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Judgment
Admit. Heard finally by consent of the learned counsel appearing for the parties.
The applicant seeks quashing of the First Information Report (FIR) No.236/2023, dated 06.03.2023, registered with Police Station, Hinganghat, District Wardha for the offences punishable under Sections 376(2)(a), 376(1), 376(2)(n) and 506 of the Indian Penal Code, 1860 (for short the “IPC”), and consequent Chargesheet No.105/2023, dated 10.07.2023 arising out of the said FIR.
The FIR depicts that on 05.08.2021, the victim had been to Police Station, Hinganghat where the applicant was posted as Police Inspector. The victim wanted to lodge a complaint against her father and brother for sexual exploitation but the applicant did not get the FIR registered and insisted the victim for friendship. On 19.08.2021, at about 09.00 pm., the applicant had been to the house of the victim when she was alone and told her not to disclose this fact anybody. He also assured her that he will call her parents to the Police Station and settle the matter between the parties. He then threatened her and committed sexual intercourse with her. It is also alleged that the applicant made a video recording of the said sexual intercourse in his mobile phone. Whenever the victim was insisting the applicant on getting the FIR against her father and brother registered, the applicant was avoiding her. In the same month i.e. August 2021, the applicant told the victim that if she wants to get the FIR registered against her father and brother, she has to establish physical relations with him. Accordingly, during that period, the applicant committed forcible sexual intercourse with the victim. Thereafter, he used to blackmail the victim by threatening to leak the video recording of the said sexual intercourse. Under the said threat, he continued the physical relationship forcibly until the month of April 2022. Thereafter, the applicant brought the father and the brother of the victim to the police station to resolve the grievance of the victim. Ultimately, on 16.05.2022, the applicant registered the FIR against Vinod Deshpande and Varun Deshpande, the father and brother of the victim.
It is also alleged that on 27.12.2022, when the victim was alone in her house, the applicant again came there. By threatening to leak the video recording, he again committed sexual intercourse with her. From time to time, whenever the victim tried to lodge a complaint against the applicant about the sexual assault, the applicant blackmailed and harassed her. When the victim informed the said incident to the wife of the applicant, she also threatened her and stated that if the victim files a complaint against her husband, she will file a false complaint against her. Even on 02.02.2023, the wife of the applicant threatened the victim over phone call. On 19.02.2023 at 09.30 pm., the applicant came in front of the house of the victim and threatened her. Thereafter, at 12.00 pm. his wife also came there and assaulted the victim. Therefore, on her complaint, the aforesaid offences came to be registered against the applicant.
By the present application, the applicant is seeking to quash the FIR and the consequent chargesheet mainly on the ground that he has been falsely implicated in this crime. The allegations against him are absurd and have been levelled just to wreak vengeance.
Learned counsel for the applicant vehemently submitted that the victim was residing in a densely populated colony, surrounded by many buildings and therefore, it is highly improbable that the applicant committed forcible sexual intercourse with her repeatedly under threat, that too in a densely populated residential area. Nobody ever heard the victim asking for help and there is no injury on the body of the victim. Apart from her statement in the FIR as well as her statement under Section 164 of the Code of Criminal Procedure, there is no other material supporting the allegations levelled by the victim against the applicant. Therefore, the complaint is manifestly frivolous, vexatious and instituted with an ulterior motive of wreaking vengeance.
It is further contended that the applicant is a Senior Police Officer with an unblemished career record and has conducted himself with honesty and integrity. The applicant treated the victim as his own daughter and exhibited a compassionate endeavour to mediate and resolve the dispute between the victim and her family. The applicant even developed family relations with the victim. Merely because the FIR lodged by the victim against her father and brother was quashed by the Division Bench of this Court, the victim got annoyed. The victim alleges involvement of the applicant in getting the FIR quashed. The victim has also lodged multiple FIRs against various persons alleging wild allegations against each one of them. The victim is habitual of implicating various persons in false cases of serious offences of rape and sexual assault, including her father and brother. It is further submitted that the Division Bench of this Court, while quashing of the FIR lodged by the victim against her own father and brother, has opined that the victim has some psychiatric and behavioral issues and she was taking treatment from a psychiatrist.
Lastly, learned counsel for the applicant submitted that the victim had earlier lodged a complaint against the applicant, which was subsequently withdrawn by appearing before the Superintendent of Police, Wardha. In the said enquiry, it was found that there was no substance in the allegations levelled against the applicant. Thus, similar allegations levelled by the victim were withdrawn by her before the Superintendent of Police. Now, again on similar allegations, the present FIR came to be registered against the applicant. According to the learned counsel for the applicant, there is no injury on any part of the body of the victim. So also, the mobile phone of the applicant does not carry any incriminating material as alleged by the victim about recording the sexual intercourse to blackmail the victim. Therefore, the present FIR against the applicant is nothing but an abuse of the process of law as well as the Court.
The sum and substance of the arguments advanced by the learned counsel for the applicant is that the victim has falsely implicated the present applicant in the crime in order to wreak vengeance against the applicant on account of her misconception that due to the applicant, the FIR lodged by the victim against her own father and brother came to be quashed. According to him, the record of cases of rape in the entire country reveals that 74% of the rape cases registered under Section 376 of the IPC end up in acquittal of the accused. A new trend has evolved in the society where victims lodge false complaints of rape to settle the score. According to him, the present case is one of such cases where the applicant, who is a Senior Police Officer, has become helpless and is in custody since more than 2 years, just because of these false allegations. Therefore, he sought quashing of the FIR and consequent chargesheet against the present applicant.
To buttress his submissions, learned counsel for the applicant relied on the following decisions :
State of Haryana vs. Bhajan Lal, (1992 Supp (1) SCC 335), wherein the Supreme Court in para 102 has held 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 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 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 F.I.R. 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 and
(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.
Prakash Nayi Alias Sen vs. State of Goa, (2023) 5 SCC 673, wherein the Supreme Court in para 19 has held as under :
“19.Now, we shall come to the mental illness caused by Schizophrenia. We do not wish to go into the said issue as it being one within the exclusive knowledge of the experts, except to quote the relevant text available:
19.1.Jaisingh P. Modi, a textbook on Medical Jurisprudence and Toxicology, 26th Edn. 2018, pg. 922:
“(ii)Schizophrenia.-Kraepelin (Emil Kraepelin, German psychiatrist.), in 1896, named this disease as 'dementia praecox’. In 1911, Eugen Bleuler (Paul Eugen Bleuler, Swiss psychiatrist and Eugenicist.) introduced the term “schizophrenia” which literally means disintegration of mind. The term dementia praecox was changed because it implied that the disease always ended in dementia, which it did not. The term praecox meant that the disease developed at the time of puberty or adolescence, but in many cases developed outside that period. Since it was thought that the disease always ended in dementia, it meant a hopeless prognosis, which created a spirit of defeatism in the minds of people.”
19.2.Elizabeth A. Martin (2007), Oxford Concise Medical Dictionary (7th edition), pg. 642:
“Schizophrenia n. a severe *mental illness characterised by a disintegration of the process of thinking, of contact with reality, and of emotional responsiveness. Positive symptoms, such as *delusions and *hallucinations (especially of voices), are common, and any *Schneiderian first-rank symptoms are particularly indicative of the illness. Negative symptoms include social withdrawal, impairment of ego boundaries, and loss of energy and initiative. Schizophrenia is diagnosed only if symptoms persist for at least one month. The illness can spontaneously remit, run a course with infrequent or frequent relapses, or become chronic. The prognosis has improved with *anti-psychotic drugs and with vigorous psychological and social management and rehabilitation. The many causes include genetic factors, environmental stress, and possibly illicit drug use.”
19.3.American Psychiatric Association 2013, Diagnostic and Statistical Manual of Mental Disorders : DSM-5, 5th Edn, American Psychiatric Association, Washington DC. pg. 87:
“Schizophrenia spectrum and other psychotic disorders include schizophrenia, other psychotic disorders, and schizotypal (personality) disorder. They are defined by abnormalities in one or more of the following five domains: delusions, hallucinations, disorganized thinking (speech), grossly disorganized or abnormal motor behavior (including catatonia), and negative symptoms.”
Rakesh Walia vs. State of NCT of Delhi & another, SLP (Cri.) No.14850 of 2024, wherein the Supreme Court in para Nos.5 and 6 has held as under :
“5.Apart from her statement in the FIR and her statement under Section 164 of the Criminal Procedure Code, 1973 (as per new act, under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023), there is no other evidence on record. However, what is most concerning before this Court is that the same respondent has filed nearly identical cases at least against eight other individuals (nine cases in total). These FIRs, lodged in different Police Stations across Delhi, involve offenses under Sections 34, 328, 354, 354A, 354D, 376, 377, 506, and 509 of IPC. The relevant chart detailing these cases, supplied by the appellant, is taken on record.
6.Additionally, we have been informed that after lodging the FIR, the complainant has not cooperated with the investigation and has not appeared before this Court despite being served with notice.”
Inder Mohan Goswami and another vs. State of Uttaranchal and others, (2007) 12 SCC 1, wherein the Supreme Court in para Nos.23, 24 and 46 has held as under :
“23.This court in a number of cases has laid down the scope and ambit of courts’ powers under section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under section 482 Cr.P.C. can be exercised:
(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.
24.Inherent powers under section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute.
46.The court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendetta or with an ulterior motive to pressure the accused. On analysis of the aforementioned cases, we are of the opinion that it is neither possible nor desirable to lay down an inflexible rule that would govern the exercise of inherent jurisdiction. Inherent jurisdiction of the High Courts under Section 482 Cr.P.C. though wide has to be exercised sparingly, carefully and with caution and only when it is justified by the tests specifically laid down in the Statute itself and in the aforementioned cases. In view of the settled legal position, the impugned judgment cannot be sustained.”
Pratap Misra and others vs. State of Orissa, (1977) 3 SCC 41, wherein the Supreme Court in para No.8 has held as under :
“8.In the first place, the admitted position is that the prosecutrix is a fully grown up lady and habituated to sexual intercourse and was pregnant. She was experienced inasmuch as she had acted as a midwife. It is true that the learned Sessions Judge was impressed with the demeanour of this witness, but that by itself is not sufficient to prove the case if the allegation of the prosecution suffers from inherent improbabilities. The opinions of medical experts show that it is very difficult for any person to rape single-handed a grown up and an experienced woman without meeting stiffest possible resistance from her. In the instant case, according to the evidence given by P.W. 1, A-1 entered the room and committed sexual intercourse with very great force and violence against her consent. Indeed if this was so, we should have expected the stiffest possible resistance from her resulting in injury over the penis or scrotum of the accused or abrasions over other parts of the body caused by the nails of the prosecutrix. The accused were examined by P.W. 9 who did not find any injury over the penis or scrotum and he does not say that he found any injury on any other part of the body. This is rather an important circumstance which negatives the allegation of rape. The prosecutrix knew full well that the appellant had entered the room with evil intention from the fact that her husband was dragged away to the verandah and the door was bolted by A-1. In these circumstances we fail to see why the prosecutrix should have silently abided to have the intercourse with the appellant without putting up any resistance, except shouting, particularly when the prosecutrix was a fully grown up lady and experienced not only in sexual intercourse but also in the art of midwifery. She knew that she was pregnant and if any violence was caused to her it may lead to abortion. This circumstance would naturally impel her to put up the stiffest possible resistance against A-1 who was single-handed and was not armed with any weapon which may have silenced the prosecutrix. The theory propounded by the learned Sessions Judge was that as the appellants were N. C. C. students and sturdy persons the prosecutrix may have found it futile to put up any resistance and may have decided to submit to the onslaught on her. Such a course of conduct is wholly improbable, particularly in the case of grown up and an experienced lady like P.W. 1. Taylor, in the Principles and Practice of Medical Jurisprudence, Vol. II, dealing with the cases of rape on a grown up woman observes as follows:
Unless under the influence of drink or drugs or asleep or ill, a fully grown girl or adult woman should be able to resist a sex assault. We should expect to find evidence of a struggle to avoid sexual contact or penetration, and may well feel uncertainty about the real nature of an alleged assault in its absence.
A false accusation of rape may some times be exposed by marks of violence being wholly inadequate or absent.
Bruises upon the arms or the neck may be considered to constitute some evidence of a struggle; and impressions of finger nails are also significant. Bruises or scratches about the inner side of the thighs and knees may be inflicted during attempts to abduct the legs forcibly, and care must also be taken to examine the back, for the victim may have been pinned against the wall or floor. It is important to record these in detail, and to say, if possible, how fresh they are. The ageing of bruises is, as was indicated in Volume I, a matter of some uncertainty in the absence of microscopy.
Strong corroborative evidence of a struggle might be obtained from an examination of the accused for similar marks of bruises or scratches about the arms or face, and possibly even about his penis, though this is less likely.
Though injury is most unlikely to the penis, a man may have had his face scratched or have been bitten during a sex assault. The clothing may bear some contact traces of the woman-hairs, vaginal secretion or blood, and, though of less significance, seminal stains.
The medical evidence, therefore, clearly discloses that the prosecutrix does not appear to have put up any resistance to the alleged onslaught committed on her by the appellants. From this the only irresistible inference can be that the prosecutrix was a consenting party which would be reinforced by other circumstances to which we shall refer hereafter.”
Mohd. Wajid and another vs. State of Uttar Pradesh and others, (2023) 20 SCC 219 and Iqbal @ Bala and others vs. State of Uttar Pradesh and others, 2023 (8) SCC 734, wherein the Supreme Court has observed as under :
“At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely.
We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not.
In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.”
Criminal Application (APL) No.934 of 2022, Vinod s/o Prabhakarrao Deshpande vs. State of Maharashtra & another, decided on 22.12.2022, wherein the Division Bench of this Court in para Nos.11 and 12 has held as under :
“11.From above referred material on the record, the following undisputed facts emerge:-
(a)The prosecutrix used to ask for unreasonable demand of money from the applicant and her mother. On denial she used to beat her parents including applicant.
(b)She was taking treatment of psychiatrist due to her behavioural issues.
(c)The prosecutrix does not hesitate to lodge complaint against her father, mother and brother and so on for any reason or no reason or on small issues.
(d)On 27/07/2021, the mother had filed police complaint against the prosecutrix about the incident of quarrel with her brother on 26/07/2021 and 27/07/2021 and ransacking house hold articles by the prosecutrix.
(e)The prosecutrix made allegation about the incident of rape by her father i.e. applicant on 27/07/2021 after her mother went to lodge the complaint against the prosecutrix and on 28/07/2021 at 01.00 p.m.
(f)In spite of visiting police station immediately after the incident on 28/07/2021, at 03.35 p.m. and lodging another police complaint against her brother and one Pranjal Sonawane about the earlier incident of defamation., she did not whisper any incident of heinous crime of rape by the applicant and her brother.
(g)She kept mum for about 10 months and on 16/05/2022 lodged the FIR in question for alleged incidents of rape by the applicant and her brother on 27/07/2021 and 28/07/2021.
(h)In other various complaints, filed by the prosecutrix during the period between the alleged incidents of rape and the FIR in question, there is no mention of alleged incidents of rape.
(i)On the contrary, prior to lodging FIR in question, there are various complaints filed by the applicant and his wife against the prosecutrix for atrocities done by the prosecutrix on the old, aged parents. They left the house at Hinganghat and shifted to Nagpur. The prosecutrix behind the back of the applicant and her mother had broken open the lock of the flat and had started residing there.
(j)She has threatened the applicant that she would ruin his image by booking him in a criminal case.
(k)After a gap of about 10 months, she has lodged a complaint of rape on 16/05/2022
12.The above said facts, which are not disputed, when are read together, falsify the entire story of the prosecutrix of the alleged incident of rape either on 27/07/2021 or 28/07/2021. The prosecutrix, who happened to be in police station just after the incident and even thereafter many times, did not whisper anything about the incident; She used to beat her father i.e. the applicant and her mother; She threatened the applicant of false implication; and then she lodged the complaint alleging rape by the applicant (father) on 27/07/2021 and by her brother on 28/07/2021. In these state of affairs, the only conclusion which possibly can be made is that the allegations are totally untrue and even absurd and improbable. Thus, I do find force in the argument of the learned Counsel for the applicant that the present case is nothing but an abuse of process of law by the prosecutrix which in fact has been made by the legislature to protect the weaker section of the society i.e. women and not to serve as weapon for undeserving women to harass the innocent.”
Per contra, learned Additional Public Prosecutor appearing on behalf of the State as well as non-applicant No.2-victim-in-person have objected to the application on the ground that the applicant is a Senior Police Officer who was in a dominant position. He misused his authority to exploit a girl who was levelling allegations against her father and brother. After learning the fact that she is disconnected with her family, he took undue advantage of his position, came to her house where she was residing alone and committed sexual intercourse by threatening her. It is also contended that the applicant blackmailed the victim by making a video recording of their initial sexual intercourse and continuously established physical relations with her on account of the said video recording. The earlier complaint filed by the victim against the applicant has been forcefully withdrawn by blackmailing the victim using the said video recording. According to them, the anticipatory bail granted to the applicant by this Court was cancelled by the Supreme Court and the regular bail was rejected by this Court considering the material available on record. According to the learned Additional Public Prosecutor, there is prima facie material against the applicant for the offence with which he is charged. Whether the allegations levelled against the applicant are true or false is a matter of evidence. According to them, there is material in the form of statement of the victim and the witnesses as well as the CDR of the applicant and therefore, the present case warrants a full-fledged trial. It is also contended that considering the prima facie material, no case is made out for quashing of the FIR and therefore, they sought rejection of the application.
Now, let me proceed to deal with the submissions of the learned counsel for the respective parties. As per the dictum of State of Haryana vs. Bhajan Lal (supra), relied upon by the learned counsel for the applicant, the FIR can be quashed when the allegations made in the FIR if taken at their face value, do not constitute any offence or do not disclose any cognizable offence. Additionally, if the allegations made in the FIR are so absurd and inherently improbable that no prudent person can ever reach to the conclusion that there are sufficient grounds to proceed against the applicant, or if there is a legal bar to institute the proceedings or continue the proceedings, the FIR can be quashed. Lastly, the FIR can also be quashed for the reason that the criminal proceedings are manifestly attended with mala fide and/or where the proceedings are maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to a personal grudge.
Considering the submission made by the learned counsel for the applicant, heavy reliance has been placed on Clause-7 of Para 102 of the decision of State of Haryana vs. Bhajan Lal (supra). It has been argued extensively that just because the FIR filed by the victim against her father and brother levelling the allegations of rape got quashed, the victim blamed the applicant and therefore, she lodged this false complaint with mala fide intention and an ulterior motive for wreaking vengeance on the applicant with a view to spite him due to a personal grudge.
The victim has alleged in the FIR as well as in her statement recorded by the Police that on 19.08.2021, the applicant had been to the house of the victim, where he established forcible sexual relationship with her and made a video recording of the same in his mobile phone. Thereafter, by blackmailing her, he continued physical relations with her till the end of the year 2022 by visiting her house. The material in the chargesheet shows that the applicant was the then Police Inspector of Hinganghat, Police Station. He came in contact with the victim when she approached him for the first time to lodge a complaint against her father and brother. Thereafter, he was constantly in touch with her till lodging of the FIR. There is material in the statements more particularly, the statement of the driver of the applicant, which suggests that the applicant used to visit the house of the victim frequently. Specifically, the statement of driver- Sukhdev Shah states that on 19.02.2023, the applicant took the victim to Hanuman Mandir. It also appears from the statement of the driver that the victim was asking the applicant to divorce his wife. Even the statement of the wife of the applicant shows that she was doubting that the applicant is in an extra marital relationship with the victim. Therefore, on 19.02.2023 she had been to the house of the victim in search of the applicant, where the alleged quarrel took place.
The entire material in the chargesheet shows that the applicant was constantly in touch with the victim. All this material goes to suggest that there is some nexus of the applicant with the victim which is something beyond his official capacity. The applicant is a Senior Police Inspector and Incharge of the Hinganghat Police Station, whereas the victim is a lady who was residing alone in the house, since she was ousted by her parents. There was no reason for the applicant to visit the house of the victim and take her to the temple along with him. Therefore, I do not find force in the argument of the learned counsel for the applicant that there was no relationship whatsoever between the applicant and the victim and that the allegation of sexual intercourse by the applicant with the victim is completely absurd. There is sufficient material on record to suggest the nexus between the applicant and the victim. Rather, the wife of the applicant was annoyed with the applicant and was suspecting that there is more than just professional interaction between the applicant and the victim. In that scenario, the alleged complaint lodged by the victim against the applicant alleging forcible sexual intercourse with her initially and later on, under the threat of circulating the video has to be put to the test during the trial in light of the facts which are appearing in the chargesheet.
Evidently, the record suggests that the victim had earlier lodged a complaint regarding the same alleged incident, but the same came to be withdrawn by her. Her contention is that, she has withdrawn the said complaint under pressure. Thus, the question whether the victim withdrew the said complaint under threat or not is disputed and the same can be gone into only during the trial. Here, there are serious allegations against the applicant of committing sexual intercourse by visiting the house of the victim when she was residing alone. No doubt, this fact of withdrawal of the earlier complaint bears importance and is one of the circumstances to be considered but, the same can be considered only during trial after taking into consideration the other attending circumstances which may surface eventually.
Likewise, the submission of the learned counsel for the applicant that the victim demanded money for withdrawal of the case at the time of his appearance before the trial court also cannot be considered at this stage without confronting the victim, which is possible only during trial.
No doubt, the Division Bench of this Court in APL No.934/2022 vide order dated 22.12.2022 quashed the FIR lodged by the very victim against her father and brother, but the same was quashed on merits of the said case. The decision of the Division Bench of this Court in which the FIR against the father and brother of the applicant was quashed may help the applicant to show the conduct of the victim. However, by virtue of the observations made in the said judgment, the allegations levelled by the victim cannot be completely wiped out at this stage.
The decision in the case of Mohd. Wajid (supra) and Iqbal @ Bala (supra) which speaks about considering the other attending circumstances in cases where the FIR has been lodged to seek vengeance as well as the decisions of Inder Mohan Goswami (supra) and Rakesh Walia (supra) which say that criminal prosecution cannot be used as an instrument of harassment will not be helpful to the case of the applicant because here, there is prima facie material to show that the applicant was in continuous touch with the victim even beyond his official work hours which is not a part of his official duty. Further, the statement of the wife of the applicant and the driver also reveals that the relationship of the applicant with the victim was more than what has been claimed by the applicant. There appears to be some substance in the complaint filed by the victim. All these aspects are to be gone into only during the trial.
Further, in the decision of the Supreme Court in the case of Pratap Misra (supra) the observations were made on facts of the case which were based on merits after a full fledged trial took place and the evidence on record was appreciated. Therefore, the same will hardly help the applicant at this stage. Likewise, the decision of the Supreme Court in case of Prakash Nayi Alias Sen (supra) will also not be helpful to the applicant as the same is on the disease schizophrenia, a medical disorder. In the present case, just because the victim had earlier lodged a complaint against some persons, it cannot be said that the she suffers from the said disease in absence of any medical evidence to support the same.
Here, there are statements of the victim alleging sexual intercourse by the applicant who was in a dominant capacity. Since, she approached him for lodging the complaint, it would be a travesty of justice to put a complete stop on the criminal proceedings. It is a matter of trial to decipher from the evidence on record, whether she was being blackmailed or was having consensual sexual intercourse or there was no sexual intercourse at all. All these allegations will have to be dealt with by the court at different stages.
At this stage, I do not deem it fit to delve into the sufficiency of evidence to fulfill the requirement of the particular section of the Penal Code. This Court has very limited jurisdiction to consider whether there is sufficient material available to proceed further against the accused, for which the accused is required to be tried or not. This Court is not required to conduct a mini trial at this stage. In my opinion, the applicant will have sufficient opportunity to place his entire case before the trial Court at the time of either framing of charge, since the charge-sheet has already been filed or during the course of the trial. I do not wish to enter into the factual aspect in details or any discussion on them at this stage as the same may precociously affect the case of the applicant. Therefore, I am of the considered opinion that the material available in the charge-sheet does not make out a case to quash the entire proceedings. The applicant is at liberty to raise all these defences available to him in accordance with law at the time of framing of charge or at the time of trial, as the case may be.
In view of the above, no case is made out to exercise the inherent powers of this Court to quash the FIR. Hence, the criminal application stands rejected.
It is made clear that any observations made here and above would not, in any manner, constitute as observations or views with regard to the merits of the case or the defence of the applicant.
With this, the application stands disposed of.
At this stage, learned counsel for the applicant submits that the applicant is behind the bars and requested for speedy trial. Hence, the Trial Court may try to dispose of the matter as early as possible, since the applicant is in custody.