Mere Talking Terms With Victim Can't Be Treated As 'Enticing Her Away' U/S 361 IPC: Allahabad High Court Quashes Kidnapping Case

A bench of Justice Vikram D Chauhan observed that where the minor, voluntarily and on her own accord, leaves the lawful guardianship, then in such circumstances the applicability of Section 361 IPC [Kidnapping from lawful guardianship] does not arise.

The single judge made these remarks while allowing an application filed by the accused seeking quashing of the charge sheet (of January 2021), the cognizance order (of July 2023) as well as the entire proceedings of the criminal case.

In the FIR lodged in December 2020, the complainant alleged that the accused applicant had enticed away his niece, who was about 16.

During the investigation, the statements of the victim under Sections 161 and 164 CrPC were recorded, in which she stated that her family members had beaten her and also given her an electric shock, due to which she left the house alone.

Notably, in her S. 164 Statement, she also stated that her uncle had beaten her up due to the fact that she was talking to the applicant on the mobile phone. She further claimed that she remained in Siwan for two days before being taken to the police station.

Although she did not name the applicant in her statement, her mother spoke about her daughter's relationship with the applicant.

On this ground alone, the Applicant moved the HC to challenge the case, contending that the alleged victim had not alleged his involvement in the matter as she had not admitted that she eloped with the Applicant.

As such, it was argued, no offence under Section 363 IPC was made out as there was no ingredient for constituting the offence under Section 363 IPC.

On the other hand, the counsel for the state argued that a charge sheet had been filed against the applicant under Section 363 IPC based on evidence collected during the investigation, and he termed the cognizance order to be valid.

Against this backdrop, the bench examined the scope of Section 361 IPC to note that is applicable when there is “any promise, offer, inducement or force, from the accused which resulted in the minor being taken away or enticed away from lawful guardianship” .”

The bench referred to the Apex Court's decision in the case of S. Varadarajan v. State of Madras 1965 to observe that there is a distinction between 'taking' and "allowing a minor to accompany a person", and that when a minor voluntarily leaves home knowing what she is doing, it cannot be said that the accused has taken her away.

Coming to the facts of the present case, the single judge noted that mere talking to the victim by itself cannot be a circumstance which would be treated as enticing away the victim.

About the statements of the informant and the victim's mother, the bench opined that the same contained only suspicion and did not disclose particulars as to how the victim had been enticed away.

Thsu, the Court concluded that the prosecution had failed to show that victim was enticed away by the applicant which meant that the essential ingredients of offence under Section 363 IPC were not made out.

Thus, allowing the accused's plea, the Court quashed the charge sheet, cognizance order as well as the entire criminal proceedings.