MISS XYZversusSTATE OF GUJARAT & ANR

1098                      [2019]REPORTS
                SUPREME COURT    13 S.C.R. 1098           [2019] 13 S.C.R.


 A                                 MISS XYZ
                                        v.
                         STATE OF GUJARAT & ANR
                        (Criminal Appeal No.1619 of 2019)
 B                             OCTOBER 25, 2019
             [UDAY UMESH LALIT, INDU MALHOTRA AND
                       R. SUBHASH REDDY]
              Code of Criminal Procedure, 1973 – s.482 – Appellant-
       informant was the Personal Assistant of the 2 nd respondent-
 C
       Managing 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
 D     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
 E
       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
 F     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
 G
       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
 H
                                       1098
           MISS XYZ v. STATE OF GUJARAT & ANR                            1099


the appellant with the 2nd respondent was consensual – When it is        A
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 –
                                                                         B
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      C
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           D
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         E
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             F
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              G
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          H
1100            SUPREME COURT REPORTS                     [2019] 13 S.C.R.


 A     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
 B
       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
 C     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
 D
       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
 E           4010 – referred to.
                             Case Law Reference
       [1990] 3 Suppl. SCR 259        referred to             Para 8
       2019 AIR 4010                  referred to             Para 14
 F
             CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       1619 of 2019.
             From the Judgment and Order dated 13.12.2018 of the High Court
       of Gujarat at Ahmedabad in Special Criminal Application (Quashing)
       No. 9897 of 2017.
 G
             Amit Anand Tiwari, Ms. Shakun Sharma, Jeet P. Bhat, Shashwat
       Singh, Advs. for the Appellant.
             Mukul Rohatgi, Sr. Adv., Aniruddha P. Mayee, Ms. Deepanwita
       Priyanka, Saurabh Kirpal, Sujay Kantawala, Pitambar R. Abhichandani,
 H     Ms. Jesal Wahi, Ms. Puja Singh, Advs. for the Respondents.
            MISS XYZ v. STATE OF GUJARAT & ANR                                1101


      The Judgment of the Court was delivered by                              A
      R. SUBHASH REDDY,J.
      1. Leave granted.
        2. This appeal is filed by the 2nd respondent in R/Special Criminal
Application No.9897 of 2017 filed before the High Court of Gujarat, at        B
Ahmedabad. By the impugned order, High Court has allowed R/Special
Criminal Application by quashing FIR No. CR-I-60-2017 registered on
the file of Mahila Police Station, Ahmedabad City, District Ahmedabad.
       3. The appellant herein, is the informant in crime registered in
FIR No.CR-I-60-2017 on the file of Mahila Police Station, Ahmedabad           C
City. On her complaint the aforesaid crime is registered against the 2 nd
respondent for the alleged offence punishable under Sections 376, 499
and 506(2) of the Indian Penal Code, 1860.
      4. The complaint was filed with the following averments:
       She is a permanent resident of Jodhpur, Rajasthan State and had        D
come to Ahmedabad in Gujarat City for employment and she met the 2 nd
respondent, who is the Managing Director of the G.S.P. Crop Science
Pvt. Ltd. After conducting interview she was appointed as his Personal
Assistant in the month of November, 2014. When the appellant was not
well, the 2nd respondent started visiting her residence and when she was
                                                                              E
in sleep, the 2nd respondent has taken an inappropriate pictures of her.
When she was attending the office, the 2nd respondent by showing her
pictures, was blackmailing her. When she visited Odhav, Kathwada and
Nandesari, Baroda on official work of the company, the 2nd respondent
used to take advantage of the situation when the appellant was alone,
and was blackmailing to make viral her pictures and to terminate her          F
employment. As the financial condition of the appellant was not stable,
she did not disclose this to anyone. In December, 2014 the 2nd respondent
took the appellant to Baroda for some work, by threatening to publish
her nude pictures, committed rape on her. Even after coming back to
Ahmedabad, the 2nd respondent again took her to Baroda on the pretext
                                                                              G
of some work and committed rape by similar threats in the hotel. The 2 nd
respondent was also visiting her rented premises at Ahmedabad and
used to commit rape on her under the threat of termination of employment
and publication of her pictures. The 2nd respondent rented an apartment
at Adani Pratham in August, 2015. When the appellant was residing in
the said apartment,the 2nd respondent used to come to the said apartment      H
1102            SUPREME COURT REPORTS                          [2019] 13 S.C.R.


 A     and was demanding sexual favours. As she was fed up with the
       exploitation by the 2nd respondent, she vacated the rental premises in
       June, 2016. In view of serious threat by the 2nd respondent to her life,
       she left for Jodhpur and her marriage was fixed with one Mr.Shoukin
       Malik who is the resident of Badi Sadri, Rajasthan in the month of
       December, 2016. The 2nd respondent having come to know about the
 B
       marriage of the appellant with Shoukin Malik, he contacted Mr.Shoukin
       Malik on telephone and informed him that the appellant is not of good
       character, she had physical relationship with him and with other boys.
       As Mr.Shoukin Malik refused to meet the 2nd respondent, the 2 nd
       respondent sent a cover to the residence of Shoukin Malik containing
 C     her nude/inappropriate pictures.
             5. In view of such allegations as referred above made in the
       complaint, a case is registered against the 2nd respondent for the alleged
       offence under Sections 376, 499 and 506(2) of IPC.
              6. When the complaint is under investigation, the 2nd respondent
 D     has filed R/Special Criminal Application No.9897 of 2017 before the
       High Court of Gujarat seeking quashing of FIR itself and also further
       consequential steps taken pursuant to the registration of crime.
              7. Primarily, it was the case of the 2nd respondent before the High
       Court that there was absolutely no truth in the allegation of rape as
 E     alleged by the appellant and it was only consensual sex between the
       parties. It is further alleged that in view of the allegations made by the
       appellant, a settlement is purported to have been arrived at, between
       them in the month of July, 2016. A written agreement was also entered
       into and the same is signed by the parties. It is stated in the agreement
 F     that the dispute between the parties is settled and the 2nd respondent has
       allegedly paid a huge amount to the appellant. It is further the case of
       the 2nd respondent that whatever the electronic and other materials lying
       with the parties were agreed to be destroyed. Further it was the case of
       the 2nd respondent that the alleged telephonic calls made by the 2nd
       respondent to Mr. Shoukin Malik of Rajasthan was absolutely false and
 G     baseless. Pleading that the complaint filed and investigation taken up is a
       gross abuse of process, the 2nd respondent has sought quashing of the
       proceedings.
             8. By referring to the rival contentions of the parties and the
       material on record, the High Court has recorded a finding that the case
 H
               MISS XYZ v. STATE OF GUJARAT & ANR                             1103
                     [R. SUBHASH REDDY,J.]

of the 2nd respondent falls under Exceptions 5 and 7 as carved out in the     A
judgment of this Court in State of Haryana vs. Bhajanlal & Ors.1 and
further the allegations and facts as mentioned in the FIR, appear to be
improbable and the same is malicious prosecution, quashed the
proceedings registered against the 2nd respondent.
      9. We have heard Sri Amit Anand Tiwari, learned counsel for the         B
appellant, Ms. Deepanwita Priyanka, learned counsel for the State and
Sri Mukul Rohatgi, learned senior counsel for 2nd respondent.
       10. Mainly, it is contended by the learned counsel for the appellant
that the High Court has passed the impugned order by exceeding the
scope of power conferred under Section 482 CrPC. In view of the serious       C
allegations made against the 2nd respondent, the High Court should not
have exercised power under Section 482 of the CrPC to scuttle the
investigation. It is submitted that the High Court has committed error in
summoning the Police Inspector, and on relying on such statement, for
quashing the FIR. It is stated that the alleged settlement was under the
guise of threat and coercion by the 2nd respondent, and it is not entered     D
into by the appellant with her free will and consent. It is stated that the
2nd respondent misused the photographs taken by him, and repeatedly
used the same to blackmail her, to secure sexual favours from the
appellant. It is contended that the 2nd respondent taking advantage of his
position as a Managing Director of the Company, has exploited the             E
appellant and committed rape on her at her residence and in the apartment
secured by the 2nd respondent and also during her tours to Baroda. It is
submitted that it is not open for the High Court to make a roving inquiry,
while considering the application filed under Section 482 CrPC.
       11. Learned counsel for the first respondent-State has submitted       F
that the Investigating Officer made an attempt to secure data from the
service providers of the mobile phones, but the same was not provided.
In the meantime, in view of interim orders passed by the High Court,
further investigation was not made.
       12. Sri Mukul Rohatgi learned senior counsel appearing for the         G
2nd respondent, by taking us through the settlement documents arrived,
between the parties, and other material placed on record, has submitted
that there is absolutely no basis for the allegation of rape by the 2 nd
respondent, and it was only consensual sex between the parties. It is
1
    AIR 1992 SC 604                                                           H
1104             SUPREME COURT REPORTS                            [2019] 13 S.C.R.


 A     submitted that having regard to the allegations made, parties arrived at a
       settlement and entered into a written agreement in the month of July,
       2016. As the appellant is not disputing the said documents, the allegation
       of rape is false. It is submitted that parties were in consensual sex for
       several years and in absence of any allegation against the 2 nd respondent
       of committing rape subsequent to the agreement, there is no basis for
 B
       such allegations. It is also submitted that there is no truth in the allegation
       made by the 2nd respondent about his telephone talk with Shoukin Malik,
       to defame the appellant. It is contended that having received huge money
       from the 2nd respondent pursuant to the settlement arrived at, false
       complaint is filed by the appellant to harass the 2nd respondent. Learned
 C     senior counsel also relied on the recent judgment of this Court dated 21 st
       August, 2019 passed in Criminal Appeal No.1165 of 2019 wherein in
       similar circumstances FIR was quashed by this Court.
              13. Having heard learned counsel for the parties and after perusing
       the impugned order and other material placed on record, we are of the
 D     view that the High Court exceeded the scope of its jurisdiction conferred
       under Section 482 CrPC, and quashed the proceedings. Even before the
       investigation is completed by the investigating agency, the High Court
       entertained the Writ Petition, and by virtue of interim order granted by
       the High Court, further investigation was stalled. Having regard to the
       allegations made by the appellant/informant, whether the 2 nd respondent
 E     by clicking inappropriate pictures of the appellant has blackmailed her or
       not, and further the 2nd respondent has continued to interfere by calling
       Shoukin Malik or not are the matters for investigation. In view of the
       serious allegations made in the complaint, we are of the view that the
       High Court should not have made a roving inquiry while considering the
 F     application filed under Section 482 CrPC. Though the learned counsels
       have made elaborate submissions on various contentious issues, as we
       are of the view that any observation or findings by this Court, will affect
       the investigation and trial, we refrain from recording any findings on
       such issues. From a perusal of the order of the High Court, it is evident
       that the High Court has got carried away by the agreement/settlement
 G     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 2 nd
 H
               MISS XYZ v. STATE OF GUJARAT & ANR                             1105
                     [R. SUBHASH REDDY,J.]

respondent by calling Shoukin Malik and further interference is also a        A
matter for investigation. By looking at the contents of the complaint and
the serious allegations made against the 2nd respondent, we are of the
view that the High Court has committed error in quashing the proceedings.
During the course of hearing, learned counsel for the appellant, brought
to our notice provision/Section 114-A of the Indian Evidence Act, 1872.
                                                                              B
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,       C
the court shall presume that she did not consent.
        14. Though Learned senior counsel Sri Mukul Rohatgi relied on
the judgment of this Court dated 21st August,2019 in Criminal Appeal
No.1165 of 2019, but we are of the view that the said judgment would
not render any assistance to support his case. Whether in a given case        D
power under Section 482 is to be exercised or not, depends on the contents
of the complaint, and the material placed on record. In that view of the
matter, we are of the view that it is a fit case to set aside the order
passed by the High Court and allow the investigating agency to proceed
with the further investigation in accordance with law. It is made clear
that we have not expressed any opinion on the merits of the complaint,        E
and it is open to the investigating agency and competent court, to proceed
in accordance with law.
       15. For the aforesaid reasons, this criminal appeal is allowed and
the impugned order dated 13th December, 2018 passed in R/Special
Criminal Application No.9897 of 2017 by the High Court of Gujarat is          F
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.

                                                                              G
Divya Pandey                                                Appeal allowed.




                                                                              H