Legal experts debate criminality in Gungun case

According to experts,the law demands a requirement of establishing mens rea (mental component in a crime) on the part of the accused,for someone taking care of a child who had lost his/her way cannot be an offence in itself.

The criminality in such acts starts when a person takes away a child — considered the property of his/her parents by law — from his/her “lawful guardianship” for the purposes of wrongfully confining him or for other unlawful activities. Notably,for applicability of this penal provision,the guardianship of a child,apart from physical guardianship,also includes “constructive guardianship.” Hence,a child playing in the field with his/her parents’ knowledge is still considered to be under their guardianship.

In the present case,the child went missing at India Gate last week and was found two days later in the Jhandewalan Temple.

Kishore,in his statement to the police,said he had found the girl alone and took her to his house. However,following the media hype in the case,the couple became nervous and took Gungun to Jhandewalan Temple. They also alerted the PCR to collect her.

Significantly,this statement has been recorded before a police officer and has no admissibility as evidence in a court.

“I do not think the couple committed an offence. Not informing the police was an unwise move,but that cannot be stretched to believing that they had a ulterior motive while taking away the child. And when there is no motive,there can be no offence. When the couple came to know that the police were looking for the ‘kidnappers’,they left her at the temple out of fear,” senior criminal lawyer Pandit R K Naseem said.

He added that informing the PCR about the child was a circumstance in the couple’s favour. “They left for Gujarat after the incident out of panic (as per their own statement),which,though an impractical move,is not a criminal one,” said Naseem.

Former additional solicitor general and Supreme Court lawyer Vikas Singh also said while the court can frame charges against Kishore and Rekha,the couple can file a writ petition. “They can approach the Delhi High Court for quashing the FIR. Though the alleged offence is not compoundable,the fact that Gungun’s parents did not want their prosecution can come to their aid,” Singh said.