Jharkhand HC Quashes Kidnapping, Hurt and Wrongful Restraint Case Against Father Who Took His Minor Son

The Jharkhand High Court held that a father taking his own minor child cannot constitute kidnapping under Section 363 IPC, and that a bare allegation of “maar peet” without any claim of bodily injury does not make out an offence under Section 323 IPC.

The High Court of Jharkhand at Ranchi has quashed a criminal complaint and the summoning order that followed it, finding that none of the three penal offences alleged against a husband — kidnapping under Section 363 IPC, voluntarily causing hurt under Section 323 IPC, and wrongful restraint under Section 341 IPC — were made out even if every allegation in the complaint were accepted as true. Justice Anil Kumar Choudhary, sitting singly, allowed Cr.M.P. No. 2725 of 2025 filed by Khalid Eqbal, a resident of Hazaribagh, under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023. The court found that continuing the proceeding would amount to an abuse of process of law.

The Complaint and the Summoning Order

The complainant, Fatma Parween, who is the wife of the petitioner Khalid Eqbal, filed Complaint Case No. 362 of 2024 before the Judicial Magistrate 1st Class, Dhanbad. Her allegation was that Khalid Eqbal called her to Dhanbad Railway Station along with their four-year-old son, and then took the child away. When she went to the petitioner's house, she was subjected to assault by him and his family members.

On the basis of the complaint, a solemn affirmation by the complainant, and statements of inquiry witnesses, the Judicial Magistrate found a prima facie case on 12 June 2024 for offences under Sections 323, 341 and 363 of the Indian Penal Code and directed issuance of summons against Khalid Eqbal.

Khalid Eqbal approached the High Court challenging the entire criminal proceeding and the summoning order.

The Legal Issues Before the Court

Three distinct questions arose from the facts. First, whether a father who takes his own minor son from a railway station can be prosecuted for kidnapping under Section 363 IPC. Second, whether an allegation that the petitioner carried out "maar peet" without any further description of bodily pain, disease or infirmity constitutes an offence under Section 323 IPC. Third, whether the facts disclosed an offence of wrongful restraint under Section 341 IPC.

On behalf of Khalid Eqbal, counsel Baban Prasad placed reliance on judgments from several High Courts. He cited the Bombay High Court (Nagpur Bench) decision in Ashish v. State of Maharashtra & Ors., MANU/MH/5272/2023, which itself had relied on the Orissa High Court's ruling in Shri Ashok Kumar Seth v. State of Orissa, MANU/OR/0264/2002, where it was observed that a father, being the natural guardian, cannot be booked for taking away his minor child from his wife's custody, and that Section 363 IPC is therefore not attracted. He also placed before the court decisions of the Karnataka High Court in Vipin Menon v. The State of Karnataka & Ors., MANU/KA/0093/1992, the Kerala High Court in Ismail Aboobaker, Puthuparambil, Thodupuzha & Ors. v. State of Kerala, (1967) ILR 2 Ker 313, and the Andhra Pradesh High Court in Md. Asif Ahammad v. State of Andhra Pradesh, AIR Online 2023 AP 580.

The Special Public Prosecutor appearing for the State, and counsel for Fatma Parween, opposed the petition and submitted that if the allegations were taken at face value, a prima facie case for all three offences was indeed made out.

How the Court Reasoned on Each Offence

Section 363 IPC — Kidnapping: The court set out the four essential ingredients of the offence: the victim must be a minor; the victim must be in the keeping of a lawful guardian; the accused must have taken or enticed the victim away from such keeping; and the accused must have done so without the consent of the lawful guardian. Applying these to the undisputed facts, the court found that the petitioner, being the father, is himself the natural guardian of the four-year-old child. A father taking his own son therefore does not satisfy the ingredients of Section 363 IPC.

Section 323 IPC — Voluntarily Causing Hurt: The court identified the essential ingredients as a voluntary act causing bodily pain, disease or infirmity, done with the intention or knowledge that hurt would result. Going through the complaint, the court found no allegation that the petitioner had caused any bodily pain, disease or infirmity to the complainant. Relying on the Supreme Court's ruling in Abhishek Saxena v. The State of Uttar Pradesh & Anr., 2023 INSC 1088, the court quoted the relevant passage to the effect that “basic ingredients to constitute an offence under Section 323, IPC is lacking” where there is nothing beyond a bare statement of being beaten. The court held that a bare allegation of "maar peet" will not, by itself and without any assertion of bodily pain, disease or infirmity, constitute the offence under Section 323 IPC.

Section 341 IPC — Wrongful Restraint: The ingredients the court examined were: that the accused obstructed a person; did so voluntarily; and thereby prevented that person from proceeding in a direction in which she had a right to proceed. The court found no allegation in the complaint that the petitioner had obstructed the complainant from proceeding in any particular direction. In the absence of any such allegation, the offence under Section 341 IPC was also not made out.

The Court's Finding on Abuse of Process

Having concluded that none of the three offences were made out even on the most charitable reading of the complaint, the court held that continuing the criminal proceeding against Khalid Eqbal would amount to an abuse of process of law. This finding was the basis for exercise of the court's power under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to quash the proceeding in its entirety.

The court also disposed of Interlocutory Application No. 9585 of 2026, which had been filed seeking an early hearing of the main petition. Since the main petition itself was taken up and decided, the interlocutory application was disposed of as infructuous.

Outcome

By order dated 21 July 2026, the High Court of Jharkhand allowed Cr.M.P. No. 2725 of 2025 and quashed the entire criminal proceeding in Complaint Case No. 362 of 2024, including the order dated 12 June 2024 passed by the Judicial Magistrate 1st Class, Dhanbad, insofar as it related to the petitioner Khalid Eqbal.