Allahabad High Court
Prachi And 3 Others vs State Of U.P. And 2 Others on 12 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. - 4318 of 2023 Petitioner :- Prachi and 3 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Neeraj Kumar Pandey Counsel for Respondent :- G.A.,Shiv Sagar Singh Hon'ble Vivek Kumar Birla,J.
Hon'ble Surendra Singh-I,J.
(Delivered by Hon'ble 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 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."
368. Wrongfully concealing or keeping in confinement, kidnapped or abducted person.?Whoever, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confines such person, shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose as that with or for which he conceals or detains such person in confinement.
Ingredients :- To constitute an offence u/s 368 I.P.C., it is necessary to establish the following ingredients :-
(1) the person in question has been kidnapped/abducted;
(2) the accused knew that the said person has been kidnapped/abducted;
(3) the accused having such knowledge wrongfully conceals or confines the person concerned;
This section does not apply to the principal offender but to those persons who assist him in concealing a kidnapped or abducted person. The kidnapper cannot be convicted under this section.
13. In Birbal Chaudhary Vs. State of Bihar, AIR 2017 SC 4866, the Apex Court has held :
"the other party who wrongfully conceals or confines a kidnapped person knowing that he has been kidnapped, suffers the same consequences at par with the person who had kidnapped or abducted the person with the same intention or knowledge or for the same purpose."
14. Petitioner no. 1, Prachi in her affidavit has stated that she is a major girl, seriously fell in love with petitioner no. 2, accused/Ashish Chauhan. The father of the petitioner no. 1 has arranged and fixed her marriage with another person on 01.03.2023. Therefore, the petitioner no. 1, Prachi, was not happy with the marriage with another person. She had gone to the house of petitioner no. 2, accused/Ashish Chauhan with her own sweet will on 01.03.2023. Petitioner no. 1, Prachi, had love affair with petitioner no. 2, accused/Ashish Chauhan for the last one year and she was living with him with her free will.
15. 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 but in the present case, the abductee had clearly stated that she was neither taken away nor enticed to leave her home by the petitioner no. 2, accused/Ashish Chauhan 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 the petitioner no. 2 for the 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 the purposes mentioned in Section 366 I.P.C. Likewise, Section 368 I.P.C. would come into play only where the kidnapped or abducted person is concealed or confined by the accused. Since petitioner no. 1, Prachi Tyagi was not abducted from her home, prima facie, offence u/s 368 I.P.C. has not been made out against the petitioner no. 2, accused/Ashish Chauhan.
16. In such view of the matter, we find that the essential ingredients of Section 366 I.P.C. or even Section 368 I.P.C. (added during the course of investigation) are not fulfilled as purely legal question is involved and there is no dispute about the fact that the victim is major and present before this Court.
17. Under these facts and circumstances of the case, we are inclined to allow the writ petition.
18. Accordingly, the writ petition stands allowed. The 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 as well as all consequential proceedings are hereby quashed.
Order Date :- 12.4.2023 KS