REPORTABLE  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 459 OF 2016  

Kavita Chandrakant Lakhani  .... Appellant(s)                   Versus

State of Maharashtra & Anr.               .... Respondent(s)

J U D G M E N T

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

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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

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starting  beating  her  using  his  waist  belt  and  touching  her

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

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.   

(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

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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,

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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.   

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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.   

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

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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.

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.—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.”  

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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

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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

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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

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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

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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

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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.  

...…………….………………………J.                (A.K. SIKRI)                                  

.…....…………………………………J.         (R.K. AGRAWAL)                         

NEW DELHI; APRIL 24, 2018.  

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