Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(All) 211

IN THE HIGH COURT OF ALLAHABAD
VIVEK KUMAR BIRLA, SURENDRA SINGH-I, JJ.
Prachi and Others - Petitioners
Versus
State of U.P. and Others - Respondents
Criminal Misc. Writ Petition No. 4318 of 2023
Decided On : 12-04-2023

Advocates Appeared:
For the Petitioner: Neeraj Kumar Pandey.
For the Respondent: G.A., Shiv Sagar Singh.

Point of Law: For an offence to be constituted u/s 366 I.P.C., a major woman should be enticed or taken away without her consent from her home.

Headnote:
India Penal Code, 1860 - Section 368, 366, 359, 362 - Quash FIR - Abducted daughter - Intention of marrying her against her wishes - Petition preferred with prayer to quash impugned first information report and for a direction to respondents not to arrest petitioner no. 2 – Abductee had clearly stated that she was neither taken away nor enticed to leave her home by petitioner no. 2. [Para 15]
Finding of the Court: Abductee had clearly stated that she was neither taken away nor enticed to leave her home by petitioner no. 2, but she had left her home on her own free will as her father had arranged her marriage with another person whereas she had love affair with petitioner no. 2 for last one year and she wanted to marry him - Section 366 I.P.C. would come into play only where there is kidnapping or abduction of a woman for purposes mentioned in Section 366 I.P.C - Likewise, Section 368 I.P.C. would come into play only where kidnapped or abducted person is concealed or confined by accused - Since petitioner no. 1 was not abducted from her home, prima facie, offence u/s 368 I.P.C. has not been made out against petitioner no. 2 – Court find that essential ingredients of Section 366 I.P.C. or even Section 368 I.P.C. are not fulfilled as purely legal question is involved and there is no dispute about fact that victim is major and present before this Court.
Result: `

JUDGMENT :

Surendra Singh-I, J.

1. Heard Sri Neeraj Kumar Pandey, learned counsel for the petitioners, Sri Shiv Sagar Singh, learned counsel for the informant and Smt. Manju Thakur, learned A.G.A. for the State.

2. Learned A.G.A. pointed out that Section 368 I.P.C. has been added during the course of investigation.

3. Learned counsel for the petitioners submits that he may be permitted to correct the prayer clause.

4. Prayer is allowed.

5. He may do so during the course of the day.

6. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 03.03.2023 registered as Case Crime No. 129 of 2023 under Sections 366, 368 I.P.C., Police Station- Tronica City, District- (Commissionerate) Ghaziabad, and for a direction to the respondents not to arrest the petitioner no. 2, Ashish Chauhan in pursuance of the impugned first information report.?

7. According to prosecution case, on 01.03.2023 at 11.45 p.m., petitioner, Ashish Chauhan, enticed and abducted the daughter of informant, Prachi aged 21 years from her home with the intention of marrying her against her wishes. Knowing that Prachi has been abducted, he wrongfully conceals and confines her at some place.?

8. Submission of learned counsel for the petitioners is that the petitioner no. 1, Prachi as per the age given in the first information report itself, the alleged victim, Prachi is 21 years old and she had filed her affidavit in support of the present petition. Therefore, no offence u/s 366 I.P.C. has been made out as there is no inducement. Since no offence under Section 366 I.P.C. is made out hence there shall not be any offence u/s 368 I.P.C. as well. Petitioner no. 1, Prachi Tyagi had given an application dated 13.03.2023 (Annexure No. 4) to the Investigating Officer, P.S.- Tronica City, District- Ghaziabad to the effect that her father had settled her marriage with another person against her wishes. Therefore, she was unhappy. She had gone to the house of the petitioner no. 2, Ashish Chauhan on her own sweet will on 001.03.2023 and petitioner no. 2, Ashish Chauhan had not induced or enticed her from her house for marriage. The story given in the F.I.R. is fully false and fabricated.

9. The deponent of the present petition and petitioner no. 1, Prachi, is present before this Court who has been identified by learned counsel for the petitioners.

10. Per contra, learned counsel for the informant opposing the petition submits that the petitioner no. 2, Ashish Chauhan is a minor and there is no good ground to quash the impugned first information report.

11. Learned A.G.A. has opposed the prayer. However, she could not dispute the facts and has fairly submitted that as per instructions, according to C.B.S.E. certificate, the date of birth of petitioner no.1, Prachi is 01.01.2002 and therefore, she is major.

12. Before proceeding, it would be appropriate to take note of Sections 359, 362, 366 and 368 I.P.C. which are quoted hereunder :-

359. Kidnapping.-Kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.

362. Abduction.-Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.??

Ingredients :- This section requires two things :-

(1) forceful compulsion or inducement by deceitful means;

(2) the object of such compulsion or inducement must be the going of a person from any place.

The expression "deceitful means" includes a misleading statement. It is, really speaking, a matter of intention. The intention of the accused is the basis and gravamen of the charge. If the consent of the person is freely and voluntarily given, there will be no abduction. Unlike kidnapping, abduction as defined u/s 362 I.P.C. is not an substantive offence under the Code but abduction is an auxilliary act and is made criminal and punishable only when it is done with one or other intention specified in Section 368 I.P.C.

366. Kidnapping, abducting or inducing woman to c

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