Author: Nikitha Panchagnula, Student at University College of Law, Osmania University.
Citation: (2018) 6 SCC 664
Date of decision: April 24, 2018
Bench: R.K.Agrawal, Abhay Manohar Sapre
Original copy: View
Statutes involved: Indian Penal Code, 1860
Issue in question:
- Whether in the light of facts and circumstances of the case, the Appellant has put out a case for the inclusion of Section 366, IPC in the charges framed against Respondent No.2?
Background of the case:
- The Appellant herein and Respondent No. 2 were in a relationship. One night, both the Appellant and Respondent No. 2 attended their friend’s birthday party. After the party, all the friends proceeded for dinner towards the venue. In order to drop the Appellant at the venue, Respondent No.2 drove her to his house in Cuffe Parade, Mumbai and ordered her to get out of the car for which she refused. Respondent No.2 then forcibly dragged her from the car, hoisted her up, drove her to his residence where he placed her on his bed and removed her clothes. After that, he started beating her with his hands and belt and touched her private parts inappropriately asking her the reason behind not marrying him. He later, hit the Appellant against the wall whereby she suffered injuries. When Respondent No. 2’s father returned home around 2 a.m., he dropped the Appellant at her home.
- After 6 days of the occurrence of the incident, the Appellant filed an FIR at Gamdevi Police Station, Mumbai against Respondent No.2 complaining about the incident. After 6 months, a charge sheet was filed before the Court of Additional Chief Metropolitan Magistrate, Girgaon, Mumbai u/s 323, 324, 342, 354, 363, 506 of IPC. Respondent No. 2 filed a discharge application claiming that no offence u/s 363 IPC has been established. The learned Additional Magistrate rejected the discharge application filed by Respondent No.2 and committed the case to the Sessions Court.
- Aggrieved by the order of the learned Additional Magistrate Respondent No.2 filed a revision application before the Sessions Court. He also filed a Miscellaneous application before the Sessions Court asking for his discharge u/s 366 IPC and to remand the matter back to the lower Court. The Sessions Judge rejected the miscellaneous application. Aggrieved by the order of the Sessions Judge, Respondent No.2 filed a criminal application before the Bombay High Court. During the hearing, Respondent No.2 made a request that the trial should not be proceeded until the disposal of the revision application before the Sessions Judge and withdrew the criminal application filed before the Hon’ble High Court. The learned single Judge of High Court, ordered to stay the proceedings until the disposal of the said revision application before the Sessions Judge.
- The learned Sessions Judge allowed the revision application filed by Respondent No.2 discharging him u/s 363, 366, 506(ii) IPC setting aside his previous order. Charges were framed against him u/s 323, 324, 342, 354 IPC.
- Aggrieved by the order, the Appellant filed a criminal Writ Petition before the Hon’ble High Court. Learned single Judge of Hon’ble High Court had dismissed theWrit Petition filed by the Appellant. Aggrieved by the order of the Hon’ble High Court, the Appellant has preferred a criminal appeal before the Hon’ble Supreme Court.
- The Hon’ble Court while passing the order explained and reiterated the offence u/s 366 IPC and its ingredients.
- The Court gave highest importance to the intention of the accused who committed the offence of ‘abduction’ under IPC. It emphasized that the vital question to determine the offence of abduction is the intention of the accused which constitutes the basis of the offence. The offence is complete once the accused’s requisite intent is established, regardless of whether the accused was successful in carrying out his purpose and whether the woman consented to the illicit intercourse or marriage.
- The Court further contended that mere abduction does not bring the accused under the offence u/s 366, it must be proved that the accused abducted the woman with an intent that she may be compelled or knowing that she is likely to be compelled to marry any person or in order that she may be forced or seduced to illicit intercourse or knowing that she is likely to be forced or seduced to illicit intercourse.
- The Court held that the primary allegations show that Respondent No. 2 took the Appellant forcefully to his house but not with an intent to seduce her to illicit intercourse. The acts of Respondent No. 2 show no intention to abduct her to seduce her to illicit inercourse to marry her against her will. It held that the facts do not show the intention of the accused to abduct the Appellant and therefore the Court cannot hold the accused guilty u/s 366 IPC.
- The Court concluded that the charge u/s 366 IPC is not maintainable and upheld the order passed by the Hon’ble High Court.
- It further directed the Trial Court to end the trail within a period of 6 months from the date of passing of this judgment. The Court made clear that the remarks made in this order are solely for the purpose of determining the applicability of Section 366, IPC and that the Trial Court would decide the case on its merits and dismissed the appeal.
- The Court’s judgement in the present case would stand as a landmark case while dealing with the offence of abduction under the Indian Penal Code. The Apex Court held that mere abduction would not make the accused guilty u/s 366, IPC. The said offence under Section 366 is cognizable, non- bailable and non-compoundable and is triable by Court of Sessions.
- The essential ingredients of the offence are:
- Kidnapping or abducting a woman
- Such kidnap or abduction must be
- i) With the intent that the woman may be compelled or knowing it to be likely that she will be compelled to marry any person against her will, or ii) in order that she may be forced or seduced to illicit intercourse, or knowing that she may be forced or seduced to illicit intercourse; or iii) by criminal intimidation or abuse of authority or by compulsion inducing any woman to go from any place, with the intent that she may be or with knowledge that it is likely that she will be forced or seduced to illicit intercourse with some person.
- It is irrelevant if the accused had achieved his motive or not. The only relevant aspect which would be looked into by the courts is whether the ingredients of the offence have been proved or not. It is the intention and the conduct of the accused which would be paramount to constitute the offence.
- The expression “against the will” in the provision has been used to include any act done without the consent of the woman against her wish or desire despite her unwillingness towards it.
- The word “seduce” has been used to mean “entice,” “tempt,” “entice wickedness,” “pull aside,” “guide astray,” “lead to unfairness,” or “submit to.” As a result, it is not restricted to the initial act of unlawful intercourse or the first act of chastity surrender.
- The primary reason behind the Court’s acquittal of the accused in the present case is that there was no intention on the part of Respondent No. 2 to abduct or seduce the Appellant or to have illicit intercourse with her though he took her away to his house. Another reason would be the fact that the Appellant had made the claim of being molested at a later date raises the possibility that it may have been concocted.