Chandresh vs State Of Madhya Pradesh And Anr.

Applicant has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 (for brevity 'Cr.P.C') seeking quashment of FIR dated 23/04/2018 bearing crime No.0128/2018 registered against him at Police Station Raoji Bazaar, Indore for commission of offence under Sections 294, 323, 201, 376, 376(2)(n) and 506 of IPC, 1860 and the subsequent proceedings, arising from the aforesaid FIR.

Facts giving rise to this application are that respondent No.2/complainant lodged a report at Police Station Raoji Bazaar Indore that on 20/10/2014 at about 1.00 pm the applicant called her to his house and when she reached there, he offered her tea mixing some intoxicating medicine. On drinking the tea the respondent No.2/complainant felt giddiness and become unconscious.

Three hours later, she become normal and returned back to her house. On 23/10/2014 the applicant again called her to his house and when she reached his house, he showed her a video according to which on 20/10/2014, the applicant committed rape upon her, when the respondent No.2/complainant was unconscious. Thereafter, the applicant started black mailing her saying that whenever he calls her she has to come, otherwise he will forward the video to her husband and make it viral in the internet. After this incident the applicant continued to have regular physical relationship with her. When she refused him then the applicant abused her and threatened to kill her. While the applicant harassed the respondent No.2/complainant very much, she became frustrated and narrated the incident to her husband. On the basis of the aforesaid allegation, police registered FIR bearing crime No. 0128/2018 for commission of offence under Sections 294, 323, 201, 376, 376(2)(n) and 506 of IPC, 1860 against the applicant. After completion of investigation, charge-sheet has been filed before the competent Court.

Learned counsel for the applicant has submitted that the applicant has not committed any offence in any manner as alleged against him. It is further submitted that the applicant is the owner of the house No.25/1, situated at B.K. Sindhi Colony, Indore, ad-measuring 400 Sq.ft., which was purchased by him from the respondent No.2/complainant vide registered sale deed dated 11/08/2014. After purchase of the said property, upon request of the respondent No.2/complainant, the said house was provided her on rent for a period of three years on mutual understanding arrived at between the parties. When no payment of rent was made by the respondent No.2/complainant's husband, then the applicant issued a legal notice dated 17/10/2017, through his counsel seeking payment of rent and vacating of the premises under question. However, complainant side did not comply the notice within the prescribed time and guidelines, then, the applicant filed civil suit for eviction and recovery of rent against the respondent No.2/complainant's husband, due to which complainant lodged a false police complaint against the applicant.

It is further submitted that the story of recording video is baseless since nothing of such nature is available on record in evidence collected during investigation. It is also submitted that the incident has taken place first on 20/10/2014, whereas the complaint has been lodged on 23/04/2018 after a delay of 3 ½ years and no sufficient explanation has been given by the prosecutrix regarding the delay in lodging the FIR, which clearly indicates that complaint remained mala-fide and instituted with ulterior motive. Therefore, FIR and the further proceedings are liable to be quashed, otherwise, the same would cause unnecessary harassment to the applicant

On the contrary, learned counsel for the respondent No.2/complainant has submitted in the reply that the applicant committed rape upon the prosecutrix continuously for a period of 3 ½ years by threatening that he has created a video regarding their physical relationship and he will make it viral on internet. Therefore, FIR has been lodged in the year 2018 when the complainant became frustrated with the harassment given by the applicant. There are ample evidence available on record to establish the complicity of the applicant for offence under Section 376 of IPC, 1860, therefore, he prayed for rejection of the instant petition.

I have considered the facts and circumstance of the case and the rival contentions of the parties.

Before entering into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 of 'Cr.P.C' vested with the High Court. Section 482 of 'Cr.P.C' 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. In the case of State of Harayana & Ors. vs. Ch. Bhajanlal & Ors., reported in AIR 1992 SC 604 the Hon'ble Apex Court has elaborately considered the scope and ambit of Section 482 of 'the Code'. Seven categories of cases 7 have been enumerated where power can be exercised under Section 482 of 'the Code'. Paragraph 102 of this judgment is important which reads as under:-

"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 sufficiently channelized 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 FIR 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 FIR 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 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 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."

In the case of Priya Vrat Singh & Ors vs Shyam Ji Sahai reported as (2008)8 SCC 232, the Hon'ble Apex Court, while considering the parameters for exercise of powers under Section 482 of 'the Code' has held as under:-

""8. Further, it is pointed out that the allegation of alleged demand for dowry was made for the first time in December 1994. In the complaint filed, theallegation  is  that  the  dowry  torture  was  made sometime in 1992. It has not been explained as to why for more than two years no action was taken.

Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband's mother's sister, husband's brother-in-law and Sunita's father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6-12-1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent 1.

The parameters for exercise of power under Section 482 have been laid down by this Court in several cases.

The section does not confer any new power 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 recognises 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 id sine quo res ipsa 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 andsubstantial 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."

In the present case, though the prosecutrix has lodged the report after a delay of 3 ½ years of the alleged incident, however, she stated that the applicant first committed rape upon her on 20/10/2014 and thereafter, he started blackmailing her that he has prepared a video of the incident and he will forward it to her husband and will make it viral in internet, therefore, she did not disclose the offence to anyone and the applicant continued to have regular physical relationship with her. In these circumstances, the delay in lodging the report cannot be taken into consideration for quashment of FIR. If the applicant has filed a civil suit against the husband of the prosecutrix for taking vacant possession of the house and recovery of arrears of rent, it cannot be said to be a ground for his false implication in the present crime. In the instant case, material brought on record by the applicant does not reveal beyond reasonable doubt any ulterior motive of the complainant to falsely implicate the applicant in the present crime. The questions raised by the applicant in the present petition are disputed questions of fact which cannot be gone into while exercising the powers under Section 482 of Cr.P.C.

The Apex Court in the case of Rajiv Thapar vs. Madan Lal Kapoor reported in (2013) 13 SCC 330 has cautioned the High Court while exercising the powers under Section 482 of Cr.P.C in the following manner:-

"22. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested  in  it  under  Section  482  of  the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."

Having carefully examined the law laid down by the Apex Court in the case of Rajiv Thapar (Supra) and consideration of material brought on record by the applicant, it is clear that the inference under Section 482 is not warranted. Further detailed discussion on the material furnished by the applicant will prejudice his defence before the trial Court.

Accordingly, the present petition filed under Section 482 of Cr.P.C is dismissed with the direction to the trial Court to consider the material brought on record by the applicant without being influenced by the observations made in this order.

Consequently, Miscellaneous Criminal Case No.38724/2018 stands disposed of with the aforesaid directions. Let a copy of the order be sent to the trial Court for necessary information and compliance.