KAVITA CHANDRAKANT LAKHANI versus STATE OF MAHARASHTRA & ANR. on 24 April 2018

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SUPREME COURT REPORTS

[2018] 3 S.C.R.

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KAVITA CHANDRAKANT LAKHANI

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STATE OF MAHARASHTRA & ANR.

(Criminal Appeal No. 459 of 2016)

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APRIL 24, 2018

[A. K. SIKRI AND R. K. AGRAWAL, JJ.]

Penal Code, 1860 – s.366 – Framing of charge under – Whennot justified – FIR registered by appellant against Respondent no.2,Cwith whom she was in relationship earlier – Appellant stated thaton the fateful night when she and Respondent no.2 were in a party,after the party finished, Respondent no.2 on the pretext of droppingher to the venue for dinner, drove her to his home and when onreaching there appellant refused to come out of the car, Respondentno.2 forcibly lifted her up, took her to his house and started beatingDher – Later, appellant gave further statement that she was alsomolested by Respondent no.2 – Charge sheet filed – Respondentno.2 discharged inter alia in respect of offence u/s.366 – On appeal,held: For charge u/s.366, mere finding that a woman was abductedis not enough –It must further be proved that the accused abductedEthe woman with the intent that she may be compelled to marry anyperson or in order that she may be forced or seduced to illicitintercourse– In the instant case, primary allegations made byappellant were that Respondent No. 2 forcibly took her to his house,first expressed his love for her and then started beating her whichfact is evident on record – However, one week thereafter appellantFmade out a case of molestation stating that it was not stated earlierdue to embarrassment – This does not inspire confidence as the FIRwas lodged by appellant, five days after the incident, with duedeliberation, and why within one week she thought of mentioningabout molestation and did not feel embarrassed then – Even if it isGproved that Respondent No. 2 forcibly took her to his house, thelater version that his intention was to marry her or to force or seduceher to illicit intercourse was clearly an afterthought – Charge u/s.366 against respondent no.2 is not maintainable.

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Dismissing the appeal, the Court

HELD: 1.1 In order to constitute the offence of ‘abduction’a person must be carried off illegally by force or deception, thatis, to compel a person by force or deceitful means to induce to gofrom one place to another. The intention of the accused is thebasis and the gravamen of an offence under this Section. Thevolition, the intention and the conduct of the accused determinethe offence, and the intent of the accused is the vital question fordetermination in each case. Once the necessary intent of theaccused is established, the offence is complete, whether or notthe accused succeeded in effecting his purpose, and whether ornot the woman consented to the marriage or the illicit intercourse.Apart from this, to constitute an offence under Section 366 IPC,it is necessary for the prosecution to prove that the accusedinduced the complainant woman or compelled by force to go fromany place, that such inducement was by deceitful means. So far ascharge under Section 366 IPC is concerned, mere finding that awoman was abducted is not enough, it must further be provedthat the accused abducted the woman with the intent that shemay be compelled, or knowing it to be likely that she will becompelled to marry any person or in order that she may be forcedor seduced to illicit intercourse or knowing it to be likely thatshe will be forced or seduced to illicit intercourse. Unless theprosecution proves that the abduction is for the purposesmentioned in Section 366 IPC, the Court cannot hold the accusedguilty and punish him under Section 366 IPC.[Paras 10-12][1000-E-H; 1001-A-B]

1.2 One week after the FIR was got registered undervarious Sections of the IPC, a further statement was given by theappellant, after explaining the facts to her mother wherein theappellant made out a case of being molested. Her explanationthat it was not stated earlier due to embarrassment does notinspire confidence as FIR was lodged five days after the incidentand, therefore, she lodged the same with due deliberation. Again,why within one week thereafter she thought of mentioning aboutthe molestation and did not feel embarrassed now? There is noexplanation for that. The act of pulling out the appellant from thecar of Respondent No. 2 was witnessed by the watchman. In this A

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Aview of the matter, it is apparently clear that the allegation wasconfined to aspect of Respondent No. 2 forcibly taking her to hishouse. However, the allegations of removing her clothes andtouching her inappropriately or molestation was added afterwards.It is evident on record that Respondent No. 2 and the appellantwere in a relationship which was known to their families also.BThe primary allegations were that Respondent No. 2 took herforcibly to his house. But it was not with intent to seduce her toillicit intercourse. Actually, as per the prosecutrix, RespondentNo. 2 first expressed his love for her and afterwards he startedbeating her with waist belt and using his hands which fact isCevident on record. The statement of being molested at the handsof Respondent No. 2 was not given at once and was given later.The very same acts of Respondent No. 2 do not show his intentto abduct her in order to marry her against her will or to forceher or seduce her to illicit intercourse. Even if it is proved thatRespondent No. 2 forcibly took her to his house, but the laterDversion that his intention was to marry her or to force or seduceher to illicit intercourse is clearly an afterthought. At the highest,the case can be put that both of them were in a relationship anddue to sudden outbreak of emotions or due to sense of insecurityon the part of Respondent No. 2, the above act was done. [ParasE13, 14][1001-G-H; 1002-A, C, E-F]

Cref Finance Ltd. v. Shree Shanthi Homes (P) Ltd. andAnother (2005) 7 SCC 467: [2005] 2 Suppl. SCR 873;Dharam Pal and Others v. State of Haryana and Another(2014) 3 SCC 306 – held inapplicable.

FCase Law Reference

[2005] 2 Suppl. SCR 873 held inapplicablePara 7(2014) 3 SCC 306held inapplicablePara 9

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.459 of 2016.GFrom the Judgment and Order dated 06.05.2013 of the High Courtof Judicature at Bombay in Criminal Writ Petition No. 3766 of 2012.

Siddharth Luthra, Sr. Adv., Robin Jaisinghani, Vikas Mehta, VijayGandhi, Samir Chaudhary, Ms. Purnima Raj, Ms. Anushree Menon, Advs.for the Appellant.

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Mahesh Jethmalani, Sr. Adv., Nishant R. Katneshwarkar, Anand,Rahul M, Ms. R. N. Reddy, Dr. Sushil Balwada, Advs. for theRespondents.

The Judgment of the Court was delivered by

R. K. AGRAWAL, J. 1. This appeal is directed against thejudgment and order dated 06.05.2013 passed by learned single Judge ofthe High Court of Judicature at Bombay in Criminal Writ Petition No.3766 of 2012 whereby the High Court dismissed the petition filed byKavita Chandrakant Lakhani-the appellant herein against the order dated04.07.2007 passed by learned Judge, Sessions Court at Greater Bombayin Criminal Revision Appln. No. 1261 of 2007 filed by Respondent No. 2herein against the committal order dated 03.10.2006 passed by theAdditional Chief Metropolitan Magistrate, 40[th] Court, Gurgaum, Mumbaiin C.C. No. 215/PW/2005 wherein learned Additional Chief MetropolitanMagistrate rejected the application filed by Respondent No. 2 herein fordischarge 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 notonly in respect of offence under Section 366 of the IPC but also underSections 363 and 506 (ii) of the IPC.

2. Brief facts:

2. Brief facts:

(a) A First Information Report (FIR) bearing No. 247 of 2003 PSGamdevi, District Mumbai dated 12.09.2003 was got registered by theappellant herein against Respondent No. 2 herein stating that on thefateful night of 06.09.2003, Respondent No. 2 and the appellant were ina birthday party along with their friends. After finishing the party,Respondent No. 2, on the pretext of dropping the appellant to the venuefor dinner, with whom she was in relationship earlier, drove her to hishome in Cuffe Parade, Mumbai. After reaching there, when the appellantrefused to come out of the car, Respondent No. 2 forcibly lifted her upand took her to his house and put her on bed. Respondent No. 2 removedall her clothes and starting beating her using his waist belt and touchingher inappropriately on her private parts in order to outrage her modesty.

(b) A charge sheet in the case was filed on 30.03.2004 before theCourt of Additional Chief Metropolitan Magistrate, 40[th] Court, Girgaon,Mumbai under Sections 363, 342, 324, 354, 323 and 506 (Part II) of the A

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AIPC. A Discharge Application was preferred by the Respondent No. 2stating that no offence is made out under Section 363 of the IPC. LearnedACMM, vide order dated 03.10.2006, rejected the discharge applicationand committed the case to the Court of Sessions which got registered asSessions Case No. 858 of 2006.

B(c) Being aggrieved by the order dated 03.10.2006, RespondentNo. 2 preferred a Revision Application being No. 1261 of 2006 beforethe Court of Sessions. Respondent No. 2 also filed a Misc. Appln. beingNo. 244 of 2007 in Sessions Case No. 858 of 2006 for discharge underSection 366 of the IPC and for remanding the matter back to the lowerCourt. Learned Asst. Sessions Judge, Greater Mumbai, by order datedC10.04.2007, rejected the Misc. Application being No. 244 of 2007 filedby 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 of2007 before the High Court. On 25.04.2007, when the said applicationDcame 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 thecase should not be proceeded with till the disposal of the RevisionApplication before the Sessions Court. Learned single Judge of theHigh Court, vide order dated 25.04.2007, stayed the proceedings till theEdisposal 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 applicationfiled by Respondent No. 2. The learned Judge discharged RespondentNo. 2 not only in respect of offence under Section 366 of the IPC butFalso under Sections 363 and 506(ii) of the IPC. On 13.06.2012, chargeswere framed against Respondent No. 2 under Sections 342, 324, 323and 354 of the IPC. Aggrieved by the order dated 04.07.2007, theappellant preferred a Criminal Writ Petition being No. 3766 of 2012before the High Court. Learned single Judge of the High Court, videorder dated 06.05.2013, dismissed the writ petition filed by the appellant.

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

3. Heard Mr. Siddharth Luthra, learned senior counsel for theAppellant and Mr. Mahesh Jethmalani, learned senior counsel for H

Respondent No. 2 and Mr. Nishant R. Katneshwarkar, learned counselfor the respondent-State.

Point(s) for consideration:-

4. The only point for consideration before this Court is whether inthe present facts and circumstances of the case, the appellant has madeout a case for inclusion of Section 366 of the IPC in the charges framedor not?

5. We have heard the arguments advanced by both the sides andperused the records.

Rival contentions:-

6. Learned senior counsel for the appellant contended that theincident took place on 06/07.09.2003 and FIR got registered on 12.09.2003on the complaint made by the appellant. Further, the appellant gave asupplementary statement on 16.02.2004 and if the complaint and thesupplementary statement is taken in its true perspective, no case hasbeen made out for the discharge of Respondent No. 2 in respect of thealleged offences under Sections 366, 363 and 506(ii) of the IPC.

7. In support of his contention, learned senior counsel for theappellant has relied upon Cref Finance Ltd. vs. Shree Shanthi Homes(P) Ltd. and Another (2005) 7 SCC 467. He, therefore, contended thatthe impugned order as also the order of the Sessions Court dischargingRespondent 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 whichFIR was registered on 12.09.2003 regarding commission of offencesunder Sections 366, 363 and 506(ii) of the IPC and the supplementarystatement given by the appellant after about 5 (five) months is only anafterthought just to implicate Respondent No. 2 under other Sectionsalso and, therefore, it cannot be relied upon.

9. Learned senior counsel for Respondent No. 2 referred to adecision of this Court in Dharam Pal and Others vs. State of Haryanaand Another (2014) 3 SCC 306 and submitted that the order passed bythe High Court and the Sessions Court not call for any interference.

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ADiscussion:-

10. In the above backdrop, it is pertinent to mention here theingredients of Section 366 of the IPC which are as under:- “366 “Kidnapping, abducting or inducing woman to compelher marriage, etc.—Whoever kidnaps or abducts any womanBwith intent that she may be compelled, or knowing it to be likelythat 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 toillicit intercourse, shall be punished with imprisonment of eitherCdescription for a term which may extent do ten years, and shallalso be liable to fine; and whoever, by means of criminalintimidation as defined in this Code or of abuse of authority or anyother method of compulsion, induces any woman to go from anyplace with intent that she may be, or knowing that it is likely thatshe will be, forced or seduced to illicit intercourse with anotherDperson shall be punishable as aforesaid.”

In order to constitute the offence of ‘abduction’ a person must becarried off illegally by force or deception, that is, to compel a person byforce or deceitful means to induce to go from one place to another. Theintention of the accused is the basis and the gravamen of an offenceEunder this Section. The volition, the intention and the conduct of theaccused determine the offence; they can only bear upon the intent withwhich the accused kidnapped or abducted the woman, and the intent ofthe accused is the vital question for determination in each case. Oncethe necessary intent of the accused is established, the offence is complete,Fwhether or not the accused succeeded in effecting his purpose, andwhether or not the woman consented to the marriage or the illicitintercourse.

11. Apart from this, to constitute an offence under Section 366IPC, it is necessary for the prosecution to prove that the accused inducedGthe complainant woman or compelled by force to go from any place,that such inducement was by deceitful means, that such abduction tookplace with the intent that the complainant may be seduced to illicitintercourse and/or that the accused knew it to be likely that thecomplainant may be seduced to illicit intercourse as a result of herabduction. Mere abduction does not bring an accused under the ambit ofH

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 furtherbe proved that the accused abducted the woman with the intent that shemay be compelled, or knowing it to be likely that she will be compelled tomarry any person or in order that she may be forced or seduced to illicitintercourse or knowing it to be likely that she will be forced or seducedto illicit intercourse. Unless the prosecution proves that the abduction isfor the purposes mentioned in Section 366 IPC, the Court cannot holdthe accused guilty and punish him under Section 366 IPC.

12. We are of the considered opinion that the essence of all theapplications and orders filed before the courts below is same. There isno point in considering that in all the courts below, the other applicationsfiled by Respondent No. 2 were not brought to the notice of the court atthis stage. In this view of the matter, it would be appropriate if wewould confine our discussion to the applicability of Section 366 of theIPC 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 andRespondent No. 2 attended a birthday party of one of their friends. Asper the allegations in the complaint, in the early hours of 07.09.2003,when all the friends proceeded towards the venue for dinner, RespondentNo. 2 herein, in order to drop her to the venue, took her to his house atCuffe Parade, Mumbai and asked her to get down from the car. Whenshe refused for the same, Respondent No. 2 forcibly pulled her out ofthe 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 whyare you not marrying me” and started beating her with his hands andbelt. He also hit her head across the wall. As a result, she sustainedinjuries on her person. At around 2 a.m., when the father of RespondentNo. 2 returned home, he took the appellant herein to her home. On12.09.2003, FIR was got registered under various Sections of the IPC.One week thereafter, i.e. on 19.09.2003, a further statement was givenby the appellant, after explaining the facts to her mother wherein theappellant has made out a case of being molested. Her explanation that itwas not stated earlier due to embarrassment does not inspire confidenceas FIR was lodged five days’ after the incident and, therefore, she lodgedthe same with due deliberation. Again, why within one week thereaftershe thought of mentioning about the molestation and did not feel AB

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Aembarrassed now? There is no explanation for that. The act of pullingout the appellant herein from the car of Respondent No. 2 was witnessedby the watchman. In this view of the matter, it is apparently clear thatthe allegation is confined to aspect of Respondent No. 2 herein forciblytaking her to his house. However, the allegations of removing her clothesand touching her inappropriately or molestation was added afterwards.BThis Court has time and again held that mere abduction does not bringan accused under the ambit of Section 366 IPC. It must be proved thatthe accused abducted the woman with the intent that she may becompelled, or knowing it to be likely that she will be compelled to marryany person or in order that she may be forced or seduced to illicitCintercourse or knowing it to be likely that she will be forced or seducedto illicit intercourse. It is evident on record that Respondent No. 2 andthe appellant herein were in a relationship which was known to theirfamilies also. The primary allegations are that Respondent No. 2 tookher forcibly to his house. But it was not with intent to seduce her to illicit intercourse. Actually, as per the prosecutrix, Respondent No. 2 firstDexpressed his love for her and afterwards he started beating her withwaist belt and using his hands which fact is evident on record. Thestatement of being molested at the hands of Respondent No. 2 was notgiven at once and was given later. The very same acts of RespondentNo. 2 do not show his intent to abduct her in order to marry her againstEher will or to force her or seduce her to illicit intercourse.

14. Even if it is proved that Respondent No. 2 forcibly took her tohis house, but the later version that his intention was to marry her or toforce or seduce her to illicit intercourse is clearly an afterthought. At thehighest, the case can be put that both of them were in a relationship and Fdue to sudden outbreak of emotions or due to sense of insecurity on thepart of Respondent No. 2, the above act was done. Further, the decisionsrelied upon by learned senior counsel for the parties have no applicationto the facts of the present case.

15. In view of the foregoing discussion, we are of the opinion thatGthe charge under Section 366 of the IPC is not maintainable and theHigh Court was right in upholding so. We are in agreement with theorder passed by the High Court. However, since the matter is pendingsince 2003 and is still at the stage of charge framing, we deem itappropriate 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 theH

observations recorded in this judgment are for the purpose of applicabilityof Section 366 of the IPC only and trial Court shall decide the matter onmerits. The appeal is dismissed.

Divya Pandey

Appeal dismissed.

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