Code of Criminal Procedure, 1973 – s.482 – Appellantinformant was the Personal Assistant of the 2 nd respondentManaging Director of the Company – In her complaint she alleged that when she was not well, the 2nd respondent started visiting her residence and when she was in sleep, he took inappropriate pictures of her and committed rape on her under the threat of termination of employment and publication of her pictures – It was further alleged that the 2nd respondent on coming to know that appellant’s marriage was fixed, contacted the person with whom her marriage was fixed and informed him that the appellant is not of good character and she had physical relationship with him and other boys – 2 nd respondent also allegedly sent him the nude/inappropriate pictures of the appellant – Case registered against the 2nd respondent for the alleged offence u/ss.376, 499 and 506(2), IPC – High Court quashed the proceedings against the 2nd respondent – On appeal, held: High Court exceeded the scope of its jurisdiction u/s.482 CrPC – 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, whether the 2 nd 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 the person with whom appellant’s marriage was fixed or not are the matters for investigation – In view of the serious allegations made in the complaint, the High Court should not have made roving inquiry while considering the application filed u/s.482, CrPC – High Court got carried away by the agreement/settlement arrived at between the parties, and recorded finding that the physical relationship of the appellant with the 2nd 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 – Impugned order set aside – 2nd respondent to co-operate with the investigation – Till then no coercive action be taken against him – Penal Code, 1860 – ss.376, 499 & 506(2) – Evidence Act, 1872 – s.114-A.
Evidence Act, 1872 – s.114-A – Absence of consent in certain prosecution for rape – Presumption of – Held: 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 that she did not consent, the court shall presume that she did not consent.
Allowing the appeal, the Court
HELD: 1. 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 ‘SM’ or not are the matters for investigation. In view of the serious allegations made in the complaint, the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. The High Court got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd 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 2nd respondent by calling ‘SM’ and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2nd respondent, the High Court committed error in quashing the proceedings. 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. 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, 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. No opinion expressed on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law. The impugned order by the High Court is set-aside. The 2nd 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. [Paras 13-15][1104-D-H; 1105-A-F]
State of Haryana v. Bhajanlal & Ors. AIR 1992 SC
604 : [1990] 3 Suppl. SCR 259; Pramod Suryabhan Pawar v. The State of Maharashtra & Anr. 2019 AIR 4010 – referred to.
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