The Calcutta High Court has granted relief to a Transgender Rights Activist on the ground that it was neither any case of abduction nor kidnapping. A case was lodged by the family of a transwoman against the said activist.

The Court was dealing with an instant petition filed by the petitioners under Section 482 of the Code of Criminal Procedure for quashing of proceeding in connection with a case under Section 365 of the Indian Penal Code.

A Single Bench of Justice Prasenjit Biswas held, “It is brought to the notice of the court that grave miscarriage of justice would be committed if the trial is allowed to proceed where the accused persons would be harassed unnecessarily if the trial is allowed to linger when primafacie it appears to court that the trial would likely to be ended in acquittal. There is neither any case of abduction nor kidnapping prevails with regard to the petitioners as the opposite party no.3 left home voluntarily by her own choice.”

The Bench said that the offence under Section 365 of IPC does not attract in terms of the facts and circumstances of the case and the ingredients of the offence under the said section can be said to be totally absent on the basis of allegation in the complaint.

Advocate Sremoyi Mukherjee appeared for the petitioners while Advocate Kaushik Gupta and APP Aditi Shankar Chakraborty appeared for the opposite party and State respectively.

Brief Facts -

The petitioner was an activist, frontline worker and a researcher working with the transgender since for a long time, whereas the opposite party who was a transwoman apprised petitioner that she was subjected to torture, both mental and physical due to her gender crisis by her natal family home and neighbourhood. It was stated by the petitioners that the said transwoman expressed her wishes to pursue her career and live an independent life but her family members allegedly detained her forcefully and also prohibited to pursue her career.

The petitioners were informed about her decision to leave her home and she was advised by the petitioners as well as other activists and the members of the West Bengal Transgender Development Board to write an intimation letter to the police regarding her situation and accordingly she dropped it in the mailbox located outside the police station but astonishingly Matelli Police Station disclosed the entire matter to her family members. It was stated by the petitioners that she left her home voluntarily as she was tired of harassment caused by the family members and neighbours. Thereafter, a complaint was lodged by the complainant before the police station for missing of the opposite party.

The High Court in view of the facts and circumstances of the case observed, “The essence of the offence under section 365 of IPC embodies an aggravated form of offence of kidnapping as defined in section 360 and 361 and of abduction as defined in section 362 IPC. Section 365 is attracted when the kidnapping or abduction is committed with intent to secretly and wrongfully confine the victim. .Section 365 IPC lays down that where a person was abducted in order to that he might be held to ransom by his abductors, it was held that this section is applicable.”

The Court said that to prove the ingredients of Section 365 IPC, it is essential that there should be abduction, if no abduction is there; the offence under section 365 is not made out.

“To prove charge of wrongful confinement, proof of actual physical restriction is not essential. It is sufficient if the evidence shows that such an impression was produced in the mind if the accused as to create a reasonable apprehension in the mind of the victim. The intention can be inferred from the subsequent acts and conduct of the kidnapper or abductor”, also said the Court.

Accordingly, the High Court allowed the petition and quashed the case.

Cause Title- Avinaba Dutta & Another v. State of West Bengal & Ors.

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