Miss Xyz vs The State Of Gujarat

Crl.A. @ SLP(Crl.)No.4294 of 2019 1 REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1619 OF 2019 (Arising out of S.L.P.(Crl.)No.4294 of 2019)

Miss XYZ ...Appellant

Versus

State of Gujarat & Anr ...Respondents

J U D G M E N T

R.Subhash Reddy,J.

1. Leave granted.

2. This appeal is filed by the 2nd respondent in

R/Special Criminal Application No.9897 of 2017 filed

before the High Court of Gujarat, at Ahmedabad. By the

impugned order, High Court has allowed R/Special

Criminal Application by quashing FIR No. CR-I-60-2017 Signature Not Verified Digitally signed by NEELAM GULATI Date: 2019.10.25 registered on the file of Mahila Police Station, 17:08:11 IST Reason:

Ahmedabad City, District Ahmedabad.

Crl.A. @ SLP(Crl.)No.4294 of 2019 2

3. The appellant herein, is the informant in crime

registered in FIR No.CR-I-60-2017 on the file of

Mahila Police Station, Ahmedabad City. On her

complaint the aforesaid crime is registered against the

2nd respondent for the alleged offence punishable under

Sections 376, 499 and 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 had come to Ahmedabad in Gujarat City for

employment and she met the 2nd respondent, who is the

Managing Director of the G.S.P. Crop Science Pvt. Ltd.

After conducting interview she was appointed as his

Personal Assistant in the month of November, 2014. When

the appellant was not well, the 2nd respondent started

visiting her residence and when she was in sleep, the

2nd respondent has taken an inappropriate pictures of

her. When she was attending the office, the 2 nd

respondent by showing her pictures, was blackmailing

her. When she visited Odhav, Kathwada and Nandesari,

Baroda on official work of the company, the 2 nd

respondent used to take advantage of the situation when

the appellant was alone, and was blackmailing to make Crl.A. @ SLP(Crl.)No.4294 of 2019 3 viral her pictures and to terminate her employment. As

the financial condition of the appellant was not

stable, she did not disclose this to anyone. In

December, 2014 the 2nd respondent took the appellant to

Baroda for some work, by threatening to publish her

nude pictures, committed rape on her. Even after

coming back to Ahmedabad, the 2nd respondent again took

her to Baroda on the pretext of some work and committed

rape by similar threats in the hotel. The 2 nd

respondent was also visiting her rented premises at

Ahmedabad and used to commit rape on her under the

threat of termination of employment and publication of

her pictures. The 2nd respondent rented an apartment

at Adani Pratham in August, 2015. When the appellant

was residing in the said apartment,the 2nd respondent

used to come to the said apartment and was demanding

sexual favours. As she was fed up with the

exploitation by the 2nd respondent, she vacated the

rental premises in June, 2016. In view of serious

threat by the 2nd respondent to her life, she left for

Jodhpur and her marriage was fixed with one Mr.Shoukin

Malik who is the resident of Badi Sadri, Rajasthan in

the month of December, 2016. The 2nd respondent having

come to know about the marriage of the appellant with Crl.A. @ SLP(Crl.)No.4294 of 2019 4 Shoukin Malik, he contacted Mr.Shoukin Malik on

telephone and informed him that the appellant is not of

good character, she had physical relationship with him

and with other boys. As Mr.Shoukin Malik refused to

meet the 2nd respondent, the 2nd respondent sent a cover

to the residence of Shoukin Malik containing her

nude/inappropriate pictures.

5. In view of such allegations as referred above made

in the complaint, a case is registered against the 2 nd

respondent for the alleged offence under Sections 376,

499 and 506(2) of IPC.

6. When the complaint is under investigation, the 2nd

respondent has filed R/Special Criminal Application

No.9897 of 2017 before the High Court of Gujarat

seeking quashing of FIR itself and also further

consequential steps taken pursuant to the registration

of crime.

7. Primarily, it was the case of the 2nd respondent

before the High Court that there was absolutely no

truth in the allegation of rape as alleged by the

appellant and it was only consensual sex between the

parties. It is further alleged that in view of the

allegations made by the appellant, a settlement is

purported to have been arrived at, between them in the Crl.A. @ SLP(Crl.)No.4294 of 2019 5 month of July, 2016. A written agreement was also

entered into and the same is signed by the parties. It

is stated in the agreement that the dispute between the

parties is settled and the 2nd respondent has allegedly

paid a huge amount to the appellant. It is further the

case of the 2nd respondent that whatever the electronic

and other materials lying with the parties were agreed

to be destroyed. Further it was the case of the 2 nd

respondent that the alleged telephonic calls made by

the 2nd respondent to Mr. Shoukin Malik of

Rajasthan was absolutely false and baseless. Pleading

that the complaint filed and investigation taken up is

a gross abuse of process, the 2nd respondent has sought

quashing of the proceedings.

8. By referring to the rival contentions of the

parties and the material on record, the High Court has

recorded a finding that the case of the 2 nd respondent

falls under Exceptions 5 and 7 as carved out in the

judgment of this Court in State of Haryana vs.

Bhajanlal & Ors.1 and further the allegations and facts

as mentioned in the FIR, appear to be improbable and

the same is malicious prosecution, quashed the

proceedings registered against the 2nd respondent.

1 AIR 1992 SC 604 Crl.A. @ SLP(Crl.)No.4294 of 2019 6

9. We have heard Sri Amit Anand Tiwari, learned

counsel for the appellant, Ms. Deepanwita Priyanka,

learned counsel for the State and Sri Mukul Rohatgi,

learned senior counsel for 2nd respondent.

10. Mainly, it is contended by the learned counsel for

the appellant that the High Court has passed the

impugned order by exceeding the scope of power

conferred under Section 482 CrPC. In view of the

serious allegations made against the 2nd respondent, the

High Court should not have exercised power under

Section 482 of the CrPC to scuttle the investigation.

It is submitted that the High Court has committed error

in summoning the Police Inspector, and on relying on

such statement, for quashing the FIR. It is stated

that the alleged settlement was under the guise of

threat and coercion by the 2nd respondent, and it is not

entered into by the appellant with her free will and

consent. It is stated that the 2 nd respondent misused

the photographs taken by him, and repeatedly used the

same to blackmail her, to secure sexual favours from

the appellant. It is contended that the 2nd respondent

taking advantage of his position as a Managing Director

of the Company, has exploited the appellant and

committed rape on her at her residence and in the Crl.A. @ SLP(Crl.)No.4294 of 2019 7 apartment secured by the 2nd respondent and also during

her tours to Baroda. It is submitted 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

submitted that the Investigating Officer made an

attempt to secure data from the service 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 the 2nd respondent, by taking us through the

settlement documents arrived, between the parties, and

other material placed on record, has submitted that

there is absolutely no basis for the allegation of rape

by the 2nd respondent, and it was only consensual sex

between the parties. It is submitted that having

regard to the allegations made, parties arrived at a

settlement and entered into a written agreement in the

month of July, 2016. As the appellant is not disputing

the said documents, the allegation of rape is false.

It is submitted that parties were in consensual sex for

several years and in absence of any allegation against Crl.A. @ SLP(Crl.)No.4294 of 2019 8 the 2nd respondent of committing rape subsequent to the

agreement, there is no basis for such allegations.

It is also submitted that there is no truth in the

allegation made by the 2nd respondent about his

telephone talk with Shoukin Malik, to defame the

appellant. It is contended that having received huge

money from the 2nd respondent pursuant to the settlement

arrived at, false complaint is filed by the appellant

to harass the 2nd respondent. Learned senior counsel

also relied on the recent judgment of this Court dated

21st August, 2019 passed in Criminal Appeal No.1165 of

2019 wherein in similar circumstances FIR was quashed

by this Court.

13. Having heard learned counsel for the parties and

after perusing the impugned order and other material

placed on record, we are of the view that the High

Court exceeded the scope of its jurisdiction conferred

under Section 482 CrPC, and quashed the proceedings.

Even before the investigation is completed by the

investigating agency, the High Court entertained the

Writ Petition, and by virtue of interim order granted

by the High Court, further investigation was stalled.

Having regard to the allegations made by the

appellant/informant, whether the 2nd respondent by Crl.A. @ SLP(Crl.)No.4294 of 2019 9 clicking inappropriate pictures of the appellant has

blackmailed her or not, and further the 2nd respondent

has continued to interfere by calling Shoukin Malik or

not are the matters for investigation. In view of the

serious allegations made in the complaint, we are of

the view that the High Court should not have made a

roving inquiry while considering the application filed

under Section 482 CrPC. Though the learned counsels

have made elaborate submissions on various contentious

issues, as we are of the view that any observation or

findings by this Court, will affect the investigation

and trial, we refrain from recording any findings on

such 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/settlement arrived at,

between the parties, and recorded a finding that the

physical relationship of the appellant with the 2nd

respondent was consensual. When it is the allegation

of the appellant, that such document itself is obtained

under threat and coercion,it is a matter to be

investigated. Further, the complaint of the appellant

about interference by the 2nd respondent by calling

Shoukin Malik and further interference is also a matter

for investigation. By looking at the contents of the Crl.A. @ SLP(Crl.)No.4294 of 2019 10 complaint and the serious allegations made against the

2nd respondent, we are of the view that the High Court

has committed error in quashing the proceedings.

During the course of hearing, learned counsel for the

appellant, brought to our notice provision/Section

114-A of the Indian Evidence Act, 1872. Section 114-A

of the Indian Evidence Act, 1872 deals with the

presumption as to absence of consent in certain

prosecution for rape. A reading of the aforesaid

Section makes it clear that, 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 such woman 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 on the judgment of this Court dated 21 st

August,2019 in Criminal Appeal No.1165 of 2019, but we

are of the view that the said judgment would not render

any assistance to support his case. Whether in a given

case power under Section 482 is to be exercised or not,

depends on the contents of the complaint, and the

material placed on record. In that view of the matter,

we are of the view that it is a fit case to set aside Crl.A. @ SLP(Crl.)No.4294 of 2019 11 the order passed by the High Court and allow the

investigating agency to proceed with the further

investigation in accordance with law. It is made clear

that we have not expressed any opinion on the merits of

the complaint, and it is open to the investigating

agency and competent court, to proceed in accordance

with law.

15. For the aforesaid reasons, this criminal appeal is

allowed and the impugned order dated 13th December, 2018

passed in R/Special Criminal Application No.9897 of

2017 by the High Court of Gujarat is set-aside. The 2nd

respondent shall appear before the concerned Police

Station 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.

...................J. [UDAY UMESH LALIT]

...................J. [Indu Malhotra]

.................J. [R. Subhash Reddy]

New Delhi;

October 25, 2019