Kavita Chandrakant Lakhani vs State Of Maharashtra & Anr

R.K. Agrawal, J.

1) This appeal is directed against the judgment and order dated 06.05.2013 passed by learned single Judge of the High Court of Judicature at Bombay

in Criminal Writ Petition No. 3766 of 2012 whereby the High Court dismissed the petition filed by Kavita Chandrakant Lakhani-the appellant herein

against the order dated 04.07.2007 passed by learned Judge, Sessions Court at Greater Bombay in Criminal Revision Appln. No. 1261 of 2007 filed by

Respondent No. 2 herein against the committal order dated 03.10.2006 passed by the Additional Chief Metropolitan Magistrate, 40th Court, Gurgaum,

Mumbai in C.C. No. 215/PW/2005 wherein learned Additional Chief Metropolitan Magistrate rejected the application filed by Respondent No. 2

herein for discharge under Section 363 of the Indian Penal Code, 1860 (in short ‘the IPC’). It may be mentioned here that learned Judge,

Sessions Court, vide order dated 04.07.2007 had discharged the Respondent No. 2 not only in respect of offence under Section 366 of the IPC but

also under Sections 363 and 506 (ii) of the IPC.Â

2) Brief facts:

(a) A First Information Report (FIR) bearing No. 247 of 2003 PS Gamdevi, District Mumbai dated 12.09.2003 was got registered by the appellant

herein against Respondent No. 2 herein stating that on the fateful night of 06.09.2003, Respondent No. 2 and the appellant were in a birthday party

along with their friends. After finishing the party, Respondent No. 2, on the pretext of dropping the appellant to the venue for dinner, with whom she

was in relationship earlier, drove her to his home in Cuffe Parade, Mumbai. After reaching there, when the appellant refused to come out of the

car, Respondent No. 2 forcibly lifted her up and took her to his house and put her on bed. Respondent No. 2 removed all her clothes and starting

beating her using his waist belt and touching her inappropriately on her private parts in order to outrage her modesty.   Â

(b) A charge sheet in the case was filed on 30.03.2004 before the Court of Additional Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai

under Sections 363, 342, 324, 354, 323 and 506 (Part II) of the IPC. A Discharge Application was preferred by the Respondent No. 2 stating that

no offence is made out under Section 363 of the IPC. Learned ACMM, vide order dated 03.10.2006, rejected the discharge application and

committed the case to the Court of Sessions which got registered as Sessions Case No. 858 of 2006.Â

(c) Being aggrieved by the order dated 03.10.2006,Respondent No. 2 preferred a Revision Application being No. 1261 of 2006 before the Court of

Sessions. Respondent No. 2 also filed a Misc. Appln. being No. 244 of 2007 in Sessions Case No. 858 of 2006 for discharge under Section 366 of

the IPC and for remanding the matter back to the lower Court. Learned Asst. Sessions Judge, Greater Mumbai, by order dated 10.04.2007, rejected

the Misc. Application being No. 244 of 2007 filed by the Respondent No. 2.

(d) Aggrieved by the order dated 03.10.2006 and 10.04.2007, Respondent No. 2 preferred a Criminal Application being No. 1340 of 2007 before the

High Court. On 25.04.2007, when the said application came up for hearing before a learned single Judge of the High Court, Respondent No. 2

withdrew the same with a request that the trial of the case should not be proceeded with till the disposal of the Revision Application before the

Sessions Court. Learned single Judge of the High Court, vide order dated 25.04.2007, stayed the proceedings till the disposal of the said revision

application.

(e) Vide order dated 04.07.2007, learned Additional Sessions Judge, set aside the order dated 03.10.2006 while allowing the revision application filed

by Respondent No. 2. The learned Judge discharged Respondent No. 2 not only in respect of offence under Section 366 of the IPC but also under

Sections 363 and 506(ii) of the IPC. On 13.06.2012, charges were framed against Respondent No. 2 under Sections 342, 324, 323 and 354 of the

IPC. Aggrieved by the order dated 04.07.2007, the appellant preferred a Criminal Writ Petition being No. 3766 of 2012 before the High Court.Â

Learned single Judge of the High Court, vide order dated 06.05.2013, dismissed the writ petition filed by the appellant.

(f) Aggrieved by the judgment dated 06.05.2013, the appellant has preferred this appeal before this Court.Â

3) Heard Mr. Siddharth Luthra, learned senior counsel for the Appellant and Mr. Mahesh Jethmalani, learned senior counsel for Respondent No. 2

and Mr. Nishant R. Katneshwarkar, learned counsel for the respondent-State.

Point(s) for consideration:-

4) The only point for consideration before this Court is whether in the present facts and circumstances of the case, the appellant has made out a case

for inclusion of Section 366 of the IPC in the charges framed or not?

5) We have heard the arguments advanced by both the sides and perused the records.Â

Rival contentions:-

6) Learned senior counsel for the appellant contended that the incident took place on 06/07.09.2003 and FIR got registered on 12.09.2003 on the

complaint made by the appellant. Further, the appellant gave a supplementary statement on 16.02.2004 and if the complaint and the supplementary

statement is taken in its true perspective, no case has been made out for the discharge of Respondent No. 2 in respect of the alleged offences under

Sections 366, 363 and 506(ii) of the IPC.Â

7) In support of his contention, learned senior counsel for the appellant has relied upon Cref Finance Ltd. vs. Shree Shanthi Homes (P) Ltd. and

Another (2005) 7 SCC 467. He, therefore, contended that the impugned order as also the order of the Sessions Court discharging Respondent No. 2

be set aside by this Court.

8) Learned senior counsel for Respondent No. 2, however, submitted that there is no whisper in the complaint on the basis of which FIR was

registered on 12.09.2003 regarding commission of offences under Sections 366, 363 and 506(ii) of the IPC and the supplementary statement given by

the appellant after about 5 (five) months is only an afterthought just to implicate Respondent No. 2 under other Sections also and, therefore, it cannot

be relied upon. Â

9) Learned senior counsel for Respondent No. 2 referred to a decision of this Court in Dharam Pal and Others vs. State of Haryana and Another

(2014) 3 SCC 306 and submitted that the order passed by the High Court and the Sessions Court not call for any interference.

Discussion:-

10) In the above backdrop, it is pertinent to mention here the ingredients of Section 366 of the IPC which are as under:-

“366 “Kidnapping, abducting or inducing woman to compel her marriage, etc.â€"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 extent do 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

knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.â€​

In order to constitute the offence of ‘abduction’ a person must be carried off illegally by force or deception, that is, to compel a person by force

or deceitful means to induce to go from one place to another. The intention of the accused is the basis and the gravamen of an offence under this

Section. The volition, the intention and the conduct of the accused determine the offence; they can only bear upon the intent with which the accused

kidnapped or abducted the woman, and the intent of the accused is the vital question for determination in each case. Once the necessary intent of

the accused is established, the offence is complete, whether or not the accused succeeded in effecting his purpose, and whether or not the woman

consented to the marriage or the illicit intercourse.

11) Apart from this, to constitute an offence under Section 366 IPC, it is necessary for the prosecution to prove that the accused induced the

complainant woman or compelled by force to go from any place, that such inducement was by deceitful means, that such abduction took place with

the intent that the complainant may be seduced to illicit intercourse and/or that the accused knew it to be likely that the complainant may be seduced to

illicit intercourse as a result of her abduction. Mere abduction does not bring an accused under the ambit of this penal section. So far as charge under

Section 366 IPC is concerned, mere finding that a woman was abducted is not enough, it must further be proved that the accused abducted the

woman with the intent that she may be compelled, or knowing it to be likely that she will be compelled to marry any person 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. Unless the prosecution proves

that the abduction is for the purposes mentioned in Section 366 IPC, the Court cannot hold the accused guilty and punish him under Section 366 IPC.

12) We are of the considered opinion that the essence of all the applications and orders filed before the courts below is same. There is no point in

considering that in all the courts below, the other applications filed by Respondent No. 2 were not brought to the notice of the court at this stage. In

this view of the matter, it would be appropriate if we would confine our discussion to the applicability of Section 366 of the IPC in the present facts

and circumstances of the case.Â

13) In the case at hand, the appellant herein and Respondent No. 2 were in a relationship. On 06.09.2003, the appellant herein and Respondent No.

2 attended a birthday party of one of their friends. As per the allegations in the complaint, in the early hours of 07.09.2003, when all the friends

proceeded towards the venue for dinner, Respondent No. 2 herein, in order to drop her to the venue, took her to his house at Cuffe Parade, Mumbai

and asked her to get down from the car. When she refused for the same, Respondent No. 2 forcibly pulled her out of the car and lifted her up and

took her to his house and put her on his bed. After this, Respondent No. 2 herein started saying “I love you and why are you not marrying meâ€

and started beating her with his hands and belt. He also hit her head across the wall. As a result, she sustained injuries on her person. At

around 2 a.m., when the father of Respondent No. 2 returned home, he took the appellant herein to her home. On 12.09.2003, FIR was got registered

under various Sections of the IPC. One week thereafter, i.e. on 19.09.2003, a further statement was given by the appellant, after explaining the

facts to her mother wherein the appellant has made out a case of being molested. Her explanation that it was not stated earlier due to embarrassment

does not inspire confidence as FIR was lodged five days’ after the incident and, therefore, she lodged the same with due deliberation. Again,

why within one week thereafter she thought of mentioning about the molestation and did not feel embarrassed now? There is no explanation for

that. The act of pulling out the appellant herein from the car of Respondent No. 2 was witnessed by the watchman. In this view of the matter, it

is apparently clear that the allegation is confined to aspect of Respondent No. 2 herein forcibly taking her to his house. However, the allegations of

removing her clothes and touching her inappropriately or molestation was added afterwards. This Court has time and again held that mere abduction

does not bring an accused under the ambit of Section 366 IPC. It must be proved that the accused abducted the woman with the intent that she may

be compelled, or knowing it to be likely that she will be compelled to marry any person 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. It is evident on record that Respondent No. 2 and the

appellant herein were in a relationship which was known to their families also. The primary allegations are that Respondent No. 2 took her forcibly

to his house. But it was not with intent to seduce her to illicit intercourse. Actually, as per the prosecutrix, Respondent No. 2 first expressed his love

for her and afterwards he started beating her with waist belt and using his hands which fact is evident on record. The statement of being molested

at the hands of Respondent No. 2 was not given at once and was given later. The very same acts of Respondent No. 2 do not show his intent to

abduct her in order to marry her against her will or to force her or seduce her to illicit intercourse.Â

14) Even if it is proved that Respondent No. 2 forcibly took her to his house, but the later version that his intention was to marry her or to force or

seduce her to illicit intercourse is clearly an afterthought. At the highest, the case can be put that both of them were in a relationship and due to

sudden outbreak of emotions or due to sense of insecurity on the part of Respondent No. 2, the above act was done. Further, the decisions relied upon

by learned senior counsel for the parties have no application to the facts of the present case.

15) In view of the foregoing discussion, we are of the opinion that the charge under Section 366 of the IPC is not maintainable and the High Court

was right in upholding so. We are in agreement with the order passed by the High Court. However, since the matter is pending since 2003 and is still

at the stage of charge framing, we deem it appropriate to direct the trial Court to conclude the trial within 6 (months) from the date of passing of this

judgment. It is also made clear that the observations recorded in this judgment are for the purpose of applicability of Section 366 of the IPC only

and trial Court shall decide the matter on merits. The appeal is dismissed.