (petitioner no. 1), Nisha (petitioner no. 2) and Kapil Kumar (petitioner no. 3) on 12.08.2020, and had also recovered the minor daughter of the complainant from them.

 Submission of the Counsel of the Petitioner

1.      The matter has been settled between the complainant & the present petitioners/accused persons.

2.      The accused persons should not undergo trial as the child now loves the accused persons and that the accused persons have been taking care of the child. I

3.      It is also stated that the accused Nisha and Kapil were not aware that children had been kidnapped, and since they could not have become biological parents of a child, a lenient view may be taken and the FIR for kidnapping and the chargesheet filed under Sections 363/365/368/120B/34 of IPC be quashed.

4.      It was also argued that the Courts in such cases should take humanitarian approach and quash the criminal proceedings and the accused persons are willing to adopt legally the girl child.

 Submission of the Counsel of the State

1.      Kidnapping of a child and recovery after a period of about three years is a serious offence.

2.      The accused Nisha and Kapil were aware about kidnapping of the child as they had bought the child for Rs. 20,000/- from the accused Rubina.

3.      Therefore, it is prayed that present petition should be dismissed and such settlements must not be allowed in the larger interest of the society

 Observation of the Court

 1.      While the criminal act itself is distressing, a new layer of complexity has arisen as the parents of the kidnapped child have entered into a settlement with the accused persons.

2.      This Court is unable to accept this argument of the petitioner’s counsel of taking lenient view as it is not only against the fundamental principles of criminal jurisprudence but also against the legitimate expectations of the society to punish those who commit heinous offences.

3.      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.

4.      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.

5.      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.

Court’s Dilemma

1.      There are few cases wherein the Courts and the Judges are faced with a dilemma. The present case is one such case.

2.      It is unfortunate that the parents of the child want the child also to remain with the kidnappers since they state that the accused persons will adopt the child as On one hand, it is stated that the child is being looked after by the kidnappers, and the parents themselves do not want the girl child back.

3.      On the other hand, there is a situation that the child was kidnapped and was bought by the kidnappers, as one of the accused is unable to give birth to a child, due to some medical infirmity

Conflict faced by Court

1.      The dilemma is between the rigors of law, and the emotional attachment put forth by the complainant themselves, who presume that as a matter of right, the FIR can be quashed in a criminal case on the basis of their compromise.

2.      They presume and take it for granted that the manner in which their complaint was registered and investigated by the police, as it was a matter of their right to quash FIR & proceeding arising therefrom as they had settled with the accused persons.

Courts conscience

1.      The Court, however, has to stand by those, who cannot stand by themselves, as the child in the present case. One has to appreciate and imagine the trauma, stress, the agony of the child, who was only three years of age, that she would have gone through after being kidnapped by the kidnappers from the lawful guardianship of her parents.

2.      The statement recorded under Section 164 Cr.P.C. of the victim child narrates that how she was forcefully kidnapped by accused Rubina.

3.      Placing a child in a situation where her lawful custody is being determined through a settlement, it will have a long-term impact on the girl child, both psychological and in terms of her overall development.

4.      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.

5.      The fact remains that they had got the child kidnapped, made payment of money to separate the child from the biological parents and her siblings, which is a crime under the law.

6.      In case lenient view is taken in such cases and FIRs are quashed on the basis of such agreements, it would amount to defeating the principles of criminal law, and in the process weakening the rule of law.

7.      The offence of kidnapping and trafficking of children are serious offences, having an impact on the society at large as well as on the child's well-being and development.

8.      Such a settlement raises ethical and legal concerns as it involves a practice where a child is effectively being treated as a commodity, jeopardizing the child's well-being and contravening basic principles of law.

9.      The acceptance of such settlements could contribute to the perpetuation of a culture where the rights and dignity of children are subjugated to negotiation and compromise.

10.   This would set a precedent that contradicts the principles of justice and protection inherent in our legal system.

11.   Quashing criminal proceedings in such cases would send a message to society that the severity of crimes against children, even those involving kidnapping and trafficking, can be mitigated or overlooked through private agreements, thereby eroding the very foundation of the rule of law.

 Order

The petition is dismissed as there is no reason to quash the FIR or proceedings arising therefrom.

 Seema Bhatnagar