R.K.AGRAWAL - (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 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 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 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 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 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:-;