sex with dad, sex with son, all on webcam, and THEN A RAPE CASE! How kerala HC acquitted an MLA !! Prosecutorix claims she accepted to sex with dad, so as to marry son !!! sadly, the woman claims to be the daughter of a saw mill owner ...!!! GOOD judgement where the honorable HC discusses what is consent and what is rape !! the opposite party (DGP / prosecution) brings out various dissenting judgement opposing acquittal !!! The honourable judge has some very good concluding remarks
special thanks to MRA Cochin for sharing this judgement
**************************************************
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.BHAVADASAN
THURSDAY, THE 1ST DAY OF AUGUST 2013/10TH SRAVANA, 1935
Crl.MC.No. 2737 of 2013 ()
***************************
CRIME NO. 2141/2013 OF ALUVA EAST POLICE STATION, ERNAKULAM DISTRICT
************
PETITIONER/1ST ACCUSED :
*******************************************
JOSE THETTAYIL
THETTAYIL HOUSE, ANGAMALY P.O.,
ERNAKULAM DISTRICT.
BY SENIOR ADVOCATE SRI.M.K.DAMODARAN
BY SENIOR ADVOCATE SRI.GRASHIOUS KURIAKOSE
BY ADV. SRI.V.V.NANDAGOPAL NAMBIAR
RESPONDENTS/COMPLAINANT :
*************************************************
1. STATION HOUSE OFFICER, ALUVA EAST POLICE STATION
ALUVA, REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682031.
2. SUPERINTENDENT OF POLICE, CBCID,
ERNAKULAM, REPRESENTED BY THE PUBLIC PROSECUTOR
HIGH COURT OF KERALA, ERNAKULAM-682 031
3. NOBY AUGUSTINE
D/O.AUGUSTINE, AGED 30 YEARS,
THIRUTHANATHIL HOUSE, MARYGIRI KARA
MANJAPRA VILLAGE, ALUVA TALUK-683581.
R1 & R2 BY DIRECTOR GENERAL OF PROSECUTION SRI. ASAF ALI
R3 BY ADV. SRI.SHABU SREEDHARAN
R3 BY ADV. SRI.TONY THOMAS (INCHIPARAMBIL)
R3 BY ADV. SMT.RESHMA ABDUL RASHEED
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24/07/2013,
THE COURT ON 01-08-2013 PASSED THE FOLLOWING:
Mn
APPENDIX
PETITIONER'S ANNEXURES :
*********************************************************
ANNEXURE A1 : COPY OF THE COMPLAINT.
ANNEXURE A2 COPY OF THE FIR REGISTERED ON THE BASIS OF ANNEXURE A1.
RESPONDENT'S EXHIBITS :
EXT.R3(1) : COPY OF THE JUDGMENT IN CRL.R.P. NO. 1570/2005 DATED 18.2.2013
PASSED BY THE HON'BLE HIGH COURT OF KERALA.
EXT.R3(2) COPY OF THE JUDGMENT IN CRL.A. NO. 169/2007 DATED 11.6.2013
PASSED BY THE HON'BLE HIGH COURT OF KERALA.
//TRUE COPY//
P.S. TO JUDGE
Mn
* * * -P.-BHAVADASAN,2013 * -
-Crl.M.C.**No.* * * * of* * * * * -
* * 2737 * * -J.* -
* * -
Dated-this the 1-st day of-August, 2013.
* * -
ORDER
Astounding, incredible and extraordinary allegations in a complaint, unique in nature and character, probably first of its kind in judicial history of the Nation, and may also be the last, resulted in registration of Crime No.2141 of 2013 of Aluva East Police Station, for the offence punishable under Section 376 read with Section 34 of Indian Penal Code (hereinafter referred to as I.P.C.). The petitioner herein is the first accused in the said case and his son is the second accused. The first accused is a sitting MLA and a prominent person enjoying wide popularity among the people of his constituency.
2. The short case put forward by the petitioner is that even assuming that all the allegations in the complaint are taken as true, they do not constitute the ingredients necessary to attract Section 376 of I.P.C. and if that be so, no offence is made out and the complaint and the FIR produced as Annexures A1 and A2 are only to be quashed. In other words, the petitioner wishes to abort the proceedings at the threshold.
3. In the light of the said fact, it becomes necessary before going into the various aspects to refer to the allegations in the complaint in detail.
4. The complaint is produced as Annexure A1. It is in vernacular language. It is addressed to the Superintendent of Police (Rural), Aluva. It is undated. According to the complainant, she has studied upto MCA. She says that her father owns a business in timber and runs a mill under the name and style St.Augustine Packing Industries and Saw Mill in Manjapra Village. The business commenced from 1.1.2007. Shri. Jose Thettayil, MLA from Angamaly, the petitioner herein, was invited for the inauguration of the Mill. The complainant too had attended the function. According to the complainant, accepting the invitation, the MLA had come to attend the function. Likewise, many other persons, including the Panchayat President, also attended the function. At the function, the complainant was introduced to the petitioner for the first time. The residential house, where the complainant resides, and the Saw Mill are situate in the same compound. The complainant used to go to the business concern to help her father. On the next day of the inauguration, the MLA had made a call to the Saw Mill office. On hearing the sound of the complainant, he asked whether it was Noby, the daughter of Augustine. The complainant replied in the affirmative and she says that her mobile number was sought for. She replied that currently she did not have a mobile connection. Later on, she, for business purposes, took a mobile connection with Idea. About four months thereafter, the MLA came to the office and stated that he was on his way for inauguration at some other place. The complainant had her mobile phone with her and when the number was sought for by the MLA, it was given to him. According to the complainant, thereafter, the MLA used to phone her occasionally. From the beginning of 2010, the MLA began to call her frequently. Whenever he called, he enquired about the welfare of the complainant and about the affairs of the business that is being carried on by her father. One day, it is claimed that, she asked the MLA why he was calling her so often. He then said to have told her that his son was studying for MBA in Ireland and he desired that his son marries the complainant when he returns from Ireland. The MLA indicated that he was planning to meet her father and talk about the marriage. Thereafter, he called the complainant frequently. While so, in the beginning of 2012, the son of the petitioner returned to his native place and for the next few days she was called over phone by the MLA and she was informed that his son had returned home and asked the complainant to come over to Anns India Exim Private Limited at Cheriyavappilaserry. The complainant went there. There apart from him, his eldest son Adarsh, two Directors, Cheriyan and Smiley, and other staff were present. Then the petitioner introduced his son to the complainant and it is stated that for the next five months Adarsh, the eldest son of the MLA used to attend his office. The concern was engaged in sale of vessels. As per the complainant, before that, in 2010, with the help of her father, the complainant had purchased a flat in Periyar Residency, Chembakassery Road, Aluva. The number of the apartment is 11-C. A few interior decorations were done. After the purchase, the MLA had come to see the flat. He is said to have opined that the existing interior decorations were of old style and so also the furniture and advised her to modernize the furniture and interior decorations. With the help of her father, the complainant carried out interior decorations worth Rs.40 Lakhs. During that period, while the work was in progress, the MLA used to visit the flat and give directions and suggestion. The complainant says that after meeting Adarsh, she went to the business concern of the petitioner to purchase household articles for the flat. After the purchase, Adarsh offered to accompany her to deliver the articles. She agreed. Since there was a marriage proposal between the complainant and Adarsh, she did not feel anything unusual in the conduct. She and Adarsh reached the flat with the articles purchased by her. After keeping the articles in the flat, they returned. Thereafter, on several occasions, Adarsh used to call the complainant and on many occasions they went to the complainant's flat. On some occasions, the conduct of Adarsh crossed the limits, but since the complainant thought that as she has to marry him, she did not raise any resistance or objection to the said conduct. The complainant admits that she had sexual intercourse 4 or 5 times with Adarsh. While things stood so, the complainant came to know from her friends that there was a marriage proposal for Adarsh with some other girl. The complainant came to know the same in August, 2012. After she came to know about the same, when Adarsh came to meet her, he was asked about the same and he said that there was no substance in that rumour. Doubts and suspicion remained in the mind of the complainant. She felt that clear evidence of the real relationship between her and Adarsh was absolutely necessary. Therefore, she purchased a web camera and installed it in her bed room. The complainant says that thereafter when Adarsh came to her flat they had indulged in sexual intercourse which was caught in the web camera. Subsequently, without much delay, Adarsh went to Bombay. He had gone to Bombay promising that he will return from Bombay after about four months and then the marriage can be conducted. During August, the complainant says that she came to know that other marriage proposals were being mooted for Adarsh. Thereafter, the MLA is said to have contacted her and asked her to meet him with with the key of the flat. The complainant went in her car near to CSA Auditorium and picked up the petitioner and they went together to the flat. On that day, the MLA is said to have behaved indecently to the complainant. That conduct of the petitioner was quite contrary to the conduct of a father whose son was going to marry the complainant. His conduct was with ill-motive. The complainant says that she was surprised and pained by the conduct of the MLA which made her to suspect that he was not interested in the marriage. She felt that she was being betrayed after promising to conduct the marriage and sexually exploiting her, which she could not bear and tolerate. The complainant felt extremely disappointed. She then felt that if she ever got an opportunity, she would teach the MLA a lesson. During that period, MLA used to very frequently call her over phone and kept on promising that his son would marry her. While so, in the first week of October, 2012, the MLA called her and said that they had to go to the flat urgently. The complainant went in her car and picked up the MLA from near CSA Auditorium and they together went to the flat. As soon as they got down from the car, MLA started talking to someone over phone. According to the complainant, seizing the opportunity, she went to the flat using the elevator and as soon as she opened the door, she switched on the web camera. Soon thereafter the MLA came inside and caught hold of the complainant. As per the complaint, though the complainant felt annoyed, since she had to realize her aim, she submitted without offering any sort of resistance and they indulged in sexual intercourse. Thereafter, they returned from the flat. When she later verified the web camera, she found that the camera had not caught the scenes with the MLA. Even after that episode, the MLA continued to phone her. While so, on 21.10.2012 again he asked her to come to take him to the flat. The complainant went in her car and picked up the MLA from near CSA Auditorium and went to her flat. The complainant says that she reached the flat earlier than the MLA and switched on the web camera. Later, as soon as the MLA entered into the flat, he caught hold of the complainant and they had sexual intercourse and they returned from the flat. The intercourse that took place on 21.10.2012 was clearly available in the web camera. Thereafter, though the MLA insisted to go to the flat, she did not agree or heed. Ever since then, the complainant says that she met the MLA on several occasions and demanded that her marriage with his son be conducted, otherwise, she would make the contents of the CD with her public and that would cause considerable humiliation and embarrassment to his family. A person by name Martin related to the MLA came and told her family that the marriage will be conducted in May, 2013. But nothing transpired thereafter. The complainant says that she began to believe that she was being cheated. According to the complainant, she felt that it was with the said object in mind that the MLA on the first occasion had telephoned her. It is stated that the sexual intercourses were not with her proper consent. She also says that she was afraid that if she did not heed to the desire of the MLA, he would not conduct the marriage with his son. The complainant winds up the complaint by requesting the authorities concerned to resort to legal steps to have her grievances redressed. It is also stated that the opposite party, being a sitting MLA and former Minister, if she gives the complaint to the local police, he would wield his influence and stall any further action on the complaint, and so, she did not file the complaint in the local police station. The complaint is signed by her and her mobile number is given in the complaint.
5. Shri. M.K.Damodaran, learned Senior Counsel appearing for the petitioner, after referring to the complaint in detail, contended that even if the entire allegations in the complaint are taken on its face value and as proved, it is clear that the ingredients of offence under Section 376 of I.P.C. are not made out. Even assuming, without admitting, that there was sexual intercourse between the complainant and the petitioner, it is evident from the averments in the complaint that they were consensual acts. Learned counsel contended that it is rather unusual for a woman to have her sexual exploits extracted in a web camera and then contend that she had been raped. It is very evident from a reading of the complaint that at no point of time, she had offered any resistance or diffidence, even assuming that there was sexual intercourse at the instance of the petitioner. It is rather inconceivable that a woman would believe that after having had sex with his son, in order to pressurize the father to have the marriage of his son conducted with the complainant, she thought it necessary to have sexual intercourse with the father. There is no averment in the complaint, according to the learned Senior Counsel, that there was any intimidation, threat, coercion or any such vitiating factor which induced the complainant to yield to the desire of the petitioner. In support of the contentions, learned counsel relied on the decisions reported in Uday v. State of Karnataka ((2003 (4) SCC 46) and Deelip Singh v. State of Bihar ((2005) 1 SCC 188).
6. Learned Senior Counsel went on to contend that this is a typical instance where there is obvious abuse of process of court and is a glaring example of the legal machinery being misused for personal gains. This is a fit case, according to the learned Senior Counsel, where the FIR and the complaint should be quashed in order to render justice to the petitioner and also in the interests of justice. For the above proposition, learned Senior Counsel relied on the decisions reported in State of Karnataka v. L. Muniswamy (AIR 1977 SC 1489), Century Spinning and Manufacturing Co. Ltd. v. State of Maharashtra (AIR 1972 SC 545) and Madhavrao J. Scindia v. Sambhajirao Chandrojirao Angre ((1988) 1 SCC 692).
7. Per contra, learned Director General of Prosecution appearing on behalf of the State, pointed out that the court has no power to stifle the investigation and the police are bound under law to register a crime when a complaint is filed disclosing a cognizable offence. The court shall not interfere denying the law enforcing authorities from performing their mandatory statutory duty. On the basis of the averments in the complaint, it is yet to be determined what exactly are the offences made out. True, the FIR as now stands mentioned only the offence under Section 376 read with Section 34 of I.P.C. Even if during investigation, it is found that the said offence is not made out, but other offences are made out, the investigating agency is free to file reports to that effect.
8. The learned DGP contended that traditional Indian women, in the social and cultural background in which they live, will be extremely shy to come forward with a false allegation of rape, since it brings her no credit and had only the effect of attracting humiliation and threat of ostracism from the society. She by doing so, endangers her future itself. It is also not proper for the court to make comments about the conduct of the victim or about the victim. For the above proposition, learned DGP relied on the decisions reported in State of Kerala v. O.C. Kuttan (AIR 1999 SC 1044) and Rajendra Datta Zarekar v. State of Goa (AIR 2008 SC 572).
9. Learned DGP then contended that this is a typical case where by making a false promise of marriage, the petitioner had sexually exploited the lady and the so-called consent, therefore, is vitiated by misconception of fact. For the said proposition, learned DGP relied on the decision reported in State of Himachal Pradesh v. Mange Ram (AIR 2000 SC 2798). Relying on the decisions reported in Ram Lal Yadav v. State of U.P. (1989 Crl.L.J. 1013), Pratibha v. Rameshwari Devi (AIR 2007 SC 899) and State of Maharashtra v. Arun Gulab Gawali (2011 Crl.L.J. 89), the learned DGP contended that it is quite inappropriate for this court to probe into the veracity of the allegations in the complaint at this point of time nor is it proper for the court to quash the proceedings at the threshold stifling the investigating agency from finding out the truth. The power to investigate is within the domain of the police and it is for the investigating agency to decide how and in what manner the investigation should be conducted. While the court may have power to supervise the investigation, it certainly does not possess the power to direct that the investigation should be conducted in a particular manner. At any rate, according to the learned DGP, it will be a travesty of justice if this court at the threshold, quashes the proceedings and prevents the investigating agency from enquiring into the veracity of the allegations.
10. The defacto complainant has also entered appearance. The contentions of the third respondent are substantially the same as the ones advanced by the learned DGP. Referring to the complaint, learned counsel for the third respondent contended that the complaint has to be read as a whole and if so done, it would be clear that the sexual intercourse which the petitioner had with the victim, is without consent. Emphasis was laid on the sentence that it was without proper consent that the sexual intercourse was done on the first occasion. That, according to the learned counsel, shows that there was no consent on the part of the victim. Apart from the said fact, learned counsel pointed out that there are innumerable instances where the Apex Court had occasion to hold that when sexual intercourse is entered into by a person with a lady as a result of a promise to marry her and making her believe that he would do so, and then later retracts, sexual intercourse so had, clearly amounts to rape. Learned counsel placed reliance on the decisions reported in Gurmeet Singh v. State of H.P.(2011 KHC 6499), Laddoo Singh v. State of Punjab (2008 KHC 5822), Bipul Medhi v. State of Assam (2008 KHC 5464) and Peter K.C. v. State of Kerala (2011 KHC 249). The third respondent has also produced two unreported judgments of this court in support of the above contention.
11. Learned counsel appearing for the third respondent also pointed out that it will be quite unjust for this court to quash the complaint at the threshold preventing a fair and just investigation being conducted by the investigating agency. The law does not permit the court to meddle with the investigation and it is the exclusive privilege of the investigating agency to decide as to the course of investigation, and nature of evidence that is to be collected. May be that the court may evaluate the investigation periodically. But the power of the court ends there. It does not extend to giving directions to the police as to in what manner the investigation should be done. At any rate, according to the learned counsel, it could not be said that the allegations in the complaint do not contain the ingredients of the offence of rape. Further, it is contended that the question as to whether there was consent or not is to be determined after evidence and if that be so, question of interference at this stage does not arise.
12. Learned counsel appearing for the third respondent further pointed out that it is quite unbecoming of a person like the petitioner to indulge in activities complained of. It is a clear case where he, wielding his power, had sexually exploited a helpless lady by giving her the hope of marriage with his son. If this court interferes at this stage and quashes the proceedings, it will be sending a wrong signal to the society indicating that persons in power can escape from the clutches of law. According to the learned counsel, such a course may not be adopted. If after investigation, it is found that no offence is made out, the investigating agency will file the necessary report. If on the other hand, there are materials to show that offence is made out, the petitioner has still opportunity to establish his innocence at the time of trial.
13. The reason agitated by the petitioner for quashing the complaint is that even if the entire allegations in the complaint are taken as true and correct, still they do not disclose the ingredients necessary to attract Section 376 of I.P.C. It may at once be mentioned here that the crime is currently being investigated by the CBCID. According to the petitioner, the power to investigate by the police is dependent upon the disclosure of a cognizable offence. If on a reading of the complaint, no cognizable offence is made out or the ingredients necessary to attract the offence made mention of in the FIR are not available, then certainly and surely this court has the power to quash the proceedings and give relief to the petitioner. Referring to the complaint, the contention is that there is no averment in the complaint that at any point of time when the sexual intercourse was entered into between the son of the petitioner and the complainant or the petitioner and the complainant, there was any resistance or disinclination offered by the complainant, but she was a willing and consenting partner on all occasions. A stray sentence in the complaint that there was no proper consent cannot be given undue importance when the rest of the allegations in the complaint would clearly show that the sexual intercourse cannot but be as a result of consent on the part of the victim. The contention of the petitioner appears to be that the victim has voluntarily chosen the path of having sexual intercourse with both the father and son and is now trying to blackmail the petitioner by making use of those situations.
14. True, normally, it is very unusual for a woman to come forward with an allegation of rape. Rape is not merely a crime. It leaves the victim as a total wreck both physically and mentally. Considering the social and cultural set up of the Indian society, the rigid caste system followed, conservative and orthodox methods that are being followed, usually improbabilises a false accusation of rape. There can be no manner of doubt that a victim of rape is shunned by the society and that leaves a permanent scar and stigma on her. Normally, the courts will be very slow to distrust the victim. It is often said that a victim of rape is not an accomplice, but an injured witness. These aspects were considered in the decisions reported in State of Kerala v. O.C. Kuttan (AIR 1999 SC 1044), State of Maharashtra v. Chandraprakash Kewalchand Jain (AIR 1990 SC 658), and Rajendra Datta Zarekar v. State of Goa (AIR 2008 SC 572).
15. However, of late, the Indian society seems to have shed its orthodox nature and appear to have become more progressive and adventurous. In the fast moving and developing world, naturally changes have to occur and that must happen in the social and cultural fields also. Traditional moral and ethical values are on the decline. Suffice is to say that living in relationship and such other activities have received both statutory and legal recognition. So as of now, it may not be possible to apply the standards which were once applicable to the conservative and orthodox Indian society.
16. Coming to the core of the issue, the question is whether it is legal, plausible and proper for the court to quash the FIR and the complaint at the threshold thereby stifling the investigation and aborting the same. It is well settled by now that inherent power of the court under Section 482 of Cr.P.C. or powers that are conferred under Articles 226 and 227 of the Constitution of India can be invoked in exceptional circumstances when warranted by the facts of the case to give necessary reliefs. Before embarking on a study to ascertain the principles and the law laid down in various decisions regarding the power under Section 482 of Cr.P.C., it is felt that it is first useful to ascertain the nature of the acts that arise for consideration.
17. Going by the averments in the complaint, there are two sets of incidents. One with the son and the other with the father. The sexual exploits of both the father and son have been caught in the web camera, according to the complainant. As per the complaint, the petitioner had proposed that his eldest son Adarsh would marry the complainant and, according to the complainant, she bona fide believed the said fact. It is true that in the complaint it is stated that on the first occasion when certain advances were made by Adarsh, that was not to the liking of the complainant. But the complainant herself says that her annoyance wilted away in the light of the fact that she thereafter began to believe that Adarsh would marry her. There is no case for the complainant that she had offered any resistance or objection to the physical contacts which Adarsh had with her. In fact, as rightly pointed out by the learned Senior Counsel, it would appear that the complainant was a willing and consenting partner. However, one could still say that the sexual exploits with the son was under the bona fide belief that he would marry her. But one fails to understand the sexual exploits of the complainant with the petitioner. No where it is stated that the petitioner had threatened, intimidated or forced the victim to yield to his desire.
18. According to the petitioner, as already stated, the so-called physical contacts were consensual acts and were volitionally and voluntarily entered into by the complainant and extracted in the web camera by the complainant with the oblique motive of blackmailing him.
19. The learned DGP contended that the petitioner is a very clever man who had laid a trap into which the gullible complainant walked in. The complainant was made to believe by the petitioner that his son would marry her and according to the learned DGP, it is clear from the conduct of the petitioner that from the very inception itself he had no intention to have his son married to the complainant.
20. It will be appropriate at this stage to refer to Section 375 of I.P.C. The said Section so far as relevant for the present case reads as follows:
""375.Rape.* A man is said to commit "rape"
who, except in the case hereinafter excepted, has
sexual intercourse with a woman under
circumstances falling under any of the six following
descriptions:-
First.-Against her will.
Secondly.-Without her consent."
21. An act of sexual intercourse against will or without the consent of the victim amounts to rape. Against the will implies mental opposition to an act which is anticipated before it takes place. It is the state of mind in favour of a man doing an act what he intended and decided to do.
22. Consent is defined in Section 90 of I.P.C. It reads as follows:
"90. Consent known to be given under fear or
misconception.* A consent is not such a consent as
it intended by any section of this Code, if the
consent is given by a person under fear of injury, or
under a misconception of fact, and if the person
doing the act knows, or has reason to believe, that
the consent was given in consequence of such fear
or misconception."
The provision is couched in negative form. It will at once be noticed that the consent given is vitiated if it is under fear of injury or on misconception of fact and the person doing the act knows or had reason to believe that the consent obtained was on the basis of the above factors. What is intended by the Section is that consent should be free. It is well settled that consent obtained by any of the vitiating circumstances is also invalid.
23. It is said that consent is the qua animo of the act. Consent is an operation of the mind implying positive mental action. Mere absence of dissent or submission may not amount to consent. In Story's Equity Jurisprudence consent is defined as "consent is an act of reason accompanied with deliberation, the mind weighing as in a balance the good and evil on each side." It is also well settled that consent obtained by fraud, misrepresentation, concealment of fact, mistake and fraud are also vitiated. However, misconception of fact envisaged under the Section must be of an existing fact and not of something which is to take place in future. If it is shown that the person, who promised to marry the victim and compelled her to sexual intercourse, had at the very inception itself no idea of marrying the victim, but made her to believe it to be so, and knowing fully well that the consent so obtained is on misrepresentation and the person concerned later retracts from the promise, he cannot be heard to say that sexual intercourse was with consent.
24. Consent contemplated under Section 375 of I.P.C. is usually termed as informed consent. It means exercise of the discretion by a person after considering the pros and cons of the act consented to. Consent operates as an exception to criminal liability and if consent is established, it kills the offence of rape.
25. The approach that the courts need to adopt in cases of rape has been indicated in several decisions. It is stated that the courts have to be sensitive, pragmatic and sympathetic and not to treat the victim as an accomplice. The court cannot start with the assumption that the allegation of rape is a false one. These aspects were considered in the decisions reported in State of Maharashtra v. Chandraprakash Kewalchand Jain (AIR 1990 SC 658), State of Punjab v. Gurmit Singh (AIR 1996 SC 1393), and State of Himachal Pradesh v. Mange Ram (AIR 2000 SC 2799) and Rajendra Datta Zarekar v. State of Goa (AIR 2008 SC 572).
26. In the context of the case, one is called upon to answer the question as to whether there was consent solely on the basis of the averments in the complaint. According to the learned DGP and also the counsel appearing for the third respondent, even if there was any consent on the part of the victim, or the complainant, it was on a misconception of fact. Consent obtained was on the promise that the son of the petitioner would marry the complainant.
27. Here, one needs to notice the decisions relied on by the parties regarding consent said to have been given by the complainant. In Bipul Mewdhi v. State of Assam (2008 KHC 5464) relied on by the learned counsel for the third respondent, Section 114A of the Indian Evidence Act was applied to the facts of the case. It is unnecessary to refer to the case in detail for the simple reason that Section 114A of the Indian Evidence Act can have no application in the present case.
28. In the decision reported in Laddoo Singh v. State of Punjab (2008 KHC 5822) relied on by the learned counsel for the third respondent, it was held that consent obtained by intimidation, force meditated imposition, circumvention, surprise, or undue influence is to be treated as a delusion. It was also held in the said decision that consent made in a mistaken belief also amounts to without consent. The decision highlights a situation where promise to marry may or may not amount to consent.
29. In the decision reported in Gurmeet Singh v. State of H.P. (2011 KHC 6499) relied on by the learned counsel for the third respondent, it was held that submission of the body by the victim under a misconception of fact cannot be construed as consent for sexual act so as to absolve the accused. The facts of the case show that concealing the fact that the accused was married, he made the victim to believe that he would marry her and kept on promising for several years and had sexual intercourse with her on that basis. The prosecutrix fully believed the accused and hoped that he would marry her. Under those circumstances, when later it turned out that the accused was married and he could not marry the victim, it was held that the sexual acts could not have been said to be with the consent of the victim, but was based on misconception of fact.
30. The decision reported in Pradyumna S. Harish v. State (2011 Crl.L.J. 558) relied on by the learned counsel for the third respondent shows that the complaint contained a specific allegation that the complainant was not willing to have sex with the accused. In such circumstances, it was held that the matter needed investigation and interference at the threshold may not be justified.
31. In the decision reported in State of Kerala v. O.C. Kuttan ((1999) 2 SCC 651) on which reliance is placed by the learned counsel for the third respondent, the facts show that the High Court had quashed the FIR on the basis that the victim was more than 16 years of age and she was a willing partner to the sexual intercourse. While accepting the proposition that if the complaint on the very face of it does not disclose the ingredients of offence, it should be quashed or set aside, on the facts of the case, the Apex Court held that the said principle cannot be applied to the case and held that the High Court was in error in quashing the proceedings.
32. In the decision relied on by the learned DGP, namely, State of Himachal Pradesh v. Mange Ram (AIR 2000 SC 2798), it was held as follows:
"12. ....... The accused was examined on 20-4-
1993. As the incident occurred on 17-4-1993, even
if there were any marks of violence on the body of
accused, the same would have been obliterated and
were not so prominent so as to be noticed by the
medical officer who examined him. Therefore, the
absence of nail marks or minor injuries on the body
of the accused is of not much significance. From the
oral evidence of the prosecutrix (PW 5), it is proved
that the accused caught her from behind and he
lifted her and pushed her down and despite her
attempt to cover herself with the salwar, the
accused pull it down. She also stated that the
accused gagged her mouth when she attempted to
cry a loud. The subsequent conduct of the
prosecutrix also shows that she was very much
resistant to the sexual onslaught on her. She came
to her father immediately and told the entire
incident as to how she was ravished by the accused.
The evidence as a whole indicates that there was
resistance by the prosecutrix and there was no
voluntary participation by her for the sexual act.
Submission of the body under the fear of terror
cannot be construed as a consented sexual act.
Consent for the purpose of Section 375 requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the
significance and moral quality of the act but after
having fully exercised the choice between the
resistance and assent. Whether there was consent or
not, is to be ascertained only on a careful study of
all relevant circumstances. From the evidence on
record, it cannot be said that the prosecutrix had
given consent and thereafter she turned round and
acted against the interest of the accused. There is a
clear credible evidence that she resisted the
onslaught and made all possible efforts to prevent
the accused from committing rape on her.
Therefore, the finding entered by the learned
sessions Judge that there was consent on the part of
the prosecutrix is without any basis."
33. It may be noticed here that in the objections filed by the third respondent as well as the State, they make mention of several decisions where question of consent was considered. Both the respondents pointed out that in a series of decisions, it has been held that sexual intercourse on a promise of marriage and later on retracting from the same has been treated to be one without consent. Reference is also made to cases where allegation of rape was upheld even after delivery bythe victim.
34. It is true that in a number of cases brought before court, the allegation is that the person concerned promises to marry the victim and makes her believe that he will do so and under that impression the victim is forced to have sexual intercourse. There may be isolated case of sexual intercourse or there may be series of intercourse thereafter. Ultimately when the person concerned retracts or withdraws from his promise, the question has often been considered whether sexual intercourse undergone by the person can be treated to be one with consent.
35. In the decision reported in Zindar Ali Sheikh v. State of West Bengal ((2009) 3 SCC 761) it was held as follows:
"26. ........The evidence about the cheating is of
slip-shod nature and not believable. It is also self-
effacing. After all, the first act of the sexual
intercourse was without the consent and the
accused had thereby, committed rape, however, the
version that he gave a marriage promise, would
really go against the prosecution, whereby, it would
mean that the subsequent acts were done with the
consent of the girl on account of the promise of
marriage. We do not think that such could be the
approach. After all, if the promise of marriage was
given and the girl had succumbed on that account,
by itself, may not amount to cheating. Besides this,
the girl has very specifically stated that even
subsequently, she was ravished against her wishes.
Therefore, the theory of promise of marriage and
the consent for sexual intercourse will wither away.
We, therefore, acquit the accused of the offence
under Section 417 of IPC."
36. In the decision reported in Uday v. State of Karnataka ((2003) 4 SCC 46) it was held as follows:
"21. It, therefore, appears that the consensus
of judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply
in love on a promise that he would marry her on a
later date, cannot be said to be given under a
misconception of fact. A false promise is not a fact
within the meaning of the Code. We are inclined to
agree with this view, but we must add that there is
no strait jacket formula for determining whether
consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given under
a misconception of fact. In the ultimate analysis, the
tests laid down by the Courts provide at best
guidance to the judicial mind while considering a
question of consent, but the Court must, in each
case, consider the evidence before it and the
surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar
facts which may have a bearing on the question
whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh
the evidence keeping in view the fact that the
burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent
being one of them."
37. In the decision reported in Deelip Singh v. State of Bihar ((2005) 1 SCC 88), it was held as follows:
"14. The last question which calls for
consideration is whether the accused is guilty of
having sexual intercourse with PW12 'without her
consent' (vide Clause secondly of Section 375, IPC).
Though will and consent often interlace and an act
done against the will of a person can be said to be
an act done without consent, the Indian Penal Code
categorizes these two expressions under separate
heads in order to be as comprehensive as possible.
15. What then is the meaning and content of
the expression 'without her consent'? Whether the
consent given by a woman believing the man's
promise to marry her is a consent which excludes
the offence of rape? These are the questions which
have come up for debate directly or incidentally.
16. The concept and dimensions of 'consent' in
the context of Section 375, IPC has been viewed
from different angles. The decided cases on the
issue reveal different approaches which may not
necessarily be dichotomous. Of course, the ultimate
conclusion depends on the facts of each case.
17. Indian Penal Code does not define 'consent'
in positive terms, but what cannot be regarded as
'consent' under the Code is explained by Section 90.
Section 90 reads as follows :
"90. Consent known to be given under fear or
misconception * A consent is not such a consent as is
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows or has reason to believe, that the consent was
given in consequence of such fear or misconception......."
18. Consent given firstly under fear of injury
and secondly under a misconception of fact is not
'consent' at all. That is what is enjoined by the first
part of Section 90. These two grounds specified in
Section 90 are analogous to coercion and mistake of
fact which are the familiar grounds that can vitiate a
transaction under the jurisprudence of our country
as well as other countries.
19. The factors set out in the first part of
Section 90 are from the point of view of the victim.
The second part of Section 90 enacts the
corresponding provision from the point of view of
the accused. It envisages that the accused too has
knowledge or has reason to believe that the consent
was given by the victim in consequence of fear of
injury or misconception of fact. Thus, the second
part lays emphasis on the knowledge or reasonable
belief of the person who obtains the tainted
consent. The requirements of both the parts should
be cumulatively satisfied. In other words, the Court
has to see whether the person giving the consent
had given it under fear of injury or misconception of
fact and the Court should also be satisfied that the
person doing the act i.e. the alleged offender, is
conscious of the fact or should have reason to think
that but for the fear or misconception, the consent
would not have been given. This is the scheme of
Section 90 which is couched in negative
terminology.
20. Section 90 cannot, however, be construed
as an exhaustive definition of consent for the
purposes of the Indian Penal Code. The normal
connotation and concept of 'consent' is not intended
to be excluded. Various decisions of the High Court
and of this Court have not merely gone by the
language of Section 90, but travelled a wider field,
guided by the etymology of the word 'consent'.
38. In the decision reported in Babu v. State of Kerala (2013(2) K.L.T. 574) it was held as follows:
"It was held that "while we reiterate that a
promise to marry without anything more will not
give rise to "misconception of fact" within the
meaning of S.90, it needs to be clarified that a
representation deliberately made by the accused
with a view to elicit the assent of the victim without
having the intention or inclination to marry her, will
vitiate the consent. If on the facts it is established
that at the very inception of the making of promise,
the accused did not really entertain the intention of
marrying hear and the promise to marry held out by
him was a mere hoax, the consent ostensibly given
by the victim will be of no avail to the accused to
exculpate him from the ambit of S.375 clause
secondly." The principles deducible from the above,
are summarised below: a) Consent, on the part of a
woman as a defence to an allegation of rape,
requires voluntary participation; b) The same, not
only be after the exercise of intelligence, based on
the knowledge, of the significance and moral quality
of the act, but after having freely exercised a choice
between resistance and assent; c) Consent is an act
of reason accompanied by deliberation, a mere act
of helpless resignation in the face of inevitable
compulsion, non-resistance and passive giving in
cannot be deemed to be 'consent'; (d) Consent
means active will in the mind of a person to permit
the doing of the act of and knowledge of what is to
be done, or of the nature of the act that is being
done is essential to a consent to an act; e) Consent
supposes a physical power to act, a moral power of
acting and a serious and determined and free use of
these powers; f) Failure to keep the promise of a
future uncertain date does not always amount to
'misconception of fact' at the inception of the act
itself ; g) In order to come within the meaning of
'misconception of fact' the fact must have an
immediate relevance; h) Consent given by the
prosecutrix to sexual intercourse with a person with
whom she is deeply in love on a promise that he
would marry her on a later date, cannot be said to
be given under a 'misconception of fact'; i) Consent
given pursuant to a false representation that the
accused intends to marry could be regarded as
consent given under 'misconception of fact'. A false
promise is not a fact within the meaning of the
Code; j) A misrepresentation as regards the
intention of the person seeking consent, i.e. The
accused could give rise to the 'misconception of
fact'; k) A promise to marry without anything more
will not give rise to 'misconception of fact' within
the meaning of S.90 I.P.C.; l) the factors set out in
the first part of S.90 are from the point of view of
the victim; m) The second part of S.90 enacts the
corresponding provision from the point of view of
the accused; and n) The requirements of both the
parts should be cumulatively satisfied.
Therefore, to attract S.415, necessarily it has
to be shown at the time of making the promise that
the accused had fraudulent or dishonest intention to
induce the person so deceived to do something
which he would not otherwise do,. It was also held
that in para 25 that a failure to keep the promise
subsequently cannot lead to an inference that there
was a fraudulent or dishonest intention. These
principles were relied on by the learned counsel for
the appellant in the context of the submission that
if at all there was dishonest intention to attract the
offence under S.4154 I.P.C. Leading to a conviction
under S.417 I.P.C.. Herein we have already found
that the story regarding promise to marry cannot
survive, automatically the same will have impact on
the offence alleged to have been committed under
S.415 in the light of the alleged promise to marry
alone. We are of the view therefore that there is no
evidence to show that the accused had entertained a
dishonest intention by extending such a promise
and to deceive the victim....."
39. In the decision reported in Deepak Gulati v. State of Haryana (2013(2) K.L.T 762 (SC)), it was held as follows:
"In the event that the accused's promise
is not false and has not been made with the sole
intention to seduce the prosecutrix to indulge in
sexual acts, such an act(s) would not amount to
rape. Thus, the same would only hold that where
the prosecutrix, under a misconception of fact to
the extent that the accused is likely to marry her,
submits to the lust of the accused, such a
fraudulent act cannot be said to be consensual, o
far as the offence of the accused is concerned. The
court must examine whether there was made, at an
early stage a false promise of marriage by the
accused; and whether the consent involved was
given after wholly, understanding the nature and
consequences of sexual indulgence. There may be
a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for
the accused, and not solely on account of
mis-representation made to her by the accused, or
where an accused on account of circumstances
which he could not have foreseen, or which were
beyond his control, was unable to marry her,
despite having every intention to do so. Such cases
must be treated differently. An accused can be
convicted for rape only if the court reaches a
conclusion that the intention of the accused was
mala fide, and that he had clandestine motives. It is
evident that there must be adequate evidence to
show that at the relevant time, i.e., at initial stage
itself, the accused had no intention whatsoever, or
keeping his promise to marry the victim. There
may, of course, be circumstances, when a person
having the best of intentions is unable to marry the
victim owing to various unavoidable circumstances.
The "failure to keep a promise made with respect to
a future uncertain date, due to reasons that are not
very clear from the evidence available, does not
always amount to misconception of fact. In order to
come within the meaning of the term misconception
of fact, he fact must have an immediate relevance."
S.90 I.P.C. Cannot be called into aid in such a
situation, to pardon the act of a girl in entirety, and
fasten criminal liability on the other, unless the
court is assured of the fact that from the very
beginning, the accused had never really intended to
marry her."
40. This court had occasion to consider the matter in detail while disposing of Crl.Appeal No. 614 of 2006 by judgment dated 22.5.2013. After considering the literature on the subject and also the various decisions of this Court as well the Apex Court, this Court found that there is no straight jacket formula in ascertaining whether there is consent in a particular case. It depends upon the facts of each case. In several of the decisions, it has been held that the mere promise to marry itself is not a ground to lead to the conclusion that there is misconception of fact. The test appears to be that if the person concerned at the very inception itself had no idea to marry the victim and makes false promise of marriage forcing or compelling the victim to have sexual intercourse with him knowing fully well that consent so given by the victim was under the belief that he would marry her and later if the person concerned retracts from his promise or withdraws from his promise, it has been held that the consent so obtained is as a result of misconception of fact falling with the ambit of Section 90 of I.P.C.
41. If the conduct of the victim towards the person concerned at the relevant time is such a nature so as to create an impression in his mind and belief that she has consented by free will for the commission of the act, then later on it could not be said that there was misconception of fact. It has been held that voluntary submission by the woman while she has the power to resist, no matter how reluctantly yielded, amounts to consent and that removes an essential element from the crime of rape. Generally it is stated that the claim of rape has to be considered in the circumstances presented by the case. It is well settled that passiveness or submission by themselves are not evidence of consent. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, passive giving in when volitional faculty is either clouded by fear or vitiated by duress cannot be deemed to be consent as understood in law. Consent, in order to constitute as a defence of allegation of rape, should require a voluntary participation after having weighed the pros and cons of the act consented to and victim has made a conscious choice between resistance and assent.
42. Bearing the above principles in mind, one may now have a look at the allegations in the complaint to find out whether the acts of intercourse could be said to be with consent or without consent.
43. One may assume, for arguments sake in this case, that there was sexual intercourse between the petitioner and the third respondent. The contention of the petitioner is that even if there were such physical contacts, they were with the volition and consent of the victim and there was no resistance or objection offered by her at any point of time. However, the learned DGP on behalf of the State would contend that the petitioner had schemed it so well that he made the victim believe that his son would marry her and taking advantage of that belief, he had sexually exploited her. Learned counsel appearing for the third respondent invited the attention of this court to the statement in the complaint to the effect "."( intercourse entered into with me was not with my proper consent). It is contended that there is allegation to the effect that there was no free consent and the acts complained of are not voluntary acts on the part of the victim and she was compelled under the circumstances made mention of to yield to the desire of the person concerned.
44. When the sequence of events as disclosed in the complaint are recapitulated, it is difficult to come to the conclusion that there was force, coercion or compulsion on the part of the petitioner to make the victim succumb to the pressure or the existence of misconception of fact.
45. True, the allegation seems to be that the petitioner had proposed that his son would marry the third respondent. After the son arrived, he was introduced to the third respondent, who thereafter became closely associated with the son of the petitioner, namely, Adarsh. Even in the complaint filed, it is conceded that there was sexual intercourse between the third respondent and the said Adarsh. It is significant to notice that there is nothing in the complaint to show that it was at the instance of the petitioner or that it was under his instigation that the sexual exploits between the son of the petitioner and the third respondent had occurred. In fact, a reading of the complaint would show that the third respondent did not object to the conduct of the son of the petitioner as she honestly believed that he would marry her. One need not labour much regarding the physical relationship between the son of the petitioner and the third respondent for the simple reason that it is not a subject matter of issue in this proceedings.
46. However, one fact needs to be noticed. The third respondent, feeling suspicious about the possibility of the son of the petitioner marrying another lady, had installed a web camera in her bed room and had physical relationship between the son of the petitioner and the third respondent caught in the web camera.
47. The allegation against the petitioner is that after the son had left for Bombay, the petitioner made advances towards the third respondent. The complaint speaks about the indecent behaviour at the initial stage on the part of the petitioner, which according to the third respondent, caused considerable annoyance and embarrassment to her. However, it is surprising to note that even after the petitioner had made his intentions clear, and even after the third respondent felt that his conduct was unbecoming of a father-in-law and a gentleman, the third respondent does not take objections to his subsequent conducts. If as a matter of fact, the third respondent was annoyed and had disapproved the conduct of the petitioner, normally, one would have expected her not to encourage the petitioner further. It is evident from the conduct expressed in the complaint that the motive of the petitioner was not good and nor were his intentions commendable.
48. Instead of keeping the petitioner at bay even after such conduct from his side, what the complaint says is that the victim wanted to teach the MLA a lesson and she was waiting for an opportunity to do so.
49. This statement in the complaint goes a long way in indicating the mental set up of the third respondent. It would appear that when the complainant entertained the idea of teaching the MLA a lesson, an opportunity was provided to her to accomplish her dream. It is no doubt true that in the complaint, it is alleged that the MLA continued to phone the third respondent and kept on promising that the marriage between his son and respondent No.3 would be conducted. It was thereafter that the MLA, according to the complainant, had called her and expressed his desire to go over to the flat. Normally, when such a desire was expressed by the MLA, being aware of his intentions and after having a bitter experience with him, one would expect the third respondent to repel his advances. But on the other hand, the third respondent goes in her car, fetches the MLA and takes him to the flat. It is significant to remember here that even as per the complaint, the complainant would say that she walked into the flat first and switched on the web camera. What transpired thereafter has already been referred to. Having failed in the first attempt to gather pictures on the web camera, she allows the petitioner to have physical conduct with her on the second occasion also.
50. It is significant to notice that on neither of the occasions, there is any resistance or objection offered by the third respondent. On the other hand, one gets the impression that she encouraged him to have physical contact with her. The third respondent seems to be more concerned about catching the incidents on the web camera with the intention of threatening the petitioner to have his son marry her. There is nothing to indicate in the complaint that the petitioner had threatened the third respondent that unless she yielded to his desire, the marriage with his son would not be conducted. There is also nothing in the complaint which suggest that there was threat, coercion or intimidation from the side of the petitioner which made the third respondent to yield as if she had no other option.
51. The tenure of the complaint is that she entered into physical relationship with the petitioner to ensure that the promise of the petitioner to have his son marry her is given effect to. No where in the complaint, one gets allegation to the effect that the petitioner created such a situation by his conduct or otherwise which left the third respondent with no other option but to dance to his tunes.
52. Even otherwise, it is difficult to believe that a father would stoop to the level of compelling a woman to have sexual intercourse with him on the promise that he would ensure that his son marries her. One must remember here that in the case on hand even prior to having sex with the petitioner, the third respondent had already shared her bed with the son of the petitioner. It does not stand to reason or logic and it is not rational to believe that either the son or the father in such circumstance would go in for an alliance with such a lady. Of course, it is claimed that the father and the son were kept in the dark regarding the relationship of the third respondent with each one of them. But it is difficult to believe that the said acts could have been kept a secret for long. Certainly the son and the father would have come to know about the relationship of the third respondent with each one of them.
53. The contention of the learned DGP that the petitioner had created such a situation where the victim was left with no choice does not appear to be acceptable. At the risk of repetition, one may notice that there is nothing to indicate that the petitioner had compelled or insisted that the third respondent should share the bed with him if his son is to marry the third respondent. If the third respondent believed it to be so, it is her voluntary choice.
54. This court had repeatedly asked the learned counsel for the third respondent whether there was anything in the complaint which would indicate that any threat, coercion or compulsion was exercised by the petitioner which made the third respondent to yield to his desire. Learned counsel for the third respondent was unable to point out any such statement. He was unable to point out any conduct on the part of either the petitioner or the third respondent which would indicate that there was compulsion from the side of the petitioner and there was resistance or objection from the side of the third respondent which went unheeded.
55. On the other hand, the impression that one gathers from a reading of the complaint is that the third respondent was collecting materials to ensure that the son of the petitioner marries her. If for that end, she shared bed with both the son and the father, it escapes ones understanding how it could be said that the acts committed by the petitioner were without her consent. Even assuming that the third respondent laboured under the impression that if she did not share bed with the petitioner, the marriage would not take place, that cannot also be taken as a misconception of fact. In order to constitute misconception of fact, the facts should emanate from the person concerned and lead to a situation where the victim is made to believe in the promise and thereby succumbs to the insistence on the part of the person concerned for sexual intercourse. Only under such circumstance, it could be said that the consent falls within the ambit of Section 90 of I.P.C. The essential ingredient is that the person concerned knows at the very inception itself that the representation made by him is false and he also knows that the victim yielded believing that representation to be true. If as a matter of fact, the third respondent in the case on hand believed that it would be handy and useful to have web camera draw the sexual exploits with both the father and son for her safety and security, it could not be said that rape was committed by the petitioner.
56. Learned DGP and the learned counsel appearing for the third respondent contended that it is too early to come to the conclusion regarding the question of consent. It is a matter for investigation and a conclusion can be drawn only after evaluation of the evidence. Learned counsel appearing for the third respondent highlighted the statement in the complaint that there was no proper consent from the side of the victim.
57. It is difficult to understand what one means by proper consent. It has already been noticed that no semblance of resistance or objection was offered by the third respondent when the petitioner went ahead with his acts. There is no allegation in the complaint in this case to show that the third respondent was subjected to sexual intercourse inspite of the objection and resistance offered by her.
58. The Apex Court had occasion to hold that a lady who has attained majority and who is capable of knowing the pros and cons of her act, if freely indulges in sexual activity believing on a promise of marriage, the act does not amount to rape nor can the conduct be treated as one under a misconception of fact. Misconception of fact can occur only in the circumstances already made mention of.
59. On a reading of the complaint as a whole in the case on hand, except for the vague assertion that there was no 'proper consent', which lacks meaning in the context of the other statements in the complaint, there is nothing even to remotely suggest that the ingredients of the offence of rape are made out. It would appear, on the other hand, that the third respondent with the object to ensure that son of the petitioner marries her had consented to the acts so as to collect materials to pressurize the petitioner's son to marry her. There is nothing to show that the physical contacts if at all any between the petitioner and the third respondent were not voluntary and were against her will and consent. The act of sharing the bed with the father and son and capturing the same on the web camera shows that the third respondent had willingly and knowingly participated in the acts complained of.
60. Therefore, the contention raised by the learned DGP and the learned counsel for the third respondent that consent if at all any of the third respondent is under a misconception of fact is difficult to accept.
61. It will not be out of place here to refer to certain incidental facts. Both the State as well as the third respondents have filed counter affidavits to the petition. It is interesting to note that the counter affidavit or the statement as they call it, filed by the State would show that consent if at all any was given under fear, force and misconception, while the third respondent's counter affidavit would show that the third respondent would like to bring it under misconception of fact and undue influence exerted by the petitioner. It is significant to notice that in paragraphs 7, 9, 11 and 22 of the counter affidavit filed by the third respondent, what is stated is that the third respondent believed the promise of marriage made by both the accused persons and had sexual intercourse with them. There is no whisper of any threat, force, intimidation or coercion in the counter affidavit filed by the third respondent. On going through the counter affidavit filed by the third respondent, the impression that is gained is that she believed a mere promise of marriage made by the second accused and that resulted in physical contact with him. She attributed the same reason for having sex with the petitioner also. Nowhere in the counter affidavit filed by the third respondent, there is any mention of any resistance or defiance offered by the third respondent when the petitioner made sexual advances towards her. It must be remembered that the words fraud, force, intimidation, coercion, threat, undue influence etc. have definite connotation in law. It has already been found that the claim based on misconception of fact cannot be accepted atleast as against the petitioner. While the State would attribute certain factors as vitiating the consent alleged to have been given by the third respondent, the third respondent would depend upon some other factors. Whatever that be, none of the vitiating factors now taken aid of either by the State or respondent No.3 are seen taken in by the allegations in the complaint.
62. It is contended on behalf of the third respondent that it is a layman's complaint and therefore, literal interpretation should not be given to the allegations in the complaint. It is also pointed out that it is not necessary that the complaint should mention the offences alleged to have been committed by the person concerned. The consequence of the acts made mention of in the complaint is to be determined by the investigating agency and that shall not be stifled.
63. Though there is some basis for the above contention, it may not have much application to the facts of the present case. Even assuming that no offence is stated in the complainant Annexure I produced by the petitioner along with this petition, the Police Officer who received the complaint and who registered the crime formed the opinion that only offence under Section 376 of I.P.C. is made out. Prima facie, the said opinion so formed by the police officer concerned cannot be ignored. Attempt is now being made to give a colour to the complaint which would enable a contention to be raised that the consent even if any, was tainted and therefore, the offence under Section 376 of I.P.C. is made out and thus it enables the police to launch investigation into the matter.
64. The effort so made has necessarily to fail. Apart from the fact that there is no consistency between the stand taken by the State and the third respondent, the common factor that is claimed by both the parties is that consent was given under misconception of fact which has already been found against.
65. This court is not unaware of the necessity to be sensitive, pragmatic and sympathetic towards such issues. But at the same time, it cannot ignore the law also. At no point of time during the physical contacts, the complainant has a case that there was any resistance or diffidence offered by her which went unheeded and she was over powered. She in fact installed a web camera to picturize the incidents and it must be remembered that she is a mature lady who knows the consequences of entering into physical relationship with persons. Even assuming that there was a promise of marriage by the second accused and the petitioner herein, that by itself is not sufficient to lead to misconception of fact and the apex court had occasion to consider such an issue and has held that if believing a mere promise of marriage, the victim concerned enters into sexual contact with the person, it can only be termed as promiscuity on the part of the woman.
66. Even though the learned DGP has a contention that it was a trap laid by the petitioner to gain access to the lady and that he from the very inception had no intention to have his son married to the victim, the complainant does not seem to have such a case. Even in the counter affidavit filed by the third respondent before this court, there is no assertion that by giving the promise of marriage the complainant was compelled to have physical contact with either of the accused. On the other hand, the sequence of events and the conduct of the victim would lead to the conclusion that she had voluntarily entered into physical contacts with the two accused persons. May be that she has her own reasons for doing so. But having done so, to turn round and say that it is rape, may not be capable of acceptance.
67. Even assuming that there was physical relationship between the petitioner and the third respondent, and that the same is with the consent of the third respondent, the question still remains whether that by itself is sufficient to quash the FIR and the complaint. The power can certainly be traced to Section 482 of Cr.P.C. or to Articles 226 and 227 of the Constitution of India.
68. It is well settled by now that Section 482 of Cr.P.C. does confer any new power on the court. It only declares the power which already existed in the Code. The declaration was necessary to dispel any doubt that apart from the powers enumerated in the Code the courts enjoyed no other power. Section 482 of the Cr.P.C. in fact only recognizes inherent power in every court to exercise its powers to do justice. Section 482 reads as follows:
"482. Saving of inherent power of High
Court.* Nothing in this Code shall be deemed to
limit or affect the inherent powers of the High Court
to make such orders as may be necessary to give
effect to any order this Code, or to prevent abuse of
the process of any Court or otherwise to secure the
ends of justice."
The exercise of power under Section 482 of Cr.P.C. is contemplated under three circumstances. They are,
(i) to give effect to an order under the Code,
(ii) to prevent abuse of process of court,
(iii) to secure the ends of justice.
Among the above three, (ii) and (iii) work in both ways. Those powers are exercised either to prevent injustice being done to a party as well as ensuring that a just cause is not thrown out unjustly and that grievance of a person does not go unredressed.
69. One has to necessarily consider the nature and scope of power available under Section 482 of Cr.P.C. Normally, the power to quash a proceedings which is considered to be an extension of the power conferred under Section 482 of Cr.P.C. is very sparingly used. More so, in a case when the remedy of quashing of proceedings is sought for at the threshold. It is well settled by now that if a complaint is laid which discloses a cognizable offence, or information is received by a police officer about the commission of a cognizable offence, he is bound to register a crime and thereafter he is statutorily empowered to commence investigation. This power conferred by the provisions of Cr.P.C. is absolute in its terms and the courts are not supposed to interfere with that power of the police. Even otherwise, it is often said that it is not proper to stifle the investigation which is intended to ascertain the truth and collect evidence regarding the allegations made in the complaint. The power of investigation is in the domain of the police and the courts should not try to usurp that power though the courts may keep watch over the investigation. At any rate, it is accepted principle that the court had no power to interfere with the investigation which is going on and especially to regulate the manner and method to be adopted in investigation of a case.
70. But the above power is circumscribed by one significant fact. That is, the allegation made in the complaint or the information received by the police officer concerned must give rise to a cognizable offence. In other words, the offence made mention of must get support from the averments in the complaint. Once it is so, the power of the police is absolute.
71. One exception to the above power recognized is when the allegations in the complaint taken as a whole does not disclose any cognizable offence, or the offence stated in the FIR, the court is well within its powers in interfering with the matter and quashing the proceedings.
72. In the case on hand, the stand taken by the petitioner is that even assuming all the allegations in the complaint to be true, no offence under Section 376 of I.P.C. is made out. The definite contention is that even assuming that there was physical contact between the petitioner and the third respondent, on a consideration of the allegations in the complaint itself, it is clear that it was with consent and if that be so, offence of rape cannot be attracted. It is further contended that the only offence shown in the FIR is under Section 376 of I.P.C., and if that is not made out from the allegations in the complaint, necessarily, the proceedings have to be put an end to.
73. Learned DGP on the other hand would point out that it is too premature at this stage to come to the conclusion that no offence under Section 376 of I.P.C. is made out. Whether the acts were with consent etc., are matters to be determined later for which evidence will have to be collected. The learned DGP contended that the FIS or the complaint is not supposed to be an encyclopedia of facts and it is only intended to set the law in motion. It is for the investigating agency to find out as to what exactly are the offences committed on the basis of the allegations in the complaint or the information received by them and also on the basis of the materials collected during investigation. It may be, according to the learned DGP, that a close scrutiny of the complaint would reveal other offences also. At any rate, according to the learned DGP, it will not be appropriate to quash the proceedings at this juncture stifling the investigation and thereby preventing gathering of materials to ascertain the truth of the matter. Learned counsel appearing for the third respondent also supported the learned DGP in his submissions and further pointed out that the issue as to whether there is consent or not, is a matter to be determined after the evidence is adduced and on appreciation of evidence and not merely on the basis of the allegations in the complaint. The third respondent has a definite case that it was without proper consent that the physical contacts were made by the petitioner herein and that needs to be probed into. According to the learned counsel, it is a matter for investigation and to quash the proceedings now would mean that a just cause is being thrown out unjustly.
74. Before considering the above contentions, it will be useful to refer to the decisions cited by both sides on this aspect.
75. In the decision reported in Emperor v. Nazir Ahmad (AIR 1945 PC 18), the object and scope of the earlier provision, namely, Section 561, which corresponds to Section 482 of the present Code was considered. It was held as follows:
"In their Lordship's opinion, however, the more
serious aspect of the case is to be found in the
resultant interference by the court with the duties of
the police. Just as it is essential that every one
accused of a crime should have free access to a
court of justice so that he may be duly acquitted if
found not guilty of the offence with which he is
charged, so it is of the utmost importance that the
judiciary should not interfere with the police in
matters which are within their province and into
which the law imposes on them the duty of inquiry.
In India, as has been shown, there is a statutory
right on the part of the police to investigate the
circumstances of an alleged cognizable crime
without requiring any authority from the judicial
authorities, and it would, as their Lordships think,
be an unfortunate result if it should be held
possible to interfere with those statutory rights by
an exercise of the inherent jurisdiction of the court.
The functions of the judiciary and the police are
complementary, not overlapping, and the
combination of individual liberty with a clue
observance of law and order is only to be obtained
by leaving each to exercise its own function, always,
of course, subject to the right of the court to
intervene in an appropriate case when moved under
S. 491 of the Criminal P. C. to give directions in the
nature of habeas corpus. In such a case as the
present, however, the court's functions begin when
a charge is preferred before it, and not until then. It
has sometimes been thought that S.561A has given
increased powers to the court which it did not
possess before that section was enacted. But this is
not so. The section gives no new powers, it only
provides that those which the Court already
inherently possess shall be preserved and is
inserted as their Lordships think, lest it should be
considered that the only powers possessed by the
Court are those expressly conferred by the Criminal
Procedure, and that no inherent power had survived
the passing of that Act. No doubt, if no cognizable
offence is disclosed, and still more if no offence of
any kind is disclosed, the police would have no
authority to undertake an investigation and for this
reason Newsam J. may well have decided rightly in
AIR 1938 Mad. 129. But that is not this case."
76. The learned DGP relied on the decision reported in State of Maharashtra v. Arun Gulab Gawali (2011 Crl.L.J. 89) wherein it was held as follows:
"12. The power of quashing criminal
proceedings has to be exercised very sparingly and
with circumspection and that too in the rarest of
rare cases and the Court cannot be justified in
embarking upon an enquiry as to the reliability or
genuineness or otherwise of allegations made in the
F.I.R./Complaint, unless the allegations are so
patently absurd and inherently improbable so that
no prudent person can ever reach such a
conclusion. The extraordinary and inherent powers
of the Court do not confer an arbitrary jurisdiction
on the Court to act according to its whims or
caprice. However, the Court, under its inherent
powers, can neither intervene at an uncalled for
stage nor it can 'soft-pedal the course of justice' at
a crucial stage of investigation/proceedings. The
provisions of Articles 226, 227 of the Constitution
of India and Section 482 of the Code of Criminal
Procedure, 1973 (hereinafter called as 'Cr. P.C.') are
a device to advance justice and not to frustrate it.
The power of judicial review is discretionary,
however, it must be exercised to prevent the
miscarriage of justice and for correcting some grave
errors and to ensure that esteem of administration
of justice remains clean and pure. However, there
are no limits of power of the Court, but the more
the power, the more due care and caution is to be
exercised in invoking these powers."
77. In the decision relied on by the learned DGP reported in State of Kerala v. O.C. Kuttan (AIR 1999 SC 1044) it was held as follows:
"6. At the outset there cannot be any dispute
with the proposition that when allegations in the
F.I.R. do not disclose prima facie commission of a
cognizable offence, then the High Court would be
justified in interfering with the investigation and
quashing the same as has been held by this Court in
Sanchaita Investment's case, (1982) 1 SCC 561 : (AIR
1982 SC 949). In the case of State of Haryana v.
Bhajan Lal, 1992 Supp (1) SCC 335 : (1992 AIR SCW
237), this Court considered the question as to when
the High Court can quash a criminal proceeding in
exercise of its powers under Section 482 of the
Code of Criminal Procedure or under Article 226 of
the Constitution of India and had indicated some
instances by way of illustrations, though on facts it
was held that the High Court was not justified in
quashing the first information report. This Court
held that such powers could be exercised either to
prevent abuse of the process of any Court or
otherwise to secure the ends of justice, though it
may not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein
such power should be exercised. But as an
illustration several circumstances were enumerated.
Having said so, the Court gave a note of caution to
the effect that the power of quashing the criminal
proceedings should be exercised very sparingly with
circumspection and that too in the rarest of rare
cases, that the Court will not be justified in
embarking upon an inquiry as to the reliability or
genuineness or otherwise of the allegations made in
the F.I.R. or the complaint and that the
extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the Court to act according
to its whim or caprice. It is too well settled that the
first information report is only an initiation to move
the machinery and to investigate into a cognizable
offence and, therefore, while exercising the power
and deciding whether the investigation itself should
be quashed, utmost care should be taken by the
Court and at that stage it is not possible for the
Court to shift the materials or to weigh the
materials and then come to the conclusion one way
or the other. In the case of State of U. P. v. O. P.
Sharma, (1996) 7 SCC 705 : (1996 AIR SCW 1229), a
three-Judge Bench of this Court indicated that the
High Court should be loath to interfere at the
threshold to thwart the prosecution exercising its
inherent power under Section 482 or under Articles
226 and 227 of the Constitution of India, as the
case may be and allow the law to take its own
course. The same view was reiterated by yet another
three-Judges Bench of this Court in the case of
Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2
SCC 397, where this Court sounded a word of
caution and stated that such power should be
sparingly and cautiously exercised only when the
Court is of the opinion that otherwise there will be
gross miscarriage of justice. The Court had also
observed that social stability and order is required
to be regulated by proceeding against the offender
as it is an offence against the society as a whole.
Bearing in mind the parameters laid down in the
aforesaid judgments and on a thorough scrutiny of
the statement of Seena dated 23rd of July, 1986,
which was treated as an F.I.R. and on the basis of
which criminal case was registered and her
subsequent statements dated 24-8-96 and
25-8-96, we have no hesitation to come to the
conclusion that the High Court committed gross
error in embarking upon an inquiry by shifting of
evidence and coming to a conclusion with regard to
the age of the lady on the date of alleged sexual
intercourse, she had with the accused persons and
also in recording a finding that no offence of rape
can be said to have been committed on the
allegations made as she was never forced to have
sex but on the other hand she willingly had sex with
those who paid money. We do not think it
appropriate to express any opinion on the materials
on record as that would embarrass the investigation
as well as the accused persons, but suffice it to say
that this cannot be held to be a case where the
Court should have scuttled investigation by
quashing the F.I.R., particularly when the criminal
case had been registered under several provisions
of the Penal Code as well as under Immoral Traffic
Act. We also do not approve of the uncharitable
comments made by the High Court in paragraph
(12) of the Judgment against the woman who had
given the F.I.R. It is not possible and it was not
necessary to make any comment on the character of
the lady at this stage. We also have no hesitation to
come to the conclusion that the High Court
exceeded its jurisdiction to record a finding that the
lady exercised her discretion to have sex with those
whom she liked or got money and she willingly
submitted herself to most of them who came to her
for sex. We refrain from making any further
observations in the case as that may affect the
investigation or the accused persons but we have no
hesitation to come to the conclusion after going
through the statements of the victim lady that the
High Court certainly exceeded its jurisdiction in
quashing the F.I.R. and the investigations to be
made pursuant to the same so far as respondents
are concerned. We, accordingly set aside the
impugned order of the High Court and direct the
Investigating Agency to proceed with the
investigation and conclude the same as
expeditiously as possible in accordance with law.
These appeals are accordingly allowed."
78. Relying on the decision reported in Ram Lal Yadav v. State of U.P. (1989 Crl.L.J. 1013), the learned DGP contended that even if no offence is made out or no offence is mentioned in the FIS, that by itself is not a ground to quash the proceedings. In the said decision, it was held as follows:
"7. It is thus settled law that the power of the
police to investigate into a report which discloses
the commission of a cognizable offence is
unfettered and cannot be interfered with by this
court in exercise of its inherent powers under
Section 482 Cr.P.C.
............. .............
22. In our opinion the High Court has no
inherent power under Section 482 Cr.P.C. to
interfere with the arrest of a person by a police
officer even in violation of S,41(1)(a) C.P.C. Either
when no offence is disclosed in the first information
report or when the investigation is mala fide as the
inherent powers of the court to prevent the abuse of
the process of the court or to otherwise secure the
ends of justice come into play only after the charge
sheet has been filed in court and not during
investigation which may even be illegal and
unathorised. If the High Court is convinced that the
power of arrest by a police officer will be exercised
wrongly or mala fide in violation of Section 41(1)(a)
Cr.P.C. the High Court can always issue a writ of
mandamus under Art.226 of the Constitution
restraining the police officer from misusing his legal
power."
79. Relying on the decision reported in Pratibha v. Rameshwari Devi (AIR 2007 SC 899), the learned DGP contended that principles of quashing made mention thereof applies to the facts of this case. In the said decision it was held as follows:
"9.....As noted herein earlier, a bare perusal of
the judgment of the High Court would also show
that the High Court had relied on the investigation
report in quashing the FIR. Now, the question is
whether the High Court while exercising its powers
under Section 482 of the Code was justified in
relying on the investigation report which was
neither filed before the Magistrate nor a copy of the
same supplied to the appellant. In our view, the
High Court has acted in excess of its jurisdiction by
relying on the investigation report and the High
Court was also wrong in directing the report to be
submitted before it. It is now well settled that it is
for the investigating agency to submit the report to
the Magistrate. .....
.......Therefore, in view of our discussions made
herein above, while exercising power under Section
482 of the Code, it is not open to the High Court to
rely on the report of the investigating agency nor
can it direct the report to be submitted before it as
the law is very clear that the report of the
investigating agency may be accepted by the
Magistrate or the Magistrate may reject the same on
consideration of the material on record. Such being
the position, the report of the investigating agency
cannot be relied on by the High Court while
exercising powers under Section 482 of the Code.
Accordingly, we are of the view that the High Court
has erred in quashing the FIR on consideration of
the investigation report submitted before it even
before the same could be submitted before the
Magistrate. For the reasons aforesaid, we are
inclined to interfere with the order of the High Court
and hold that the High Court in quashing the FIR in
the exercise of its inherent powers under Section
482 of the Code by relying on the investigation
report and the findings made therein has acted
beyond its jurisdiction. For the purpose of finding
out the commission of a cognizable offence, the
High Court was only required to look into the
allegations made in the complaint or the FIR and to
conclude whether a prima facie offence had been
made out by the complainant in the FIR or the
complaint or not.
10. Before parting with this judgment, we may also
remind ourselves that the power under Section 482
of the Code has to be exercised sparingly and in the
rarest of rare cases. In our view, the present case
did not warrant such exercise by the High Court.
For the reasons aforesaid, we are unable to sustain
the order of the High Court and the impugned order
is accordingly set aside. The appeal is allowed to
the extent indicated above. The learned Magistrate
is directed to proceed with the case in accordance
with law."
80. The learned DGP also relied on the decision
reported in State of Maharashtra v. Chandraprakash
Kewalchand Jain (AIR 1990 SC 658), wherein it was held as
follows:
"19. It is time to recall the observations of this
Court made not so far back in Bharwada
Bhognibhari Hirjibhai (AIR 1983 SC 753) (supra)
(Para 9):
"In the Indian setting, refusal to act on the testimony of a
victim of sexual assault in the absence of corroboration
as a rule is adding insult to injury. Why should the
evidence of the girl or the woman who complains of rape
or sexual molestation be viewed with the aid of
spectacles fitted with lenses tinged with doubt, disbelief
or suspicion? To do so is to justify the charge of male
chauvinism in a male dominated society. We must
analyse the argument in support of the need for
corroboration and subject it to relentless and
remorseless cross-examination. And we must do so with
a logical, and not an opinionated, eye in the light of
probabilities with our feet firmly planted on the soil of
India and with our eyes focussed on the Indian horizon.
We must not be swept off the feet by the approach made
in the Western world which has its own social milieu, its
own social mores, its own permissive values, and its own
code of life. Corroboration may be considered essential
to establish a sexual offence in the backdrop of the
social ecology of the Western world. It is wholly
unnecessary to import the said concept on a turn-key
basis and to transplate it on the Indian soil regardless of
the altogether different atmosphere, attitudes, mores,
responses of the Indian Society, and its profile. The
identities of the two worlds are different. The solution of
problems cannot therefore be identical."
Proceeding further this Court said (para 10):
"Without the fear of making too wide a statement, or of
overstating the case, it can be said that rarely will a girl
or woman in India make false allegations of sexual
assault ......... The statement is generally true in the
context of the urban as also rural society. It is also by
and large true in the context of the sophisticated, not so
sophisticated, and unsophisticated society. Only very
rarely can one conceivably come across an exception or
two and that too possibly from amongst the urban elites.
Because : (1) A girl or a woman in the tradition bound
non-permissive Society of India would be extremely
reluctant even to admit that any incident which is likely
to reflect on her chastity had ever occurred. (2) She
would be conscious of the danger of being ostracised by
the Society or being looked down by the society
including by her own family members, relatives, friends
and neighbours. (3) She would have to brave the whole
world. (4) She would face the risk of losing the love and
respect of her own husband and near relatives, and of
her matrimonial home and happiness being shattered.
(5) If she is unmarried, she would apprehend that it
would be difficult to secure an alliance with a suitable
match from a respectable or an acceptable family. (6) It
would almost inevitably and almost invariably result in
mental torture and suffering to herself. (7) The fear of
being taunted by others will always haunt her. (8) She
would feel extremely embarrassed in relating the
incident to others being overpowered by a feeling of
shame on account of the upbringing in a tradition bound
society where by and large sex is taboo. (9) The natural
inclination would be to avoid giving publicity to the
incident lest the family name and family honour is
brought into controversy. (10) The parents of an
unmarried girl as also the husband and members of the
husband's family of a married woman would also more
often than not want to avoid publicity on account of the
fear of social stigma on the family name and family
honour. (11) The fear of the victim herself being
considered to be promiscuous or in some way
responsible for the incident regardless of her innocence.
(12) The reluctance to face interrogation by the
investigating agency, to face the Court, to face the
cross-examination by counsel for the culprit, and the
risk of being disbelieved, act as deterrent."
81. In the decision reported in R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the scope and ambit of inherent power under Section 561A was considered in detail. It was held as follows:
"6. Before dealing with the merits of the appeal
it is necessary to consider the nature and scope of
the inherent power of the High Court under S. 561-
A of the Code. The said section saves the inherent
power of the High Court to make such orders as
may be necessary to give effect to any order under
this Code or to prevent abuse of the process of any
court or otherwise to secure the ends of justice.
There is no doubt that this inherent power cannot
be exercised in regard to matters specifically
covered by the other provisions of the Code. In the
present case the magistrate before whom the police
report has been filed under S. 173 of the Code has
yet not applied his mind to the merits of the said
report and it may be assumed in favour of the
appellant that his request for the quashing of the
proceedings is not at the present stage covered by
any specific provision of the Code. It is well
established that the inherent jurisdiction of the
High Court can be exercised to quash proceedings
in a proper case either to prevent the abuse of the
process of any court or otherwise to secure the
ends of justice. Ordinarily criminal proceedings
instituted against an accused person must be tried
under the provisions of the Code, and the High
Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is not
possible, desirable or expedient to lay down any
inflexible rule which would govern the exercise of
this inherent jurisdiction. However, we may indicate
some categories of cases where the inherent
jurisdiction can and should be exercised for
quashing the proceedings. There may be cases
where it may be possible for the High Court to take
the view that the institution or continuance of
criminal proceedings against an accused person
may amount to the abuse of the process of the
court or that the quashing of the impugned
proceedings would secure the ends of justice. If the
criminal proceeding in question is in respect of an
offence alleged to have been committed by an
accused person and it manifestly appears that there
is a legal bar against the institution or continuance
of the said proceeding the High Court would be
justified in quashing the proceeding on that
ground. Absence of the requisite sanction may, for
instance, furnish cases under this category. Cases
may also arise where the allegations in the First
Information Report or the complaint, even if they
are taken at their face value and accepted in their
entirety, do not constitute the offence alleged; in
such cases no question of appreciating evidence
arises; it is a matter merely of looking at the
complaint or the First Information Report to decide
whether the offence alleged is disclosed or not. In
such cased it would be legitimate for the High Court
to hold that it would be manifestly unjust to allow
the process of the criminal court to be issued
against the accused person. A third category of
cases in which the inherent jurisdiction of the High
Court can be successfully invoked may also arise.In
cases falling under this category the allegations
made against the accused person do constitute an
offence alleged but there is either no legal evidence
adduced in support of the case or evidence adduced
clearly or manifestly fails to prove the charge. In
dealing with this class of cases it is important to
bear in mind the distinction between a case where
there is no legal evidence or where there is evidence
which is manifestly and clearly inconsistent with the
accusation made and cases where there is legal
evidence which on its appreciation may or may not
support the accusation in question. In exercising its
jurisdiction under S. 561-A the High Court would
not embark upon an enquiry as to whether the
evidence in question is reliable or not. That is the
function of the trial magistrate, and ordinarily it
would not be open to any party to invoke the High
Court's inherent jurisdiction and contend that on a
reasonable appreciation of the evidence the
accusation made against the accused would not be
sustained. Broadly stated that is the nature and
scope of the inherent jurisdiction of the High Court
under S. 561-A in the matter of quashing criminal
proceedings, and that is the effect of the judicial
decisions on the point."
82. In the decision reported in Hari Prasad v. Bishun Kumar (AIR 1974 SC 300), it was held as follows:
"4. .....Even after making that allowance, we
find that the complaint does not disclose the
commission of any offence on the part of the
respondents under Section 420 Indian Penal Code.
There is nothing in the complaint to show that the
respondents had dishonest or fraudulent intention
at the time the appellant parted with Rs. 35,000.
There is also nothing to indicate that the
respondents induced the appellant to pay them Rs.
35,000 by deceiving him. It is further not the case
of the appellant that a representation was made by
the respondents to him at or before the time he
paid the money to them and that at the time the
representation was made, the respondents knew the
same to be false. The fact that the respondents
subsequently did not abide by their commitment
that they would show the appellant to be the
proprietor of Drang Transport Corporation and
would also render accounts to him in the month of
December might create civil liability for them, but
this fact would not be sufficient to fasten criminal
liability on the respondents for the offence of
cheating."
83. In the decision reported in P.V. Reddy v. State (AIR 1978 SC 1590), it was held as follows:
"2. It is now well settled that the High Court
does not ordinarily interfere at an interlocutory
stage of a criminal proceedings pending in a
Subordinate Court. Bearing in mind the well
recognised principles of law governing the matter
and taking into consideration the nature of the
impugned order, we think the High Court was right
in declining to grant relief to the appellants. It is
also not a matter in which we may legitimately
interfere in exercise of our extraordinary powers
under Article 136 of the Constitution specially when
the case is at its threshold and evidence has still to
be adduced as to whether the minerals extracted
could or could not be used as a major mineral for
certain purposes. It must be realised that it is not
possible to determine difficult question of the kind
involved in the instant case purely in abstract
without relevant evidence bearing on the matter in
issue. Accordingly, we dismiss the appeal. Our order
will not, however, be interpreted as barring the
appellants from raising any defence or contention
that may be open to them before the trial court
which will dispose of the same in accordance with
law uninhibited by any observations made by it
earlier or by the High Court in the course of its
order dismissing the application under S. 482 of the
Code of Criminal Procedure, 1973."
84. In the decision reported in Drugs Inspector, Bangalore v. B.K. Krishnaiah (AIR 1981 SC 1164), it was held as follows:
"5. In a quashing proceeding, the High Court
has to see whether the allegations made in the
complaint petition. if proved, make out a prima facie
offence and that the accused has prima facie
committed the offence."
85. In the decision reported in State of Karnataka v. L. Muniswamy (AIR 1977 SC 1489), it was held as follows:
"7. The second limb of Mr. Mookerjee's
argument is that in any event the High Court could
not take upon itself the task of assessing or
appreciating the weight of material on the record in
order to find whether any charges could be
legitimately framed against the respondents. So
long as there is some material on the record to
connect the accused with the crime, says the
learned counsel, the case must go on and the High
Court has no jurisdiction to put a precipitate or
premature end to the proceedings on the belief that
the prosecution is not likely to succeed. This, in our
opinion, is too broad a proposition to accept.
Section 227 of the Code of Criminal Procedure, 2 of
1974, provides that:-
"If, upon consideration of the record of the case, and the
documents submitted therewith, and after hearing the
submissions of the accused and the prosecution in this
behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall
discharge the accused and record his reasons for so
doing."
This Section is contained in Chap. XVIII called "Trial
before a Court of Sessions." It is clear from the
provision that the Sessions Court has the power to
discharge an accused if after perusing the record
and hearing the parties he comes to the conclusion,
for reasons to be recorded, that there is not
sufficient ground for proceedings against the
accused. The object of the provision which requires
the Sessions Judge to record his reasons is to
enable the superior court to examine the
correctness of the reasons for which the Sessions
Judge has held that there is or is not sufficient
ground for proceeding against the accused. The
High Court therefore is entitled to go into the
reasons given by the Sessions Judge in support of
his order and to determine for itself whether the
order is justified by the facts and circumstances of
the case. Section 482 of the new Code, which
corresponds to S. 561-A of the Code of 1898,
provides that:
"Nothing in this Code shall be deemed to limit or affect
the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
under this Code or to prevent abuse of the process of
any Court or otherwise to secure the ends of justice."
In the exercise of this wholesome power, the High
Court is entitled to quash a proceeding if it comes
to the conclusion that allowing the proceeding to
continue would be an abuse of the process of the
Court or that the ends of justice require that the
proceedings ought to be quashed. The saving of the
High Court's inherent powers, both in civil and
criminal matters is designed to achieve a salutary
public purpose which is that a court proceeding
ought not to be permitted to degenerate into a
weapon of harassment or persecution. In a criminal
case, the veiled object behind a lame prosecution,
the very nature of the material on which the
structure of the prosecution rests and the like
would justify the High Court in quashing the
proceeding in the interest of justice. The ends of
justice are higher than the ends of mere law though
justice has not to be administered according to laws
made by the legislature. The compelling necessity
for making these observations is that without a
proper realisation of the object and purpose of the
provision which seeks to save the inherent powers
of the High Court to do justice between the State
and its subjects it would be impossible to
appreciate the width and contours of that salient
jurisdiction.
........ ....... ........
11. We are therefore in agreement with the
view of the High Court that the material on which
the prosecution processes to rely against the
respondents is wholly inadequate to sustain the
charge that they are in any manner connected with
the assault on the complainant. We would, however,
like to observe that nothing in our judgment or in
the judgment of the High Court should be taken as
detracting from the case of the prosecution, to
which we have not applied our mind, as against
accused Nos. 1 to 9. The case against those
accused must take its due and lawful course."
86. In the decision reported in State of West Bengal v. Swapan Kumar (AIR 1982 SC 949), the Apex Court after referring to the decision reported in S. N. Sharma v. Bipen Kumar Tiwari (AIR 1970 SC 786), Jehan Singh v. Delhi Administration (AIR 1974 SC 1146) and King-Emperor v. Khwaja Nazir Ahmad (AIR 1945 PC 18), it was held as follows:
"The question before the Privy Council was not
whether the fresh F.I.R. disclosed any offence at all.
In fact, immediately after the passage which I have
extracted above, the Privy Council qualified its
statement by saying :
"No doubt, if no cognizable offence is disclosed, and still
more, if no offence of any kind is disclosed, the police
would have no authority to undertake an investigation."
If anything, therefore, the judgment shows that an
investigation can be quashed if no cognizable
offence is disclosed by the F.I.R. It shall also have
been noticed, which is sometimes overlooked, that
the Privy Council took care to qualify, its statement
of the law by saying that the judiciary should not
interfere with the police in matters which are within
their province. It is surely not within the province of
the police to investigate into a Report which does
not disclose the commission of a cognizable offence
and the Code does not impose upon them the duty
of inquiry in such cases.
21. The position which emerges from these
decisions and the other decisions which are
discussed by Brother A. N. Sen is that the condition
precedent to the commencement of investigation
under S. 157 of the Code is that the F.I.R. must
disclose, prima facie, that a cognizable offence has
been committed. It is wrong to suppose that the
police have an unfettered discretion to commence
investigation under S. 157 of the Code. Their right
of inquiry is conditioned by the existence of reason
to suspect the commission, of a cognizable offence
and they cannot, reasonably have reason so to
suspect unless the F.I.R. prima facie discloses the
commission of offence. If that condition is satisfied,
the. investigation must go on and the rule in Khwaja
Nazir Ahmed will apply. The Court has then no
power to stop the investigation, for to do so would
be to trench upon the lawful power of the police to
investigate into cognizable offences. On the other
hand, if the F.I.R. does not disclose the commission
of a cognizable offence, the Court would be
justified in quashing the investigation on the basis
of the information as laid or received."
87. In the decision reported in Madhavrao J. Scindia v. Sambhajirao C. Angre ((1988) 1 SCC 692), it was held as follows:
"7. The legal position is well-settled that when
a prosecution at the initial stage is asked to be
quashed, the test to be applied by the Court is as to
whether the uncontroverted allegations as made
prima facie establish the offence. It is also for the
Court to take into consideration any special features
which appear in a particular case to consider
whether it is expedient and in the interest of justice
to permit a prosecution to continue. This is so on
the basis that the Court cannot be utilised for any
oblique purpose and where in the opinion of the
Court chances of an ultimate conviction are bleak
and, therefore, no useful purpose is likely to be
served by allowing a criminal prosecution to
continue, the Court may while taking into
consideration the special facts of a case also quash
the proceeding even though it may be at a
preliminary stage."
88. In the decision reported in State of U.P. v. R.K. Srivastava (AIR 1989 SC 2222) it was held as follows:
"3. It is a well settled principle of law that if the
allegations made in the FIR are taken at their face
value and accepted in their entirety do not
constitute an offence, the criminal proceedings
instituted on the basis of such FIR should be
quashed."
89. In the decision reported in State of Haryana v. Bhajan Lal (AIR 1992 SC 604) where the issue was considered elaborately and in considerable detail, it was held as follows:
"108. In the backdrop of the interpretation of
the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under Article
226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced
above, we give the following categories of cases by
way of illustration wherein such power could be
exercised either to prevent abuse of the process of
any Court or otherwise to secure the ends of justice,
though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised
and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases
wherein such power should be exercised.
1.Where the allegations made in the First
Information Report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any offence or
make out a case against the accused.
2.Where the allegations in the First Information
Report and other materials, if any, accompanying
the F. I. R. do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156 (1) of the Code except under an order
of a Magistrate within the purview of Section 155(2)
of the Code.
3.Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the
commission of any offence and make out a case
against the accused.
4.Where, the allegations in the F.I.R. do not
constitute a cognizable offence but constitute only
a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of
the Code.
5. Where the allegations made in the F.I.R. or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.
6.Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)
to the institution and continuance of the
proceedings and/ or where there is a specific
provision in the Code or the oncerned Act,
providing efficacious redress for the grievance of
the aggrieved party.
7.Where a criminal proceeding is manifestly
attended with mala fide and/ or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal
grudge."
90. In the decision reported in Rashmi Kumar v. Mahesh Kumar Bhada ((1997) 2 SCC 397) it was held as follows:
"The High Court should sparingly and
cautiously exercise the power under Section 482 of
the Code to prevent miscarriage of justice. The
High Court would be loath and circumspect to
exercise its extraordinary power under Section 482
of the Code under Article 226 of the Constitution.
The Court would consider whether the exercise of
the power would advance the cause of justice or it
would tantamount to abuse of process of the court.
Social stability and order require to be regulated by
proceeding against the offender as it is an offence
against the society as a whole. This cardinal
principle should always be kept in mind before
embarking upon the exercise of the inherent power
vested in the court."
91. In the decision reported in State of Punjab v. Subhash Kumar ((2004) 13 SCC 437), it was held as follows:
"2. By the impugned order, the High Court has
quashed FIR No.55 dated 27.4.2001. The FIR was
registered against four respondents for having
committed theft of cheel logs from the forest of
Kukanet. In sum and substance the allegation is of
illegal felling of trees and theft of the same from
the forest. Curiously, the High Court by entering
into the factual arena has passed the impugned
order quashing the FIR. Such a course is wholly
impermissible. The High Court acted more as an
investigating agency at a stage when the FIR was
under investigation. At this stage, we wish to say
no more lest it may prejudice the parties."
92. In the decision reported in K.L.E. Society v. Siddaklingesh ((2008) 4 SCC 541), after referring to the decision reported in R.P.Kapur v. State of Punjab (AIR 1960 SC 866) it was held as follows:
"7. One thing is clear on reading of High
Court's reasoning that the High Court came to the
conclusion that deductions were made without any
rhyme and reason and without any basis. That was
not the case of the complainant. On the other hand,
it tried to make out a case that the deduction was
made with an object. That obviously, was the
foundation to substantiate claim of entrustment. On
a close reading of the complaint it is clear that the
ingredients of Sections 403, 405 and 415 do not
exist. The statement made in the complaint runs
contrary to the averments made in the petition in
terms of Section 33-(C) (2).
8. "6. Exercise of power under Section 482 of
the Code in a case of this nature is the exception
and not the rule. The Section does not confer any
new powers on the High Court. It only saves the
inherent power which the Court possessed before
the enactment of the Code. It envisages three
circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an
order under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure the
ends of justice. It is neither possible nor desirable
to lay down any inflexible rule which would govern
the exercise of inherent jurisdiction. No legislative
enactment dealing with procedure can provide for
all cases that may possibly arise. Courts, therefore,
have inherent powers apart from express provisions
of law which are necessary for proper discharge of
functions and duties imposed upon them by law.
That is the doctrine which finds expression in the
section which merely recognizes and preserves
inherent powers of the High Courts. All courts,
whether civil or criminal possess, in the absence of
any express provision, as inherent in their
constitution, all such powers as are necessary to do
the right and to undo a wrong in course of
administration of justice on the principle "quando
lex aliquid alicui concedit, concedere videtur et id
sine quo res ipsae esse non potest" (when the law
gives a person anything it gives him that without
which it cannot exist).While exercising powers under
the section, the court does not function as a court
of appeal or revision. Inherent jurisdiction under the
section though wide has to be exercised sparingly,
carefully and with caution and only when such
exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex
debito justitiae to do real and substantial justice for
the administration of which alone courts exist.
Authority of the court exists for advancement of
justice and if any attempt is made to abuse that
authority so as to produce injustice, the court has
power to prevent abuse. It would be an abuse of
process of the court to allow any action which would
result in injustice and prevent promotion of justice.
In exercise of the powers court would be justified to
quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. When no
offence is disclosed by the complaint, the court may
examine the question of fact. When a complaint is
sought to be quashed, it is permissible to look into
the materials to assess what the complainant has
alleged and whether any offence is made out even if
the allegations are accepted in toto.
7. In R. P. Kapur v. State of Punjab (AIR 1960
SC 866) this Court summarized some categories of
cases where inherent power can and should be
exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal
bar against the institution or continuance e.g. want
of sanction;
(ii) where the allegations in the first information
report or complaint taken at its face value and
accepted in their entirely do not constitute the
offence alleged;
(iii) where the allegations constitute an offence, but
there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the
charge.
8. In dealing with the last case, it is important
to bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is clearly inconsistent with the
accusations made, and a case where there is legal
evidence which, on appreciation, may or may not
support the accusations. When exercising
jurisdiction under Section 482 of the Code, the High
Court would not ordinarily embark upon an enquiry
whether the evidence in question is reliable or not
or whether on a reasonable appreciation of it
accusation would not be sustained. That is the
function of the trial Judge. Judicial process should
not be an instrument of oppression, or, needless
harassment. Court should be circumspect and
judicious in exercising discretion and should take
all relevant facts and circumstances into
consideration before issuing process, lest it would
be an instrument in the hands of a private
complainant to unleash vendetta to harass any
person needlessly. At the same time the section is
not an instrument handed over to an accused to
short-circuit a prosecution and bring about its
sudden death. The scope of exercise of power under
Section 482 of the Code and the categories of cases
where the High Court may exercise its power under
it relating to cognizable offences to prevent abuse
of process of any court or otherwise to secure the
ends of justice were set out in some detail by this
Court in State of Haryana v. Bhajan Lal (1992 Supp
(1) 335). A note of caution was, however, added that
the power should be exercised sparingly and that
too in rarest of rare cases."
93. In the decision reported in Mahesh Chaudhary v. State of Rajasthan ((2009) 4 SCC 439), it was held as follows:
"11. The principle providing for exercise of
the power by a High Court under Section 482 of the
Code of of Criminal Procedure to quash a criminal
proceeding is well known. The Court shall
ordinarily exercise the said jurisdiction, inter alia, in
the event the allegations contained in the FIR or the
complaint petition even if on the value are taken to
be correct in their entirety does not disclose
commission of an offence."
94. In the decision reported in Gorige Pentaiah v. State of Andhra Pradesh ((2009) 1 SCC (Cri.) 446) the Apex Court after referring to the decisions reported in R.P. Kapur v. State of Punjab (AIR 1960 SC 866), State of Karnataka v. L. Muniswamy (1977) 2 SCC 699), Chandrapal Singh and Others v. Maharaj Singh a (1982) 1 SCC 466), Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692), State of Haryana v. Bhajan Lal ((1992) Supp. (1) SCC 335), Janata Dal v. H. S. Chowdhary (1992) 4 SCC 305), G. Sagar Suri v. State of UP (2000) 2 SCC 636 ), Roy V. D. v. State of Kerala (2000) 8 SCC 590), Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122), Indian Oil Corporation v. NEPC India Ltd. (2006) 6 SCC 736 it was held as follows:
"12. This court in a number of cases has laid
down the scope and ambit of courts' powers under
section 482 Cr.P.C. Every High Court has inherent
power to act ex debito justitiae to do real and
substantial justice, for the administration of which
alone it exists, or to prevent abuse of the process of
the court. Inherent power under section 482 Cr.P.C.
can be exercised :
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of court, and
(iii) to otherwise secure the ends of justice.
Inherent powers under section 482 Cr.P.C. though
wide have to be exercised sparingly, carefully and
with great caution and only when such exercise is
justified by the tests specifically laid down in this
section itself. Authority of the court exists for the
advancement of justice. If any abuse of the process
leading to injustice is brought to the notice of the
court, then the Court would be justified in
preventing injustice by invoking inherent powers in
absence of specific provisions in the Statute.
Discussion of decided cases
13. Reference to the following cases would
reveal that the courts have consistently taken the
view that they must use this extraordinary power to
prevent injustice and secure the ends of justice. The
English courts have also used inherent power to
achieve the same objective. It is generally agreed
that the Crown Court has inherent power to protect
its process from abuse. In Connelly v. DPP [1964]
AC 1254, Lord Devlin stated that where particular
criminal proceedings constitute an abuse of
process, the court is empowered to refuse to allow
the indictment to proceed to trial. Lord Salmon in
DPP v. Humphrys [1977] AC 1 stressed the
importance of the inherent power when he observed
that it is only if the prosecution amounts to an
abuse of the process of the court and is oppressive
and vexatious that the judge has the power to
intervene. He further mentioned that the court's
power to prevent such abuse is of great
constitutional importance and should be jealously
preserved.
.......... ..........
15. The powers possessed by the High Court
under section 482 of the Code are very wide and the
very plenitude of the power requires great caution
in its exercise. The court must be careful to see that
its decision in exercise of this power is based on
sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution. The
High Court should normally refrain from giving a
prima facie decision in a case where all the facts are
incomplete and hazy; more so, when the evidence
has not been collected and produced before the
court and the issues involved, whether factual or
legal, are of such magnitude that they cannot be
seen in their true perspective without sufficient
material. Of course, no hard and fast rule can be
laid down in regard to cases in which the High Court
will exercise its extraordinary jurisdiction of
quashing the proceedings at any stage.
.......... ...........
25. The question before us is * whether the
case of the appellants comes under any of the
categories enumerated in Bhajan Lal (supra)? Is it a
case where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in entirety, do
not make out a case against the accused under
Sections 420, 467 and 120B IPC? For determination
of the question it becomes relevant to note the
nature of the offences alleged against the
appellants, the ingredients of the offences and the
averments made in the FIR/complaint.
26. A three Judge Bench of this court in Inder
Mohan Goswami and Another v. State of Uttaranchal
and Others, AIR 2008 SC 251 has examined scope
and ambit of section 482 of the Criminal Procedure
Code. The court in the said case observed that
inherent powers under section 482 should be
exercised for the advancement of justice. If any
abuse of the process leading to injustice is brought
to the notice of the court, then the court would be
fully justified in preventing injustice by invoking
inherent powers of the court."
95. In the decision reported in Sathish Mehra v. State of N.C.T. Of Delhi (AIR 2013 SC 506) after referring to the decision reported in R.P. Kapur v. State of Punjab (AIR 1960 SC 866), it was held as follows:
"14. Though a criminal complaint lodged
before the court under the provisions of Chapter XV
of the Code of Criminal Procedure or an FIR lodged
in the police station under Chapter XII of the Code
has to be brought to its logical conclusion in
accordance with the procedure prescribed, power
has been conferred under Section 482 of the Code
to interdict such a proceeding in the event the
institution/continuance of the criminal proceeding
amounts to an abuse of the process of court. ..........
15. The power to interdict a proceeding either
at the threshold or at an intermediate stage of the
trial is inherent in a High Court on the broad
principle that in case the allegations made in the FIR
or the criminal complaint, as may be, prima facie do
not disclose a triable offence there can be reason as
to why the accused should be made to suffer the
agony of a legal proceeding that more often than
not gets protracted. A prosecution which is bound
to become lame or a sham ought to interdicted in
the interest of justice as continuance thereof will
amount to an abuse of the process of the law. This
is the core basis on which the power to interfere
with a pending criminal proceeding has been
recognized to be inherent in every High Court. The
power, though available, being extra-ordinary in
nature has to be exercised sparingly and only if the
attending facts and circumstances satisfies the
narrow test indicated above, namely, that even
accepting all the allegations levelled by the
prosecution, no offence is disclosed. However, if so
warranted, such power would be available for
exercise not only at the threshold of a criminal
proceeding but also at a relatively advanced stage
thereof, namely, after framing of the charge against
the accused. In fact the power to quash a
proceeding after framing of charge would appear to
be somewhat wider as, at that stage, the materials
revealed by the investigation carried out usually
comes on record and such materials can be looked
into, not for the purpose of determining the guilt or
innocence of the accused but for the purpose of
drawing satisfaction that such materials, even if
accepted in its entirety, do not, in any manner,
disclose the commission of the offence alleged
against the accused.
16. The above nature and extent of the power
finds an exhaustive enumeration in a judgment of
this court in State of Karnataka v. L. Muniswamy
and others which may be usefully extracted below :
"7. The second limb of Mr Mookerjee's argument is that
in any event the High Court could not take upon itself
the task of assessing or appreciating the weight of
material on the record in order to find whether any
charges could be legitimately framed against the
respondents. So long as there is some material on the
record to connect the accused with the crime, says the
learned counsel, the case must go on and the High
Court has no jurisdiction to put a precipitate or
premature end to the proceedings on the belief that the
prosecution is not likely to succeed. This, in our opinion,
is too broad a proposition to accept. Section 227 of the
Code of Criminal Procedure, 2 of 1974, provides that:
. . . . .
This section is contained in Chapter XVIII called "Trial
Before a Court of Session". It is clear from the provision
that the Sessions Court has the power to discharge an
accused if after perusing the record and hearing the
parties he comes to the conclusion, for reasons to be
recorded, that there is not sufficient ground for
proceeding against the accused. The object of the
provision which requires the Sessions Judge to record
his reasons is to enable the superior court to examine
the correctness of the reasons for which the Sessions
Judge has held that there is or is not sufficient ground
for proceeding against the accused. The High Court
therefore is entitled to go into the reasons given by the
Sessions Judge in support of his order and to determine
for itself whether the order is justified by the facts and
circumstances of the case. Section 482 of the New Code,
which corresponds to Section 561-A of the Code of
1898, provides that:
. . . . .
In the exercise of this wholesome power, the High Court
is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue
would be an abuse of the process of the Court or that
the ends of justice require that the proceeding ought to
be quashed. The saving of the High Court's inherent
powers, both in civil and criminal matters, is designed to
achieve a salutary public purpose which is that a court
proceeding ought not to be permitted to degenerate into
a weapon of harassment or persecution. In a criminal
case, the veiled object behind a lame prosecution, the
very nature of the material on which the structure of the
prosecution rests and the like would justify the High
Court in quashing the proceeding in the interest of
justice. The ends of justice are higher than the ends of
mere law though justice has got to be administered
according to laws made by the legislature. The
compelling necessity for making these observations is
that without a proper realisation of the object and
purpose of the provision which seeks to save the
inherent powers of the High Court to do justice, between
the State and its subjects, it would be impossible to
appreciate the width and contours of that salient
jurisdiction."
It would also be worthwhile to recapitulate an
earlier decision of this court in Century Spinning
and Manufacturing Co. v. State of
Maharashtra3noticed in L. Muniswamy's case
(supra) holding that the order framing a charge
affects a person's liberty substantially and therefore
it is the duty of the court to consider judicially
whether the materials warrant the framing of the
charge. It was also held that the court ought not to
blindly accept the decision of the prosecution that
the accused be asked to face a trial.
17. While dealing with contours of the inherent
power under Section 482 Cr.P.C. to quash a criminal
proceeding, another decision of this court in Padal
Venkata Rama Reddy alias Ramu v. Kovvuri
Satyanaryana Reddy and others, reported in (2011)
12 SCC 437 : (2011 AIR SCW 4504) to which one of
us (Justice P.Sathasivam) was a party may be
usefully noticed. In the said decision after an
exhaustive consideration of the principles
governing the exercise of the said power as laid
down in several earlier decisions this court held
that:
"31. . . . . When exercising jurisdiction under Section 482
of the Code, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question is
reliable or not or whether on reasonable appreciation of
it accusation would not be sustained. That is the
function of the trial Judge. The scope of exercise of
power under Section 482 and the categories of cases
where the High Court may exercise its power under it
relating to cognizable offences to prevent abuse of
process of any court or otherwise to secure the ends of
justice were set out in detail in Bhajan Lal4. The powers
possessed by the High Court under Section 482 are very
wide and at the same time the power requires great
caution in its exercise. The Court must be careful to see
that its decision in exercise of this power is based on
sound principles. The inherent power should not be
exercised to stifle a legitimate prosecution."
96. In the decision reported in GHCL Employees Stock Option Trust v. India Infoline Ltd. ((2013) 4 SCC 505), the Apex Court, after referring to the decisions reported in Madhavarao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre ((1988) 1 SCC 692), Punjab National Bank v. Surendra Prasad Sinha (AIR 1992 SC 1815), and Muksud Saiyed v. State of Gujarat ((2008) 5 SCC 668) it was held as follows:
"18. From a bare reading of the order passed
by the Magistrate, it reveals that two witnesses
including one of the trustees were examined by the
complainant but none of them specifically stated as
to which of the accused committed breach of trust
or cheated the complainant except general and bald
allegations made therein. While ordering issuance
of summons, the learned Magistrate concluded as
under:
"The complainant has submitted that Accused 2 to
6 are the Directors of the Company and accused 7 is the
Secretary of the Company and were looking after the
day-to-day affairs of the Company and were also
responsible for conduct and business of accused 1 and
sometime or the other have interacted with the
complainant.
I have heard arguments on behalf of the
complainant and perused the record. From the
allegations raised, documents placed on record and the
evidence led by the witnesses, prima facie an offence
under Section 415, 409/34/120B is made out. Let all
the accused hence be summoned to face trial under the
aforesaid sections on PFRC/Speed Post/courier for 2-
12-2008."
97. In the light of the decisions of the Apex Court, the decisions relied on by the DGP reported in Ram Lal Yadav v. State of U.P. (1989 Cri.L.J. 1013) and State of Maharashtra v. Arun Gulab (2011 Cri.L.J. 89) cannot be taken as imposing absolute prohibition on exercising powers under Section 482 of Cr.P.C. at the threshold. The decisions show that the various stages at which the power can be exercised and the circumstances under which it can be so done. The above decisions indicate that there is no prohibition in exercising the power to quash the proceedings at the threshold provided the conditions mentioned in those decisions are satisfied. One such recognized principle is that if the allegations in the complaint on the very face of it or even prima facie do not make out the offence alleged or any offence, then the High Court will be certainly within its power in quashing the proceedings. It is no doubt true that power is to be exercised sparingly in rarest of the rare cases especially when interference is sought for at the threshold.
98. It necessarily follows that the power to commence investigation is dependent upon the fact that the complaint or the information received by the police officer discloses the commission of a cognizable offence. When a complaint is laid making certain allegations and a crime is registered for cognizable offence, it cannot be said that the court is not within its power to examine whether the allegations contained in the complaint gave rise to the offence mentioned in the FIR. Of course, quoting of a wrong provision by itself is not a ground to interfere. Again, the contention of the learned DGP that whatever may be the crime that may be registered initially has no significance and it is the offence that is found out later during investigation that matters cannot be accepted.
99. It is true that if prima facie an offence is made out on the basis of the allegations, it will not be proper for the court to interfere at the threshold. But it is not possible to accept the contention raised by the learned DGP and the third respondent that as soon as a complaint is received, if a crime is registered and the investigation commenced, the hands of the court are fettered and the investigation must go on. The complaint need not mention the offence as such. It may be for the investigating agency or the court which takes cognizance has to determine the actual offence. But when once the offence is made mention of in the record concerned, then certainly the court is empowered to determine whether the allegations in the complaint give rise to such an offence. If the ingredients of the offence mentioned are not discernible from the allegations in the complaint, then going by the principles laid down in the decisions referred to above, the court is certainly empowered to put an end to the proceedings as it will be treated as an abuse of the process of court.
100. In the case on hand, it has been found that the allegations of rape cannot prima facie stand. The question is whether that by itself is sufficient to quash the FIR and the complaint.
101. Shri.M.K.Damodaran, learned Senior Counsel appearing for the petitioner, pointed out that this court is called upon only to look into the FIR as it stands and whether the allegations in the complaint supports the offence stated in the FIR. This court is not called upon to consider whether any other offence is made out. If as a matter of fact the allegations in the complaint which form the basis for the FIR does not disclose the offence made mention of, then necessarily the court will have to interfere.
102. Per contra, learned DGP contended that apart from the fact that offence under Section 376 of I.P.C. is made out because the so-called consent is a consent given under misconception of fact, the allegations contained in the complaint gave rise to other offences, namely, Sections 354 and 511 of Section 376 of IPC. Learned DGP referred to pages 9 to 15 of the complaint. The learned DGP highlighted that the indecent behaviour on the part of the petitioner and so also the frequent phone calls made by him may give rise to offence under the Information Technology Act also and other provisions of the I.P.C. If that be so, according to the learned DGP, it will be inappropriate and infact illegal to quash the FIR.
103. One aspect has to be noticed here. It is true that in the portions referred to by the learned DGP in the complaint, it is seen stated that the petitioner has misbehaved with the victim.
104. However, one cannot shut his eyes to the counter affidavit filed by the third respondent before this court. In the counter affidavit filed by the third respondent, except for the sexual assaults said to have been committed on her, which she states were under misconception of fact, she has no complaint regarding any other act done by the petitioner. Even assuming that a complaint was laid by a layman, at least at the time of filing the counter affidavit before court, the third respondent could have indicated that she had other grievances also. In fact a reading of the complaint and the counter affidavit of the third respondent would clearly show that she had no grievance regarding the various other acts committed by the petitioner. It is significant to notice that even in the complaint when indecent behaviour emanated from the petitioner, no objection or resistance was offered by the third respondent. She does not state that she has any grievance regarding those conducts of the petitioner.
105. It would therefore appear that the State is desperate to take aid of any material to book the petitioner even though the complainant herself has no grievance regarding the aspects now highlighted by the learned DGP. It will not be out of place here to refer to one significant aspect. The petitioner became acquainted with the third respondent from 2007 onwards. His frequent calls and visits began then. The FIR makes mention of only acts done between early 2012 till 21.10.2012. Therefore, acts done previous to that period have no bearing on the issue involved in this case.
106. The learned DGP had filed a petition to let the Investigating Officer produce the CD for perusal of this court.
107. This court feels that it will not be proper at this point of time to do so since the issue involved has to be resolved on the basis of the allegations in the complaint. Materials collected during investigation my not be of much relevance now.
108. From the above observation, the conclusions that follow are :
i) The allegations in the complaint, namely,
Annexure AI produced along with the petition, read
as a whole, do not contain the necessary
ingredients even prima facie to attract the offence
under Section 376 of I.P.C.
ii) The physical contacts which the petitioner is
alleged to have had with the third respondent,
going by the sequence of events contained in the
complaint, would show that it was with consent and
the claim that it was under misconception of fact
cannot be accepted.
iii) Even though several other circumstances are
raised by the State and the third respondent
vitiating the consent, they have no foundation in
the complaint.
iv) Except for the grievance that the promise of
marriage extended by the accused persons was not
fulfilled, the third respondent does not seem to
have any other grievance.
v) Even though the complainant/third respondent
has stated that physical contacts with the petitioner
were not with proper consent, it is not discernible
as to what the complainant meant by 'proper
consent' and viewed in the light of the conduct of
the complainant as could be discerned from the
complaint, there is nothing to show that there was
want of consent as understood in law.
vi) Even accepting the argument of the learned DGP
that assuming that offence under Section 376 of
I.P.C. is not made out, there are other offences
made out from the complaint and so the FIR cannot
be quashed, cannot be accepted for the simple
reason that the third respondent has not voiced any
grievance regarding the other conducts of the
petitioner narrated by her in her complaint.
vii) Even in the counter affidavit filed before this
court, the complainant has no grievance that there
was attempt to outrage her modesty or she was
pestered over phone with necessary accusation so
as to attract offences under the Information
Technology Act.
viii) Going by the principles laid down by the
decisions referred to with regard to the power
under Section 482 Cr.P.C., it follows that if the
allegations in the complaint do not disclose offence
mentioned in the FIR, the court is well within its
power to quash the FIR and the complaint.
109. Before parting with this matter, a very disturbing trend that has emerged in criminal jurisprudence needs to be mentioned. Of late, the investigation of any case does not seem to end and it goes on endlessly adding provisions of I.P.C. and more and more accused, some of them based solely on the confession of an accused. In some other cases any number of additional statements are taken from the complainant and then more and more offences get added and so also number of the accused. A stage has reached where anybody could be booked for any offence eroding the sanctity attached to investigation. It is even more curious to note that any number of final reports are also being filed in cases labelling them as split charges. It is time that authorities concerned bestow their attention to this matter so that the system can retain its credibility and acceptability.
For the above reasons, this Crl.M.C. has to succeed. Accordingly, this petition is allowed and the complaint Annexure A1 and the FIR Annexure A2 shall stand quashed as far as the petitioner is concerned and the further proceedings against the petitioner shall stand dropped.
P. BHAVADASAN,
JUDGE
sb.
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Vinayak
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