Miss Xyz v. State of Gujarat & Anr
R. SUBHASH REDDY,J.
1. Leave granted.
2. This appeal is filed by the 2 nd 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 registered on
the file of Mahila Police Station, Ahmedabad City, District Ahmedabad.
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 2 nd
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 2 nd
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 2 nd respondent started visiting her residence and when she was
in sleep, the 2 nd 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 wa s alone,
and was blackmailing to make viral her pictures and to te rminate her
employment. As the financial condition of the appellant was not stable,
she did not disclose this to anyone. In December, 2014 the 2 nd respondent
took the appellant to Baroda for some work, by threatening to publish
her nude pictures, committed rape on her. Even after coming ba ck to
Ahmedabad, the 2 nd 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 Ahmedaba d and
used to commit rape on her under the threat of termination of employment
and publication of her pictures. The 2 nd respondent rented an apartment
at Adani Pratham in August, 2015. When the appellant was residing in
the said apartment,the 2 nd respondent used to come to the said apartment
MISS XYZ v. STATE OF GUJARAT & ANR
and was demanding sexual favours. As she was fed up with the
exploitation by the 2 nd respondent, she vacated the rental premises in
June, 2016. In view of serious threat by the 2 nd respondent to her life,
she left for Jodhpur and her marriage was fixed with one Mr.Shouki n
Malik who is the resident of Badi Sadri, Rajasthan in the m onth of
December, 2016. The 2 nd respondent having come to know about the
marriage of the appellant with 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 2 nd respondent, the 2 nd
respondent sent a cover to the residence of Shoukin Malik contain ing
her nude/inappropriate pictures.
5. In view of such allegations as referred above made i n 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 2 nd respondent
has filed R/Special Criminal Application No.9897 of 2017 befo re the
High Court of Gujarat seeking quashing of FIR itself and als o further
consequential steps taken pursuant to the registration of crime.
7. Primarily, it was the case of the 2 nd 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 betw een 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 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 2 nd respondent has
allegedly paid a huge amount to the appellant. It is furthe r the case of
the 2 nd 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 2 nd
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 2 nd 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
1103
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 .1and
further the allegations and factsas mentioned in the FIR, appe ar to be
improbable and the same is malicious prosecution, q uashed the
proceedings registered against the 2 nd respondent.
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 2 nd 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 2 nd respondent, the High Court should not
have exercised power under Section 482 of the CrPC to scuttl e 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 2 nd respondent, and it is not entered
into by the appellant with her free will and consent. It is stated that the
2nd respondent misused the photographs taken by him, and repeatedl y
used the same to blackmail her, to secure sexual favours from the
appellant. It is contended that the 2 nd respondent taking advantage of his
position as a Managing Director of the Company, has expl oited the
appellant and committed rape on her at her residence and in the apartment
secured by the 2 nd 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 Hi gh 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 2 nd
respondent, and it was only consensual sex between the parties. It is
1 AIR 1992 SC 604
MISS XYZ v. STATE OF GUJARAT & ANR
[R. SUBHASH REDDY,J.]
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 i n consensual sex for
several years and in absence of any allegation against the 2 nd respondent
of committing rape subsequent to the agreement, there is no b asis for
such allegations. It is also submitted that there is no truth in the allegation
made by the 2 nd respondent about his telephone talk with Shoukin Malik,
to defame the appellant. It is contended that having received huge money
from the 2 nd respondent pursuant to the settlement arrived at, false
complaint is filed by the appellant to harass the 2 nd respondent. Learned
senior counsel also relied on the recent judgment of this Court dated 21 st
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 clicking inappropriate pictures of the appellant has blackmailed her or
not, and further the 2 nd 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 v iew 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/se ttlement
arrived at, between the parties, and recorded a finding that the physical
relationship of the appellant with the 2 nd 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 2 nd
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respondent by calling Shoukin Malik and further interference is also a
matter for investigation. By looking at the contents of the complaint and
the serious allegations made against the 2 nd 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 the order
passed by the High Court and allow the investigating agency to proceed
with the further investigation in accordance with law. It is m ade 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 13 th December, 2018 passed in R/Special
Criminal Application No.9897 of 2017 by the High Court of Gujarat is
set-aside. The 2 nd 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.
Divya Pandey Appeal allowed.
MISS XYZ v. STATE OF GUJARAT & ANR
[R. SUBHASH REDDY,J.]