'Mere talking' to a Minor is Not Enticing Her Away: Allahabad HC Quashes Kidnapping Case Against Man

The bench of Justice Vikram D. Chauhan tabled the verdict in an application filed by one Himanshu Dubey under Section 482 of the Criminal Procedure Code (Cr.P.C.) seeking to quash the charge sheet dated January 19, 2021, and the cognizance order dated July 7, 2023, along with the entire proceedings of the case against him.

An First Information Report (FIR) was lodged on December 25, 2020, by the informant, who alleged that his niece, a minor aged about 16 years, had been enticed away by the applicant, Himanshu Dubey, on December 24, 2020. The FIR was registered under Section 363 IPC at Police Station Gauri Bazar, District Deoria.

During the investigation, the victim's statement was recorded under Section 161 Cr.P.C., in which she stated that she had left her home alone. According to the court's order, she only stated that her family members had beaten her and also given electric shock that is why on December 23, 2020 at 6.30 p.m. she left the house alone and went to Siwan by bus. Her statement also claimed she was brought to the police station on December 26, 2020.

Court further highlighted that the victim's statement under Section 164 Cr.P.C., recorded on January 1, 2021, before a magistrate, was consistent with her earlier account. She stated that she left the house and no one was with her, and the name of Himanshu Dubey had been taken by her family members willingly. She specified that her uncle had beaten her and given her an electric shock after seeing her talking to the applicant on her phone, which is why she left home alone.

The High Court also took note of the age of the victim. While the FIR stated she was 16, a medico-legal examination and an X-ray conducted on December 29, 2020, determined her age to be approximately 18 years. This detail, combined with the victim's repeated statements, became a crucial element in the court's decision.

Court noted that the prosecution's charge sheet did not list the victim as a witness and instead relied solely on the informant (the victim's uncle) and her mother, as witnesses of fact. Court found that these witnesses had not given any material particulars or details as to how the victim had been enticed away. It added, "Mere being in talking terms with another person resulting in victim leaving home would not attract penal provisions".

Referring to the decisions of the Supreme Court, including Thakorlal D. Yadgdama Vs. The State of Gujarat and S. Varadarajan Vs. State of Madras, the High Court differentiated between a minor being "taken" or "enticed" and a minor voluntarily leaving her home. "The statutory language suggests that if the minor leaves her parental home completely uninfluenced by any promise, offer or inducement emanating from the guilty party, then the latter cannot be considered to have committed the offence as defined in Section 361 I.P.C.," the court said, quoting the Supreme Court.

The single judge bench emphasized that the prosecution failed to provide evidence of active participation or inducement from the applicant that led the victim to leave her home. Court stated, "The material particulars and circumstances with regard to enticing away the victim by the applicant has not been disclosed by prosecution. Mere talking to victim by itself cannot be a circumstance which would be treated as enticing away the victim."

Conclusively, court held that the criminal proceedings against Himanshu Dubey were not legally sustainable. It quashed the charge sheet, the cognizance order, and the entire criminal proceedings.