PRASHANT BHARTIversusSTATE OF NCT OF DELHI

                         [2013] 1 S.C.R. 504


A                       PRASHANT BHARTI
                                  v.
                     STATE OF NCT OF DELHI
                 (Criminal Appeal No. 175 of 2013)
                        JANUARY 23, 2013
B
        [D.K. JAIN AND JAGDISH SINGH KHEHAR, JJ.]

        CODE OF CRIMINAL PROCEDURE, 1973:

C       s. 482 read with s.401 - Quashing of criminal
   proceedings - Allegations leveled by prosecutrix against
   accused for commission offences punishable ulss 328, 354
   and 376 on false promise of marriage - Charge-sheet filed -
   Charges framed - Held: In the charge sheet, Investigating
   Officer acknowledged that he could not find any proof to
D substantiate the charges - Charge-sheet was filed only on the
   basis of statement of prosecutrix u/s 164 - Further, in view of
   scientific investigation as revealed by mobile phones of
   prosecufrix and accused, commission of offence as alleged
  by prosecutrix cannot be established in trial - Therefore,
E judicial conscience of High Court ought to have persuaded
  it, on the basis of the material available before if to quash
  criminal proceedings initiated against appellant, in exercise
  of inherent powers vested with it uls 482 - Accordingly, FIR,
  consequential charge-sheet as also charges framed by trial
F court are quashed - Penal Code, 1860 - ss.328, 354 and
  376.

       On the basis of the statement of the complainant/
  prosecutrix, an FIR was registered against the appellant
G for offences punishable ulss 328 and 354, IPC. The
  appellant-accused was arrested on the same day. Five
  days thereafter the prosecutrix made a supplementary
  statement alleging that the accused, on the assurance of
  getting her married, had physical relations with her
H                            504
 PRASHANT BHARTI v. STATE OF NCT OF DELHI              505

several times, the latest being one and half months prior     A
to the date of the FIR. Accordingly, the offence punishable
u/s 376 IPC was added to the case. Subsequently,
statement of complainant/prosecutrix was recorded u/s
164 CrPC by the Metropolitan Magistrate. The police filed
charge-sheet for offences punishable u/ss 328, 354 and        B
376 IPC. The writ petition filed by the petitioner alleging
false implication and seeking to quash the FIR was
dismissed by the High Court. Even the writ petition filed
by the prosecutrix seeking to quash the FIR filed by her
was also dismissed. The order framing the charges             c
having been unsuccessfully challenged by the accused,
in revision before the High Court, he filed the instant
appeal.

    Allowing the appeal, the Court
                                                              D
     HELD: 1.1. This Court is satisfied that the assertion
made by the complainant/ prosecutrix, that on
23.12.2006, 25.12.2006 and 1.1.2007, she was induced to
a physical relationship by the appellant-accused, on the
basis of a promise to marry her, stands irrefutably E
falsified, as during the said period and more than one
year and eight months thereafter, she had remained
married to one 'LP'. She also affirmed that she was
remarried thereafter to one 'M' and produced a "certificate·
of marriage" dated 30.9.2008. In the absence of any F
scientific evidence of sexual intercourse between the
complainant/prosecutrix and the appellant-accused, it is
unlikely, that a factual assertion made by the
complainanVprosecutrix, would be acceptable over that
of the appellant-accused. Further, a consensual G
relationship without any assurance obviously will not
substantiate the offence punishable u/s 376 IPC alleged
against the accused. [para 15-17] [515-F-G; 516-D-E; 517-
A-B, D-E; 518-A]
                                                              H
    506      SUPREME COURT REPORTS             [2013] 1 S.C.R.

A      1.2. The assertions made by the prosecutrix in her
  first complaint dated 16.2.2007 regarding the incident of
  15.2.2007, her presence as well as the presence of the
  appellant-accused at the alleged place of occurrence at
  the alleged time has been established to be false on the
B basis of mobile phone call details of the parties
  concerned, and it must be considered to be conclusive
  for all intents and purposes. The factual conclusion
  cannot be altered at the culmination of the trial, since the
  basis of such determination is scientific evidence. Neither
c has the said material been contested by the prosecutrix.
  It is, thus, obvious that the allegation made by the
  complainant/ prosecutrix against the appellant-accused
  of having outraged her modesty, was false. What stands
  established now, will have to be reaffirmed on the basis
  of the same evidence at the culmination of the trial. Such
0
  being the fact situation, it has to be concluded, that the
  allegations levelled by the prosecutrix against the
  accused, which culminated in the registration of a first
  information report on 16.2.2007, as well as her
E supplementary statement, would never lead to his
  conviction. [para 18] [518-B, D-E; 519-C-H]

          Gajraj vs. State (NCT) of Delhi 2011 (12) SCR 701   =
    2011 (1 O) sec 675 - relied on

F      1.4. Most importantly, as against the allegations, no
  pleadings whatsoever have been filed by the
  complainant. As a matter of fact, the prosecutrix had
  herself approached the High Court, with the prayer that
  the first information lodged by her, be quashed. It would,
G therefore, be legitimate to conclude in the facts and
  circumstances of the case, that the material relied upon
  by the accused has not been refuted by the complainant/
  prosecutrix. Even in the charge sheet dated 28.6.2007,
  the investigating officer has acknowledged that he could
H not find any proof to substantiate the charges. The
    PRASHANT BHARTI v. STATE OF NCT OF DELHI              507


charge-sheet had ·been filed only on the basis of the            A
statement of the prosecutrix u/s 164 of the Cr.P.C. [para
21] (525-A-C]

     1.5. Therefore, judicial conscience of the High Court
ought to have persuaded it, on the basis of the material         8
available before it, while passing the impugned order, to
quash the criminal proceedings initiated against the
accused-appellant, in exercise of the inherent powers
vested with it u/s 482 Cr.P.C. Accordingly, this Court is
satisfied, that the first information report registered for      C
offences punishable u/ss. 328, 354 and 376 IPC against
the appellant-accused, and the consequential charge-
sheet as also the framing of charges by the Additional
Sessions Judge deserve to be quashed. Ordered
accordingly. [para 22) [525-E-G]
                                                                 D
      Rajiv Thaper & Ors. vs. Madan Lal Kapoor (2013] 1 SCR
- relied on.
                     Case Law Reference:
      2011 (12) SCR 701       relied on            para 18       E

      [2013) 1 SCR            relied on            para 18
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 175 of 2013.
•                                                                F
    From the Judgment & Order dated 16.01.2009 of the High
Court of Delhi at New Delhi in Criminal Revision Petition No.
08 of 2009.

    K.T.S. Tulsi, Gaurave Bhargava (for Niraj Gupta) for the     G
Appellant.

     R.K. Rathore, Vikas Bansal, D.S. Mahra (for Anil Katiyar)
(Priya-Complainant) for the Respondent.

      The Judgment of the Court was delivered by                 H
    508      SUPREME COURT REPORTS                    [2013] 1 S.C.R.


A         JAGDISH SINGH KHEHAR, J. 1. Leave granted.

           2. On 16.2.2007, Priya (hereinafter referred to as, the
    complainant/prosecuterix), aged 21 years, a resident of
    Tughlakabad Extension, New Delhi, made a phone call to the
    Police Control Room (hereinafter referred to as, the PCR).
8
    Police personnel immediately reached her residence. She
    made a statement to the police, leading to the registration of
    first information report no. 47 of 2007 at Police Station Lodhi
    Colony, New Delhi, under Sections 328 and 354 of the Indian
    Penal Code. In her statement to the police, the complainant/
C   prosecuterix alleged, that the appellant herein Prashant Bharti
    (hereinafter referred to as, the appellant-accused) was known
    to her for about four months. The appellant-accused was a
    resident of Lodhi Colony, New Delhi. It was alleged that on the
    preceding day i.e., on 15.2.2007, the appellant-accused had
D   made a phone call to the complainant/prosecuterix, at about
    8.45 pm, and asked her to meet him at Lodhi Colony, New
    Delhi. When she reached Lodhi Colony, he drove her around
    in his car. He also offered the complainant/prosecuterix a cold
    drink (Pepsi) allegedly containing a poisonous/intoxicating
E   substance. According to the complainant/prosecuterix she felt
    inebriated after taking the cold drink. In her aforesaid state,
    the appellant-accused started misbehaving with her. He also
    touched her breasts. lnspite of the complainant/prosecuterix
    stopping him, it was alleged, that the appellant-accused
F   continued to misbehave with her. The complainant/
    prosecuterix then got the car stopped, and hired an auto-
    rickshaw to return to her residence. In her statement, the
    complainant/prosecuterix requested the police to take legal
    action against the appellant-accused.
G
         3. Immediately after recording the statement of Priya (the
    complainant/prosecuterix) on 16.2.2007, the police took her to
    the All India Institute of Medical Sciences (hereinafter referred
    to as, the AllMS), New Delhi. She was medically examined at
    1.44 pm. It is sufficient to record herein, that as per the medical
H
  PRASHANT BHARTI v. STATE OF NCT OF DELHI                  509
         [JAGDISH SINGH KHEHAR, J.]
report prepared at the AllMS, there was no evidence of              A
poisoning.

     4. Based on the statement made by the complainant/
prosecuterix, the appellant-accused Prashant Bharti was
arrested at 6 pm, on the same day on which the complainant          B
recorded her statement, i.e., on 16.2.2007, a day after the
occurrence.

     5. After a lapse of five further days, on 21.2.2007, at 8.20
am, the complainant/prosecuterix made a supplementary
statement to the police. On this occasion, she alleged, that        C
Prashant Bharti, the appellant-accused, had been having
physical relations with her in his house, on the assurance that
he would marry her. It was alleged by the complainant/
prosecuterix, that the appellant-accused had subsequently
refused to marry her. With reference to the incident of             D
15.2.2007, she alleged, that she had been administered some
intoxicant in a cold drink (Pepsi) by Prashant Bharti, so as to
enable him to have a physical relationship with her. But, it was
alleged, that she did not succumb to his said desire on
15.2.2007. The complainant/prosecuterix further alleged, that       E
after she returned to her residence on 15.2.2007, she did not
feel well and accordingly, had gone to sleep. She therefore
explained, why she had made her earlier complaint, on the
following day of the incident. In her supplementary statement,
she requested the police to take legal action against Prashant      F
Bharti, the appellant-accused, for having physical relations with
her (on 23.12.2006, 25.12.2006 and 1.1.2007) at his
residence, on the basis of a false promise to marry her.

      6. Immediately after recording her supplementary
statement, the complainant/prosecuterix was taken to the AllMS.     G
She was medically examined at the AllMS at 12 noon, on
21.2.2007. In the medical report prepared at the AllMS after
her examination, it was recorded, that she had no external
injuries, and that her hymen was not intact. It was pointed out,
that a vaginal smear was not taken, because more than a month       H
    510       SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A had elapsed from the date of the alleged intercourse(s).
  Likewise, it was pointed out, that her clothes were not sent for
  forensic examination, because she had changed the clothes
  worn by her at the time of the alleged occurrence(s). In other
  words, the assertions made by the accused could not be tested
B scientifically, because the complainant was being medically
  examined, after a substantial delay.

        7. Based on the supplementary statement of Priya (the
    complainanUprosecuterix) recorded on 21.2.2007, the offence
    under Section 376 was added to the case.
c
        8. On 27.2.2007, the statement of the complainant/
  prosecuterix was recorded under Section 164 of the Code of
  Criminal Procedure by the Metropolitan Magistrate, New Delhi
  (in first information report no. 47 of 2007). A relevant extract
D of the aforesaid statement, is being reproduced below:-

          "... then Prashant asked for my number and detail of
          address. I gave my office telephone number to him. In
          evening, Mr. Prashant Bharti called me and talked about
          loan and after some days, Prashant Bharti came to meet
E
          in my office and thereafter we became good friends and
          one day, Prashant Bharti told me that he loves me and wish
          to marry me and thereafter, we started meeting frequently
          and I consented for marriage.
F       One day, when all the family members were gone
        somewhere, Prashant Bharti called me to his home for
        party and he told me that he will marry me soon and will
        inform to his parents about our relationship and he made
        relation with me. And, whenever his home was vacant, he
G       usually calls me up and when his parents came, I asked
        him to tell them about our relationship and he did not inform
        this and on this issue, we have fight with each other and I
        informed to his parents. Then his parents called Prashant
        about this and Prashant Bharti denied our relationship to
H       his father and neither he wish to marry me and on that day,
  PRASHANT BHARTI v. STATE OF NCT OF DELHI                   511
         [JAGDISH SINGH KHEHAR, J.]
    I was sent to my home by his parents.                           A

    After two days, Prashant Bharti called me and asked me
    to meet him, as he wish to tender apology and when I was
    going to reach my home from office, then I, through auto
    rickshaw, reached at Central School, Lodhi Colony, where        B
    Prashant Bharti was standing near to his Santro Car, and
    he met me there and he asked me that he has committed
    mistake and he wish to tender apology and after some
    time, he took me to his car and thereafter, he told me that
    he is feeling thirsty and thereafter, he brought Pepsi in car   C
    and we both took the Pepsi. And, after drinking the same,
    I lost my conscious and thereafter, he started misbehaving
    with me and I asked him that why he was doing so, then
    he told me that, as I complained to his father, he will take
    revenge from me, and he forcibly misbehaved with me,
    and I immediately got down from the car and by Auto, I          D
    came to my house and as I was unwell, I could not lodge
    my complaint with police. On the next day, I called 100
    number PCR and there police official, accompanies me
    and I informed everything to SHO Surinder Jeet and on that
    basis, he was arrested."                                        E

     .9. By an order dated 12.3.2007, the Additional Sessions
Judge, Delhi granted bail to the appellant-accused. In the
aforesaid order passed on 12.3.2007, the following factual
position was relied upon, to extend the benefit of bail to the      F
appellant-accused. The appellant-accused was in Sector 37,
Naida in the State of Uttar Pradesh on 15.2.2007. He was at
Naida before 7.55 pm. He, thereafter, remained at different
places within Noida and then at Shakarpur, Ghaziabad,
Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on                G
15.2.2007, he remained present at a marriage anniversary
function celebrated at Rangoli Lawns at Ghaziabad, Uttar
Pradesh. An affidavit to the aforesaid effect filed by the
appellant-accused was found to be correct by the investigating
officer, on the basis of his mobile phone call details.
                                                                    H
    512      SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A Verification of the mobile phone call details of the complainant/
   prosecuterix Priya revealed, that on 15.2.2007, no calls were
   made by the appellant-accused to the complainant/
   prosecuterix, and that, it was the complainant/prosecuterix who
   had made calls to him. The complainant/prosecuterix, on and
B around the time referred to in the complaint dated 16.2.2007,
   was at different places of New Delhi i.e., in Defence Colony,
   Greater Kailash, Andrews Ganj and finally at Tughlakabad
   Extension, as per the verification of the investigating officer on
   the basis of her mobile phone call details. Even though the
c complainant/prosecuterix was married to one Manoj Kumar
   Soni, S/o Seeta Ram Soni (as indicated in an affidavit
   appended to the Delhi police format for information of tenants
   and duly verified by the investigating officer, wherein she had
 . described herself as married), in the complaint made to the
D police (on 16.2.2007 and 21.2.2007), she had suggested that
   she was not married. At the time when the complainant/
   prosecuterix alleged, that the appellant-accused had
   misbehaved with her and had outraged her modesty on
   15.2.2007 (per her complaint dated 16.2.2007), she was
   actually in conversation with her friends (as per the verification
E made by the investigating officer on the basis of her mobile
   phone call details). Even though the complainant/prosecuterix
   had merely alleged in her complaint dated 16.2.2007, that the
   accused had outraged her modesty by touching her breasts,
   she had subsequently through a supplementary statement (on
F 21.2.2007), levelled further allegations against the accused of
   having repeatedly raped her (on 23.12.2006, 25.12.2006 and
   1.1.2007), on dates preceding the first complaint.

       10. On 28.6.2007, the police filed a chargesheet under
G Sections 328, 354 and 376 of the Indian Penal Code. In the
  chargesheet, it was clearly mentioned, that the police
  investigation, from different angles, had not yielded any positive
  result. However, the chargesheet was based on the statement
  made by the complainant/prosecuterix before the Metropolitan
H Magistrate, New Delhi under Section 164 of the Code of
  PRASHANT BHARTI v. STATE OF NCT dF DELHI                   513
         [JAGDISH SINGH KHEHAR, J.]
Criminal Procedure, which was found to be sufficient for the         A
charges alleged against the appellant-accused. A relevant
extract of the chargesheet depicting the aforesaid factual
position, is being reproduced below:-

    "I the Inspector, tried my best from all angles to recover the   B
    intoxicating substance/Pepsi/Pepsi glass and
    undergarments worn at the time of the rape. But nothing
    could be recovered and for this reason, the blood sample
    of accused could not be sent to FSL. As from the
    investigation so far conducted, no proof could be found in       C
    support of the crime under Section 328/354 IPC and even
    the position of accused Prashant Bharti is not available at
    Lodhi Colony at the date and time as his mobile phone ill.
    However, prosecuterix Priya Porwal made statement on
    21.2.2007 and on 27.2.2007 under Section 164 Cr.P.C.
    which is sufficient in support of his challan for the offence    D
    under Section 376 IPC."

                                             (emphasis is ours)

     11. Aggrieved by the first information report (bearing no.      E
47 of 2007) registered at the Police Station Lodhi Colony, New
Delhi, the appellant-accused filed Writ Petition (Crl.) no. 1112
of 2007 before the Delhi High Court for quashing the said first
information report on the ground, that the appellant-accused had
been falsely implicated. The High Court, dismissed the said
writ petition on 27.8.2007, without going into the merits of the     F
controversy, by recording the following observations:-

    ''This Court cannot quash the FIR on the ground that FIR
    was false FIR. In case of a false FIR, it must be brought
    to its logical conclusion and Investigating Officer must give    G
    a report to that effect. In this case, if it is found that the
    petitioner has been falsely implicated and the complaint
    was false, it would be obligatory on the part of the
    Investigating Officer to register a case and book the
    prosecuterix for falsely implicating the person in an offence    H
    514      SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A         under Section 376 IPC. It is a very serious matter that a
          prosecuterix just by making a false statement can book
          somebody in offence under Section 376 IPC, which is
          serious in nature and invites a minimum punishment of 07
          years. I consider that Investigating Officer shall submit a
B         detailed report and in case, it is that the petitioner was
          falsely implicated, he would take steps for booking the
          complainant for falsely implicating the petitioner."

        12. Interestingly, even the complainant/prosecuterix filed
C Writ Petition (Crl.) no. 257 of 2008 before the Delhi High Court
  seeking quashing of the first information report lodged by the
  complainant/prosecuterix herself. The High Court noticed the
  observations recorded in the order dated 27.8.2007 (passed
  in Writ Petition (Crl.) no. 1112 of 2007) and dismissed the writ
  petition filed by the complainant/prosecutrix.
D
        13. On 1.12.2008, the Additional Sessions Judge, New
    Delhi, framed charges against the appellant-accused, by
    observing as under:-

          "4. Considering the facts and circumstances of the case
E
          that prosecuterix has levelled specific allegations against
          the accused that she was given pepsi to drink and after
          consuming the same she was intoxicated and accused
          teased her, moved his hands on her breast and earlier
          made physical relations with her on the assurance of
F
          marriage, I am of the considered opinion that prosecution
          has brought prima facie sufficient material on record
          against the accused for charge under Sections 354/328/
          376 IPC. Let charge be framed accordingly."

G      14. Dissatisfied with the action of the trial Court in framing
  charges against him, the appellant-accused filed Criminal
  Revision Petition no. 08 of 2009, whereby he assailed the order
  dated 1.12.2008 passed by the Additional Sessions Judge,
  New Delhi. The Delhi High Court dismissed the revision
H petitio~ on 16.1.2009, by interalia observing as under:-
 PRASHANT BHARTI v. STATE OF NCT OF DELHI                    515
        [JAGDISH SINGH KHEHAR, J.]
    "12. Truthfulness or falsity of the allegations, essentially     A
    pertai1s to the realm of evidence and the same cannot be
    pre-judged at this initial stage. I do not find any illegality
    or infirmity in the impugned order. Consequently, this
    Revision Petition is dismissed in limine while making it
    clear that anything herein shall not be construed as an          B
    opinion on merits at trial."

     15. Despite notice having been issued to the complainant/
prosecuterix by this Court in the present case, she failed to
enter personal appearance (or be represented through
counsel). To procure her presence, bailable warrants were            C
issued in furtherance of this Court's order dated 12.5.2010 and
again on 16.10.2012. Priya, the complainant/prosecuterix
entered personal appearance on 8.11.2012. During the course
of hearing, consequent upon clarifications sought from her in
respect of her marital status (at the time of the alleged            D
occurrences with the appellant-accused), she informed this
Court, that even though she was married earlier, she had
divorced her previous husband before the dates of occurrence.
To verify the factual position pertaining to her marital status as
on the dates of occurrence(s), she was asked to produce the          E
judgment and decree of divorce, from her previous husband.
She accordingly produced a certified copy of the judgment and
decree of the Court of the Civil Judge (Senior Division), Kanpur
(Rural) dated 23.9.2008. A photocopy thereof duly attested by
Priya, the complainant/prosecuterix, and her counsel, were           F
taken on record. A perusal of the same reveals, that the
complainant/prosecuterix was married to Lalji Porwal on
14.6.2003. She was divorced from her said husband by mutual
consent under Section 138 of the Hindu Marriage Act, 1955,
on 23.9.2008. Priya, the complainant/prosecuterix also               G
affirmed, that she had remarried thereafter. She also produced
before us a "certificate of marriage" dated 30.9.2008. A
photocopy thereof duly attested by Priya and her counsel, was
also taken on record. A perusal of the same reveals, that Priya
(date of birth, 17.6.1986), daughter bf Anup Kumar was married       H
    516      SUPREME COURT REPORTS                  [2013) 1 S.C.R


A   to Manoj (date of birth, 8.12.1983), son of Ram Kumar, on
    30.9.2008.

          16. The factual position narrated above would enable us
    to draw some positive inferences on the assertion made by the
    complainant/prosecuterix against the appellant-accused (in the
8
    supplementary statement dated 21.2.2007). It is relevant to
    notice, that she had alleged, that she was induced into a
    physical relationship by Prashant Bharti, on the assurance that
    he would marry her. Obviously, an inducement for marriage is
    understandable if the same is made to an unmarried person.
C   The judgment and decree dated 23.9.2008 reveals, that the
    complainant/prosecuterix was married to Lalji Porwal on
    14.6.2003. It also reveals, that the aforesaid marriage
    subsisted till 23.9.2008, when the two divorced one another by
    mutual consent under Section 138 of the Hindu Marriage Act.
D   In her supplementary statement dated 21.2.2007, the
    complainant/prosecuterix accused Prashant Bhati of having
    had physical relations with her on 23.12 2006, 25.12.2006 and
    1.1.2007 at his residence, on the basis of a false promise to
    marry her. It is apparent from irrefutable evidence, that during
E   the dates under reference and for a period of more than one
    year and eight months thereafter, she had remained married
    to Lalji Porwal. In such a fact situation, the assertion made by
    the complainant/prosecuterix, that the appellant-accused had
    physical relations with her, on the assurance that he would marry
F   her, is per se false and as such, unacceptable. She, more than
    anybody else, was clearly aware of the fact that she had a
    subsisting valid marriage with Lalji Porwal. Accordingly, there
    was no question of anyone being in a position to induce her
    into a physical relationship under an assurance of marriage. If
G   the judgment and decree dated 23.9.2008 produced before us
    by the complainant/prosecuterix herself is taken into
    consideration alongwith the factual position depicted in the
    supplementary statement dated 21.2.2007, it would clearly
    emerge, that the complainant/prosecuterix was in a relationship
H   of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the
  PRASHANT BHARTI v. STATE OF NCT OF DELHI                      517
         [JAGDISH SINGH KHEHAR, J.]
appellant-accused, while she was validly married to her previous        A
husband Lalji Porwal. In the aforesaid view of the matter, we
are satisfied that the assertion made by the complainanU
prosecuterix, that she was induced to a physical relationship
by Prashant Bharti, the appellant-accused, on the basis of a
promise to marry her, staAds irrefutably falsified.                     B

     17. Would it be possible for the prosecution to establish
a sexual relationship between Priya, the complainant/
prosecuterix and Prashant Bharti, the appellant-accused, is the
next question which we shall attempt to answer. Insofar as the          C
instant aspect of the matter is concerned, medical evidence
discussed above reveals, that the complaint made by the
complainanUprosecuterix alleging a sexual relationship with her
by Prashant Bharti, the appellant-accused, was made more
than one month after the alleged occurrences. It was, therefore,
that during the course of her medical examination at the AllMS,         D
a vaginal smear was not taken .. Her clothes were also not sent
for forensic examination by the AllMS, because she had
allegedly changed the clothes which she had worn at the time
of occurrence. In the absence of any such scientific evidence,
the proof of sexual intercourse between the complainant/                E
prosecuterix and the appellant-accused would be based on an
assertion made by the complainanUprosecuterix. And an
unequivocal denial thereof, by the appellant-accused. One's
word against the other. Based on the falsity of the statement
made by the complainant/prosecuterix noticed above (and                 F
other such like falsities, to be narrated hereafter), it is unlikely,
that a factual assertion made by the complainanUprosecuterix,
would be acceptable over that of the appellant-accused. For
the sake of argument, even if it is assumed, that Prashant
Bharti, the appellant-accused and Priya, the complainant/               G
prosecuterix, actually had a physical relationship, as alleged,
the same would necessarily have to be consensual, since it is
the case of the complainanUprosecuterix herself, that the said
physical relationship was with her consent consequent upon the
assurance of marriage. But then, the discussion above, clearly          H
    518       SUPREME COURT REPORTS                [2013] 1 S.C.R.


A negates such an assurance. A consensual relationship without
  any assurance, obviously will not substantiate the offence under
  Section 376 of the Indian Penal Code, alleged against Prashant
  Bharti.

8        18. Insofar as the assertion made by the complainant/
    prosecuterix, in her first complaint dated 16.2.2007 is
    concerned, it is apparent, that on the basis thereof, first
    information report no. 47 of 2007 was registered at Police
    Station Lodhi Colony, New Delhi. In her aforesaid complaint,
C   Priya, the complainant/prosecuterix had alleged, that the
    appellant-accused had called her on her phone at 8.45 pm and
    asked her to meet him at Lodhi Colony, New Delhi. When she
    reached there, he drove her around in his car. He also offered
    her a cold drink (Pepsi) containing a poisonous/intoxicating
    substance. Having consumed the cold drink, she is stated to
D   have felt inebriated, whereupon, he took advantage of her
    and started misbehaving with her, and also touched her
    breasts. Insofar as the instant aspect of the matter is
    concerned, the presence of the complainant/prosecuterix, as
    well as the appellant-accused, at the alleged place of
E   occurrence (lodhi Colony, New Delhi), on the night of
    15.2.2007 after 8.45 pm, has been established to be false on
    the basis of mobile phone call details of the parties concerned.
    Details in this respect have been summarized in paragraph 8
    above. The same are not being repeated for reasons of brevity.
F   The proof of the aforesaid factual matter must be considered
    to be conclusive for all intents and purposes, specially, in view
    of the observations made by this Court in Gajraj Vs. State
    (NCT) of Delhi [(2011) 1O sec 675], wherein it was held as
    under:-
G
          "19. In the aforesaid sense of the matter, the discrepancy
          in the statement of Minakshi PW23, pointed out by the
          learned counsel for the accused-appellant, as also, the
          reasoning rendered by the High Court in the impugned
          judgment becomes insignificant. We are satisfied, that the
H
  PRASHANT BHARTI v. STATE OF NCT OF DELHI                    519
         [JAGDISH SINGH KHEHAR, J.]
     process by which the accused-appellant came to be               A   -
     identified during the course of investigation, was legitimate
     and unassailable. The IEMI number of the handset, on
     which the accused-appellant was making calls by using a
     mobile phone (sim) registered in his name, being evidence
     of a conclusive nature, cannot be overlooked on the basis       B
     of such like minor discrepancies . In fact even a serious
     discrepancy in oral evidence, would have had to yield to
     the aforesaid authentic digital evidence which is a
     byproduct of machine operated electronic record having
     no manual interference. For the reasons recorded                c
     hereinabove, we find no merit in the first contention
     advanced at the hands of the learned counsel for the
     accused-appellant."

      The aforesaid factual conclusion, that the two concerned
parties were not present at Lodhi Colony, New Delhi after 8.45       D
pm on 15.2.2007, as has been established on the basis of the
investigation carried out by the police, cannot be altered at the
culmination of the trial, since the basis of the aforesaid
determination is scientific evidence. Neither has the said
material been contested by the complainanUprosecutrix. Once          E
it is concluded, that the complainanUprosecuterix and the
appellant-accused were at different places, far away from one
another, and certainly not in Lodhi Colony, New Delhi on the
night of 15.2.2007, it is obvious that the allegation made by
Priya, the complainanUprosecuterix against Prashant Bharti, the      F
appellant-accused of having outraged her modesty, was false.
What stands established now, as has been discussed above,
will have to be reaffirmed on the basis of the same evidence
at the culmination of the trial. Such being the fact situation, we
have no other alternative but to conclude, that the allegations      G
levelled by the complainanUprosecuterix, which culminated in
the registration of a first information report at Police Station
Lodhi Colony, New Delhi on 16.2.2007; as well as her
supplementary statement, would never lead to his conviction.
                                                                     H
    520       SUPREME COURT REPORTS                   [2013] 1 S.C.R.

A       19. The proposition of law, pertaining to quashing of
  criminal proceedings, initiated against an accused by a High
  Court under Section 482 of the Code of Criminal Procedure
  (hereinafter referred to as "the Cr.P.C.") has been dealt with
  by this Court in Rajiv Thapar & Ors. vs. Madan Lal Kapoor
8 (Criminal Appeal No ...... of 2013, arising out of SLP (Crl.)
  no.4883 of 2008, decided on 23.1.2013) wherein this Court
  inter alia held as under:

          22. The issue being examined in the instant case is the
          jurisdiction of the High Court under Section 482 of the
c         Cr.P.C., if it chooses to quash the initiation of the
          prosecution against an accused, at the stage of issuing
          process, or at the stage of committal, or even at the stage
          of framing of charges. These are all stages before the
          commencement of the actual trial. The same parameters
D         would naturally be available for later stages as well. The
          power vested in the High Court under Section 482 of the
          Cr.P.C., at the stages referred to hereinabove, would have
          far reaching consequences, inasmuch as, it would negate
          the prosecution's/complainant's case without allowing the
E         prosecution/complainant to lead evidence. Such a
          determination must always be rendered with caution, care
          and circumspection. To invoke its inherent jurisdiction
          under Section 482 of the Cr.P.C. the High Court has to be
          fully satisfied, that the material produced by the accused
F         is such, that would lead to the conclusion, that his/their
          defence is based on sound, reasonable, and indubitable
          facts; the material produced is such, as would rule out and
          displace the assertions contained in the charges levelled
          against the accused; and the material produced is such,
          as would clearly reject and overrule the veracity of the
G
          allegations contained in the accusations levelled by the
          prosecution/complainant. It should be sufficient to rule out,
          reject and discard the accusations levelled by the
          prosecution/complainant, without the necessity of
          recording any evidence. For this the material relied upon
H
PRASHANT BHARTI v. STATE OF NCT OF DELHI                 521
       [JAGDISH SINGH KHEHAR, J.]

 by the defence should not have been refuted, or A
 alternatively, cannot be justifiably refuted, being material
 of sterling and impeccable quality. The material relied
 upon by the accused should be such, as would persuade
 a reasonable person to dismiss and condemn the actual
 basis of the accusations as false.       In such a situation, B
 the judicial conscience of the High Court would persuade
 it to exercise its power under Section 482 of the Cr.P.C.
 to quash such criminal proceedings, for that would prevent
 abuse of process of the court, and secure the ends of
 justice.                                                      c
 23. Based on the factors canvassed in the foregoing
 paragraphs, we would delineate the following steps to
 determine the veracity of a prayer for quashing, raised by
 an accused by invoking the power vested in the High Court
 under Section 482 of the Cr.P.C.:-                              D

  (i)     Step one, whether the material relied upon by the
          accused is sound, reasonable, and indubitable, i.e.,
          the material is of sterling and impeccable quality?
                                                                 E
  (ii)    Step two, whether the material relied upon by the
          accused, would rule out the assertions contained in
          the charges levelled against the accused, i.e., the
          material is sufficient to reject and overrule the
          factual assertions contained in the complaint, i.e.,
                                                                 F
          the material is such, as would persuade a
          reasonable person to dismiss and condemn the
          factual basis of the accusations as false.

  (iii)   Step three, whether the material relied upon by the
          accused, has not been refuted by the prosecution/      G
          complainant; and/or the material is such, that it
          cannot be justifiably refuted by the prosecution/
          complainant?

   (iv)   Step four, whether proceeding with the trial would     H
     522       SUPREME COURT REPORTS                    [2013] 1 S.C.R.

A                  result in an abuse of process of the court, and would
                   not serve the ends of justice?

            If the answer to all the steps is in the affirmative, judicial
            conscience of the High Court should persuade it to quash
           such criminal proceedings, in exercise of power vested in
B
           it under Section 482 of the Cr.P.C. Such exercise of
           power, besides doing justice to the accused, would save
           precious court time, which would otherwise be wasted in
           holding such a trial (as well as, proceedings arising
           therefrom) specially when, it is clear that the same would
c          not conclude in the conviction of the accused."

        20. The details in respect of each aspect of the matter,
   arising out of the complaints made by Priya on 16.2.2007 and
   21.2.2007 have been examined in extensive detail in the
D foregoing paragraphs. We shall now determine whether the
  steps noticed by this Court in the judgment extracted
   hereinabove can be stated to have been satisfied. In so far
   as the instant aspect of the matter is concerned, the factual
  details referred to in the foregoing paragraphs are being
E summarized hereafter. Firstly, the appellant-accused was in
  Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007.
  He was at Noida before 7.55 pm. He, thereafter, remained at
  different places within Noida and then at Shakarpur, Ghaziabad,
  Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on
F 15.2.2007, he remained present at a marriage anniversary
  function celebrated at Rangoli Lawns at Ghaziabad, Uttar
  Pradesh. An affidavit to the aforesaid effect filed by the
  appellant-accused was found to be correct by the investigating
  officer on the basis of his mobile phone call details. The
G accused was therefore not at the place of occurrence, as
  alleged in the complaint dated 16.2.2007. Secondly,
  verification of the mobile phone call details of the complainanU
  prosecuterix Priya revealed, that on 15.2.2007, no calls were
  made by the appellant-accused to the complainant/
H prosecuterix, and that, it was the complainanUprosecuterix who
 PRASHANT BHARTI v. STATE OF NCT OF DELHI                    523
        [JAGDISH SINGH KHEHAR, J.]
had made calls to him. Thirdly, the complainant/prosecuterix,        A
on and around the time referred to in the complaint dated
16.2.2007, was at different places of New Delhi i.e., in Defence
Colony, Greater Kailash, Andrews Ganj and finally at
Tughlakabad Extension, as per the verification of the
investigating officer on the basis of her mobile phone call          B
details. The complainant was also not at the place of
occurrence, as she herself alleged in the complaint dated
16.2.2007. Fourthly, at the time when the complainant/
prosecuterix alleged, that the appellant-accused had
misbehaved with her and· had outraged her modesty on                 c
15.2.2007 (as per her complaint dated 16.2.2007), she was
actually in conversation with her friends (as per the verification
made by the investigating officer on the basis of her mobile
phone call details). Fifthly, even though the complainant/
prosecuterix had merely alleged in her complaint dated               D
16.2.2007, that the accused had outraged her modesty by
touching her breasts, she had subsequently through a
supplementary statement (on 21.2.2007), levelled allegations
against the accused for offence of rape. Sixthly, even though
the complainant/prosecuterix was married to one Manoj Kumar
Soni, s/o Seeta Ram Soni (as indicated in an affidavit               E
appended to the Delhi police format for information of tenants
and duly verified by the investigating officer, wherein she had
described herself as married), in the complaint made to the
police (on 16.2.2007 and 21.2.2007), she had suggested that
she was unmarried.         Seventhly, as per the judgment and        F
decree of the Civil Judge (Senior Division), Kanpur (Rural)
dated 23.9.2008, the complainant was married to Lalji Porva
on 14.6.2003. The aforesaid marriage subsisted till 23.9.2008.
The allegations made by the complainant dated 16.2.2007 and
21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006,          G
1.1.2007 and 15.2.2007, i.e., positively during the subsistence
of her marriage with Lalji Porwal. Thereafter, the complainant
Priya married another man Manoj on 30.9.2008. This is
evidenced by a "certificate of marriage" dated 30.9.2008. In
view of the aforesaid, it is apparent that the complainant could     H
    524     SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A not have been induced into a physical relationship, based on
   an assurance of marriage. Eighthly, the physical relationship
   between the complainant and the accused was admittedly
   consensual. In her complaints Priya had however asserted, that
   her consent was based on a false assurance of marriage by
B the accused. Since the aspect of assurance stands falsified,
   the acknowledged consensual physical relationship between
   the parties would not constitute an offence under Section 376
   IPC. Especially because the complainant was a major on the
   date of occurrences, which fact emerges from the "certificate
C of marriage" dated 30.9.2008, indicating her date of birth as
   17.7.1986. Ninthly, as per the medical report recorded by the
  AllMS dated 16.2.2007, the examination of the complainant did
   not evidence her having been poisoned. The instant allegation
   made by the complainant cannot now be established because
  even in the medical report dated 16.2.2007 it was observed
0
  that blood samples could not be sent for examination because
  of the intervening delay. For the same reason even the
  allegations levelled by the accused of having been administered
  some intoxicant in a cold drink (Pepsi) cannot now be
  established by cogent evidence. Tenthly, The factual position
E indicated in the charge-sheet dated 28.6.2007, that despite
  best efforts made by the investigating officer, the police could
  not recover the container of the cold drink (Pepsi) or the glass
  from which the complainant had consumed the same. The
  allegations made by the complainant could not be verified even
F by the police from any direct or scientific evidence, is apparent
  from a perusal of the charge-sheet dated 28.6.2007.
  Eleventhly, as per the medical report recorded by the AllMS
  dated 21.2.2007 the assertions made by the complainant that
  the accused had physical relations with her on 23.12.2006,
G 25.12.2006 and 1.1.2007, cannot likewise be verified as
  opined in the medical report, on account of delay between the
  dates of occurrences and her eventual medical examination on
  21.2.2007. It was for this reason, that neither the vaginal smear
  was taken, nor her clothes were sent for forensic examination.
H
  PRASHANT BHARTI v. STATE OF NCT OF DELHI                   525
         [JAGDISH SINGH KHEHAR, J.]
     21. Most importantly, as against the aforesaid allegations,     A
no pleadings whatsoever have been filed by the complainant.
Even during the course of hearing, the material relied upon by
the accused was not refuted. As a matter of fact, the
complainant/prosecutrix had herself approached the High
Court, with the prayer that the first information lodged by her,     B
be quashed. It would therefore be legitimate to conclude, in
the facts and circumstances of this case, that the material relied
upon by the accused has not been refuted by the complainant/
prosecutrix. Even in the charge ·sheet dated 28.6.2007,
(extracted above) the investigating officer has acknowledged,        c
that he could not find any proof to substantiate the charges.
The charge-sheet had been filed only on the basis of the
statement of the complainant/prosecutrix under Section 164 of
the Cr.P.C.

     22. Based on the holistic consideration of the facts and        D
circumstances summarized in the foregoing two paragraphs;
we are satisfied, that all the steps delineated by this Court in
Rajiv Thapar's case (supra) stand satisfied. All the steps can
only be answered in the affirmative. We therefore have no
hesitation whatsoever in concluding, that judicial conscience of     E
the High Court ought to have persuaded it, on the basis of the
material available before it, while passing the impugned order,
to quash the criminal proceedings initiated against the accused-
appellant, in exercise of the inherent powers vested with it under
Section 482 of the Cr.P.C. Accordingly, based on the                 F
conclusions drawn hereinabove, we are satisfied, that the first
information report registered under Sections 328, 354 and 376
of the Indian Penal Code against the appellant-accused, and
the consequential chargesheet dated 28.6.2007, as also the
framing of charges by the Additional Sessions Judge, New             G
Delhi on 1.12.2008, deserves to be quashed. The same are
accordingly quashed.

       Disposed of in the aforesaid terms.

R.P.                                         Appeal disposed of.     H