Author : Gaurav Dua
“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 extend to ten years, and shall also be liable to fine; 1[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]. “
On 24th April 2018, the Supreme Court gave a judgement which might be considered a landmark judgement in the near future. This was the case of KavitaChandrakantLakhani v. The State of Maharashtra &Ors.
The appellant and the accused were friends who were attending a birthday party. The accused on the pretext of dropping her to her home took her to his home in his car. Upon reaching the appellant refused to come out of the car, the accused then forcibly lifted her up and took her inside and put her on his bed. He then started touching her inappropriately on her private parts in order to outrage her modesty.
The division bench of the Supreme Court in its verdict held that while observing the facts & circumstances of the case no offence of abduction could be made under section 366 of the Indian Penal Code. The court said that mere abduction of a woman is not enough to attract the penalty given in Section 366.
The offence under section 366 is cognizable, non-bailable and non-compoundable, and is triable by court of session. Section 366 is one of many gender specific sections of the Indian Penal Code which provides greater protection to women by undertaking the responsibility of classifying several acts as a punishable offence.
The essential ingredients of the section are;
1) Kidnapping or abducting any woman
2) Such kidnapping or abducting 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
3) 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.
In order to attract the latter part of the section there should be either criminal intimidation, which has been defined under section 503 of the Code, or abuse of authority, or there is any other method of compulsion is used, by the offender, and by this action the offender induces any woman to go with him.
Whether the accused was able to achieve its motive is irrelevant in deciding whether the act constituted an offence or not, all that matters is whether the essentials of the section can be proved or not. Once the prosecution is able to prove the essentials, the act of the accused will be said to have been an offence and will attract the provisions of the section. It is the intention and the conduct of the accused which determines the offence.
This can be better understood from the case of Bhagwati Prasad v. Emperor (AIR 1929 ALL 709), In this case the victim was taken away from the custody of her lawful guardian by a person who then took her over to another person so that she may be sold and the sale proceeds may be shared by them. The court held that though the victim was neither married to anyone nor was she subjected to illicit intercourse, the first accused is guilty under section 366.
The reason for this conviction was that the intent of the accused was established with ease.
The expression ‘against her will’ has been used to include an act done ‘without her consent,’ an act which she was forced to perform despite her opposition to it. “Against her will” is an act done against one’s desire, wishes or conscious actions.
But if the victim is taken by the accused forcefully, by deception or by deceitful means but never objects to it despite having several opportunities to do so, then the accused cannot be held liable under Section 366.
Similarly when a girl, whose age (minor or a major)can not be determined and is doubtful, left her parental home voluntarily to go away with the accused without any inducement or allurement on his part, to get married, then provisions of section 366 will not be attracted. (State of Karnataka v. SureshbabuPuk Raj Porra AIR1994 SC 966)
The expression ‘seduce’ has been used in the sense of soliciting, enticing, or pursuing the woman. In other words, it is an act by the defendant where he uses insinuating arts and his wiles to overcome the opposition of the seduced.
The case of Abdul v. Emperor (AIR 1932 ALL 580)laid down that in order to attract the section, it is important that the accused takes the girl away with him.
In this case, the accused had sexual intercourse with the victim in a field near her home but had no intention of taking away the girl with him, the court held that he was not guilty under section 366.
There were many reasons why the Supreme court acquitted the accused in the case of KavitaChandrakantLakhani v. The State of Maharashtra &Ors., including the fact that the appellant made the complaint of being molested at a later stage which gives rise to the assumption that it may have been concocted.