Rohitashwa Kumar vs State of Rajasthan

Guman Mal Lodha, J.—An interesting point in an uninteresting case is involved where the accused after entering into the premises of a friend for a courtesy visit shows discourtesy by trying to outrage the modesty of his friend cum a subordinate officer''s wife.

The accused Rohitashwa Kumar was working as Superintendent of Police, Bikaner, when he visited the residence of Additional Superintendent of Police Shri R. D. Goyal. The prosecution case is that the accused first demanded that he would like to drink liquor, which was served by Shri Goyal. During this period, orderly Umesh Kumar brought a complaint of Peerukhan, which was handed over to Shri Goyal by Shri Rohitashwa Kumar and the latter was asked to listen to the grievances of the complainant and also send some one for getting betel.

According to the prosecution version, the moment Shri Goyal went outside the drawing room, Shri Rohitashwa Kumar, who was sitting on a sofa, stood up and suddenly caught hold of the wife of Shri Goyal, Smt. Suraj Devi in his arms forcibly and rubbed her breast with his hands. Smt. Suraj Devi did not accept it lightly, and gave a slap to Rohitashwa Kumar, who in turn, pushed Smt. Suraj Devi on the sofa. Shri Rohitashwa Kumar rushed out of the room, took the jeep and then ran away in the jeep. When Shri Goyal came back and entered his drawing room, Smt. Suraj Devi related to him the unfortunate pathetic story, on which, Shri Goyal went to the residence of S. P. Shri Rohitashwa Kumar, who was not available there. Then Shri Goyal went to the Deputy Inspector General of Police, Bikaner and made the complaint.

These facts are yet to be enquired into by a competent court where the case is pending against Rohitashwa Kumar under Sections 354 and 451, I.P.C. However, Shri Rohitashwa Kumar has not waited for the decision of the case after recording of the evidence and has approached this Court u/s 482 Cr. P.C. for quashing the proceedings as a whole.

this Court, while admitting the petition u/s 482, Cr. P.C. had made it clear that the proceedings u/s 354 would continue and the petition u/s 482, Cr. P.C. to that extent cannot be entertained.

I am, therefore, required to precisely consider whether the proceedings u/s 451, I.P.C. based on the above allegation deserve to be quashed u/s 482, Cr. P. C.

Section 482 Cr. P.C. is as under :-

Saving of inherent powers of High Court: Nothing in this Code shall be deemed to limit or affect the inherent powers 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 the Court or otherwise to secure the ends of justice.

The question, therefore, is whether I should use inherent powers of this Court to prevent any abuse of process of any court or to secure the ends of justice or to give effect to any order u/s 482, Cr. P.C. Obviously the last contingency cannot arise and the first and second are overlapping each other.

I would, therefore, require to examine whether the proceedings in this case for adjudication of the guilt or innocence of the accused for offence u/s 451,I.P.C. would tantamount to abuse of process of court and whether it is necessary to quash the proceedings for securing the ends of justice. At this stage I must mention, to make the things clear, that any observation made by me in this judgment would not, in any manner, affect the rights of the parties about merits of the case because the adjudication of the guilt or innocence would depend upon the evidence, which would be recorded in the case and also the police record.

It is a common ground that no evidence has been recorded so far by the Court in this case and, therefore, whether on the basis of the police record and the statements recorded therein, I would be justified in holding that the recording of the evidence by the Court would tantamount to abuse of the process of the Court and, further, in the interest of Justice, it is necessary to prevent or prohibit the Court from recording evidence for adjudicating the guilt or innocence of the accused u/s 451, I.P.C.

Dr. Tiwari has referred to a decision of Division Bench of this Court in Jawanmal Vs. Mt. Bhanwari and Others, which is very relevant for more than one reason. Firstly, the judgment of the Division Bench consisting of two eminent Judges of this Court is binding on me sitting in single Bench and secondly the judgment raises the point with regard to criminal trespass. I am, therefore, bound to follow this judgment and all the principles which emerge therefrom. However, there is one distinguishing feature and that is that this judgment is based on the evidence recorded by the Court resulting in acquittal and Dr. Tiwari wants from me the quashing of the procedings at the initial stage u/s 482, Cr. P. C. and preventing or prohibiting the Magistrate from recording evidence at all. This distinguishing feature assumes great relevance.

Dr. Tiwari rightly pointed out that the discussion made in para 15 of the judgment of Jawanmal''s case (supra) is very relevant. It appears that the emphasis is on the dominant intention of the person who is accused of offence of trespass. I may extract the following relevant observations made in para 15 : �

Whether there was such intention as the dominant intent would have to be considered on the facts of each case and if the persons....

...In short, therefore, in each case the Court will have to consider what was the dominant intention and in coming to that conclusion, it will have to take the various circumstances which we have pointed out above....

..But if the dominant intention was merely to make an entry peacefully no offence of criminal trespass would be made out. Of course, if any offence is actually committed after the entry is made, or during its course though it was not part of the intent, the person committing that offence would be guilty of it. But that would not result in conviction for criminal trespass, unless the court is also able to find that the intention was from the beginning to commit offence.

It would be seen from the above discussion that their Lordships were of the opinion that in each case facts will have to be ascertained first and on the basis of those facts the Court will have to adjudicate whether dominant intent was merely to make entry peacefully or it was with an intention to commit some offence.

Another decision referred to was Kanwal Sood Vs. Nawal Kishore and Another, , wherein it was held that intention to commit an offence is an essential ingredient and mere occupation even if illegal, cannot amount to criminal trespass.

In the present case the question is whether Rohitashwa Kumar, S. P., Bikaner had dominant, intention to outrage or try to outrage the modesty of Smt. Suraj Devi. If that was the dominant intent, there is no room for doubt, for, the facts and proof are available for criminal trespass also. However, if the dominant intent was not to outrage the modesty or to commit any such offence and it incidentally happened either under the influence of liquor or impulse of sex, then it may tantamount to an offence u/s 451, I.P.C. Here, it may also be mentioned that Mr. Garg has pointed out a few decisions in which, it has been held that even though the entry may be peaceful, but afterwards if the accused commits offence and remains in possession or occupies or stays there, then it would be an offence of criminal trespass. Reference may be made to Puniya V. v. State AIR 1955 MP 3780 . Reliance was also placed on K.D. Upadhayaya Vs. Bhagabati Chouhan and Another, In that case the accused, husband and wife entered the verandah of the complainant''s house and demanded money due to them on account of labour supplied. The complainant refused to pay on the ground that they had been fully paid up and that they should go to civil Court. The accused then began to use filthy language. It was held that the offence u/s 448, I.P.C. is proved.

So far as State Vs. Bhanwaria, is concerned it was a case of adultery where the accused went with the intention to commit adultery and there was no dispute that the intention of the accused was to insult, intimidate or annoy or to commit the offence.

In the instant case, in my opinion, it would be premature to decide whether the ingredients of the offence u/s 451, I.P.C. on the alleged facts are made out or not, the evidence has not been recorded so far.

The crucial question whether the predominant intention of the accused Rohitashwa Kumar when he went to the residence of Suraj Devi, the wife of Shri Goyal, Addl. S.P. was to make an attempt to outrage the modesty, or whether even though predominant intention was not there, at the same time when he was taking the liquor, he made up his mind to remove the hurdle of her husband and asked her husband to bring betel and then made an attempt to outrage the modesty, or without any such predominant intention, when he found that there was nobody there and after consuming liquor, he suddenly developed the sexual impulse and pounced upon the lady, are all questions to be considered on the basis of the evidence which is yet to be recorded.

Dr. Tiwari emphasised that from the F.I.R. it appears that the visit of Shri Rohitashwa Kumar was a courtesy visit. It is well known that in criminal jurisprudence, the F.I.R. can be shown and used for the purpose of contradicting the statements of the deponent.

The present one is not a case where there are speaking facts and circumstances showing that there could not have been dominant intention of committing offence when the accused entered the drawing room on or before he stood up from the sofa and pounced upon the lady taking her into his arms forcibly and rubbed her breasts. It would not be in the interest of justice and also in the interest of either party to take any view at this stage in this respect.

I would, therefore, leave this matter to be considered and decided after recording of the evidence in view of the decisions referred to above and particularly the decision referred to above by Dr. Tiwari, which is very relevant and binding on me. In my opinion, the line between the predominant intention and the incidental and accidental act is very thin and, therefore, niceties with which this demarcation is to be made, can only be done when the evidence is recorded and the events and the facts and circumstances of the case are taken into consideration in the light of the evidence recorded, in the right perspective.

I would, therefore, not like to enter into and consider the nicety on the basis of the F.I.R. or the statement u/s 161, Cr. P.C. only, as the same, on cross-examination, may be found to be true, partly true and partly untrue and wholly untrue and apart from that it will be inexpedient also at this stage.

All that can be said at this stage is that the present one is not a case which comes in the category of the Magistrate abusing the process of the Court or in which interference or quashing the proceedings at this stage is warranted to secure the ends of justice or to carry out any of the provisions of the Code. In my opinion, the principles of law which emerge from the above decisions have been carved out by me in the above paras and the facts on which they will have to be applied are yet to be found out after recording of the evidence and appreciation of the recorded evidence in the Court.

I would, therefore, not make any exercise of my powers u/s 482, Cr. P.C. which are inherent powers which are to be used sparingly only.

Before parting with this judgment, I may again state that the observations regarding facts have been made on the basis of the allegations only and should not be treated as proved. Each fact will have to be proved by cogent and reliable evidence and it will be for the trial Court to decide and find out whether any offence is made out.

With the above clarification and observations this petition is dismissed.

The record of the trial court be sent back with direction to proceed with the case according to law.