Himachal Pradesh High Court
Vinay Kumar And Another vs State Of H.P. And Another on 16 September, 2024
Neutral Citation No. ( 2024:HHC:8556 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MMO No. 97 of 2022
.
Reserved on: 23.8.2024
Date of Decision: 16.9.2024.
Vinay Kumar and another ...Petitioners
Versus
State of H.P. and another
Coram
r to ...Respondents
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioners : Mr. Ajay Kochhar, Senior Advocate
with Mr. Bhairav Gupta, Advocate.
For the Respondents : Mr. Ajit Sharma, Deputy Advocate
General, for respondent No.1.
Mr Jagan Nath, Advocate, for
respondent No.2.
Rakesh Kainthla, Judge
The petitioners have filed the present petition for
quashing of FIR No. 70 of 2021, dated 7.7.2021, registered at
Police Station (East), Shimla, H.P. for the commission of
offences punishable under Sections 376 & 354-A of IPC and the
consequential proceedings arising out of the FIR.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:8556 )
2. Briefly stated, the facts giving rise to the present
petition are that the informant/respondent No.2 (name withheld
.
to protect her identity) made a complaint to the police stating that
she was in shock after the death of her mother in the year 2013.
She was alone in her home. The petitioner came to her home and
raped her. He made a video recording and started blackmailing
her. He called the informant one day and told her that her sister
and her sister’s daughter had met with an accident. The
informant left the home. The petitioner (Vinay Kumar) took her
in a vehicle towards Solan. When the informant inquired from
the petitioner, he showed the video to her and told her that she
was trapped. The petitioner made an online complaint on behalf
of the informant to the Punjab Police. He kept the informant
with him for eight years. He and Rajinder Kumar raped her. The
informant was sent to the Police Post to make a complaint
against her family members. Petitioner’s mother also
accompanied the informant to Shimla and harassed her. The
petitioner abused the informant for years together. He
abandoned the informant and she had no place to live. The
petitioner had also promised to marry the informant and had
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Neutral Citation No. ( 2024:HHC:8556 )
exploited her. The police registered the FIR and conducted the
investigation.
.
3. The petitioners have approached this Court for
quashing of the FIR registered at the instance of the informant.
It has been asserted that the relationship between the petitioner
and his wife became strained and she deserted petitioner No.1 in
the year 2013. The informant had made various complaints
against various persons which shows that she is taking
advantage of her status. The informant ran away from her own
home because she could not live according to the wishes of her
parents and relatives. She asked for monetary favours from the
petitioner which he provided in good faith. She entered into a
relationship with the petitioner and started residing with him in
a live-in relationship. The informant was abandoned by her
family and she had no source of income. Therefore, she started
residing with the petitioner. Subsequently, she made various
complaints against the petitioner which were compromised. She
was pressurising the petitioner to marry her. The allegations in
the FIR do not constitute the commission of offences punishable
under Sections 354-A and 376 of the IPC. The allegations are so
absurd and inherently improbable that no reasonable person
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Neutral Citation No. ( 2024:HHC:8556 )
would believe them. The incident of sexual assault took place in
the year 2013 and the complaint was made in the year 2021. She
.
was residing with petitioner No.1 and the facts disclosed by her
do not constitute the commission of a cognizable offence. She
suppressed various facts. Her plea that she had entered into a
physical relationship with the petitioner on the pretext of
marriage is not believable. She was a major woman of 35 years of
age and aware of the fact that petitioner No.1 was married and
could not have married her during the subsistence of an earlier
marriage. No evidence was collected to substantiate the
allegations made by the respondent/informant. Therefore, it
was prayed that the present petition be allowed and the FIR be
ordered to be quashed.
4. The petition was opposed by respondent No.1 by
filing a reply taking preliminary objections regarding lack of
maintainability and the petition disclosing the disputed
question of fact. The contents of the petition were denied on
merits. It was asserted that the allegations made by the
informant disclosed the commission of offences punishable
under Sections 376 and 354-A of IPC. The police registered the
FIR and conducted the investigation. The petitioners have raised
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Neutral Citation No. ( 2024:HHC:8556 )
disputed questions of facts by mentioning their version. The
validity of their assertion cannot be determined during the
.
proceedings under Section 482 of Cr.P.C. The competent Court is
seized of the matter. The petitioner was married when he
entered into a relationship with the informant and he could not
have married the informant. This shows that his intention was
fraudulent right from the beginning. Therefore, it was prayed
that the present petition be dismissed.
5. A separate reply was filed by respondent
No.2/informant. The contents of the FIR were reproduced and it
was asserted that the petitioner No.1 filed a false certificate of
marriage dated 25.6.2021 in the application seeking pre-arrest
bail. The petitioner has concocted a false story to wriggle out of
the situation. The informant was undergoing trauma after the
death of her mother and petitioner No.1 took advantage of this
fact. Petitioner No.1 had made complaints to various authorities
in the name of the informant to save his skin. The divorce
petition filed by petitioner No.1 was dismissed by the learned
Trial Court and the appeal filed against the order was withdrawn
by petitioner No.1. Petitioner No.1 had harassed the informant
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and abused her sexually. Therefore, it was prayed that the
present petition be dismissed.
.
6. I have heard Mr. Ajay Kochhar, learned Senior
Counsel admitted by Mr. Bhairav Gupta, Advocate, for the
petitioners, Mr. Ajit Sharma, learned Deputy Advocate General
for respondent/State and Mr. Jagan Nath, learned counsel for
respondent No.2/informant.
7. Mr. Ajay Kochhar, learned Senior Counsel for the
petitioners submitted that the petitioners are innocent and they
were falsely implicated. The relationship between petitioner
No.1 and the informant was consensual. Petitioner No.1 was
married and this fact was known to the informant. She knew
that petitioner No.1 could not have married but she continued
with a relationship. She had made various complaints against
her family members which shows that she is habitual of making
such complaints. He relied upon various documents and
photographs to submit that the contents of the FIR are false. He
submitted that the relationship with petitioner No.1 does not
amount to the commission of the rape. He relied upon the
judgments of the Hon’ble Supreme Court in XXX Vs. State of
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Neutral Citation No. ( 2024:HHC:8556 )
Madhya Pradesh (2024) INSC 181, Pramod Suryabhan Pawar Vs.
State of Maharashtra and another (2019) 9 SCC 608, Dr. Dhruvaram
.
Murlidhar Sonar Vs. State of Maharashtra and others (2019) SC 327
and Shambhu Kharwar Vs. State of U.P. and another, Cr. Appeal No.
1231 of 2022, decided on 1.3.2021 in support of his submission.
8. Mr. Ajit Sharma, learned Deputy Advocate General,
for the respondent/State submitted that the petitioners have
raised disputed questions of facts that can not be adjudicated in
a petition filed under Section 482 of Cr.P.C. The Court cannot
conduct a mini-trial while deciding a petition for quashing the
FIR. The learned Trial Court is seized of the matter and the
learned Trial Court should be allowed to determine the
truthfulness or otherwise of the allegations made in the petition.
Hence, he prayed that the present petition be dismissed.
9. Mr Jagan Nath, learned counsel for respondent
No.2/informant adopted the submissions of learned Deputy
Advocate General. He submitted that the petitioners had raped
the informant initially and thereafter blackmailed her by
showing the video of the incident. The promise to marry was
made subsequently, which would not condone the initial act of
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Neutral Citation No. ( 2024:HHC:8556 )
the petitioners. Therefore, he prayed that the present petition be
dismissed.
.
10. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
11. The parameters for exercising jurisdiction under
Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme
was observed: –
r to
Court in A.M. Mohan v. State, 2024 SCC OnLine SC 339, wherein it
9. The law with regard to the exercise of jurisdiction
under Section 482 of Cr. P.C. to quash complaints and
criminal proceedings has been succinctly summarized by
this Court in the case of Indian Oil Corporation v. NEPC
India Limited (2006) 6 SCC 736: 2006 INSC 452 after
considering the earlier precedents. It will be apposite to
refer to the following observations of this Court in the
said case, which read thus:
“12. The principles relating to the exercise of
jurisdiction under Section 482 of the Code of Criminal
Procedure to quash complaints and criminalproceedings have been stated and reiterated by this
Court in several decisions. To mention a few–
Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692: 1988 SCC (Cri)
234], State of Haryana v. Bhajan Lal [1992 Supp (1) SCC
335: 1992 SCC (Cri) 426], Rupan Deol Bajaj v. Kanwar Pal
Singh Gill [(1995) 6 SCC 194: 1995 SCC (Cri)
1059], Central Bureau of Investigation v. Duncans Agro
Industries Ltd. [(1996) 5 SCC 591: 1996 SCC (Cri)
1045], State of Bihar v. Rajendra Agrawalla [(1996) 8
SCC 164: 1996 SCC (Cri) 628], Rajesh Bajaj v. State NCT::: Downloaded on – 16/09/2024 20:31:00 :::CIS
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Neutral Citation No. ( 2024:HHC:8556 )of Delhi [(1999) 3 SCC 259: 1999 SCC (Cri) 401], Medchl
Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000)
3 SCC 269: 2000 SCC (Cri) 615], Hridaya Ranjan Prasad
Verma v. State of Bihar [(2000) 4 SCC 168: 2000 SCC.
(Cri) 786], M. Krishnan v. Vijay Singh [(2001) 8 SCC
645: 2002 SCC (Cri) 19] and Zandu Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC122: 2005 SCC (Cri) 283]. The principles, relevant to our
purpose are:
(i) A complaint can be quashed where the
allegations made in the complaint, even if theyare taken at their face value and accepted in their
entirety, do not prima facie constitute any offence
or make out the case alleged against the accused.
rFor this purpose, the complaint has to be
examined as a whole, but without examining the
merits of the allegations. Neither a detailed
inquiry nor a meticulous analysis of the material
nor an assessment of the reliability or
genuineness of the allegations in the complaint is
warranted while examining prayer for quashing a
complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when
the criminal proceeding is found to have been
initiated with mala fides/malice for wreaking
vengeance or to cause harm, or where the
allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be
used to stifle or scuttle a legitimate prosecution.
The power should be used sparingly and with
abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid
in the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
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proceedings should not be quashed. Quashing of
the complaint is warranted only where the
complaint is so bereft of even the basic facts
which are necessary for making out the offence.
.
(v.) A given set of facts may make out: (a) purely a
civil wrong; (b) purely a criminal offence; or (c) a
civil wrong as also a criminal offence. A
commercial transaction or a contractual dispute,
apart from furnishing a cause of action for
seeking remedy in civil law, may also involve a
criminal offence. As the nature and scope of a civil
proceeding are different from a criminal
proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of
contract, for which a civil remedy is available or
has been availed, is not by itself a ground to quash
the criminal proceedings. The test is whether the
allegations in the complaint disclose a criminal
offence or not.
12. Similar is the judgment in Maneesha Yadav v. State of
U.P., 2024 SCC OnLine SC 643, wherein it was held: –
12. We may gainfully refer to the following observations
of this Court in the case of State of Haryana v. Bhajan
Lal1992 Supp (1) SCC 335: 1990 INSC 363:
“102. 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::: Downloaded on – 16/09/2024 20:31:00 :::CIS
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Neutral Citation No. ( 2024:HHC:8556 )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 theirentirety 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 FIR do not disclose a
cognizable offence, justifying an investigation
by police officers under Section 156(1) of the
r 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 disclosethe commission of any offence and make out a
case against the accused.
(4) Where the allegations in the FIR do not
constitute a cognizable offence but constitute
only a non-cognizable offence, no investigationis permitted by a police officer without an order
of a Magistrate as contemplated under Section155(2) of the Code.
(5) Where the allegations made in the FIR 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::: Downloaded on – 16/09/2024 20:31:00 :::CIS
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Neutral Citation No. ( 2024:HHC:8556 )continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned 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.
103. We also give a note of caution to the effect
that the power of quashing a criminal
proceeding should be exercised very sparingly
and with circumspection and that too in the
r rarest of rare cases; that the court will not be
justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR 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.”
13. The petitioners have relied upon various documents
to show that the contents of the FIR are false. It was laid down by
the Hon’ble Supreme Court in MCD v. Ram Kishan Rohtagi, (1983)
1 SCC 1: 1983 SCC (Cri) 115, that the proceedings can be quashed if
on the face of the complaint and the papers accompanying the
same no offence is constituted. It is not permissible to add or
subtract anything. It was observed:
“10. It is, therefore, manifestly clear that proceedings
against an accused in the initial stages can be quashed
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Neutral Citation No. ( 2024:HHC:8556 )accompanying the same, no offence is constituted. In
other words, the test is that taking the allegations and the
complaint as they are, without adding or subtracting
anything, if no offence is made out then the High Court.
will be justified in quashing the proceedings in exercise of
its powers under Section 482 of the present Code.”
14. Madras High Court also held in Ganga Bai v. Shriram,
1990 SCC OnLine MP 213: ILR 1992 MP 964: 1991 Cri LJ 2018, that
the fresh evidence is not permissible or desirable in the
proceedings under Section 482 of Cr.P.C. It was observed:
“Proceedings under Section 482, Cr.P.C. cannot be
allowed to be converted into a full-dressed trial. Shri
Maheshwari filed a photostate copy of an order dated
28.7.1983, passed in Criminal Case No. 1005 of 1977, to
which the present petitioner was not a party. Fresh
evidence at this stage is neither permissible nor desirable. Therespondent by filing this document is virtually introducing
additional evidence, which is not the object of Section 482,
Cr.P.C.”
15. Andhra Pradesh High Court also took a similar view
in Bharat Metal Box Company Limited, Hyderabad and Others vs. G.
K. Strips Private Limited and another, 2004 STPL 43 AP, and held:
“9. This Court can only look into the complaint and the
documents filed along with it and the sworn statements
of the witnesses if any recorded. While judging the
correctness of the proceedings, it cannot look into the
documents, which are not filed before the lower Court.
Section 482 Cr.PC debars the Court to look into fresh
documents, in view of the principles laid down by the
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Neutral Citation No. ( 2024:HHC:8556 )and another, 2002 (1) Supreme 192. The relevant portion of
the said judgment reads as follows:
“The complaint has to be read as a whole. If it
.
appears that on consideration of the allegations, in
the light of the statement made on oath of the
complainant that the ingredients of the offence or
offences are disclosed and there is no material toshow that the complaint is mala fide, frivolous or
vexatious, in that event there would be no
justification for interference by the High Court.
When information is lodged at the Police Stationand an offence is registered, then the mala fides of
the informant would be of secondary importance. It
is the material collected during the investigation
and evidence led in Court, which decides the fate ofthe accused person. The allegations of mala fides
against the informant are of no consequence and
cannot by itself be the basis for quashing the
proceedings”.
16. A similar view was taken in Mahendra K.C. v. State of
Karnataka, (2022) 2 SCC 129: (2022) 1 SCC (Cri) 401 wherein it was
observed at page 142:
“16. … the test to be applied is whether the allegations in
the complaint as they stand, without adding or detractingfrom the complaint, prima facie establish the ingredients
of the offence alleged. At this stage, the High Court
cannot test the veracity of the allegations nor for that
matter can it proceed in the manner that a judge
conducting a trial would, on the basis of the evidence
collected during the course of the trial.”
17. This position was reiterated in Supriya Jain v. State of
Haryana, (2023) 7 SCC 711: 2023 SCC OnLine SC 765 wherein it was
held:
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Neutral Citation No. ( 2024:HHC:8556 )
13. All these documents which the petitioner seeks to rely
on, if genuine, could be helpful for her defence at the trial
but the same are not material at the stage of deciding
whether quashing as prayed for by her before the High.
Court was warranted or not. We, therefore, see no reason
to place any reliance on these three documents.
18. A similar view was taken in Iveco Magirus
Brandschutztechnik GMBH v. Nirmal Kishore Bhartiya, (2024) 2
SCC 86: (2024) 1 SCC (Cri) 512: 2023 SCC OnLine SC 1258, wherein
it was observed:
“63. Adverting to the aspect of the exercise of jurisdiction
by the High Courts under Section 482CrPC, in a case
where the offence of defamation is claimed by the accused
to have not been committed based on any of the
Exceptions and a prayer for quashing is made, the law
seems to be well settled that the High Courts can go nofurther and enlarge the scope of inquiry if the accused seeks
to rely on materials which were not there before the
Magistrate. This is based on the simple proposition that whatthe Magistrate could not do, the High Courts may not do. We
may not be understood to undermine the High Courts’powers saved by Section 482CrPC; such powers are always
available to be exercised ex debito justitiae i.e. to do realand substantial justice for the administration of which
alone the High Courts exist. However, the tests laid down
for quashing an FIR or criminal proceedings arising from
a police report by the High Courts in the exercise of
jurisdiction under Section 482CrPC not being
substantially different from the tests laid down for
quashing a process issued under Section 204 read with
Section 200, the High Courts on recording due
satisfaction are empowered to interfere if on a reading of
the complaint, the substance of statements on oath of the
complainant and the witness, if any, and documentary
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Neutral Citation No. ( 2024:HHC:8556 )proceedings, if allowed to continue, would amount to an
abuse of the legal process. This too, would be
impermissible if the justice of a given case does not
overwhelmingly so demand.” (Emphasis supplied).
19. Therefore, it is not permissible to look into the
material filed by the petitioners with the petition and the Court
has to rely upon the material brought upon the record of learned
Trial Court.
20.
It was submitted that the documents show that the
contents of the FIR are false. The informant had made
complaints against her family members and her long silence for
eight years shows that her allegations are not correct. This
submission is not acceptable. It was rightly submitted that the
Court exercising the jurisdiction under Section 482 Cr.P.C.
cannot conduct a mini-trial. It was laid down by the Hon’ble
Supreme Court in Priyanka Jaiswal vs. State of Jharkhand, 2024
SCC OnLine SC 685 that the Court exercises extra-ordinary
jurisdiction under Section 482 of Cr.P.C. and cannot conduct a
mini-trial or enter into an appreciation of an evidence of a
particular case. It was observed:-
“13. We say so for reasons more than one. This Court in
catena of Judgments has consistently held that at the time
of examining the prayer for quashing of the criminal
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Neutral Citation No. ( 2024:HHC:8556 )jurisdiction can neither undertake to conduct a mini-trial
nor enter into appreciation of evidence of a particular
case. The correctness or otherwise of the allegations made
in the complaint cannot be examined on the touchstone of.
the probable defence that the accused may raise to stave
off the prosecution and any such misadventure by the
Courts resulting in proceedings being quashed would beset aside. This Court in the case of Akhil Sharda 2022 SCC
OnLine SC 820 held to the following effect:
“28. Having gone through the impugned
judgment and order passed by the High Court bywhich the High Court has set aside the criminal
proceedings in the exercise of powers under
Section 482 Cr. P.C., it appears that the High
Court has virtually conducted a mini-trial, whichas such is not permissible at this stage and while
deciding the application under Section 482 Cr.
P.C. As observed and held by this Court in a
catena of decisions no mini-trial can be
conducted by the High Court in the exercise ofpowers under Section 482 Cr. P.C. jurisdiction
and at the stage of deciding the application under
Section 482 Cr. P.C., the High Court cannot getinto appreciation of evidence of the particular
case being considered.”
21. A similar view was taken in Maneesha Yadav v. State of
U.P., 2024 SCC OnLine SC 643 wherein it was held that: –
“13. As has already been observed hereinabove, the Court
would not be justified in embarking upon an enquiry as to
the reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint at the stage
of quashing of the proceedings under Section 482 Cr.
P.C. However, the allegations made in the FIR/complaint,
if taken at its face value, must disclose the commission of
an offence and make out a case against the accused. At the
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Neutral Citation No. ( 2024:HHC:8556 )made in the FIR/complaint even if taken at its face value,
do not disclose the commission of an offence or make out
a case against the accused. We are of the considered view.
that the present case would fall under Category-3 of the
categories enumerated by this Court in the case of Bhajan
Lal (supra).
14. We may gainfully refer to the observations of this
Court in the case of Anand Kumar Mohatta v. State (NCT of
Delhi), Department of Home(2019) 11 SCC 706: 2018 INSC
1060:
“14. First, we would like to deal with the submission
of the learned Senior Counsel for Respondent 2 that
once the charge sheet is filed, the petition for
quashing of FIR is untenable. We do not see anymerit in this submission, keeping in mind the
position of this Court in Joseph Salvaraj A. v. State of
Gujarat [Joseph Salvaraj A. v. State of Gujarat, (2011) 7
SCC 59: (2011) 3 SCC (Cri) 23]. In Joseph Salvaraj
A. [Joseph Salvaraj A. v. State of Gujarat, (2011) 7 SCC59: (2011) 3 SCC (Cri) 23], this Court while deciding
the question of whether the High Court could
entertain the Section 482 petition for quashing ofFIR when the charge-sheet was filed by the police
during the pendency of the Section 482 petition,observed : (SCC p. 63, para 16)
“16. Thus, the general conspectus of thevarious sections under which the appellant
is being charged and is to be prosecuted
would show that the same are not made out
even prima facie from the complainant’s
FIR. Even if the charge sheet had been filed,
the learned Single Judge [Joesph Saivaraj
A. v. State of Gujarat, 2007 SCC OnLine Guj
365] could have still examined whether the
offences alleged to have been committed by
the appellant were prima facie made out
from the complainant’s FIR, charge-sheet,
documents, etc. or not.”
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22. Hence, it is not permissible for the Court to go into
the truthfulness or otherwise of the allegations made in the FIR.
.
23. The FIR specifically mentions that petitioner No.1
visited the informant’s house when she was alone in the house
and he raped her. He prepared a video and started blackmailing
her. It further shows that she was taken to Solan. She was shown
the video and was told that she was trapped. She was kept at
Shimla where she was raped on the pretext of marriage. These
allegations show that the promise of marriage was made at
Shimla after she was raped in her home in the absence of her
family members, thereafter she was taken to Solan showing her
video and telling her that she was trapped. Therefore, the
submission that the informant entered into a relationship with
petitioner No.1 voluntarily on the promise of marriage is not
correct. The promise to marry was made after the rape and
preparation of the video by petitioner No.1. Hence, the
judgments cited on behalf of the petitioners regarding the
breach of promise of marriage amounting to rape do not apply to
the present case.
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Neutral Citation No. ( 2024:HHC:8556 )
24. It was submitted that the informant had made a
complaint after a delay of eight years and the FIR should be
.
quashed based on the delay. This submission will not help the
petitioners. The informant had specifically stated that she was
not allowed to leave the place and was threatened and blamed by
showing her video. These allegations are to be accepted as
correct at this stage and would provide sufficient reasons for the
delay in making the complaint to the police. Moreover, the delay
in filing the complaint to the police for the commission of the
offence cannot be a reason for quashing the FIR. It was laid down
by the Hon’ble Supreme Court in Chanchalpati Das v. State of
W.B., 2023 SCC OnLine SC 650 that the delay in reporting the
matter cannot be a ground to quash the FIR. It was observed:
“16. As regards inordinate delay in filing the complaint, it
has been recently observed by this Court in Hasmukhlal D.
Vora v. State of Tamil Nadu 2022 SCC Online SC 1732 thatthough inordinate delay in itself may not be a ground for
quashing a criminal complaint, however unexplained
inordinate delay must be taken into consideration as a
very crucial factor and ground for quashing a criminal
complaint.”
25. Calcutta High Court also held in Shreekant Sharma v.
State of W.B., 2023 SCC OnLine Cal 1961 that the delay in sexual
offences cannot be used to quash the FIR. It was observed:
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Neutral Citation No. ( 2024:HHC:8556 )
20. Next the issue under consideration for this Court is
whether a delay in filing an FIR by the victim should be a
cogent reason for quashing the investigation against the
accused and the co-accused. This Court is inclined to.
answer in the negative as there is a catena of judgments
by the Supreme Court, as well as High Courts which hold
that delay in filing F.I.R. in cases of sexual assault, should
not be equated with other cases to quash proceedings or
hold an accused not guilty. The Supreme Court, in Satpal
Singh v. State of Haryana, reported in (2010) 8 SCC 714 held
that:
“13. In a rape case, the prosecutrix remains worried
about her future. She remains in a traumatic state of
mind. The family of the victim generally shows
reluctance to go to the police station because ofsociety’s attitude towards such a woman. It casts
doubts and shame upon her rather than comfort and
sympathise with her. The family remains concerned
about the honour and reputation of the prosecutrix.
After only having a cool thought it is possible for thefamily to lodge a complaint in sexual offences.
(Vide Karnel Singh v. State of M.P. (1995) 5 SCC 518: AIR
1995 SC 2472; and State of Punjab v. GurmeetSingh (1996) 2 SCC 384: AIR 1996 SC 1393).
14. This Court has consistently highlighted the
reasons, objects and means of prompt lodging of FIR.
Delay in lodging FIR more often than not, results inembellishment and exaggeration, which is a creature
of an afterthought. A delayed report not only gets
bereft of the advantage of spontaneity, the danger of
the introduction of a coloured version, an exaggerated
account of the incident or a concocted story as a result
of deliberations and consultations, also creeps in,
casting a serious doubt on its veracity. Thus, FIR is to
be filed more promptly and if there is any delay, the
prosecution must furnish a satisfactory explanation
for the same for reason that in case the substratum of
the evidence given by the complainant/informant is::: Downloaded on – 16/09/2024 20:31:00 :::CIS
22
Neutral Citation No. ( 2024:HHC:8556 )found to be unreliable, the prosecution case has to be
rejected in its entirety. [vide State of Andhra
Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582].
.
15. However, no straight jacket formula can be laid
down in this regard. In the case of sexual offences, the
criteria may be different altogether. As the honour of
the family is involved, its members have to decidewhether to take the matter to court or not. In such a
fact-situation, near relations of the prosecutrix may
take time as to what course of action should be
adopted. Thus, delay is bound to occur. This Court hasalways taken judicial notice of the fact that “ordinarily
the family of the victim would not intend to get a
stigma attached to the victim. Delay in lodging the
First Information Report in a case of this nature is anormal phenomenon” [vide Satyapal v. State of
Haryana (2009) 6 SCC 635: AIR 2009 SC 2190].”
21. In State of Himachal Pradesh v. Prem Singh reported
in (2009) 1 SCC 420: AIR 2009 SC 1010, the Supreme Court
considered the issue at length and observed as under:–
“So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equatedwith the case involving other offences. There are
several factors which weigh in the mind of theprosecutrix and her family members before coming to
the police station to lodge a complaint. In a traditionbound society prevalent in India, more particularly,
rural areas, it would be quite unsafe to throw out the
prosecution case merely on the ground that there is
some delay in lodging the FIR.”
22. The Bombay High Court in State of
Maharashtra v. Savala Sagu 1997 Bom CR Cri, 1997 Cri LJ
786 observed that:
“15. We wish to emphasise that any unmarried girl on
account of her bashfulness and the circumstance that
not only her own honour but that of her family was at
stake, would have been extremely reluctant and loath::: Downloaded on – 16/09/2024 20:31:00 :::CIS
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Neutral Citation No. ( 2024:HHC:8556 )to disclose to the police, her traumatic experience of
being raped. It is only after an efflux of time when she
is able to get over a part of her trauma, will she think
of lodging the FIR. In our view, no mathematical time.
limit in lodging an FIR can be fixed in cases of rape.
Courts in such cases should adopt a realistic approach
rather than one which is unimaginative andtheoretical. After all our conduct in life is governed by
brass realities.”
23. In X v. State of Kerala Crl. A. No. 649 of 2021, decided on
01-07-2022, the Kerala High Court observed that:
“The delay in a case of sexual assault cannot be
equated with a delay in a case involving other offences
since several factors weigh on the mind of the victimand members of her family. In a tradition-bound
society like ours, particularly in rural areas, it would be
quite unsafe to throw out the prosecution case merely
on the ground that there was a delay in lodging the
FIR.”
24. In the Supreme Court’s decision of Tulsidas
Kanolkar v. State of Goa, (2003) 8 SCC 590, where the
victim of rape was a mentally challenged person and
there was a delay in reporting the crime, the Court took
into consideration the unusual circumstances while
holding the accused guilty and observed that:
“We shall first deal with the question of delay. The
unusual circumstances satisfactorily explained the
delay in lodging of the first information report. In any
event, delay per se is not a mitigating circumstance for
the accused when accusations of rape are involved. A
delay in lodging the first information report cannot be
used as a ritualistic formula for discarding the
prosecution case and doubting its authenticity. It only
puts the court on guard to search for and consider if
any explanation has been offered for the delay. Once it
is offered, the Court is to only see whether it is
satisfactory or not. In a case if the prosecution fails to::: Downloaded on – 16/09/2024 20:31:00 :::CIS
24
Neutral Citation No. ( 2024:HHC:8556 )satisfactory explain the delay and there is a possibility
of embellishment or exaggeration in the prosecution
version on account of such delay, it is a relevant factor.
On the other hand, a satisfactory explanation of the.
delay is weighty enough to reject the plea of false
implication or vulnerability of the prosecution case. As
the factual scenario shows, the victim was totallyunaware of the catastrophe which had befallen her.
That being so, the mere delay in lodging of first
information report does not in any way render
prosecution version brittle.”
26. Therefore, the FIR cannot be quashed on the grounds
of delay.
27. It was submitted that relationship between the
parties was consensual. This is a matter of trial. Even otherwise,
it was laid down by the Hon’ble Supreme Court in Naim Ahamed
vs. State (NCT of Delhi), 2023 SCC OnLine SC 89 that Section 114A
of the Indian Evidence Act provides that when the victim states
in a case of rape that she had not consented, the Court has to
presume that there was no consent. It was observed:-
“10. It would be germane to note that the basic principles
of criminal jurisprudence warrant that the prosecution
has to prove the guilt of the accused beyond reasonable
doubt by leading cogent evidence, however, considering
the ethos and culture of the Indian Society, and
considering the rising graph of the commission of the
social crime – ‘Rape’, the courts have been permitted to
raise a legal presumption as contained in Section 114A of
the Indian Evidence Act. As per Section 114A, a
presumption could be raised as to the absence of consent::: Downloaded on – 16/09/2024 20:31:00 :::CIS
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Neutral Citation No. ( 2024:HHC:8556 )in certain cases pertaining to Rape. As per the said
provision, if sexual intercourse by the accused is proved
and the question arises as to whether it was without the
consent of the woman alleged to have been raped, and if.
she states in her evidence before the court that she did
not consent, the court shall presume that she did not
consent.”
28. It was laid down by the Hon’ble Supreme Court in
Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615, that in view
of Section 114-A when the victim says that she had not con-
sented, the Court has to presume the absence of the consent. It
was observed:-
“15. In this connection, reference may be made to the
amendment made in the Evidence Act. Section 114-A was
introduced and the presumption has been raised as to theabsence of consent in certain prosecutions for rape. Section
114-A reads as under:
“114-A. Presumption as to the absence of consent in
certain prosecutions for rape.-In a prosecution for
rape under clause (a) or clause (b) or clause (c) or
clause (d) or clause (e) or clause (g) of sub-section (2)
of Section 376 of the Indian Penal Code (45 of 1860),where sexual intercourse by the accused is proved and
the question is whether it was without the consent of
the woman alleged to have been raped and she states
in her evidence before the court that she did not
consent, the court shall presume that she did not
consent.”
16. If sexual intercourse has been committed by the accused
and if it is proved that it was without the consent of the
prosecutrix and she states in her evidence before the court
that she did not consent, the court shall presume that she
did not consent. The presumption has been introduced by
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Neutral Citation No. ( 2024:HHC:8556 )
the legislature in the Evidence Act looking to atrocities
committed against women and in the instant case as per
the statement of PW 1, she resisted and she did not give
consent to the accused at the first instance and he commit-
.
ted the rape on her. The accused gave her assurance that he
would marry her and continued to satisfy his lust till she
became pregnant and it became clear that the accused did
not wish to marry her.”
29. This judgment was followed in Anurag Soni Vs State of
Chhattisgarh, 2019 (13) SCC 1. Therefore, in view of the binding
precedent of the Hon’ble Supreme Court, the Court cannot infer
consent, when the victim stated that she had not consented to
the sexual intercourse.
30. A charge sheet has been filed before the Court. The
learned Trial Court is seized of the matter. It was laid down by
the Hon’ble Supreme Court in Iqbal v. State of U.P., (2023) 8 SCC
734: 2023 SCC OnLine SC 949 that when the charge sheet has been
filed, learned Trial Court should be left to appreciate the same. It
was observed:
“At the same time, we also take notice of the fact that the
investigation has been completed and charge-sheet is
ready to be filed. Although the allegations levelled in the
FIR do not inspire any confidence particularly in the
absence of any specific date, time, etc. of the alleged
offences, we are of the view that the appellants should
prefer a discharge application before the trial court
under Section 227 of the Code of Criminal Procedure
(CrPC). We say so because even according to the State,::: Downloaded on – 16/09/2024 20:31:00 :::CIS
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Neutral Citation No. ( 2024:HHC:8556 )the investigation is over and the charge sheet is ready to
be filed before the competent court. In such
circumstances, the trial court should be allowed to look
into the materials which the investigating officer might.
have collected forming part of the charge sheet. If any
such discharge application is filed, the trial court shall
look into the materials and take a call whether any
discharge case is made out or not.”
31. Therefore, the present petition discloses the
commission of offences and the same cannot be quashed while
32. to
exercising jurisdiction under Section 482 of Cr.P.C.
Hence, the present petition fails and the same is
dismissed.
33. The observation made here-in-above shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
16th September, 2024
(Chander)
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