CRL.REV.P. 353/2026 Page 1 of 8 $~20 * IN THE HIGH COURT OF DELHI AT NEW DELHI # CNR No. DLHC010258292026 + CRL.REV.P. 353/2026 & CRL.M.A. 17849/2026 LAW CHAUDHARY .....Petitioner Through: Mr. Manan Sharma, Mr. Suchakshu Jain and Mr. Aishwary Mishra, Advocates. versus THE STATE OF NCT OF DELHI & ANR. .....Respondents Through: Mr. Yudhvir Singh Chauhan, APP with Mr. Narender Kumar, Advocate. S.I. Amit and S.I. Subhe Singh. CORAM: HON'BLE MR. JUSTICE SANJEEV NARULA O R D E R % 23.09.2026 1. The Petitioner challenges the order dated 15th May, 2026, but only to the extent that the Special Court has framed a charge against him under Section 363 of the Indian Penal Code, 1860 [“IPC”]. By the same order, the Court declined to frame a charge under Section 365 IPC. The question in this revision petition is therefore a narrow one: whether the material on record discloses sufficient ground to proceed against the Petitioner under Section 363 IPC. 2. The case initially arose from a report of a missing child. On 13th October, 2019, the complainant informed the police that his minor son, A1, aged about four years, had gone out to play at about 4:30 PM and had not This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24 CRL.REV.P. 353/2026 Page 2 of 8 returned. The complainant did not suspect anyone in particular and stated that he suspected an unidentified person had lured the child away. 3. By the following morning, the position had changed. According to the prosecution record, the complainant was informed that A had been seen in the company of the Petitioner, who was a neighbour. On the morning of 14th October, 2019, the complainant appeared at the police station with A and the Petitioner. A was thereafter produced before the Magistrate for recording of his statement under Section 164 of the Code of Criminal Procedure, 1973 [“CrPC”]. 4. Before recording the statement, the Magistrate put preliminary questions to A and noted that he was capable of giving answers in question- and-answer form. The child stated his name and the names of his parents and school. He stated that “Lonchi” had taken him “In car”2. The IO was directed to wait outside the courtroom, while the proceedings were conducted in the Magistrate’s chamber. A’s father was also present, but the Magistrate recorded that he had no say in recording the statement. 5. The Petitioner contends that this material falls short of the threshold for framing a charge. He points to A’s tender age and the absence of an express finding that the child understood the duty to speak the truth. He also relies on the child’s reference to being taken “at night”, which he submits is inconsistent with the 4:30 PM entry in the FIR. He further points to the absence of a formal identification of the Petitioner or a Test Identification Parade [“TIP”] and the child’s failure to answer Question 12. The investigative gaps, particularly the failure to trace Raju/Rajesh Mistry, 1 As the victim is a minor child, his name has been abbreviated as ‘A’ in this order. 2 This is in the typed copy. The original/hindi version states “मोटर में” in the 164 CrPC statement. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24 CRL.REV.P. 353/2026 Page 3 of 8 establish the place of recovery in the Badarpur Pala Jhuggi area, or recover the child through the police, are also relied upon as grounds for discharge. 6. The answer to these objections lies in the limited nature of the enquiry at the stage of charge. The Court is entitled to sift and weigh the material for the limited purpose of determining whether a prima facie case is made out. It is not, however, expected to go deep into the matter to hold a mini-trial. The material brought on record by the prosecution must be considered to determine whether, taken at its face value, it discloses the ingredients of the offence. Ram Prakash Chadha v. State of U.P.3, reiterates that a strong suspicion sufficient to frame a charge must emerge from the record and cannot be founded on suppositions or conjectures. At this stage, therefore, the question is not whether the material will ultimately sustain a conviction, but whether it discloses sufficient ground to proceed against the accused. 7. In revision, the scope for interference is narrower still. As reiterated by the Supreme Court in K. Ravi v. State of Tamil Nadu4, with reference to Amit Kapoor v. Ramesh Chander & Anr.5, revisional jurisdiction is a limited one and cannot be exercised in a routine manner. Its object is to correct a patent defect or an error of jurisdiction or law. Interference may be warranted where the decision is grossly erroneous, there is non-compliance with the provisions of law, the finding is based on no evidence, material evidence has been ignored, or judicial discretion has been exercised arbitrarily or perversely. The Court must be extremely circumspect in interfering with an order framing charge. 8. In that setting, the distinction drawn by the Special Court between 3 2024 INSC 522. 4 2024 INSC 642. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24 CRL.REV.P. 353/2026 Page 4 of 8 Sections 363 and 365 IPC assumes significance. Section 361 IPC defines kidnapping from lawful guardianship. In the present case, it is attracted where a male minor below sixteen years of age is taken or enticed out of the keeping of his lawful guardian without the guardian’s consent. Section 363 IPC prescribes the punishment for such kidnapping. The place to which the child is taken, the duration for which he is kept there, and any injury suffered by him are not ingredients of the offence. Section 365 IPC, by contrast, requires that the kidnapping or abduction be accompanied by an intention to cause the person to be secretly and wrongfully confined. 9. That distinction assumes significance when the investigative gaps are examined. The failure to trace Raju/Rajesh Mistry, identify the Badarpur jhuggi, prepare a site plan, or establish that the child was secretly confined bears on the additional ingredient required for an offence under Section 365 IPC. The Special Court noticed these deficiencies and declined to frame a charge under the said provision. They do not, however, by themselves answer the separate allegation that the child was taken from the keeping of his lawful guardian without consent, which forms the basis of the charge under Section 363 IPC. 10. The child’s tender age, by itself, does not render him incompetent to testify. The test is whether the child is able to understand the questions put to him and give rational answers. In determining such competence, the Court must put appropriate preliminary questions and satisfy itself that the child is capable of understanding the questions, responding to them rationally, and appreciating the importance of speaking the truth. P. Ramesh v. State6, 5 (2012) 9 SCC 460. 6 (2019) 20 SCC 593. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24 CRL.REV.P. 353/2026 Page 5 of 8 Pradeep v. State of Haryana7 and Aejaz Ahmad Sheikh v. State of U.P. & Anr.8 reiterate these requirements. 11. These decisions deal with the competence of a child to give substantive evidence. They are not relevant at this stage. 12. The next question relates to the relevance of A’s statement under Section 164 CrPC. No doubt, a statement under the said provision is not substantive evidence.9 It may, however, be considered at the stage of charge, without being treated as substantive evidence. In Hazrat Deen v. State of U.P. & Anr.10, the Supreme Court held that discrepancies between the FIR and a subsequent statement under Section 164 CrPC may furnish a defence, but cannot, by themselves, be a ground for discharge without initiation of trial. A’s statement could therefore be considered at the stage of framing of charge. 13. The answer “रात को” does not create the contradiction on which the Petitioner relies. The FIR records that A went out to play at about 4:30 PM and thereafter did not return. It does not, however, state that the Petitioner took him at that precise time. The time when the child left home and the time when he may subsequently have been taken are not necessarily the same. There may be some imprecision in the timing, but it does not amount to the direct contradiction which the Petitioner suggests. At this stage, it certainly does not justify discarding the child’s account altogether. 14. The argument founded on Question 12 also proceeds on an incorrect reading of the statement. The question was not where “Lonchi” had taken A; 7 (2023) 19 SCC 221. 8 2025 INSC 529. 9 R. Shaji v. State of Kerala (2013) 14 SCC 266 10 SLP (Crl.) No. 9552/2021, order dated 6th January, 2022 (Supreme Court). This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24 CRL.REV.P. 353/2026 Page 6 of 8 it was where A was when “Lonchi” took him. The child gave no answer. That inability to answer may be relevant when his recollection is assessed at trial, but it neither contradicts his earlier answers nor negates the alleged taking. The destination to which the child was taken is, in any event, not an ingredient of kidnapping from lawful guardianship. 15. The absence of a TIP is not, by itself, decisive. A TIP is part of the investigation and is not mandatory. It is useful where the eyewitnesses do not know the accused before the incident, and the effect of its absence depends on the facts of each case.11 Here, the prosecution case places the Petitioner in the same neighbourhood, while the child referred to the person who took him as “Lonchi”. Whether “Lonchi” in fact referred to the Petitioner, and what weight that identification ultimately deserves, are matters for evidence. The omission to hold a TIP does not, at this stage, render the material supporting the charge insufficient. 16. Nor is there anything unusual in the Petitioner not being named in the FIR. When the report was lodged, A was still missing and the complainant did not know who had taken him. It was during the search that followed that the complainant was informed that A had been seen in the company of the Petitioner. The complainant can hardly be expected to identify a person whose alleged involvement was then unknown to him. 17. The remaining omissions do not carry the matter any further. The fact that the recovery was not made by the police and the absence of independent corroboration as relied upon by the Petitioner may bear upon the weight of the prosecution evidence and can be tested at trial. Nor does the complainant’s account cease to be material merely because his statement This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24 CRL.REV.P. 353/2026 Page 7 of 8 regarding the recovery was not recorded under Section 164 CrPC. He is a cited prosecution witness, and the circumstances in which, according to him, the child and the Petitioner came to be brought to the police station will have to be tested in evidence. 18. The alleged confession subsequently made by the Petitioner to the police may be left entirely out of consideration. Nor is it necessary, for the present charge, to assume that the prosecution has established the identity or even the existence of Rajesh Mistry, much less the alleged secret confinement of the child with him. The record, however, does not end there. According to the complainant’s account collected during investigation, after he confronted the Petitioner, he accompanied him to the Badarpur Pala Jhuggi area; the Petitioner made a telephone call; shortly thereafter the child was brought there; and the complainant then returned to the police station with both the child and the Petitioner. These are circumstances to which the complainant will have to address at trial. Taken together with the child’s statement, recorded soon thereafter before a Magistrate, that “Lonchi” had taken him in a car, the material crosses the threshold required for a charge under Section 363 IPC. 19. The revision petition is, accordingly, dismissed. 20. It is clarified that the observations made above are confined to the limited question of framing of charge. The Special Court shall assess the evidence independently and without being influenced by any observations made prima facie in this order. Before recording the evidence of the child, the Court shall also satisfy itself, in accordance with law, as to his competence to testify. 11 Kishore & Ors. v. State of Punjab 2024 SCC OnLine SC 110. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24 CRL.REV.P. 353/2026 Page 8 of 8 21. Any pending application also stands disposed of. SANJEEV NARULA, J SEPTEMBER 23, 2026/hc This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 26/09/2026 at 11:17:24