Calcutta High Court Grants Relief To Transgender Rights Activist, Quashes Kidnapping Case Lodged By Transwoman's Family

The Calcutta High Court’s Circuit Bench at Jalpaiguri recently quashed criminal proceedings against a transgender rights activist & researcher, who had been accused of kidnapping by the family of a trans-woman, whom he helped escape from alleged mental and physical torture at her home.

In quashing the FIRs against the petitioner, a single-bench of Justice Prasenjit Biswas opined:

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. The victim/opposite party no.3 submitted that she left her house voluntarily and is presently residing at Bengaluru. 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. So, I am of the opinion that the offence under section 365 of the Indian Penal Code does not attract in terms of the facts and circumstances of the case and the ingredients of the offence under section 365 of IPC can be said to be totally absent on the basis of allegation in the complaint.

It was argued by counsel for the petitioner that they were a transgender rights activist, frontline worker and researcher, who had been in the field for a long time.

It was submitted that the petitioner was apprised by the opposite party no 3/victim that she was a transwoman, who had been subjected to “mental and physical torture due to her gender crisis by her natal family home & neighbourhood.”

Petitioners argued that when the opposite party had informed them of her decision to leave her family home, they, along with the West Bengal Transgender Development Board had advised her to write an intimation letter to her local Matelli Police Station.

It was argued by the petitioners that to their astonishment, the Police Station disclosed the contents of her letter to her family members, even though she had left her home to move to Bengaluru voluntarily “since she was tired of harassment caused by the family members and neighbours.”

Petitioners stated that thereafter they were accused of kidnapping u/s 365 IPC and served notice under the CrPC on the basis of a baseless and absurd FIR, even though the opposite party no 3 had communicated to the police authorities that she had voluntarily left her family home.

Counsel for opposite party no 3 accordingly conceded that she had indeed left her home voluntarily, and the petitioners were not guilty of the offences as alleged.

Counsel for the State left the matter with the Court, and conceded to the submissions made by the petitioners and opposite party no 3.

In noting that the power of quashing criminal proceedings u/s 482 of the CrPC ought to be to be exercised sparingly and with great caution, the Bench allowed the petitioner’s application, and concluded:

While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 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 prima facie it appears to court that the trial would likely to be ended in acquittal. Consequently, First Information Report in connection with Matelli Police Station Case No. 225 of 2022 dated 22.10.2022 for the offences punishable under Sections 365 of IPC and all proceedings emanating there from are hereby quashed qua the petitioner.

Case: Avinaba Dutta & Another v State of West Bengal & Ors.

Coram: Justice Prasenjit Biswas

Citation: 2023 LiveLaw (Cal) 241

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