A father cannot be prosecuted for kidnapping his children while retaining lawful guardianship.

The petitioner sought to quash two criminal proceedings arising from a matrimonial dispute.

Crime No. 147/2018 alleged kidnapping under Sections 363 and 34 IPC after the father took the children; the petitioner argued that, as their father and natural guardian, he could not be prosecuted for kidnapping, particularly while custody proceedings were pending.

Crime No. 9/2018 arose from allegations of assault, insult and criminal intimidation, invoking Sections 323, 504 and 506 IPC.

The petitioner contended that these were non-cognizable offences and that the investigation had not followed the procedure under Section 155 CrPC.

The State submitted that the FIRs had been registered on the complaints and that the investigation was pending.

1. Whether the father could be prosecuted under Sections 363 and 34 IPC for taking his children in the circumstances of the pending matrimonial and custody dispute.

2. Whether the FIR concerning the alleged offences under Sections 323, 504 and 506 IPC could stand where the offences were non-cognizable and the procedure under Section 155 CrPC had not been properly followed.

Sections 361 and 363 IPC govern kidnapping from lawful guardianship and its punishment.

The Court relied on Capt. Vipin Menon v. State of Karnataka and Chandrakala Menon (Mrs.) v. Vipin Menon (Capt.), which address whether a father, as a natural guardian, can be held liable for kidnapping his child in the circumstances considered in those cases.

For non-cognizable offences, Section 155 CrPC prescribes the applicable procedure, including the requirement under Section 155(2) for a Magistrate’s order before police investigation.

The Court referred to Lalita Kumari v. Government of Uttar Pradesh on police duties concerning cognizable and non-cognizable offences, and to Prakash Raj v. State of Karnataka and Vijesh Pillai v. State of Karnataka in relation to the procedural issue.

As to the kidnapping FIR, the Court considered the petitioner’s status as the children’s father and the pending matrimonial and custody proceedings, and concluded that the principles in the cited authorities precluded criminal prosecution under Section 363 IPC in the circumstances presented.

As to Crime No. 9/2018, the Court treated the alleged offences as non-cognizable and held that the investigation had to comply with Section 155 CrPC.

Although the record showed that the Magistrate had endorsed the police requisition, the Court found that the endorsement reflected no application of mind; it therefore held that the prosecution could not proceed on that basis.

It quashed the FIR in Crime No. 147/2018 for offences under Sections 363 and 34 IPC, and quashed the FIR and complaint in Crime No. 9/2018 for offences under Sections 323, 504 and 506 IPC.

The order further stated that prosecution in the latter matter was subject to compliance with Section 155 CrPC.