IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 459 OF 2016
Kavita Chandrakant Lakhani …. Appellant(s)
State of Maharashtra Anr. …. Respondent(s)
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
Signature Not Verified
Digitally signed by
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.
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
(b) A charge sheet in the case was filed on 30.03.2004 before
the Court of Additional Chief Metropolitan Magistrate, 40 th
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.
(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
(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. 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.
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.
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.
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.
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.
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.—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
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.
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
me” 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.
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.
APRIL 24, 2018.