Mere Talking To Victim By Itself Cannot Be Treated As "Enticing Her Away" In Terms Of Sec 361 IPC: Allahabad High Court

The Delhi High Court has held that merely talking to the victim by itself cannot be said to be "enticing her away" in terms of Section 361 of the Indian Penal Code, 1860.

The Court was considering an Application seeking quashing of chargesheet filed for offence punishable under Section 363 of the IPC.

The Bench of Justice Vikram D. Chauhan observed, "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. The victim in her statement has also alleged that family members of victim has beaten her and electrocuted her and as a result of same she has left the house."

The Applicant was represented by Advocate Bhagwan Dutt Pandey, while the Respondent was represented by the Government Advocate.

Facts of the Case

Counsel for Applicant submitted that as per the version of FIR, the prosecution case is that the Applicant had enticed away the niece of the first informant, who was aged about 16 years. He further submitted that no explanation of the delay in the filing of the FIR itself shows that the entire story is false, fabricated and concocted because of malafide intention to implicate the Applicant.

He further stated that the victim was taken into custody by family members and thereafter in her second statement under Section 161 of the Cr.P.C., she stated that she and the Applicant were in talking terms over mobile phone, which came to the knowledge of family members and therefore she left home alone and stayed with the Applicant. The victim specifically stated that during the said time victim was with the Applicant, the Applicant did not commit any sexual assault.

Reasoning By Court

The Court at the outset noted that it is imperative for applicability of Section 361 of the Indian Penal Code that there must be any promise, offer, inducement or force, from the accused which resulted in the minor being taken away or enticed away from lawful guardianship.

It was further stated that the rigours of Section 361 of the Indian Penal Code will have its effect where the minor is taken away from the lawful guardianship without the consent of guardian or she is allured or given any promise or inducement or offer which has resulted in enticing away the minor from the lawful guardianship.

"The element of non-voluntary leaving of minor from the lawful guardianship on the basis of force, promise or inducement or offer is an important aspect to attract the penal provision. An eventuality may arise where the minor voluntary and on his own accord, leaves the lawful guardianship then in such circumstances the applicability of Section 361 of Indian Penal Code may not arise", the Court observed.

Reference was made to the Supreme Court's decision in Thakorlal D. Yadgdama Vs. The State of Gujarat (1973) and S. Varadarajan Vs. State of Madras (1965).

"The prosecution has failed to show that victim was enticed away by the applicant. The essential ingredients of offence under Section 363 of Indian Penal Code is not made out by learned counsel for opposite party before this Court. The cognizance order also does not disclose the material circumstances which were before the trial court", the Court concluded.

The Application was accordingly allowed.

Cause Title: Himanshu Dubey vs. State of U.P. and Another (2025:AHC:160289)

Click here to read/ download Order