Manipur High Court
Shri Assurance Raikhan vs The Officer-In-Charge on 27 December, 2024
Digitally signed by
KHOIROM KHOIROM
BIPINCHAND BIPINCHANDRA SINGH IN THE HIGH COURT OF MANIPUR
RA SINGH
Date: 2024.12.30
13:39:55 +05'30'
AT IMPHAL
CRIL. PETN. No. 24 of 2022
Shri Assurance Raikhan, aged about 56 years, S/o R.N.
Joy, a resident of DDK, Imphal Quarter No. D1, P.O. &
P.S. Porompat, Imphal East District, Manipur.
.... Petitioner
- Versus -
1. The Officer-in-Charge, WPS-UKL, Ukhrul District,
Manipur.
2. Panchunwon Kashak, aged about 28 years, W/o
Yaruihor Hungyo, a resident of Nagaram Block D,
Stadium Road, P.O. Lamlong, P.S. Heingang, Imphal
East District, Manipur.
.... Respondents
BEFORE
HON’BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU
For the petitioner : Mr. L. Sevananda, Advocate
For the respondents : Mr. Samarjit Hawaibam, Sr. Advocate
Ms. H. Bisheshwari, Advocate
Date of hearing : 08.11.2024
Date of judgment &
order : 27.12.2024
Cril. Petn. No. 24 of 2022 Page 1
JUDGEMENT &ORDER
(CAV)
[1] Heard Mr. L. Sevananda, learned counsel appearing for
the petitioner, Mr. Samarjit Hawaibam, learned senior counsel
appearing for the State and Ms. H. Bisheshwari, learned counsel
appearing for the respondent No. 2.
[2] Brief facts of the present case are that the private
respondent (respondent No. 2) made OE/written report on 12.07.2019
to the Officer-in-Charge, Women Police Station, Ukhrul alleging that the
present petitioner raped her on 28.10.2017 in Ngashan Inn (Lodge)
located at Hamleikhong, Ukhrul Head Quarter during a trip of film
shooting wherein, the private respondent acted as leading female role
and the petitioner was the producer and director of the film. On the day
of committing the incident, the petitioner booked rooms at one, Tip Top
Hotel located near Viewland Baptist Church for all crew members except
the private respondent and the cameraman at Ngashan Inn.
The written report/OE reveals that despite resistances, the
petitioner raped her by force. However, no one came to rescue her
even though other people stayed in other room where she heard their
noises. She further alleged that the petitioner had been committing
such acts of rape since the year 2012 when she started to work with
the petitioner; at the time she was 18 years old.
Cril. Petn. No. 24 of 2022 Page 2 [3] On the basis of the written report, the officer-in-charge,
/respondent No. 1 registered an FIR against the petitioner being FIR
No. 1(7) 19 WPS/UKL U/s 376/506 IPC dated 12.07.2019 and he was
arrested by the Investigating Officer (I.O.) of the case. After producing
the petitioner before the Ld. Chief Judicial Magistrate, Ukhrul on
19.07.2019 for further remand, he moved a bail application being CRIL.
(B) No. 9 of 2019 objecting the remand prayer of the I.O. of the case
and the Ld. CJM, Ukhrul allowed the petitioner and enlarged on bail on
19.07.2019(Annexure – A/3). Operative portion of the said order is
extracted herein below:
“Heard the submission of the I.O. and counsel
appearing for the accused person. Perused the case diary and
the materials placed before the court including statement of the
complainant, accused person and the cameraman recorded by
the IO, and also the medical report of the complainant and the
accused person as well. Nothing much could be revealed by the
medical examination of the accused person and the
complainant since the alleged offence of rape of the
complainant is stated to have occurred between the year 2012
to 2017, and no wearing, apparel clothing of the victim could
also be seized. So far the investigation did not reveal or unearth
any material witness evidence who has knowledge about the
rape incident alleged by the complainant, including the
cameraman who accompanied the complainant and accused
person on their shooting trips during the years 2012-2017. An
audio recording of phone conversation between the
complainant and cameraman and accused person has been
provided by the complainant, authenticity of which is also
required to be verified. Considering all the above facts and
circumstances, and also considering the medical condition of
accused person and the fact that he is an employee in DDK
Imphal, there does not appear any likelihood of the accused
person absconding, hence, accused person is allowed to go on
bail on his furnishing a bail and surety bond for an amount of
Rs. 5,000/- (fifty thousand) each to the satisfaction of the
court. In addition, the accused person shall abide by the
following:
Cril. Petn. No. 24 of 2022 Page 3
1. The accused person shall not leave the state of Manipur
without the prior permission of the court.
2. The accused person, himself his family or through friends
and acquaintances shall not contact the complainant, or
any material witness, and or intimidate or threaten them
or try to temper or hamper investigation in any manner.”
[4] The petitioner raised the following points for consideration
in terms of both law and facts in the present case:
(a) Whether the allegations made in the written report
or complaint, even if taken at their face value and
accepted in their entirety does prima facie constitute any
offence of rape and criminal intimidation against the
petitioner.
(b) Whether the contents of the written report/OE as
to no person staying at other room of Ngashan Inn (place
of occurrence) on 28.10.2017 came to the rescue of the
private respondent when raised an alarm of protest
against the petitioner while raping her could justify the
allegations of rape.
(c) Whether allegations alleged in the written
report/OE and the evidence collected in support of the
offences charged against the petitioner make out a case
of the alleged offences.
(d) Whether the allegations of the private respondent
and the charges leveled against the Petitioner is
maliciously instituted with an ulterior motive of vengeance
Cril. Petn. No. 24 of 2022 Page 4
and with a view to spite petitioner due to private andpersonal grudge.
(e) Whether the failure to lodge the report
spontaneously by the private respondent in the year 2012
when the first incident of rape occurred as alleged in the
written report/OE indicates consensual sexual intercourse.
(f) Whether continuing sexual intercourse subsequent
to the first sexual encounter of the Private respondent
with the petitioner till 2017 appear to have been act of
mutual consent and not of forcible sex without consent
and against her will.
(g) Whether the lodging of the written report/OE by
the private respondent only in the year 2019 and that of
accruing much delay indicate an afterthought and
instigated report.
[5] The learned counsel appearing for the petitioner submits
that at the time of recording of the statement of the private respondent
by the I.O. of the case, no leading evidence to prima facie incriminate
the petitioner with the charged sections in the FIR could be adduced
and as such, the petitioner needs to be absolved from the offences. On
the facts and circumstances aforementioned, the investigation was
proceeded on the following grounds:
Cril. Petn. No. 24 of 2022 Page 5
(a) The OE/written report of the private respondent
prima facie disclosed contradictory state of facts and the
same is a vague and appear to be a spiteful and vengeful
report for the best reason known to the Private
respondent;
(b) The negative language of Article 21 of the
constitution and the use of the word “deprive” is not only
imposed upon the Respondent No.1 but also the negative
duty not to interfere with the life or liberty of an individual
without the sanction of law but also imposed a positive
obligation upon the State to take steps for ensuring to the
individual a better enjoyment of his life and dignity.
(c) The bail order of the Ld. Chief Judicial Magistrate,
Ukhrul granted in favour of the petitioner show that
nothing much could be revealed by the medical
examination of the accused and the complainant since the
alleged offence of rape of the complainant is stated to
have occurred from 2012 to 2017.
(d) No wearing apparel/ clothing of the victim could be
seized and as such so far the investigation did not reveal or
unearth any material witness evidence who has the
knowledge about the rape incident alleged by
the Complainant, including the cameraman who
Cril. Petn. No. 24 of 2022 Page 6
accompanied the complainant and accused person on their
shooting trips during the years 2012-2017.
(e) The charges leveled against the petitioner holds no
ground inasmuch as the very reporting of the case by the
private respondent to the respondent No.1 was done after
a lapse of 7 years corresponding to the first alleged
incident of rape which occurred in the year 2012 and
secondly after a lapse of 3 years corresponding to last
episode of rape being in the year of 2017.
(f) The petitioner is the most probable outcome is
likely to be absolved from the present criminal case
necessitating the quashing of the FIR case registered
against them for want of prima facie evidence for
prosecution.
[6] In view of the above facts and circumstances, the present
petition has been filed under Section 482 of Cr.P.C., 1973 on behalf of
Shri Assurance Raikhan with the following prayer:
“(i) To admit this petition and issue Rule Nisi;
(ii) To pass an order therein to quash/set aside the FIR
case under FIR No. 1(7) 2019 WPS/UKL U/s
376/506 IPC registered against the petitioner as the
same is embedded with spiteful and personal
Cril. Petn. No. 24 of 2022 Page 7
vengeance which is quite apparent on the face ofthe OE/Written report;
(iii) To pass any other/further order/writ/directions,
which the Hon’ble Court may deem fit and proper in
the facts and circumstances of the case.
In the Interim
To issue a direction thereby to stay the proceedings
of investigation as no material evidence and any
other substantiating witnesses could be led or
examined since the initiation of investigation in the
year 2019 and hence failure to charge-sheet the
petitioner.”
[7] Mr. Samarjit Hawaibam, learned senior counsel appearing
for the officer-in-charge/respondent No. 1 submits that he has filed
affidavit-in-opposition wherein it has been mentioned that the petitioner
raped the private respondent in the hotel room of Ngashan Inn by force
pretending to be dropped at her parental home at Harkui Kathe Tang,
Ukhrul. She was continually molested, raped and threatened to
murder by the petitioner since the year 2012 when she began to
work with him and as such, she could not make a formal complaint
to any authority out of fear and shame and was waiting for a
moment to reveal her nightmarish story to someone who can help
her to find justice. Therefore, the FIR was registered and investigated
into.
Cril. Petn. No. 24 of 2022 Page 8
The process for authentication of the audio recording of
phone conversation between the complainant/victim and the
cameraman and petitioner/accused from the recognized center
outside the State is underway. Once the audio proof is received,
the supplementary charge sheet will be filed.
[8] After committing the incident of first rape of her, the
petitioner took extra care of her and also threatened her not to report
to anyone. Her medical examination report showed the sign of
defloration of vagina. The voice recorded conversation of the petitioner
and the victim produced by the victim herself supports the allegation of
rape.
[9] During the investigation, the strong evidences found in
support of the victim’s statement of allegation against the petitioner are
as follows:
(i) Medical examination report is indicative of
defloration in the vagina of the victim.
(ii) Two cameramen, who accompanied the petitioner
and the victim on various trips to hill districts,
witnessed that the petitioner used to enter the hotel
room of the victim on many occasions. There was
also an instance of attempting her to be raped in
the month of February, 2018 at the same hotel.
Cril. Petn. No. 24 of 2022 Page 9
(iii) In the month of February, 2018, younger brother of
the victim staying with her in the same room of
Ngashan Inn witnessed the petitioner trying to rape
her sister in his presence.
[10] Moreover, non-reporting of the incident immediately after
the first incident of rape was due to fear and criminal intimation by the
petitioner against the victim. Under such circumstances, the victim
needs to muster courage to report the matter to the law enforcement
department or any other trusted person. Therefore, the respondent No.
1 denied that no evidence to prima facie in criminal the petitioner
caused adduced. On the basis of the findings of the I.O. of the case,
the charge sheet has been filed against the petitioner for trial
proceeding.
[11] Further, the learned senior counsel appearing for the
respondent No. 1 submits that non-reporting of the matter to the
concerned authority on time is no reason enough to dismiss the
allegation. It only leads to loss of time and evidence to gather for
proving the case for the victim. The I.O. of the case gathered enough
evidences to file charge sheet for trial proceeding in the Court of law.
[12] Ms. H. Bisheshwori, learned counsel appearing for the
respondent No. 2 submits that she has filed affidavit-in-opposition
wherein it has been mentioned that the entire FIR does not constitute
any prima facie of rape and criminal intimidation against the petitioner
Cril. Petn. No. 24 of 2022 Page 10
are all baseless. The charge sheet has already been submitted by the
OC, WPS/UKL, and as such, the case could be decided only after
conclusion of sessions trial. Since the case at hand is premature, the
same is liable to be dismissed on devoid of merit.
[13] Mr. L. Sevananda, learned counsel appearing for the
petitioner submits that he has also filed rejoinder affidavit denying the
averments made by the respondents No. 1 & 2. Since the sexual
encounter between the petitioner and the respondent No. 2 was
consensual, she did not made any formal complaint to the authority i.e.
from the first incident of rape happened in the year 2012 till the last
alleged event of rape on 28.10.2017. She made a police report with
allegation of rape against the petitioner on 12.07.2019 after a gap of 2
years, 3 months and 16 days that the said report has been made with
an afterthought and therefore, the same shows the absurdity and
inherent improbability of being raped by the petitioner except a
maligning allegation against the repute and good image of the
petitioner.
[14] As regards the phone conversation between the petitioner
and the victim, the said phone call has been subjectively with malafide
intention being made by her in order to construct evidence to framer
the petitioner in a false case of rape and the said conversation cannot
be adduced against the petitioner to implicate him in the said FIR case
by virtue of being barred by Article 20(3) of the Constitution of India.
Cril. Petn. No. 24 of 2022 Page 11 [15] The petitioner denied the allegation that the petitioner
tried to rape the respondent No. 2 in presence of her younger brother.
It is also denied the allegation that non-reporting of the incident to the
concerned authority is due to fear and criminal intimidation and also of
the fear of being ostracized by the society and losing of honor and
dignity of the victim and her family members. The averments made in
the charge sheet are vague and improper as no mention of the charge
sheet number is cited along with its date of submission and further no
notice of summons is issued so far to the petitioner to stand the trial
from the concerned Trial Court.
[16] Mr. Samarjit Hawaibam, learned senior counsel appearing
for the respondent No. 1 replied on the following decisions of the
Hon’ble Supreme Court:
Satyapal -vs- State of Haryana reported in (2009) 6
SCC 635 :”
“21. This Court can take judicial notice of the fact that
ordinarily the family of the victim would not intend to get a
stigma attached to the victim. Delay in lodging the first
information report in a case of this nature is a normal
phenomenon. Both the courts below apart from relying on a
part of the testimony of the prosecutrix found the evidence of
PW 5 to be absolutely reliable. The medical evidence itself being
a part of the evidence is required to be appreciated in the
context of ocular evidence and other circumstances surrounding
thereto. There was some time gap between the occurrence and
the examination of the witnesses. Some lapses of memory on
the part of the child witness, therefore, is possible.”
State of Punjab -vs- Gurmit Singh &Anr. reported in
(1996) 2 SCC 384 :
“8. …………………………………………………………………….
………………………………………………………………………………. In our
opinion, there was no delay in the lodging of the FIR either andCril. Petn. No. 24 of 2022 Page 12
if at all there was some delay, the same has not only been
properly explained by the prosecution but in the facts and
circumstances of the case was also natural. The courts cannot
overlook the fact that in sexual offences delay in the lodging of
the FIR can be due to variety of reasons particularly the
reluctance of the prosecutrix or her family members to go to
the police and complain about the incident which concerns the
reputation of the prosecutrix and the honour of her family. It is
only after giving it a cool though that a complaint of sexual
offence is generally lodged.”
Karnel Singh -vs- State of M.P. reported in (1995) 5
SCC 518 :
“7. …………………………………………………………………….
…………………………………………………………………………….. In India
women are slow and hesitant to complain of such assaults and
if the prosecutrix happens to be a married person she will not
do anything without informing her husband. Merely because the
complaint was lodged less than promptly does not raise the
inference that the complaint was false. The reluctance to go to
the police is because of her rather than comfort and sympathise
with her. Therefore, delay in lodging complaints in such cases
does not necessarily indicate that her version is false.”
State of Himachal Pradesh -vs- Prem Singh reported
in (2009) 1 SCC 420 :
“6. So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equated with the
case involving other offences. There are several factors which
weigh in the mind of the prosecutrix and her family members
before coming to the police station to lodge a complaint. In a
tradition-bound society prevalent in India, more particularly
rural areas, it would be quite unsafe to throw out the
prosecution case merely on the ground that there is some delay
in lodging the FIR. In that score, learned counsel for the
appellant is right that the High Court has lost sight of this vital
distinction.”
Neeharika Infrastructure Private Limited -vs- State
of Maharashtra &Ors. reported in (2021) 19 SCC 401:
“10.1. The first case on the point which is required to be
noticed is the decision of this Court in R.P. Kapur. While dealing
with the inherent powers of the High Court under Section 561-A
of the earlier Code (which is in parimateria with Section 482 of
the Code), it is observed and held that the inherent powers of
the High Court under Section 561 of the earlier Code cannot be
exercised in regard to the matters specifically covered by theCril. Petn. No. 24 of 2022 Page 13
other provisions of the Code; the inherent jurisdiction of the
High Court can be exercised to quash proceedings in a proper
case either to prevent the abuse of the process of any court or
otherwise to secure the ends of justice; ordinarily criminal
proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an
interlocutory stage. After observing this, thereafter this Court
then carved out some exceptions to the abovestated rule, which
are as under: (AIR p. 866)“(i) Where it manifestly appears that there is a legal bar
against the institution or continuance of the criminal
proceeding in respect of the offence alleged. Absence of
the requisite sanction may, for instance, furnish cases
under this category.
(ii) Where the allegations in the first information report
or the complaint, even if they are taken at their face
value and accepted in their entirety, do not constitute
the offence alleged; in such cases no question of
appreciating evidence arises; it is a matter merely of
looking at the complaint or the first information report to
decide whether the offence alleged is disclosed or not.
(iii) Where the allegations made against the accused
person do constitute an offence alleged but there is
either no legal evidence adduced in support of the case
or the evidence adduced clearly or manifestly fails to
prove the charge. In dealing with this class of cases it is
important to bear in mind the distinction between a case
where there is no legal evidence or where there is
evidence which is manifestly and clearly inconsistent
with the accusation made and cases where there is legal
evidence which on its appreciation may or may not
support the accusation in question. In exercising its
jurisdiction under Section 561-A the High Court would
not embark upon an enquiry as to whether the evidence
in question is reliable or not. That is the function of the
trial Magistrate, and ordinarily it would not be open to
any party to invoke the High Court’s inherent jurisdiction
and contend that on a reasonable appreciation of the
evidence the accusation made against the accused
would not be sustained.” (emphasis supplied)10.2. In Kurukshetra University, this Court observed and held
that inherent powers under Section 482 CrPC do not confer an
arbitrary jurisdiction on the High Court to act according to whim
or caprice; that statutory power has to be exercised sparingly
with circumspection and in the rarest of rare cases. In the case
before this Court, the High Court quashed the first informationCril. Petn. No. 24 of 2022 Page 14
report filed by the Kurukshetra University through Warden and
that too without issuing notice to the University, in exercise of
inherent powers under Section 482 CrPC. This Court noticed
and observed that the High Court was not justified in quashing
the FIR when the police had not even commenced investigation
into b the complaint filed by the Warden of the University and
no proceedings were at all pending before any Court in
pursuance of the FIR.
10.3. Then comes the celebrated decision of this Court in
Bhajan Lal12. In the said decision, this Court considered in
detail the scope of the High Court powers under Section 482
CrPC and/or Article 226 of the Constitution of India to quash the
FIR and referred to several judicial precedents and held that the
High Court should not embark upon an inquiry into the merits
and demerits of the allegations and quash the proceedings
without allowing the investigating agency to complete its task.
At the same time, this Court identified the following cases in
which FIR/complaint can be quashed:
“102. (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 FIR 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 f 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 9 against the accused.
Cril. Petn. No. 24 of 2022 Page 15
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the Act concerned
(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
Act concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fides and/or where the proceeding is 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.”
Conclusions
33. In view of the above and for the reasons stated above,
our final conclusions on the principal/core issue, whether the
High Court would be justified in passing an interim order of stay
of investigation and/or “no coercive steps to be adopted”,
during the pendency of the quashing petition under Section 482
CrPC and/or under Article 226 of the Constitution of India and
in g what circumstances and whether the High Court would be
justified in passing the order of not to arrest the accused or “no
coercive steps to be adopted” during the investigation or till the
final report/charge-sheet is filed under Section 173 CrPC, while
dismissing/disposing of/not entertaining/not quashing the
criminal proceedings/complaint/FIR in exercise of powers under
Section 482 CrPC and/ or under Article 226 of the Constitution
of India, our final conclusions are as under:
33.1. Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure contained
in Chapter XIV of the Code to investigate into a cognizable
offence.
33.2. Courts would not thwart any investigation into the
cognizable offences.
33.3. It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first information report
that the Court will not permit an investigation to go on.
33.4. The power of quashing should be exercised sparingly with
circumspection, as it has been observed, in the “rarest of rare
cases” (not to be confused with the formation in the context of
death penalty).
33.5. While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to theCril. Petn. No. 24 of 2022 Page 16
reliability or genuineness or otherwise of the allegations made
in the FIR/complaint.
33.6. Criminal proceedings ought not to be scuttled at the initial
stage.
33.7. Quashing of a complaint/FIR should be an exception
rather than an ordinary rule.
33.8. Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities and one ought not
to tread over the other sphere.
33.9. The functions of the judiciary and the police are
complementary not overlapping.
33.10. Save in exceptional cases where non-interference would
result in miscarriage of justice, the Court and the judicial
process should not interfere f at the stage of investigation of
offences.
33.11. Extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act according to
its own whims or caprice.
33.12. The first information report is not an encyclopedia which
must disclose all facts and details relating to the offence
reported. Therefore, when the investigation by the police is in
progress, the court should not go into the merits of the
allegations in the FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR does not
deserve to be investigated or that it amounts to abuse of
process of law. After investigation, if the investigating officer
finds that there is no substance in the application made h by
the complainant, the investigating officer may file an
appropriate report summary before the learned Magistrate
which may be considered by the learned Magistrate in
accordance with the known procedure.
33.13. The power under Section 482 CrPC is very wide, but
conferment of wide power requires the court to be more
cautious. It casts an onerous and more diligent duty on the
court.
33.14. However, at the same time, the court, if it thinks fit,
regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters laid
down by this Court in R.P. Kapur and Bhajan Lal, has the
jurisdiction to quash the FIR/complaint.
Cril. Petn. No. 24 of 2022 Page 17
33.15. When a prayer for quashing the FIR is made by the
alleged accused and the court when it exercises the power
under Section 482 CrPC, only has to consider whether the
allegations in the FIR disclose commission of a cognizable
offence or not. The court is not required to consider on merits
whether or not the merits of the allegations make out a
cognizable offence and the court has to permit the investigating
agency/police to investigate the allegations in the FIR.
33.16. The aforesaid parameters would be applicable and/or the
aforesaid aspects are required to be considered by the High
Court while passing an interim order in a quashing petition in
exercise of powers under Section 482 CrPC and/or under Article
226 of the Constitution of India. However, an interim order of
stay of investigation during the pendency of the quashing
petition can be passed with circumspection. Such an interim
order should not require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in progress
and the facts are hazy and the entire evidence/ material is not
before the High Court, the High Court should restrain itself from
passing the interim order of not to arrest or “no coercive steps
to be adopted” and the accused should be relegated to apply
for anticipatory bail under Section 438 CrPC before the
competent court. The High Court shall not and as such is not
justified in passing the order of not to arrest and/or “no
coercive steps” either during the investigation or till the
investigation is completed and/or till the final report/charge-
sheet is filed under Section 173 f CrPC, while
dismissing/disposing of the quashing petition under Section 482
CrPC and/or under Article 226 of the Constitution of India.
33.17. Even in a case where the High Court is prima facie of the
opinion that an exceptional case is made out for grant of
interim stay of further investigation, after considering the broad
parameters while exercising the powers under Section 482 CrPC
and/or under Article 226 of the Constitution of India referred 9
to hereinabove, the High Court has to give brief reasons why
such an interim order is warranted and/or is required to be
passed so that it can demonstrate the application of mind by
the Court and the higher forum can consider what was weighed
with the High Court while passing such an interim order.
33.18. Whenever an interim order is passed by the High Court
of “no coercive steps to be adopted” within the aforesaid
parameters, the High Court must clarify what does it mean by
“no coercive steps to be adopted” as the term “no coercive
steps to be adopted” can be said to be too vague and/or broad
which can be misunderstood and/or misapplied.”
Cril. Petn. No. 24 of 2022 Page 18
[17] Admitted positions of facts are that;
i) Both the petitioner and respondent No. 2 have
known each other since many years and work
together for the filming of Tangkhul films wherein
the petitioner was the producer and director of the
film and respondent No. 2(private respondent) was
acting as leading female role in the film.
ii) As per the allegation made in the FIR the petitioner
committed the first rape to the respondent no. 2
since the year 2012 when the respondent was 18
years old and alleged offence was continuing till the
last rape committed 28.10.2017. Thereafter, the
respondent no. 2 lodged FIR on 12.07.2019.
iii) The accused was arrested and subsequently an
application for bail was failed and released on bail
by the learned CJM, Ukhrul on 19.07.2019.
[18] The learned counsel for the petitioner submitted that in
the bail order of the learned CJM, Ukhrul while passing the order
observed that nothing much could be revealed by the medical
examination of the victim.
There are series of Hon’ble Supreme Court’s observation
regarding the observation made by the Courts’ in passing bail order that
that observation made in the bail order shouldn’t come in to the way of
Cril. Petn. No. 24 of 2022 Page 19
trial of the case which is to be taken place in the later stage of trial. As
such the ground taken herein by the learned counsel for the petitioner
cannot be accepted.
[19] The learned counsel for the petitioner further submits that
the complaint made by respondent No. 2 against the petitioner holds no
good ground inasmuch as the reporting of the case by the private
respondent against the petitioner was done after a lapse of 7 years
corresponding to the first alleged incident which occurred in the year
2012 as such the most probable outcome to be absolved from the
criminal case as such request for quashing the FIR.
In this regard, this Court relied upon the observations of
the Hon’ble Supreme Court’s judgments and observations made therein
are reproduced herein below:
Satyapal -vs- State of Haryana reported in (2009) 6
SCC 635 :”
“21. This Court can take judicial notice of the fact that
ordinarily the family of the victim would not intend to get a
stigma attached to the victim. Delay in lodging the first
information report in a case of this nature is a normal
phenomenon. Both the courts below apart from relying on a
part of the testimony of the prosecutrix found the evidence of
PW 5 to be absolutely reliable. The medical evidence itself being
a part of the evidence is required to be appreciated in the
context of ocular evidence and other circumstances surrounding
thereto. There was some time gap between the occurrence and
the examination of the witnesses. Some lapses of memory on
the part of the child witness, therefore, is possible.”
State of Punjab -vs- Gurmit Singh &Anr. reported in
(1996) 2 SCC 384 :
“8. …………………………………………………………………….
………………………………………………………………………………. In our
opinion, there was no delay in the lodging of the FIR either andCril. Petn. No. 24 of 2022 Page 20
if at all there was some delay, the same has not only been
properly explained by the prosecution but in the facts and
circumstances of the case was also natural. The courts cannot
overlook the fact that in sexual offences delay in the lodging of
the FIR can be due to variety of reasons particularly the
reluctance of the prosecutrix or her family members to go to
the police and complain about the incident which concerns the
reputation of the prosecutrix and the honour of her family. It is
only after giving it a cool though that a complaint of sexual
offence is generally lodged.”
Karnel Singh -vs- State of M.P. reported in (1995) 5
SCC 518 :
“7. …………………………………………………………………….
…………………………………………………………………………….. In India
women are slow and hesitant to complain of such assaults and
if the prosecutrix happens to be a married person she will not
do anything without informing her husband. Merely because the
complaint was lodged less than promptly does not raise the
inference that the complaint was false. The reluctance to go to
the police is because of her rather than comfort and sympathise
with her. Therefore, delay in lodging complaints in such cases
does not necessarily indicate that her version is false.”
State of Himachal Pradesh -vs- Prem Singh reported
in (2009) 1 SCC 420 :
“6. So far as the delay in lodging the FIR is concerned, the
delay in a case of sexual assault, cannot be equated with the
case involving other offences. There are several factors which
weigh in the mind of the prosecutrix and her family members
before coming to the police station to lodge a complaint. In a
tradition-bound society prevalent in India, more particularly
rural areas, it would be quite unsafe to throw out the
prosecution case merely on the ground that there is some delay
in lodging the FIR. In that score, learned counsel for the
appellant is right that the High Court has lost sight of this vital
distinction.”
Neeharika Infrastructure Private Limited -vs- State
of Maharashtra &Ors. reported in (2021) 19 SCC 401:
“10.1. The first case on the point which is required to be
noticed is the decision of this Court in R.P. Kapur. While dealing
with the inherent powers of the High Court under Section 561-A
of the earlier Code (which is in parimateria with Section 482 of
the Code), it is observed and held that the inherent powers of
the High Court under Section 561 of the earlier Code cannot be
exercised in regard to the matters specifically covered by theCril. Petn. No. 24 of 2022 Page 21
other provisions of the Code; the inherent jurisdiction of the
High Court can be exercised to quash proceedings in a proper
case either to prevent the abuse of the process of any court or
otherwise to secure the ends of justice; ordinarily criminal
proceedings instituted against an accused person must be tried
under the provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an
interlocutory stage. After observing this, thereafter this Court
then carved out some exceptions to the abovestated rule, which
are as under: (AIR p. 866)“(i) Where it manifestly appears that there is a legal
bar against the institution or continuance of the
criminal proceeding in respect of the offence alleged.
Absence of the requisite sanction may, for instance,
furnish cases under this category.
(ii) Where the allegations in the first information report
or the complaint, even if they are taken at their face
value and accepted in their entirety, do not constitute
the offence alleged; in such cases no question of
appreciating evidence arises; it is a matter merely of
looking at the complaint or the first information report
to decide whether the offence alleged is disclosed or
not.
(iii) Where the allegations made against the accused
person do constitute an offence alleged but there is
either no legal evidence adduced in support of the case
or the evidence adduced clearly or manifestly fails to
prove the charge. In dealing with this class of cases it
is important to bear in mind the distinction between a
case where there is no legal evidence or where there is
evidence which is manifestly and clearly inconsistent
with the accusation made and cases where there is
legal evidence which on its appreciation may or may
not support the accusation in question. In exercising its
jurisdiction under Section 561-A the High Court would
not embark upon an enquiry as to whether the
evidence in question is reliable or not. That is the
function of the trial Magistrate, and ordinarily it would
not be open to any party to invoke the High Court’s
inherent jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made
against the accused would not be sustained.”
(emphasis supplied)
10.2. In Kurukshetra University, this Court observed and held
that inherent powers under Section 482 CrPC do not confer an
arbitrary jurisdiction on the High Court to act according to whim
or caprice; that statutory power has to be exercised sparingly
Cril. Petn. No. 24 of 2022 Page 22
with circumspection and in the rarest of rare cases. In the case
before this Court, the High Court quashed the first information
report filed by the Kurukshetra University through Warden and
that too without issuing notice to the University, in exercise of
inherent powers under Section 482 CrPC. This Court noticed
and observed that the High Court was not justified in quashing
the FIR when the police had not even commenced investigation
into b the complaint filed by the Warden of the University and
no proceedings were at all pending before any Court in
pursuance of the FIR.
10.3. Then comes the celebrated decision of this Court in
Bhajan Lal12. In the said decision, this Court considered in
detail the scope of the High Court powers under Section 482
CrPC and/or Article 226 of the Constitution of India to quash the
FIR and referred to several judicial precedents and held that the
High Court should not embark upon an inquiry into the merits
and demerits of the allegations and quash the proceedings
without allowing the investigating agency to complete its task.
At the same time, this Court identified the following cases in
which FIR/complaint can be quashed:
“102. (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 FIR 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 f 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
9 against the accused.
Cril. Petn. No. 24 of 2022 Page 23
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the Act concerned
(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 Act
concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with mala fides and/or where the proceeding is 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.”
Conclusions
33. In view of the above and for the reasons stated above,
our final conclusions on the principal/core issue, whether the
High Court would be justified in passing an interim order of stay
of investigation and/or “no coercive steps to be adopted”,
during the pendency of the quashing petition under Section 482
CrPC and/or under Article 226 of the Constitution of India and
in g what circumstances and whether the High Court would be
justified in passing the order of not to arrest the accused or “no
coercive steps to be adopted” during the investigation or till the
final report/charge-sheet is filed under Section 173 CrPC, while
dismissing/disposing of/not entertaining/not quashing the
criminal proceedings/complaint/FIR in exercise of powers under
Section 482 CrPC and/ or under Article 226 of the Constitution
of India, our final conclusions are as under:
33.1. Police has the statutory right and duty under the
relevant provisions of the Code of Criminal Procedure contained
in Chapter XIV of the Code to investigate into a cognizable
offence.
33.2. Courts would not thwart any investigation into the
cognizable offences.
33.3. It is only in cases where no cognizable offence or
offence of any kind is disclosed in the first information report
that the Court will not permit an investigation to go on.
33.4. The power of quashing should be exercised sparingly with
circumspection, as it has been observed, in the “rarest of rare
cases” (not to be confused with the formation in the context of
death penalty).
33.5. While examining an FIR/complaint, quashing of which is
sought, the court cannot embark upon an enquiry as to theCril. Petn. No. 24 of 2022 Page 24
reliability or genuineness or otherwise of the allegations made
in the FIR/complaint.
33.6. Criminal proceedings ought not to be scuttled at the initial
stage.
33.7. Quashing of a complaint/FIR should be an exception
rather than an ordinary rule.
33.8. Ordinarily, the courts are barred from usurping the
jurisdiction of the police, since the two organs of the State
operate in two specific spheres of activities and one ought not
to tread over the other sphere.
33.9. The functions of the judiciary and the police are
complementary not overlapping.
33.10. Save in exceptional cases where non-interference would
result in miscarriage of justice, the Court and the judicial
process should not interfere f at the stage of investigation of
offences.
33.11. Extraordinary and inherent powers of the Court do not
confer an arbitrary jurisdiction on the Court to act according to
its own whims or caprice.
33.12. The first information report is not an encyclopedia which
must disclose all facts and details relating to the offence
reported. Therefore, when the investigation by the police is in
progress, the court should not go into the merits of the
allegations in the FIR. Police must be permitted to complete the
investigation. It would be premature to pronounce the
conclusion based on hazy facts that the complaint/FIR does not
deserve to be investigated or that it amounts to abuse of
process of law. After investigation, if the investigating officer
finds that there is no substance in the application made h by
the complainant, the investigating officer may file an
appropriate report summary before the learned Magistrate
which may be considered by the learned Magistrate in
accordance with the known procedure.
33.13. The power under Section 482 CrPC is very wide, but
conferment of wide power requires the court to be more
cautious. It casts an onerous and more diligent duty on the
court.
33.14. However, at the same time, the court, if it thinks fit,
regard being had to the parameters of quashing and the self-
restraint imposed by law, more particularly the parameters laid
down by this Court in R.P. Kapur and Bhajan Lal, has the
jurisdiction to quash the FIR/complaint.
Cril. Petn. No. 24 of 2022 Page 25
33.15. When a prayer for quashing the FIR is made by the
alleged accused and the court when it exercises the power
under Section 482 CrPC, only has to consider whether the
allegations in the FIR disclose commission of a cognizable
offence or not. The court is not required to consider on merits
whether or not the merits of the allegations make out a
cognizable offence and the court has to permit the investigating
agency/police to investigate the allegations in the FIR.
33.16. The aforesaid parameters would be applicable and/or the
aforesaid aspects are required to be considered by the High
Court while passing an interim order in a quashing petition in
exercise of powers under Section 482 CrPC and/or under Article
226 of the Constitution of India. However, an interim order of
stay of investigation during the pendency of the quashing
petition can be passed with circumspection. Such an interim
order should not require to be passed routinely, casually and/or
mechanically. Normally, when the investigation is in progress
and the facts are hazy and the entire evidence/ material is not
before the High Court, the High Court should restrain itself from
passing the interim order of not to arrest or “no coercive steps
to be adopted” and the accused should be relegated to apply
for anticipatory bail under Section 438 CrPC before the
competent court. The High Court shall not and as such is not
justified in passing the order of not to arrest and/or “no
coercive steps” either during the investigation or till the
investigation is completed and/or till the final report/charge-
sheet is filed under Section 173 f CrPC, while
dismissing/disposing of the quashing petition under Section 482
CrPC and/or under Article 226 of the Constitution of India.
33.17. Even in a case where the High Court is prima facie of the
opinion that an exceptional case is made out for grant of
interim stay of further investigation, after considering the broad
parameters while exercising the powers under Section 482 CrPC
and/or under Article 226 of the Constitution of India referred 9
to hereinabove, the High Court has to give brief reasons why
such an interim order is warranted and/or is required to be
passed so that it can demonstrate the application of mind by
the Court and the higher forum can consider what was weighed
with the High Court while passing such an interim order.
33.18. Whenever an interim order is passed by the High Court
of “no coercive steps to be adopted” within the aforesaid
parameters, the High Court must clarify what does it mean by
“no coercive steps to be adopted” as the term “no coercive
steps to be adopted” can be said to be too vague and/or broad
which can be misunderstood and/or misapplied.”
Cril. Petn. No. 24 of 2022 Page 26 [20] In addition to the above observation of the Hon'ble
Supreme Court, the prosecution in the charge sheet explained
elaborately regarding the late registration of the FIR by the respondent
No. 2. For the sake of brevity and convenient sake, some of the
contains of the charge sheet for this matter is extracted herein below;
“…………..for the first time at Golden Hotel, Mao (Senapati) in
the later part of the year, 2012 or early part of the year 2013
(specific date year could not be made out as the victim could
not provide it besides the hotel register for the tentative year
could not be recovered). Though she knew the gravity of the
crime committed against her by the accused person she could
not muster courage to report the matter to anyone. She was
scared of how the society would consider and treat her if she
happened to expose herself as rape victim. Since then, the
accused continued to rape her in every available opportunity
while visiting hill districts of Manipur with the victim. The
accused had raped her for a numerous times between the year
2012, 2013 to 2017. As per the statement of the victim, the last
act of rape was committed on 28.10.2017 at Ngashan Inn
(Hotel), Ukhrul. After which, the accused person could not rape
her as he had erection problem with his penis and subsequently
remained sick for almost a year. After returning to work in
2019, the accused person returned to his old self and continued
to sexually molested her. He had also threatened her by saying
that she had nowhere to seek support for her justice as the
police, lawyers and other civil organization leaders, whomever
she went, would be his friends. It would be like digging her own
grave. As the accused as an influential person, she felt that his
threatening words would become true. As such, the accused
instilled fear and insecurity for justice in the mind of the victim.
So, she buried her pain and suffering deep within her heart
without reporting to anybody for quite a long period of time. All
those time, the accused forbade her to make friends with others
even with her co-workers. Gradually, she was alienated from
the society and thus began to feel herself hopeless without any
positive prospect in her life. At last, she met a reliable boyfriend
whom she shared the dark side of her life. Together with her
boyfriend, she spoke about her whole hidden story to her family
members. And thus, she lodged an FIR case against the
accused person on 12.07.2019 at Women Police Station, Ukhrul.
Besides, from the statements of the victim recorded under
sections 161 Cr.P.C and 164 Cr.P.C, it is a proven fact that the
accused person had raped the victim numerous times in
between the years 2012, 2013 to 2017. The accused also
continued sexually molesting the victim till the early part of the
Cril. Petn. No. 24 of 2022 Page 27
year 2019 while she was working under the accused person at
Doordarshan Kendra, Imphal. The accused had also threatened
the victim that she should not report the matter to anybody as
it would only ruin her reputation. The voice conversation
between the accused person and the victim which was
converted into CD and produced by the victim as also found to
be strongly supportive to the rape allegation made by the
complainant against the accused person. The victim had
prepared the voice recordings from March, 2019 so as to collect
and preserved the evidences. The CDR collected from the
mobile numbers of the accused person and the victim also
corroborated with the voice records produced by the victim. In
the voice records, the accused……The FSL, Pangei could not
yield any positive result supportive to the crime as the last
incident of rape had happened about two years back from the
date of conducting Medical examinations. However, signs of
defloration in the vagina of the victim could be observed and
potency of the accused person had been proved beyond doubt.
So, from the above facts and circumstances arrived through
investigation, sections 376, 506 and 354-A of IPC are well
proved. Thus, prima facie evidence against the accused person
are well established to charge him U/S 376/506/3574-A IPC.”
[21] On careful perusal of the Hon’ble Supreme Court’s
judgments as extracted above and considering the facts and
circumstances set out by the parties in the present case and relying
upon the observations made by the Hon’ble Supreme Court and its
guidelines and formula as set out in State of Haryana & Ors. V. Bhajan
Lal (supra), this Court is of the view that the prosecution story as set
out in the charge sheet fulfilled and well explained with reason about
the late lodging of FIR and explanation made therein is satisfactory and
accepted.
[22] Accordingly, this Court observed that there was no delay
in the lodging of FIR either and if at all there was some delay, the same
has been properly explained by the prosecution but in the facts and
circumstances of the instant case was also natural this Court cannot
Cril. Petn. No. 24 of 2022 Page 28
overruled the fact in sexual offences delay in lodging of FIR can be
variety of reasons particularly the reluctant of the prosecutrix or her
family members to go to the police and compliant about the incident
which concerns the reputation of the prosecutrix and honor of her
family it is only after giving it cool thought that a complaint of sexual
offence is generally lodged.
[23] The learned counsel for the petitioner further submits that
the sexual encounter between the petitioner and respondent No. 2 are
consensual one as such she did not complaint to the police and filed on
the charges of being by the petitioner only after 7 years of the first
occurrence just to maligning allegation against the repute and image of
the petitioner.
This Court is of the considered view that the submission
of the learned counsel for the petitioner shows the admission on the
part of the petitioner that the petitioner had sexual relationship with the
respondent No. 2, thereby supporting the claimed of the respondent
No. 2 that she has have sexual relationship with the petitioner now
since the petitioner admitted to have sexual relationship with the
respondent No. 2 the only question left now is as whether the sexual
relationship was consensual one or raped. Since, the prosecutions have
submitted the charge sheet the sexual relationship with the petitioner
and the respondent No. 2 was raped or consensual only will be known
only after the conclusion of the trial. As regard the phone calls as
Cril. Petn. No. 24 of 2022 Page 29
alleged by the respondent No. 2 which was alleged to be between the
respondent No. 2 and petitioner the learned counsel for the petitioner
submits that the call has been subjectively with malafide intention being
made by the respondent No.2 to the petitioner to construct evidence to
frame the petitioner in a false case of rape as such barred by Article
20(3) of the Constitution of India.
[24] The prosecution have already submitted charge sheet for
trial citing all these facts in the charge sheet the question of subjectivity
and malafide will not be aroused as of now it will be only after the trial,
the real picture of the facts of the case will emerged. Moreover, as
submitted above by the learned counsel for the respondent no. 2 the
process for authentication of the audio recording of phone conversation
between the complainant/victim and the cameraman and
petitioner/accused from the recognized center outside the State is
underway. Once the audio proof is received, the supplementary charge
sheet will be filed. Considering these facts and circumstances the
submission made above by the learned counsel for the petitioner is
premature at this stage.
[25] The decisions of the Hon’ble Supreme Court relied upon
by the learned counsel for the petitioner in support of his case:
Joseph Salvaraj A. -v- State of Gujarat &Ors.
reported in (2011) 7 SCC 59:
“14. In the instant case, we have to first examine whether
any of the ingredients under Section 406, 420 or 506 Part I IPC
have been made out to a enable the Court to take cognizance
thereof against the appellant or not. Bare perusal of the FIRCril. Petn. No. 24 of 2022 Page 30
lodged by the complainant, would indicate that he had got in
touch with the appellant so as to extend the benefit of the
appellant’s channel “GOD TV” to his other brethren residing at
Ahmedabad. For the said purposes, he had met the owner of
Siti Cable, Bapi Nagar in Ahmedabad and negotiated a
settlement for a sum of Rs 10 lakhs on behalf of the appellant’s
b company as the fee to be paid to Siti Cable by the appellant
for telecast of channel “GOD TV” in Ahmedabad. Further
grievance of the complainant was that despite the telecast of
“GOD TV”, the appellant, as promised, failed to pay a sum of Rs
10 lakhs to the owners of Siti Cables. This is what has been
mentioned in a nutshell in the complainant’s FIR. We have
grave doubt, in our mind whether on such averments and
allegations, even a prima facie case of the aforesaid offences
could be made out against the present appellant.
15. Criminal breach of trust is defined under Section 405
IPC and Section 406 thereof deals with punishment to be
awarded to the accused, if found guilty for commission of the
said offence i.e. with imprisonment for a term which may
extend to three years, or with fine, or with both. Section 420
IPC deals with cheating and dishonestly inducing delivery of
property. Cheating has been defined under Section 415 IPC to
constitute an offence Under the aforesaid section, it is inbuilt
that there has to be a dishonest intention from the very
beginning, which is sine qua non to hold the accused guilty for
commission of the said offence. Categorical and microscopic at
an examination of the FIR certainly does not reflect any such
dishonest intention ab initio on the part of the appellant.
Section 506 IPC deals with punishment for criminal intimidation.
Criminal intimidation, insult and annoyance have been defined
in Section 503 IPC but the FIR lodged by the complainant does
not show or reflect that any such threat to cause injury to
person or of property was ever given by the appellant to the
complainant.
16. Thus, from the general conspectus of the various
sections under which the appellant is being charged and is to be
prosecuted would show that the same are not made out even
prima facie from the complainant’s FIR. Even if the charge-
sheet had been filed, the learned Single Judge could have still
examined whether the offences alleged to have been committed
by the appellant were prima facie made out from the
complainant’s FIR. charge-sheet, documents, etc. or not.
17. In our opinion, the matter appears to be purely civil in
nature. There appears to be no cheating or a dishonest
inducement for the delivery of property or breach of trust by
the appellant. The present FIR is an abuse of process of law.
The purely civil dispute, is sought to be given a colour of a
criminal offence to wreak vengeance against the appellant. It
does not meet the strict standard of proof required to sustain aCril. Petn. No. 24 of 2022 Page 31
criminal accusation. In such type of cases, it is necessary to
draw a distinction between civil wrong and criminal wrong as
has been succinctly held by this Court in Devendra v. State of
U.P.1, relevant part thereof is reproduced herein below: (SCC p.
505, para 27).
“27…. A distinction must be made between a civil wrong
and a criminal wrong. When dispute between the parties
constitute only a civil wrong and not a criminal wrong.
The courts would not permit a person to be harassed
although no case for taking cognizance of the offence
has been made out.”
18. In fact, all these questions have been elaborately
discussed by this Court in the most of the quoted judgment in
State of Haryana v. Bhajan Lal where seven cardinal principles
have been carved out before cognizance of offences, said to
have been committed by the accused, is taken. The case in
hand unfortunately does not fall in that category where
cognizance of the offence could have been taken by the court,
at least after having gone through the FIR, which discloses only
a civil dispute.”
The observations herein above by the Hon’ble Supreme
Court is not applicable in the facts and circumstances of the instant
case as in the instant case, the prosecution has made out a prima facie
case in the FIR and charge sheet for going into trial. Considering the
facts and circumstances set out in the charge sheet the prosecution
made out the cardinal principles which have been carved out in the
reference case of State of Haryana & Ors Vs Bhajan Lal & Ors. I am of
the opinion that the present principle falls in the category where
cognizance of the offence could have been taken by the Court.
State of Haryana &Ors. -vs- Bhajan Lal &Ors.
reported in 1992 Supp (1) SCC 335:
“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, weCril. Petn. No. 24 of 2022 Page 32
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 FIR 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 com- plaint 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.
(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.
103. We also give a note of caution to the effect that the
power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in the
Cril. Petn. No. 24 of 2022 Page 33
rarest of rare cases; that the… court will not be justified in
embarking upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR or the complaint
and that the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to its whim or
caprice.”
[26] After reading carefully the observation made above by the
Hon’ble Supreme Court, I am of the view that instead of supporting his
case, it goes against the petitioner himself as in the instant case, the
guidelines formulated by the Hon’ble Supreme Court wherein the
exercise of the extra ordinary power under Article 226 or the inherent
powers under section 482 of the Code, this Court is of the view that the
instant case does not fall under the categories of cases made in the
guidelines, as already observed earlier, the prosecution made out a
prima facie case under the relevant sections made in the charge sheet
against the petitioner and constitute cognizable offences as such it is
observed that there is no legal bar to prosecute under the provision of
law, accordingly this Court is of the view that there is no malafide
committed by the respondent no.2 in filing the complaint/FIR and
further the investigating authority did not commit malafide during
investigation as well as in filing charge sheet before the Court. The
petitioner failed to put out the facts that on which ground the
respondent no.2 maliciously instituted the present FIR with and ulterior
motive for wreaking vengence on the accused with a view to spite him
due to private and personal grudges.
Cril. Petn. No. 24 of 2022 Page 34 [27] Over and above, as observed at para No. 103 of State of
Haryana & Ors. -vs- Bhajan Lal & Ors. reported in 1992 Supp
(1) SCC 335, the Hon’ble Supreme Court gives a note of caution to the
effect that power of quashing a criminal proceeding should be exercised
very sparingly and with circumspection and that too in the rarest of the
rare cases the Court will not be justified in embarking upon the enquiry
as to reliability or genuineness or otherwise of the allegation made in
the FIR or the complaint and that the extra ordinary or inherent power
do not conferred an arbitrary jurisdiction on the Court to act according
to it whims or caprice, in this regard this Court is of the view that the
present case as set out by the petitioner in his application as well as the
submission made above by the learned counsel for the petitioner does
not come under the rarest of the rare case category and the
prosecution has set out prima facie case to go for trial. Accordingly, this
Court is of the view that the exercise of extra ordinary power under
Article 226 or the inherent power under Section 482 of the Code is not
call for in the present case.
In Kanhaiya Lal -vs- State of Rajasthan reported in
(2013) 5 SCC 655 the Hon’ble Supreme Court at para
No. 15 observed:
“15. It is settled in law that mere delay in lodging the first
information report cannot be regarded by itself as fatal to the
case of the prosecution. However, it is obligatory on the part of
the court to take notice of the delay and examine, in the
backdrop of the case, whether any acceptable explanation has
been offered by the prosecution and if such an explanation has
been offered whether the same deserves acceptance being
found to be satisfactory.”
Cril. Petn. No. 24 of 2022 Page 35 [28] Reference is made to the discussion and observation
made earlier regarding the delay in lodging the FIR, this Court has
already observed and made clear that considering backdrop of the case
as discussed and observed above this Court accepted and found
satisfactory to the explanation made in the charge sheet for delay in
filing the FIR. Accordingly, submission of the learned counsel for the
petitioner regarding the delay in filing the FIR is not acceptable.
Tameezuddin alias Tammu -vs- State (NCT of Delhi)
reported in (2009) 15 SCC 566 :
“9. It is true that in a case of rape the evidence of the
prosecutrix must be given predominant consideration, but to
hold that this evidence has to be accepted even if the story is
improbable and balies logic, would be doing violence to the very
principles which govern the appreciation of evidence in a
criminal matter. We are of the opinion that the story is indeed
improbable.”
Again, as discussed and observed above, this Court is of
the view that the observation made in the cited case goes against the
petitioner as there is no improbable and belies logic which would be
doing violence to the principle which governs the appreciation of
evidence in criminal matter as such, this Court is of the view that the
story let out by the prosecution is indeed probable.
Raju & Ors. -vs- State of Madhya Pradesh reported in
(2008) 15 SCC 133 :
12. Reference has been made in Gurmit Singh case to the
amendments in 1983 to Sections 375 and 376 of the Penal
Code making the penal provisions relating to rape more
stringent, and also to Section 114-A of the Evidence Act with
respect to a presumption to be raised with regard to allegations
of consensual sex in a case of alleged rape. It is however
significant that Sections 113-A and 113-B too were inserted in
the Evidence Act by the same amendment by which certainCril. Petn. No. 24 of 2022 Page 36
presumptions in cases of abetment of suicide and dowry death
have been raised against the accused. These two sections,
thus, raise a clear presumption in favour of the prosecution but
no similar presumption with respect to rape is visualised as the
presumption under Section 114-A is extremely restricted in its
applicability. This clearly shows that insofar as allegations of
rape are concerned, the evidence of a prosecutrix must be
examined as that of an injured witness whose presence at the
spot is probable but it can never be presumed that her
statement should, without exception, be taken as the gospel
truth. Additionally, her statement can, at best, be adjudged on
the principle that ordinarily no injured witness would tell a lie or
implicate a person falsely. We believe that it is under these
principles that this case, and others such as this one, need to
be examined.
[29] This Court is of the view that the Section alleged in the
FIR and in the charge sheet contents serious panel provisions, the
allegation of the petitioner that there was consensual sex between the
petitioner and respondent No. 2, in so far as allegation of rape are
concerned with the evidence of prosecutrix made out in the charge
sheet as probable. Accordingly, this Court observed that the reliance
made by the petitioner goes against him.
The Hon’ble Supreme Court in Criminal Appeal No. 1456
and 1457 of 2015 dated 31.08.2023 (Abhishek v. State of Madhya
Pradesh) regarding exercise of inherent power under Section 482 of
Cr.P.C. by the High Court, wherein the Hon’ble Supreme Court made
the following guidelines at para No. 17:
“17. In Bhajan Lal (supra), this Court had set out, by way of
illustration, the broad categories of cases in which the inherent
power under Section 482 Cr.P.C. could be exercised. Para 102
of the decision reads as follows:
‘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 theCril. Petn. No. 24 of 2022 Page 37
extraordinary power under Article 226 of 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 channelized 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 entirely 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 FIR 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 each a just conclusion that there
is sufficient ground for proceeding against the
accused.
Cril. Petn. No. 24 of 2022 Page 38
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the Act concerned (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 Act
concerned, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with malafide and/or where the
proceeding is maliciously instituted with an
ulterior for wreaking vengeance on the accused
and with a view to spite him due to private and
personal grudge.”
While going through the above mentioned 7(seven)
cardinal principles laid down by the Hon’ble Supreme Court herein
above and after giving due consideration of the facts and circumstances
of the case and the discussion and observation made above by this
Court, this Court is of the view that the case in hand does not fall in
that category wherein such power should be exercised.
The submission of the learned counsel for the petitioner is
that even after charge sheet was submitted, the High Court can still
exercise its power under Section 482 of Cr.P.C. to quash the FIR,
indeed it is true that FIR can be quashed even after charge sheet is
filed before the Court, but this Court is of the view that it depends on
the nature of the cases in hand. But, the case in hand as already
discussed earlier even though charge sheet has been filed, the facts of
the case in hand does not call for exercise of Section 482 of Cr.P.C. and
to quash the FIR of the present case.
Cril. Petn. No. 24 of 2022 Page 39 [30] In the light of the above discussion and observation made
above and relying upon the observations of the Hon’ble Supreme Court,
the points for consideration in terms of facts and law in the present
case as set out by the petitioner are discussed and answered
accordingly at this stage of the case. But, the onus lies on the
prosecution whether the prosecution can prove its case or can
prosecute the petitioner or not during the trial.
[31] For better appreciation of the facts and circumstances of
the present case set out by both the petitioner as well as the
respondents, this Court is of the view that the need to revisit the
observation made in the above, Hon’ble Supreme Court’s judgments
and particularly Neeharika Infrastructures Pvt. Ltd. vs. State of
Maharastra & Ors. (2021) 19 SCC 401.
At para No. 10.1, the Hon’ble Supreme Court observed
that the inherent jurisdiction of the High Court under Section 482
Cr.P.C. can be exercised to quash the proceeding in the proper case
either to prevent the abuse of the process of any Court or otherwise to
secure the ends of justice and some of the exceptions carved out in the
observation which are reproduced above. Considering the facts and
circumstances as set out by the prosecution, this Court is of the view
that the prosecution set out their case very well and there is no
question of abuse of the Court and the exceptions carved out are not
applicable in the present case.
Cril. Petn. No. 24 of 2022 Page 40 [32] In view of the above and for the reasons stated above and
having regard to the facts and laws laid down by the Hon’ble Supreme
Court, the present Criminal Petition failed. There is no room for this
Court to exercise its power under Section 482 of the Cr.P.C. to quash
the FIR as the petitioner failed to make out its case.
Accordingly, the present Criminal Petition filed by the
petitioner for quashing/setting aside the FIR is dismissed.
JUDGE
Bipin/Lucy
Cril. Petn. No. 24 of 2022 Page 41