# Smt. Neetu & Anr v. State of U.P. & Ors

- **Citation:** (2023) 5 ILRA 1375
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-19
- **Case number:** Crl. Misc. Writ Petition No. 3701 of 2023
- **Bench:** Vivek Kumar Birla, Surendra Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-neetu-anr-v-state-of-u-p-ors-50182
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code,1860 -
Section 366 - Kidnapping, abducting or
inducing woman to compel her marriage -
Quashing of FIR - FIR was lodged by
husband of petitioner no. 1 - Informant's
1376 INDIAN LAW REPORTS ALLAHABAD SERIES
wife was in love affair for a long duration
with petitioner no. 2 - Earlier she was
found in house of petitioner no. 2, brought
back by her husband - St. argued that
petitioner no. 2 cannot be granted relief
as he was living with petitioner no. 1,
who was a married woman with two
children - Held, from affidavit filed by
petitioner no. 1, it is clear that petitioner
no. 2, did not force her to leave her
matrimonial home, she left it due to
harassment and torture inflicted on her by
her husband and in-laws - Petitioner no. 1,
was living at home of petitioner no. 2 on
her free will on request of wife of
petitioner no. 2, who was a close friend of
petitioner no. 1 and petitioner no. 2, has
not confined her to stay in his home -
Ingredients of Section are not fulfilled,
FIR quashed. (Para 9, 10, 12)

Writ Petitions Allowed. (E-13)

List of Cases cited:

## Text

5 All. Smt. Neetu & Anr. Vs. State of U.P. & Ors.
1375
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

18. Keeping in view the facts and
circumstances of the case and also keeping
in view criminal jurisprudence in our
country which is reformative and corrective
and not retributive, this Court considers
that no accused person is incapable of
being reformed and therefore, all measures
should be applied to give them an
opportunity of reformation in order to bring
them in the social stream.

19. As discussed above, 'reformative
theory of punishment' is to be adopted and
for that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded
by learned trial court for life term is very
harsh keeping in view the entirety of facts
and circumstances of the case and gravity
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

20. The evidence on record will not
permit us to accept the submission of
learned counsel for the appellant that it is a
case of acquittal rather it was a homicidal
death proved by the evidence.

21. In view of the above, we hold that
the
accused
has
committed
culpable
homicide not amounting to murder. The
accused is punished to undergo rigorous
imprisonment for 10 years and fine of
Rs.5000/- which should be paid within four
week's of his release, if not paid default
sentence of three months. If 10 years'
incarceration is over, the Jail authority
would release the accused if not wanted in
any other offence.

22. This appeal is partly allowed.
The judgment and order by the learned
Sessions Judge shall stand modified to
the
aforesaid
extent.
Record
and
proceedings be sent back to the Court
below forthwith.
----------
(2023) 5 ILRA 1375
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.04.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Crl. Misc. Writ Petition No. 3701 of 2023

Smt. Neetu & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sanjay Kr. Srivastava

Counsel for the Respondents:
G.A., Sri Mithilesh Kumar Shukla

Criminal Law - Indian Penal Code,1860 -
Section 366 - Kidnapping, abducting or
inducing woman to compel her marriage -
Quashing of FIR - FIR was lodged by
husband of petitioner no. 1 - Informant's
1376 INDIAN LAW REPORTS ALLAHABAD SERIES
wife was in love affair for a long duration
with petitioner no. 2 - Earlier she was
found in house of petitioner no. 2, brought
back by her husband - St. argued that
petitioner no. 2 cannot be granted relief
as he was living with petitioner no. 1,
who was a married woman with two
children - Held, from affidavit filed by
petitioner no. 1, it is clear that petitioner
no. 2, did not force her to leave her
matrimonial home, she left it due to
harassment and torture inflicted on her by
her husband and in-laws - Petitioner no. 1,
was living at home of petitioner no. 2 on
her free will on request of wife of
petitioner no. 2, who was a close friend of
petitioner no. 1 and petitioner no. 2, has
not confined her to stay in his home -
Ingredients of Section are not fulfilled,
FIR quashed. (Para 9, 10, 12)

Writ Petitions Allowed. (E-13)

List of Cases cited:

1. Gabbu Vs St. of M.P., AIR 2006 SC 2461

2. Shahjahan Vs St., 2011 Cr.L.J. 573

(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 All. Smt. Neetu & Anr. Vs. State of U.P. & Ors.
1377

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 inlaws. 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
1378 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
5 All. Prachi & Ors. Vs. State of U.P. & Ors.
1379

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.
----------
(2023) 5 ILRA 1379
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.04.2023

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE SURENDRA SINGH-I, J.

Crl. Misc. Writ Petition No. 4318 of 2023

Prachi & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Neeraj Kumar Pandey

Counsel for the Respondents:
G.A., Sri Shiv Sagar Singh

Criminal Law - Indian Penal Code,1860 -
Sections 366 & 368 - Quashing of FIR -
Kidnapping, abducting or inducing woman
to compel her marriage - Allegation
against petitioner that he enticed and
abducted the daughter of informant
from
her
home
with
intention
of
marrying
her
against
her
wishes,
confines her at some place - St. opposed
the prayer - Held, petitioner no. 1, in her
affidavit St.d that she was a major girl,
fell in love with petitioner no. 2, accused
- Her marriage with another person was
arranged and fixed by her father -
Therefore, she was not happy, had love
affair for the last one year with accused
and had gone to house of accused with
her own will - Ingredients of above
Sections are not fulfilled, FIR quashed.
(Para 7, 14, 16)
Writ Petitions Allowed. (E-13)

List of Cases cited:

1. Birbal Chaudhary Vs St. of Bihar, AIR 2017 SC
4866

2. Gabbu Vs St. of M.P., AIR 2006 SC 2461

3. Shahjahan Vs St., 2011 Cr.L.J. 573

(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,