- (1.) Usha and five others, the petitioners have filed this petition under the provisions of section 482 Cr. P.C. for quashing of FIR No. 196 dated 28.10.2011 registered at Police Station Dakha, Ludhiana, for an offence punishable under sections 369 read with section 120-B of Indian Penal Code along with all the subsequent proceedings arising therefrom.
(2.) Learned counsel for the petitioners has submitted that the contents of the FIR, taken as it is, do not disclose the commission of the offence under section 369 IPC. According to him, nothing is there in the FIR to show that kidnapping of the child was with a view to steal anything from the person of the child. According to him, there are two ingredients of the offence punishable under section 369 IPC and they are that the child kidnapped should be under the age of 10 years and the kidnapping should be with the intention of taking dishonestly movable property from the person of such child. According to him, there is nothing in the case to prove that there was any property on the person of the child and that his kidnapping was with the intention of dishonestly taking that moveable property. He has submitted that challan in this case has already been filed and nothing is there to prove the ingredients of section 369 IPC. He has further submitted that the FIR should, therefore, be quashed. He has placed reliance on a decision of Hon'ble Supreme Court of India in Rajiv Modi Vs. Sanjay Jain, 2010 5 RCR(Cri) 410. It has been laid down in this case that the court has to prima facie consider from the averments in the charge sheet and statements of the witnesses on the record and to find out if cognizance of the offence could be taken. It has been further laid down that if cognizance cannot be taken of any offence from the charge sheet, the case is to be quashed.
(3.) Learned State counsel assisted by learned counsel for respondents No. 2 and 3 on the other hand, have submitted that from the facts of this case, where the petitioners were found with a new born child, none of them being a parent of the child, it is prima facie proved that they have no concern with the child. According to him, they have kidnapped the child and it cannot be said that cognizance of any offence cannot be taken from the facts of this case.;