Code of Criminal Procedure, 1973: s.482 – Exercise of power, scope – Discussed.
Code of Criminal Procedure, 1973: s.482 – Quashing of proceedings – FIR was registered against the appellant and the coaccused under ss.376(2)(b), 420 r/w s.34, IPC and under s.3(1)(x) of the SC/ST Act – Appellant-acussed no.1 was a government doctor while complainant was nurse in the same establishment – Case of complainant was that she had fallen in love with the appellant and that she needed a companion as she was a widow – They were living together, sometimes at her house and sometimes at the residence of the appellant – They were in a relationship with each other for quite some time and enjoyed each other’s company and appellant had promised that he would marry her – However, when she came to know that the appellant had married another woman, she lodged an FIR – Appellant filed petition for quashing the FIR – High Court dismissed the petition – On appeal, held: It was not the case of complainant that the appellant had forcibly raped her – The acknowledged consensual physical relationship between the parties would not constitute an offence under s.376, IPC – There was a tacit consent on part of complainant and the tacit consent given by her was not the result of a misconception created in her mind – Even if the allegations made in the complaint were taken at their face value and accepted in their entirety, they would not make out a case against the appellant – Further, the FIR nowhere spelt out any wrong committed by the appellant under s.420, IPC or under s.3(1)(x) of the SC/ST Act – Therefore, the High Court was not justified in rejecting the petition filed by the appellant under s.482 of the Cr.P.C. – FIR quashed – Penal Code, 1860 – ss. 376(2)(b),
420 r/w s.34 – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.3(1)(x).
Allowing the appeal, the Court
HELD: 1. It is well settled that exercise of powers under Section 482 of the Cr.P.C. is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions “abuse of process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise. [Para 8][926-B-C]
State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259 ; Rajesh Bajaj v. State NCT of Delhi & Ors. (1999) 3 SCC 259 : [1999] 1 SCR 1012 ; State of Karnataka v.
M. Devendrappa and Anr. (2002) 3 SCC 89 : [2002] 1 SCR 275 ; Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017) 13 SCC 369 : [2017] 6
SCR 922 – relied on.
2. For quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers. [Para 12][928-G
3. Section 376(2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. Section
375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression ‘against her will’ means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. Section 90 of the IPC though does not define “consent”, but describes what is not “consent”. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. [Paras 13, 14, 15][928-H; 929-A, D-E; 930-A-B] Uday v. State of Karnataka (2003) 4 SCC 46 : [2003]
2 SCR 231 ; Deelip Singh alias Dilip Kumar v. State of Bihar (2005) 1 SCC 88 : [2004] 5 Suppl. SCR 909 ; Deepak Gulati v. State of Haryana (2013) 7 SCC 675 : [2013] 6 SCR 544 – relied on
4. There is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the accused had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC. [Para 20][933-G-H; 934-A-C]
5. In the instant case, the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that she is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month’s time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. They were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other’s company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. Even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. Also, since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C. [Paras 21, 22] [934-D-H; 935-A-B]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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