MISS XYZ versus STATE OF GUJARAT & ANR on 25 October 2019

1098

[2019] 13 S.C.R. 1098

SUPREME COURT REPORTS

[2019] 13 S.C.R.

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MISS XYZ

v.

STATE OF GUJARAT & ANR

(Criminal Appeal No.1619 of 2019)

B

OCTOBER 25, 2019

[UDAY UMESH LALIT, INDU MALHOTRA ANDR. SUBHASH REDDY]

Code of Criminal Procedure, 1973 – s.482 – Appellant-informant was the Personal Assistant of the 2[nd] respondent-CManaging Director of the Company – In her complaint she allegedthat when she was not well, the 2[nd] respondent started visiting herresidence and when she was in sleep, he took inappropriate picturesof her and committed rape on her under the threat of termination ofemployment and publication of her pictures – It was further allegedDthat the 2[nd] respondent on coming to know that appellant’s marriagewas fixed, contacted the person with whom her marriage was fixedand informed him that the appellant is not of good character andshe had physical relationship with him and other boys – 2[nd]respondent also allegedly sent him the nude/inappropriate picturesof the appellant – Case registered against the 2[nd] respondent forEthe alleged offence u/ss.376, 499 and 506(2), IPC – High Courtquashed the proceedings against the 2[nd] respondent – On appeal,held: High Court exceeded the scope of its jurisdiction u/s.482 CrPC– Even before the investigation is completed by the investigatingagency, the High Court entertained the Writ Petition, and by virtueFof interim order granted by the High Court, further investigationwas stalled – Having regard to the allegations made by the appellant,whether the 2[nd] respondent by clicking inappropriate pictures ofthe appellant has blackmailed her or not, and further the 2[nd]respondent has continued to interfere by calling the person withwhom appellant’s marriage was fixed or not are the matters forGinvestigation – In view of the serious allegations made in thecomplaint, the High Court should not have made roving inquirywhile considering the application filed u/s.482, CrPC – High Courtgot carried away by the agreement/settlement arrived at betweenthe parties, and recorded finding that the physical relationship ofH

the appellant with the 2[nd] respondent was consensual – When it isthe allegation of the appellant, that such document itself is obtainedunder threat and coercion,it is a matter to be investigated –Impugned order set aside – 2[nd] respondent to co-operate with theinvestigation – Till then no coercive action be taken against him –Penal Code, 1860 – ss.376, 499 & 506(2) – Evidence Act, 1872 –s.114-A.

Evidence Act, 1872 – s.114-A – Absence of consent in certainprosecution for rape – Presumption of – Held: Where sexualintercourse by the accused is proved and the question is whether itwas without the consent of the woman alleged to have been raped,and such woman states in her evidence that she did not consent, thecourt shall presume that she did not consent.

Allowing the appeal, the Court

Conclusion

HELD: 1. The High Court exceeded the scope of itsjurisdiction conferred under Section 482 CrPC, and quashed theproceedings. Even before the investigation is completed by theinvestigating agency, the High Court entertained the WritPetition, and by virtue of interim order granted by the High Court,further investigation was stalled. Having regard to the allegationsmade by the appellant/informant, whether the 2[nd] respondent byclicking inappropriate pictures of the appellant has blackmailedher or not, and further the 2[nd] respondent has continued tointerfere by calling ‘SM’ or not are the matters for investigation.In view of the serious allegations made in the complaint, the HighCourt should not have made a roving inquiry while consideringthe application filed under Section 482 CrPC. The High Courtgot carried away by the agreement/settlement arrived at, betweenthe parties, and recorded a finding that the physical relationshipof the appellant with the 2[nd] respondent was consensual. When itis the allegation of the appellant, that such document itself isobtained under threat and coercion,it is a matter to beinvestigated. Further, the complaint of the appellant aboutinterference by the 2[nd] respondent by calling ‘SM’ and furtherinterference is also a matter for investigation. By looking at thecontents of the complaint and the serious allegations made againstthe 2[nd] respondent, the High Court committed error in quashingthe proceedings. Section 114-A of the Indian Evidence Act, 1872

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Adeals with the presumption as to absence of consent in certainprosecution for rape. A reading of the aforesaid Section makes itclear that, where sexual intercourse by the accused is provedand the question is whether it was without the consent of thewoman alleged to have been raped, and such woman states inher evidence before the Court that she did not consent, the courtBshall presume that she did not consent. Whether in a given casepower under Section 482 is to be exercised or not, depends onthe contents of the complaint, and the material placed on record.In that view of the matter, it is a fit case to set aside the orderpassed by the High Court and allow the investigating agency toCproceed with the further investigation in accordance with law. Noopinion expressed on the merits of the complaint, and it is opento the investigating agency and competent court, to proceed inaccordance with law. The impugned order by the High Court isset-aside. The 2[nd] respondent shall appear before the concernedPolice Station on 18-11-2019 at 11.00 a.m. and co-operate withDthe investigation. Till then no coercive action shall be takenagainst him. [Paras 13-15][1104-D-H; 1105-A-F]

State of Haryana v. Bhajanlal & Ors. AIR 1992 SC604 : [1990] 3 Suppl. SCR 259; Pramod SuryabhanPawar v. The State of Maharashtra & Anr. 2019 AIRE4010 – referred to.

Case Law Reference

[1990] 3 Suppl. SCR 259referred toPara 8

2019 AIR 4010referred toPara 14

FCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1619 of 2019.

From the Judgment and Order dated 13.12.2018 of the High Courtof Gujarat at Ahmedabad in Special Criminal Application (Quashing)No. 9897 of 2017.G

Amit Anand Tiwari, Ms. Shakun Sharma, Jeet P. Bhat, ShashwatSingh, Advs. for the Appellant.

Mukul Rohatgi, Sr. Adv., Aniruddha P. Mayee, Ms. DeepanwitaPriyanka, Saurabh Kirpal, Sujay Kantawala, Pitambar R. Abhichandani,HMs. Jesal Wahi, Ms. Puja Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

R. SUBHASH REDDY,J.

1. Leave granted.

2. This appeal is filed by the 2[nd] respondent in R/Special CriminalApplication No.9897 of 2017 filed before the High Court of Gujarat, atAhmedabad. By the impugned order, High Court has allowed R/SpecialCriminal Application by quashing FIR No. CR-I-60-2017 registered onthe file of Mahila Police Station, Ahmedabad City, District Ahmedabad.

3. The appellant herein, is the informant in crime registered inFIR No.CR-I-60-2017 on the file of Mahila Police Station, AhmedabadCity. On her complaint the aforesaid crime is registered against the 2[nd]respondent for the alleged offence punishable under Sections 376, 499and 506(2) of the Indian Penal Code, 1860.

4. The complaint was filed with the following averments:

She is a permanent resident of Jodhpur, Rajasthan State and hadcome to Ahmedabad in Gujarat City for employment and she met the 2[nd]respondent, who is the Managing Director of the G.S.P. Crop SciencePvt. Ltd. After conducting interview she was appointed as his PersonalAssistant in the month of November, 2014. When the appellant was notwell, the 2[nd] respondent started visiting her residence and when she wasin sleep, the 2[nd] respondent has taken an inappropriate pictures of her.When she was attending the office, the 2[nd] respondent by showing herpictures, was blackmailing her. When she visited Odhav, Kathwada andNandesari, Baroda on official work of the company, the 2[nd] respondentused to take advantage of the situation when the appellant was alone,and was blackmailing to make viral her pictures and to terminate heremployment. As the financial condition of the appellant was not stable,she did not disclose this to anyone. In December, 2014 the 2[nd] respondenttook the appellant to Baroda for some work, by threatening to publishher nude pictures, committed rape on her. Even after coming back toAhmedabad, the 2[nd] respondent again took her to Baroda on the pretextof some work and committed rape by similar threats in the hotel. The 2[nd]respondent was also visiting her rented premises at Ahmedabad andused to commit rape on her under the threat of termination of employmentand publication of her pictures. The 2[nd] respondent rented an apartmentat Adani Pratham in August, 2015. When the appellant was residing inthe said apartment,the 2[nd] respondent used to come to the said apartment A

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Aand was demanding sexual favours. As she was fed up with theexploitation by the 2[nd] respondent, she vacated the rental premises inJune, 2016. In view of serious threat by the 2[nd] respondent to her life,she left for Jodhpur and her marriage was fixed with one Mr.ShoukinMalik who is the resident of Badi Sadri, Rajasthan in the month ofDecember, 2016. The 2[nd] respondent having come to know about theBmarriage of the appellant with Shoukin Malik, he contacted Mr.ShoukinMalik on telephone and informed him that the appellant is not of goodcharacter, she had physical relationship with him and with other boys.As Mr.Shoukin Malik refused to meet the 2[nd] respondent, the 2[nd]respondent sent a cover to the residence of Shoukin Malik containingCher nude/inappropriate pictures.5. In view of such allegations as referred above made in thecomplaint, a case is registered against the 2[nd ]respondent for the allegedoffence under Sections 376, 499 and 506(2) of IPC.

6. When the complaint is under investigation, the 2[nd ]respondentDhas filed R/Special Criminal Application No.9897 of 2017 before theHigh Court of Gujarat seeking quashing of FIR itself and also furtherconsequential steps taken pursuant to the registration of crime.

7. Primarily, it was the case of the 2[nd] respondent before the HighCourt that there was absolutely no truth in the allegation of rape asEalleged by the appellant and it was only consensual sex between theparties. It is further alleged that in view of the allegations made by theappellant, a settlement is purported to have been arrived at, betweenthem in the month of July, 2016. A written agreement was also enteredinto and the same is signed by the parties. It is stated in the agreementFthat the dispute between the parties is settled and the 2[nd] respondent hasallegedly paid a huge amount to the appellant. It is further the case ofthe 2[nd] respondent that whatever the electronic and other materials lyingwith the parties were agreed to be destroyed. Further it was the case ofthe 2[nd] respondent that the alleged telephonic calls made by the 2[nd]respondent to Mr. Shoukin Malik of Rajasthan was absolutely false andGbaseless. Pleading that the complaint filed and investigation taken up is agross abuse of process, the 2[nd] respondent has sought quashing of theproceedings.

8. By referring to the rival contentions of the parties and thematerial on record, the High Court has recorded a finding that the caseH

of the 2[nd] respondent falls under Exceptions 5 and 7 as carved out in thejudgment of this Court in State of Haryana vs. Bhajanlal & Ors.[1]andfurther the allegations and facts as mentioned in the FIR, appear to beimprobable and the same is malicious prosecution, quashed theproceedings registered against the 2[nd] respondent.

9. We have heard Sri Amit Anand Tiwari, learned counsel for theappellant, Ms. Deepanwita Priyanka, learned counsel for the State andSri Mukul Rohatgi, learned senior counsel for 2[nd] respondent.

10. Mainly, it is contended by the learned counsel for the appellantthat the High Court has passed the impugned order by exceeding thescope of power conferred under Section 482 CrPC. In view of the seriousallegations made against the 2[nd] respondent, the High Court should nothave exercised power under Section 482 of the CrPC to scuttle theinvestigation. It is submitted that the High Court has committed error insummoning the Police Inspector, and on relying on such statement, forquashing the FIR. It is stated that the alleged settlement was under theguise of threat and coercion by the 2[nd] respondent, and it is not enteredinto by the appellant with her free will and consent. It is stated that the2[nd] respondent misused the photographs taken by him, and repeatedlyused the same to blackmail her, to secure sexual favours from theappellant. It is contended that the 2[nd] respondent taking advantage of hisposition as a Managing Director of the Company, has exploited theappellant and committed rape on her at her residence and in the apartmentsecured by the 2[nd] respondent and also during her tours to Baroda. It issubmitted that it is not open for the High Court to make a roving inquiry,while considering the application filed under Section 482 CrPC.

11. Learned counsel for the first respondent-State has submittedthat the Investigating Officer made an attempt to secure data from theservice providers of the mobile phones, but the same was not provided.In the meantime, in view of interim orders passed by the High Court,further investigation was not made.

12. Sri Mukul Rohatgi learned senior counsel appearing for the2[nd] respondent, by taking us through the settlement documents arrived,between the parties, and other material placed on record, has submittedthat there is absolutely no basis for the allegation of rape by the 2[nd]respondent, and it was only consensual sex between the parties. It is 1 AIR 1992 SC 604

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Asubmitted that having regard to the allegations made, parties arrived at asettlement and entered into a written agreement in the month of July,2016. As the appellant is not disputing the said documents, the allegationof rape is false. It is submitted that parties were in consensual sex forseveral years and in absence of any allegation against the 2[nd] respondentof committing rape subsequent to the agreement, there is no basis forBsuch allegations. It is also submitted that there is no truth in the allegationmade by the 2[nd] respondent about his telephone talk with Shoukin Malik,to defame the appellant. It is contended that having received huge moneyfrom the 2[nd] respondent pursuant to the settlement arrived at, falsecomplaint is filed by the appellant to harass the 2[nd] respondent. LearnedCsenior counsel also relied on the recent judgment of this Court dated 21[st]August, 2019 passed in Criminal Appeal No.1165 of 2019 wherein insimilar circumstances FIR was quashed by this Court.

13. Having heard learned counsel for the parties and after perusingthe impugned order and other material placed on record, we are of theDview that the High Court exceeded the scope of its jurisdiction conferredunder Section 482 CrPC, and quashed the proceedings. Even before theinvestigation is completed by the investigating agency, the High Courtentertained the Writ Petition, and by virtue of interim order granted bythe High Court, further investigation was stalled. Having regard to theallegations made by the appellant/informant, whether the 2[nd] respondentEby clicking inappropriate pictures of the appellant has blackmailed her ornot, and further the 2[nd] respondent has continued to interfere by callingShoukin Malik or not are the matters for investigation. In view of theserious allegations made in the complaint, we are of the view that theHigh Court should not have made a roving inquiry while considering theFapplication filed under Section 482 CrPC. Though the learned counselshave made elaborate submissions on various contentious issues, as weare of the view that any observation or findings by this Court, will affectthe investigation and trial, we refrain from recording any findings onsuch issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlementGarrived at, between the parties, and recorded a finding that the physicalrelationship of the appellant with the 2[nd] respondent was consensual.When it is the allegation of the appellant, that such document itself isobtained under threat and coercion, it is a matter to be investigated.Further, the complaint of the appellant about interference by the 2[nd]H

respondent by calling Shoukin Malik and further interference is also amatter for investigation. By looking at the contents of the complaint andthe serious allegations made against the 2[nd] respondent, we are of theview that the High Court has committed error in quashing the proceedings.During the course of hearing, learned counsel for the appellant, broughtto our notice provision/Section 114-A of the Indian Evidence Act, 1872.Section 114-A of the Indian Evidence Act, 1872 deals with thepresumption as to absence of consent in certain prosecution for rape. Areading of the aforesaid Section makes it clear that, where sexualintercourse by the accused is proved and the question is whether it waswithout the consent of the woman alleged to have been raped, and suchwoman states in her evidence before the Court that she did not consent,the court shall presume that she did not consent.

14. Though Learned senior counsel Sri Mukul Rohatgi relied onthe judgment of this Court dated 21[st ]August,2019 in Criminal AppealNo.1165 of 2019, but we are of the view that the said judgment wouldnot render any assistance to support his case. Whether in a given casepower under Section 482 is to be exercised or not, depends on the contentsof the complaint, and the material placed on record. In that view of thematter, we are of the view that it is a fit case to set aside the orderpassed by the High Court and allow the investigating agency to proceedwith the further investigation in accordance with law. It is made clearthat we have not expressed any opinion on the merits of the complaint,and it is open to the investigating agency and competent court, to proceedin accordance with law.

15. For the aforesaid reasons, this criminal appeal is allowed andthe impugned order dated 13[th] December, 2018 passed in R/SpecialCriminal Application No.9897 of 2017 by the High Court of Gujarat isset-aside. The 2[nd ]respondent shall appear before the concerned PoliceStation on 18-11-2019 at 11.00 a.m. and co-operate with the investigation.Till then no coercive action shall be taken against him.

Divya Pandey

Appeal allowed.

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