Mr. Vimal Kumar vs State Of Karnataka & Anr.

“To Date:1/05/2024 Police Inspector, Baveshwaranagar Police Station Basaveshwarangar, Banglore-79 From, XXXXX XXXXX Subject: Sexual Intercourse (Rape) by friend, Vimal Kumar (8301966066)

I am a medical coder in Omega HealthCare, Bangalore. I am staying in my PG in Murgesh Pallya I have a friend and school senior named Vimal Kumar, working in Chennai. Last year we meet in Chennai while I was working in my previous company. on 19-04-2024 he came to Bangalore to meet me and for outing. From 19-04-24 to 21-04-24 morning, he booked a room in Hotel Naidu Palace in Rajiaji Nagar. on 20-04-24 night, he forcefully sexually intercoursed with me without my consent. The incident happened after 11 P.M that night. On 21-04-24 morning 9 AM, we vacated the hotel and he went back to Chennai. That incident caused me severe mental trauma. Please legal action against Vimal Kumar.

Sd/-“

“17.

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The issue is not of a prolonged relationship between the two

“…. …. ….

9.1.

At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 Cr.P.C.,, has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 Cr.P.C.,, quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 Cr.P.C.,, was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation. Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2.

In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 Cr.P.C.,, to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 Cr.P.C.,, though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 Cr.P.C., Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

9.3.

Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.,

10.

The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27-10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession. However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11.

Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

12.

Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C.,

13.

Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

14.

In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 Cr.P.C., is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 Cr.P.C., only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed.”

“…. …. ….

C. ANALYSIS

17.

The main issue that arises for our analysis is whether the High Court was right in quashing the criminal proceedings against the private respondents primarily on the ground that the earlier complaints did not mention the two specific incidents dated 22.07.2021 and 27.11.2022, which were later on added in the FIR and whether the same would not amount to conducting a ‘mini trial’ which is clearly prohibited under the scheme of Section 482 of the Cr. P.C.

18.

At the outset it will be appropriate to advert to the observations made by the High Court in paragraphs 9 and 10 of the impugned order:

“9.

It is undisputed that prior to filing FIR (Annexure P/5), a written complaint dated 22.01.2023 (Annexure P/3) was filed before Mahila Police Station, Ratlam, District Ratlam (MP) for the alleged harassment meted out to respondent No. 2 from her husband and in-laws (applicants before this Court). It is also not in dispute that both the parties i.e. applicant No. 1 and respondent No. 2, on their counter allegations, were advised by Police Mahila Thana, Ratlam to take recourse of law, but no action was taken on the above 3 MCRC-10695-2024 complaint by respondent No. 2. In such a situation, if respondent No. 2 was aggrieved of advice dated 23.01.2023 given by Mahila Police Station, Ratlam, she might have approached the Superintendent of Police for inaction on the part of the concerned Police Station on her complaint, but this has not been done.

10.

It is also pertinent to note that in the (sic) above written complaint, there has not been a whisper of the events of harassment on 22.07.2021 and 27.11.2022, as narrated in the FIR (Annexure P/5). It manifests that the alleged incidents of harassment meted out to the complainant allegedly took place on 22.07.2021 and 27.11.2022 are afterthought. The contentions raised on behalf of the applicants that FIR (Annexure P/5) is a counterblast to notice (Annexure P/1) given by applicant No. 1 to respondent No. 2 also finds support from the above.”

19.

From a bare perusal of the above mentioned paragraphs it can be seen that one of the important factors that weighed in while allowing the quashing application of the private respondents was that in the earlier complaints filed by the appellant, there was no mention of the events of harassment that happened on 22.07.2021 and 27.11.2022, which were later on added in the FIR dated 28.01.2024. Hence, we extract the relevant portion of the complaints dated 22.01.2023 and 23.01.2023 which would clearly indicate prime facie allegations of harassment and demand of dowry against the private respondents:

“22.01.2023

…That immediately after the Nikah, the respondents namely Ishan, father-in-law Ishaq Khan, mother-in-law Irfana Bi, sister-in law (Nanad) Ayesha, Nandoi Shayid Khan, Jeth Hemuddin son of Akbar Khan resident of Ujjain started raising demand of dowry from me. They are constantly causing physical and mental harassment for the last two years. A demand of dowry is being raised every day since the day of my marriage. My father gave a Pulsar Bike but I was asked to bring a car. On the occasion of my sister-in-law's wedding, they asked me to ask my father to give an A.C to their daughter Ayesha in the dowry. My mother-in-law did not allow my husband to come to the hospital at the time of my delivery. At the time of my ‘God-Bharai’, she demanded clothes and my mother-in-law puts restrictions on my eating food and having breakfast. She asks me to eat the same vegetable three times a day and asks me not to eat breakfast, she lets me drink tea once a day, she has installed cameras in my kitchen. My mother-in-law locks me in the house from outside. She does not allow me to talk to my husband. My husband would come to me at 11 o'clock in the night and would quarrel with me and assault me. My sister-in-law and brother-in-law would come to Ghosla almost every day and would scare me and threaten to kill me. They do not give me my mobile phone, they do not let my family members come to Ghosla and talk to me even on the phone. It is the daily routine of my father-in-law to hurl abuses morning and evening.”

23.01.2023

…. Since after my marriage, I have been tortured and threatened. Ask your father to give a car and a demand was raised for an A.C. in my sister-in-law's marriage. When the demand could not be fulfilled by my father, I am being made to eat same vegetable for three days and they do not allow me to take my breakfast and I am given tea only once in a day.

My mother-in-law, sister-in-law, brother-in-law and father-in-law come together to my room and hurl abuses and threaten me. My father-in-law hurls abuses in obscene language and my mother-in-law makes me work the entire day and does not let me eat anything. My sister-in-law and brother-in-law everyday tell my mother-in-law to send him away over the phone. Many times they confine me in the room and lock the same from outside and I am not allowed to go out and I am not even allowed to open the window of the house. They have confined me as hostage in the house for many days. They do not let me talk to my family on phone and do not even let my family members meet me. My husband is also involved in all this. He never gives me even 2 rupees for expenses. They do not even allow me to visit my relatives. As such, being troubled by all this, I came to my parents' house. ….”

It is also apposite that we extract the relevant portions of the FIR so as to better understand the allegations against the private respondents, particularly the two specific incidents that happened on 22.07.2021 and 27.11.2022. The relevant extract reads thus:

“…..I kept tolerating their taunts in order to save my marital life. But on 22.07.2021, my husband Ishan Khan, mother-in-law Irfana Bee, father-in-law Ishaq Khan, sister-in law Aaysha Bee and brother-in-law (Nandoi) Syed Khan hurled abuses to me. My brother-in-law (Nandoi) Syed Khan slapped me also and asked me to bring dowry from your father's house. Despite all this, I kept tolerating their torture. But on 27.11.2022, my husband Ishan Khan told me that I have passed the examination of M.B.B.S. and now I have to pursue M.C.I. Examination, as such, now if you will bring an amount of Rs. fifty lacs from your father, only then, I will keep you with me and say this, he ousted me and my son Iwaan Khan from the house while holding our hand. Thereafter, I came to my father Zahid Khan's house at Alot and narrated the entire incident to my father and mother Parveen Bee. Since then, I am residing at Alot alongwith my father. My father made several attempts to make my husband and in-laws understand but these people are adamant for their demand of dowry of a sum of Rs. fifty lacs that unless and until, they are given a dowry of Rs. fifty lacs, they will not take me with them. Today, I have come to make a report in the police station alongwith my father Zahid Khan. I lodge the report, action may be taken.”

“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 have given 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.”

“26.

Even though, the inherent power of the High Court under Section 482 CrPC, to interfere with criminal proceedings is wide, such power has to be exercised with circumspection, in exceptional cases. Jurisdiction under Section 482 CrPC is not to be exercised for the asking.

27.

In Monica Kumar v. State of U.P. [(2008) 8 SCC 781 : (2008) 3 SCC (Cri) 649], this Court held that inherent jurisdiction under Section 482 CrPC 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.

28.

In exceptional cases, to prevent abuse of the process of the Court, the High Court might in exercise of its inherent powers under Section 482 quash criminal proceedings. However, interference would only be justified when the complaint did not disclose any offence, or was patently frivolous, vexatious or oppressive, as held by this Court in Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC 494].

*****

36.

Offence under Section 306 IPC of abetment to commit suicide is a grave, non-compoundable offence. Of course, the inherent power of the High Court under Section 482 CrPC is wide and can even be exercised to quash criminal proceedings relating to non-compoundable offences, to secure the ends of justice or to prevent abuse of the process of court. Where the victim and offender have compromised disputes essentially civil and personal in nature, the High Court can exercise its power under Section 482 CrPC to quash the criminal proceedings. In what cases power to quash an FIR or a criminal complaint or criminal proceedings upon compromise can be exercised, would depend on the facts and circumstances of the case.”

“8.2.

It is trite that the power of quashing should be exercised sparingly and with circumspection and in rare cases. As per the settled proposition of law while examining an FIR/complaint quashing of which is sought, the court cannot embark upon any enquiry as to the reliability or genuineness of allegations made in the FIR/complaint. Quashing of a complaint/FIR should be an exception rather than any ordinary rule. Normally the criminal proceedings should not be quashed in exercise of powers under Section 482 CrPC when after a thorough investigation the charge-sheet has been filed. At the stage of discharge and/or considering the application under Section 482 CrPC the courts are not required to go into the merits of the allegations and/or evidence in detail as if conducting the mini-trial. As held by this Court the powers under Section 482 CrPC are very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court.”

“6.

From the impugned common judgment and order [Aryan Singh v. CBI, 2022 SCC OnLine P&H 4158] passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini trial and/or the High Court was considering the applications against the judgment and order passed by the learned trial court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 CrPC, the Court is not required to conduct the mini trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency.”

(emphasis supplied)

“Conclusions

33.

In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 CrPC and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/charge-sheet is filed under Section 173 CrPC, while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 CrPC and/or under Article 226 of the Constitution of India, our final conclusions are as under:

33.1

….

33.2.

Courts would not thwart any investigation into the cognizable offences.

33.3.

It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on.

33.4.

The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the “rarest of rare cases” (not to be confused with the formation in the context of death penalty).

33.5.

While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint.

33.6

….

33.7.

Quashing of a complaint/FIR should be an exception rather than an ordinary rule.

33.8

to 33.11 ….

33.12.

The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure.

33.13

and 33.14 …..

33.15.

When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 CrPC, only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR.”

26.

Further, this Court in the case of State of Telangana v. Habib Abdullah Jeelani¹² held that:

“13.

There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court.

14.

In this regard, it would be seemly to reproduce a passage from Kurukshetra University [Kurukshetra University v. State of Haryana, (1977) 4 SCC 451 : 1977 SCC (Cri) 613] wherein Chandrachud, J. (as his Lordship then was) opined thus : (SCC p. 451, para 2)

“2.

It surprises us in the extreme that the High Court thought that in the exercise of its inherent powers under Section 482 of the Code of Criminal Procedure, it could quash a first information report. The police had not even commenced investigation into the complaint filed by the Warden of the University and no proceeding at all was pending in any court in pursuance of the FIR. It ought to be realised that inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases.””

27.

We are of the view that the High Court has erred in law by embarking upon an enquiry with regard to credibility or otherwise of the allegations in the complaints and the FIR. Normally, for quashing an FIR, it must be shown that there exists no prime facie case against the accused persons. In the present case, from the conjoint reading of the complaints and the FIR, it can be seen that prime facie allegations of harassment and demand of dowry are made out, despite that the High Court quashed the FIR against the private respondents primarily on the ground that the earlier two complaints that were filed by the appellant did not mention the specific instances that happened on 22.07.2021 and 27.11.2022 and the same were later on mentioned in the FIR only as an afterthought and was a counterblast to the legal notice sent by respondent no. 1/husband to the appellant as she was not coming back to her matrimonial home. This approach adopted by the High Court, in our considered opinion, amounts to conducting a mini trial.”