Allahabad High Court
Smt. Neetu And Another vs State Of U.P. And 2 Others on 19 April, 2023
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD ?A.F.R. Court No. - 45 Case :- CRIMINAL MISC. WRIT PETITION No. - 3701 of 2023 Petitioner :- Smt. Neetu And Another Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Sanjay Kr. Srivastava Counsel for Respondent :- G.A.,Mithilesh Kumar Shukla Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
(Delivered by Hon'ble Surendra Singh-I, J.)
1. Heard Sri Sanjay Kr. Srivastava, learned counsel for the petitioners, Sri Mithilesh Kumar Shukla, learned counsel for the informant and Sri G.P. Singh, learned A.G.A. for the State.
2. The present writ petition has been preferred with the prayer to quash the impugned first information report dated 17.02.2023 registered as Case Crime No. 77 of 2023 under Sections 366 I.P.C., Police Station- Rasulpur, District- Firozabad and for a direction to the respondents not to arrest or harass the petitioner no. 2, Suraj in pursuance of the impugned first information report.
3. According to prosecution case, informant Shyam Sundar's wife, Neetu, is the resident of Tea-Huts No. 2296, Sonia Camp, G.T. Road, Jhilmil Industrial Area, near Dilshan Garden, Metro Station, Shahdara, Old Delhi. On 12.02.2023 at 1.30 p.m., informant's younger brother dropped Neetu along with her two sons, namely, Sangam, aged 8 years and Sushank, aged 6 years on bus at Asafabad Chauraha for Agra. Since then, the whereabouts of Neetu is not known. The informant's wife, Neetu was in love affair for a long duration with petitioner no. 2, Suraj, resident of Shahdara, old Delhi, who was posted as House Keeping Supervisor at Dilshad Garden, Metro Station. His wife often used to have conversation with Suraj on her mobile. The informant had earlier also found Neetu in the house of accused Suraj but he had brought Neetu back to his home. On the written statement of the informant, the first information report was lodged against petitioner no. 2, Suraj.
4. It has been submitted by learned counsel for the petitioners that the first information report has been lodged after a delay of about 5 days without any explanation which is clearly an afterthought and consultation with apparently false allegations. It has been next submitted that petitioner no. 2, Neetu has filed an affidavit supporting the petitioners case that her husband, Shyam Sundar and her in-laws used to harass and torture her. She came to her parental home but her parents could not give her any help. It is also submitted that under compelling circumstances, petitioner no. 1, Smt. Neetu has taken shelter with the petitioner no. 2, Suraj with her free consent. Petitioner no. 2, Suraj has not abducted petitioner no. 1, Smt. Neetu by forceful compulsion or inducement to leave her matrimonial home to marry her against her will or for illicit intercourse, thus, no offence u/s 366 I.P.C. is made out.
5. Petitioner no.1, Smt. Neetu has also deposed in her affidavit that on 10.12.2021, she was ousted from the house of her in-laws. Thereafter, she started living with her two children in a rented house at Partapur, District- Meerut. Later on, informant came there to the house of petitioner no. 1, Smt. Neetu and after seeking excuse, started living with her at Partapur in a rented house but due to dispute, informant came back to his native place, leaving petitioner no. 1, Smt. Neetu and her two children alone at Partapur, Meerut. Petitioner no. 1, Smt. Neetu has also deposed that Smt. Dolly, wife of petitioner no. 2 has close friendly relation with her since her school period and as such only with a view to provide her shelter, wife of petitioner no. 2 permitted petitioner no. 1, Smt. Neetu to live at the house of petitioner no. 2, Suraj since first week of January, 2023. The petitioner no. 2, Suraj has no concern with the alleged offence.
6. Per contra, learned A.G.A. representing the State has opposed the petition and submitted that petitioner no. 1, Smt. Neetu and petitioner no. 2, Suraj, both are married, having two children each. Petitioner no. 2, Suraj cannot be granted any indulgence as he is living with petitioner no. 1, Smt. Neetu who is a married woman with two children. However, learned A.G.A. could not deny the submissions advanced on behalf of the petitioners that petitioner no. 1, Smt. Neetu is major and she has left her matrimonial home on her own sweet will.
7. To ascertain whether prima facie, offence u/s 366 I.P.C. is made out, it is necessary to peruse Sections 362 and 366 I.P.C. which are quoted hereunder :-
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 366 I.P.C.
366. Kidnapping, abducting or inducing woman to compel her marriage, etc.?Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.
Ingredients :- This section requires :-
(1) kidnapping or abducting of a woman;
(2) such kidnapping or abduction must be -
(i) with intent that she may be compelled or knowing it to be likely that she will be compelled to marry any person against her will; or
(ii) in order that she may be forced or seduced to illicit intercourse or knowing it to be likely that she will be forced or seduced to illicit intercourse; or
(iii) by means or criminal intimidation or otherwise by inducing any woman to go from any place with intent that she may be, or knowing that she will be forced or seduced to illicit intercourse.
Section 366 I.P.C. only applies when the woman abducted has no intention of marriage or lawful intercourse when abducted. Mere abduction does not bring the accused under the ambit of this penal section.
In Gabbu Vs. State of M.P., AIR 2006 SC 2461, the Apex Court has held that so far as the charge u/s 366 I.P.C. is concerned, mere finding that a woman was abducted is not enough. It must further be proved that the abduction is for the purposes mentioned in Section 366 I.P.C.
In Shahjahan Vs. State, 2011 Cr.L.J. 573, the Apex Court has held :-
"In order to establish an offence u/s 366 I.P.C., it must first be established that the offence of kidnapping under Section 361 I.P.C. or abduction under Section 362 I.P.C. has been proved. It must then be shown that such kidnapping or abduction was with the contumacious intent referred to under Section 366 I.P.C."
8. The essential condition for the application of Section 366 I.P.C. is that there is kidnapping or abduction of a woman with the intention to compel her or knowing it to be likely that she will be compelled to marry any person against her will or will be forced or seduced to illicit intercourse.
9. From the affidavit filed by petitioner no. 1, Smt. Neetu, it is obvious that petitioner no. 2, Suraj did not force or induce her to leave her matrimonial home but she left it due to the harassment and torture inflicted on her by her husband, Shyam Sundar and her in-laws. From her affidavit, it is also clear that petitioner no. 1, Smt. Neetu is living at the home of petitioner no. 2, Suraj on her free will on the request of Smt. Dolly, wife of petitioner no. 2, who was a friend of petitioner no. 1, Smt. Neetu and petitioner no. 2, Suraj has not restrained or confined her to stay in his home.
10. In such view of the matter, we find that the essential ingredients of Section 362 I.P.C. or even Section 366 I.P.C. are not fulfilled against the petitioner no. 2, Suraj.
11. Under these facts and circumstances of the case, we are inclined to allow the writ petition.
12. Accordingly, the writ petition stands allowed. The First Information Report dated 17.02.2023 registered as Case Crime No. 77 of 2023 under Sections 366 I.P.C., Police Station- Rasulpur, District- Firozabad as well as all consequential proceedings are hereby quashed.
Order Date :- 19.4.2023 KS