STATE (GOVT. OF NCT OF DELHI)versusPANKAJ CHAUDHARY AND ORS.

78                SUPREME [2018]
                          COURT14REPORTS
                                  S.C.R. 78               [2018] 14 S.C.R.


A                   STATE (GOVT. OF NCT OF DELHI)
                                       v.
                    PANKAJ CHAUDHARY AND ORS.
                      (Ciminal Appeal No. 2299 of 2009)
B                            OCTOBER 30, 2018
           [R. BANUMATHI AND INDIRA BANERJEE, JJ.]
           Penal Code, 1860 – s.376(2)(g) – Case of the prosecution
     that accused-respondents, living in the neighbourhood of the
     prosecutrix entered her jhuggi on 28.07.1997 at about 9.00 pm
C
     and raped her – Trial court convicted the respondents – High Court
     set aside the conviction and issued directions to lodge complaint
     against the police officials for fabricating false case against the
     respondents – Plea of respondents that Prosecutrix was of bad
     character and indulged in prostitution and since they lodged
D    complaint against her, therefore, they were falsely implicated – Held:
     Trial Court which had the opportunity of observing the prosecutrix,
     found the testimony of the prosecutrix reliable being corroborated
     by her mother’s evidence, medical evidence, FSL report and other
     circumstances viz. absence of motive for any false implication etc.
     – Reasoning of the High Court that the prosecutrix along with some
E
     ladies was arrested in connection with an FIR No.558/97 (registered
     regarding a quarrel at 07.30 pm on 28.07.1997 involving sex
     workers including the prosecutrix) and that the ladies must have
     remained with the custody of police till 09.20pm, proceeds on
     presumptive footing and surmises – Evidence of DWs 1 and 2 clearly
F    show that the prosecutrix was let out by the police at or about 08.20
     pm on 28.07.1997 – High Court failed to appreciate their testimonies
     – Mere fact that FIR No.558/97 was registered at 09.20pm does not
     indicate that the prosecutrix and other quarrelling ladies were in
     the police custody till 09.30 pm on 28.07.1997 (with respect to the
     offence in the said FIR) – Placing of heavy reliance by the High
G
     Court upon the contents in FIR No.558/97 was not correct – High
     Court erred in taking into consideration the materials produced
     before the appellate court viz., the alleged complaints made against
     the prosecutrix and other women alleging that they were engaged
     in prostitution – Even assuming that the prosecutrix was of easy
H
                                      78
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                         79


virtue, she has right to refuse to submit herself to sexual intercourse   A
to anyone – Further, without hearing the police officials and based
on the materials produced as additional evidence, High Court was
not right in issuing direction to lodge complaint against the police
officials – Judgment of the High Court set aside – Conviction of the
respondents affirmed.
                                                                          B
     Code of Criminal Procedure,1973 – s.391 – Power under –
Scope of – Discussed.
       Code of Criminal Procedure,1973– s.340– Pre-conditions for
initiating proceedings under – Discussed.
     Evidence – Rape – Sole testimony of the prosecutrix –                C
Appreciation of – Discussed.
      Disposing of the appeals, the Court
      HELD : 1.1 Evidence of the prosecutrix is corroborated
by the MLC. The evidence of the prosecutrix is also corroborated          D
by FSL Report which shows presence of human semen on the
petticoat of the prosecutrix. [Paras 13, 15][87-F; 88-C]
      1.2 The prosecutrix had no motive to falsely implicate the
accused. In their statement under Section 313 Cr.P.C., the
respondents/accused have stated that the prosecutrix was of bad
                                                                          E
character and she was indulging in prostitution regarding which
they have lodged complaint against her and they have been falsely
implicated in the case. As pointed out by the trial court, nothing
was brought on record by the accused to show that they have
lodged complaint against the prosecutrix. DW-1, the President
of the jhuggi area stated that about 7-8 women including the              F
prosecutrix have been indulging in prostitution regarding which
he has lodged the complaint. There is nothing on record to
suggest that the accused were in any way involved in making
such complaints against the prosecutrix and other women. The
version that they lodged complaint against the prosecutrix and
                                                                          G
therefore, they have been falsely implicated in the case, is not
substantiated by any record. [Para 20][90-C-E]
     1.3 The power conferred under Section 391 Cr.P.C. is to
be exercised with great care and caution. In dealing with any
appeal, the appellate court can refer to the additional evidence
                                                                          H
80               SUPREME COURT REPORTS                  [2018] 14 S.C.R.


A    only if the same has been recorded as provided under Section
     391 Cr.P.C. Any material produced before the appellate court to
     fill-up the gaps by either side cannot be considered by the
     appellate court; more so, to reverse the judgment of the trial
     court. The High Court took into consideration the materials
     produced by the Bar, namely, complaints allegedly made against
B
     the prosecutrix and other women including the one allegedly given
     on 21.07.1997 just one week prior to the incident. The High Court
     was not right in taking into consideration those complaints
     produced at the time of arguments in the appeal. Even if the
     allegations of the accused that the prosecutrix is of immoral
C    character are taken to be correct, the same does not give any
     right to the accused persons to commit rape on her against her
     consent. Even a woman of easy virtue is entitled to privacy and
     it is not open to any person to violate her and she is equally
     entitled to protection of law. Further, the evidence of such a
     woman cannot be thrown overboard merely because she is a
D
     woman of easy virtue. [Paras 21, 22][90-G-H; 91-A-C]
            1.4 Even in cases where there is some material to show
     that the victim was habituated to sexual intercourse, no inference
     like the victim being a woman of ‘loose moral character” is
     permissible to be drawn from that circumstance alone. A woman
E    of easy virtue also could not be raped by a person for that reason.
     While so, the High Court erred in placing reliance upon the
     complaints allegedly made against the prosecutrix to doubt her
     version and to hold that a false case has been foisted against the
     accused. Conviction can be sustained on the sole testimony of
F    the prosecutrix if it inspires confidence. There is no rule of law
     or practice that the evidence of the prosecutrix cannot be relied
     upon without corroboration and as such it has been laid down
     that corroboration is not a sine qua non for conviction in a rape
     case. If the evidence of the victim does not suffer from any basic
     infirmity and the ‘probabilities factor’ does not render it unworthy
G    of credence, as a general rule, there is no reason to insist on
     corroboration except from medical evidence, where, having regard
     to the circumstances of the case, medical evidence can be
     expected to be forthcoming. [Paras 23, 24][91-D, F-H; 92-A-B]

H
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                      81


      1.5 The trial court which had the opportunity of seeing and      A
observing the prosecutrix, found the testimony of the prosecutrix
reliable being corroborated by her mother’s evidence, medical
evidence, FSL report and other circumstances viz. absence of
motive for any false implication etc. The High Court failed to
appreciate the testimonies of DWs 1 and 2 who categorically stated
                                                                       B
that the prosecutrix had come back and was abusing neighbours.
The evidence of DWs 1 and 2 clearly shows that the prosecutrix
was let out by the police at or about 08.20 PM on 28.07.1997.
Mere fact that FIR No.558/97 under Section 160 IPC
was registered at 09.20 PM does not indicate that the prosecutrix
and other quarrelling ladies were in the police custody till           C
09.30 PM on 28.07.1997 (with respect to the offence in
FIR No.558/97). [Paras 25, 29 and 30][92-B-C; 93-H; 94-A-B]
      1.6 There were two sets of persons and two sets of officers
involved in FIR No.558/97 and FIR No.559/97. The aspect
regarding FIR No.558/97 was not put to the witnesses even before       D
the trial court. Everything was brought about in appeal as
additional evidence in exercise of the power of the appellate court
under Section 391 Cr. P.C. Placing of heavy reliance by the High
Court upon the contents in FIR No.558/97 was not a correct
approach. Unfortunately, the High Court was swayed by the
Departmental Enquiry Report prepared by Joint Commissioner             E
of Police. The High Court was not right in placing heavy reliance
upon the report of the Joint Commissioner and the report of
Deputy Commissioner who were not examined before the court.
[Paras 31, 32 and 33][94-C-D, H]
       1.7 Based upon the report of Joint Commissioner of Police       F
and the report of the DCP, the High Court made disparaging
remarks against the police officials and directed prosecution
against the police under Sections 193 and 195 IPC. The police
officials were neither party nor summoned by the High Court
before making such disparaging remarks and giving directions           G
against them in the appeal against the conviction. Any disparaging
remarks and direction to initiate departmental action/prosecution
against the persons whose conduct comes into consideration
before the court would have serious impact on their official career.
Since the High Court had passed strictures against the police
                                                                       H
82                SUPREME COURT REPORTS                  [2018] 14 S.C.R.


A    officials who were involved in the investigation in
     FIR No.559/1997 without affording an opportunity of hearing to
     them, the disparaging remarks are liable to be set aside.
     [Paras 34, 36][95-A-B, D; 97-D]
            1.8 The object of Section 340 Cr.P.C. is to ascertain whether
B    any offence affecting administration of justice has been committed
     in relation to any document produced or evidence given in court
     during the time when the document or evidence was in custodian
     legis and whether it is also expedient in the interest of justice to
     take such action as required under Section 340 Cr.P.C. Before
     directing the prosecution to be initiated under Section 195 Cr.P.C.,
C    the court has to follow the procedure under Section 340 Cr.P.C.
     and record a finding that “it is expedient in the interest of
     justice……..”. Though wide discretion is given to court under
     Section 340 Cr.P.C., the same has to be exercised with care and
     caution. To initiate prosecution under Section 195 Cr.P.C too
D    readily that too against the police officials who were conducting
     the investigation may not be a correct approach. There are two
     preconditions for initiating proceedings under Section 340 Cr.
     P.C.- (i) materials produced before the court must make out a
     prima-facie case for a complaint for the purpose of inquiry into an
     offence referred to in clause (b)(i) of sub-section (1) of
E    Section 195 Cr.P.C. and (ii) it is expedient in the interests of
     justice that an inquiry should be made into the alleged offence.
     [Paras 37-39][97-E-H; 98-F-G]
            1.9 Prosecution for perjury be sanctioned by the courts only
     in those cases where perjury appears to be deliberate and
F    prosecution ought to be ordered where it would be expedient in
     the interest of justice to punish the delinquent and not merely
     because there is some inaccuracy in the statement. The High
     Court has not recorded a finding that “it is expedient in the interest
     of justice to initiate an inquiry into the offences punishable under
G    Sections 193 and 195 IPC against the police officials and under
     Section 211 IPC against the prosecutrix”. Without affording an
     opportunity of hearing to the police officials and based on the
     materials produced before the appellate court, the High Court
     was not right in issuing direction to the Registrar General to
     lodge a complaint against the police officials and the said direction
H    is set aside. [Paras 41, 42][100-E-F; 101-C-D]
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                     83


      Amarsang Nathaji as himself and as karta and manager            A
      v. Hardik Harshadbhai Pateland Others (2017) 1 SCC
      113 : [2016] 12 SCR 80 ; Chajoo Ram v. Radhey Shyam
      and Another (1971) 1 SCC 774 : [1971] Suppl. SCR
      172 – relied on.
      State of Maharashtra and Another v. Madhurkar                   B
      Narayan Mardikar (1991) 1 SCC 57 ; State of Punjab
      v. Gurmeet Singh and Others (1996) 2 SCC 384 : [1996]
      1 SCR 532 ; Vishnu alias Undrya v. State of
      Maharashtra (2006) 1 SCC 283 ; State v. N.K. The
      accused (2000) 5 SCC 30 : [2000] 2 SCR 818 ;
      S.K. Viswambaran v. E. Koyakunju and Others (1987)              C
      2 SCC 109 ; Manish Dixit and Others v. State of
      Rajasthan (2001) 1 SCC 596 : [2000] 4 Suppl. SCR 74 ;
      Chintamani Malviya v. High Court of Madhya Pradesh
      (2018) 6 SCC 151 – referred to.
                      Case Law Reference                              D

(1991) 1 SCC 57               referred to               Para 22
[1996] 1 SCR 532              referred to               Para 23
(2006) 1 SCC 283              referred to               Para 24
                                                                      E
[2000] 2 SCR 818              referred to               Para 24
(1987) 2 SCC 109              referred to               Para 35
[2000] 4 Suppl. SCR 74        referred to               Para 36
[2016] 12 SCR 80              relied on                 Para 40
                                                                      F
(2018) 6 SCC 151              referred to               Para 40
[1971] Suppl. SCR 172         relied on                 Para 41
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2299 of 2009.
                                                                      G
     From the Judgment and Order dated 05.05.2009 of the High Court
of Delhi at New Delhi in Criminal Appeal No. 384 of 2000.
                               With
      Criminal Appeal No. 2298/2009
                                                                      H
84                SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A          Vikramjit Banerjee, ASG, Mukul Gupta, Sanjay R. Hegde,
     Ms. Kiran Suri, Sr. Advs., Satya Mitra Garg, Sumit Kr. Mishra, Tushar
     Gupta, Dipanshu Panwar, Ms. Manju Aggarwal, Sudhadhar Kumar,
     Hrishikesh Baruah, Ms. Radhika Gupta, Siddhant K., P. K. Dey, Pranay
     Ranjan, B. V. Balaram Das, Praveen Chaturvedi, Ms. Jyoti Chaturvedi,
     Ms. Addya Mishra, Advs. for the appearing parties.
B
           The Judgment of the Court was delivered by
           R. BANUMATHI, J.
            1. These appeals arise out of the judgment dated 05.05.2009 passed
     by the High Court of Delhi in Criminal Appeal No.384 of 2000 in and by
C    which the High Court allowed the appeal filed by the respondents/accused
     thereby setting aside their conviction under Section 376(2)(g) IPC passed
     by the trial court and the sentence of imprisonment imposed upon them.
     By the impugned judgment, the High Court also issued direction to lodge
     a complaint against the appellants-police officials (CA No.2298/2009)
D    for prosecuting them under Sections 193 and 195 IPC.
            2. Case of prosecution is that the accused/respondents who were
     living in the neighbourhood of the prosecutrix (PW-1) at Shaheed Bhagat
     Singh Jhuggi Camp, Katwaria Sarai, entered her jhuggi at about 09.00
     PM on 28.07.1997 and demanded a bidi from her. She refused to give
E    them any bidi. Thereafter, they demanded water which she again refused.
     The prosecutrix has alleged that thereafter respondents/accused switched
     off the electricity and accused/respondent No.2 Gunjesh Chaudhary
     caught hold of her hands and the other three accused had torn her clothes
     and committed rape on her in turn. The prosecutrix has alleged that she
     raised an alarm and fell unconscious thereafter. On hearing the alarm,
F    Bashira Khatoon, mother of the prosecutrix (PW-3) came there and
     saw the four accused/respondents coming out of the jhuggi. Bashira
     Khatoon (PW-3) found the prosecutrix lying unconscious inside the jhuggi.
     Police Control Room (PCR) van took the prosecutrix to All India Institute
     of Medical Sciences (AIIMS) hospital. At about 11.45 PM, the
G    prosecutrix was medically examined by Dr. Monika and it was noted in
     MLC (Ex.-PW6/A) that there were “bruises of 4 x 4 cm on medial
     aspects of both thighs of the prosecutrix”. The blouse of the
     prosecutrix was found torn in the back side along the left sleeve.
           3. At about 09.30 PM, information was received in the Police
     Station, Hauz Khaz PCR/South District regarding some quarrel at
H
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                          85
                 [R. BANUMATHI, J.]

Shaheed Bhagat Singh Jhuggi. SI Jai Bhagwan (PW-7) along with              A
Constable Khushi Ram (PW-4) reached the spot and learnt that the
prosecutrix was taken to the hospital by a PCR Van. SI Jai Bhagawan
(PW-7) along with the constable went to the AIIMS and found PW-1
Phoola (Prosecutrix) there. Doctor declared PW-1 fit to make statement
and SI Jai Bhagwan recorded her statement concerning allegations of
                                                                           B
rape by the accused/respondents. The statement of the prosecutrix was
recorded at 02.30 AM on 29.07.1997 and ruqqa for registration of the
case under Section 376 IPC was sent at 02.50 AM. A case under FIR
No.559/97 under Section 376 IPC read with Section 34 IPC was
registered at 03.15 AM on 29.07.1997.
       4. On the date of incident i.e. 28.07.1997 at about 11.45 PM, the   C
prosecutrix was medically examined by Dr. Monika. It was noted in the
MLC (Ex.-PW6/A) that there were bruises of 4 cm x 4 cm on the
medial aspects of both the thighs of the prosecutrix. The blouse was
torn along the back of the left sleeve and at the time of preparing the
MLC (Ex.-PW6/A); the clothes of prosecutrix could not be sealed since      D
she did not have spare clothes. Later her petticoat was collected and
sent for chemical examination. Upon completion of investigation, charge
sheet was filed against the accused/respondents.
      5. Charges were framed against the accused/respondents under
Section 376(2)(g) IPC to which they pleaded not guilty. To bring home      E
the guilt of the accused, the prosecution examined seven witnesses and
exhibited number of documents. The accused/respondents in their
statement under Section 313 Cr.P.C. stated that PW-1-Prosecutrix was
of bad character and she was indulging in prostitution and they have
lodged complaint against her and therefore, they have been falsely
implicated in the rape case.                                               F

       6. Upon consideration of evidence of PW-1-Prosecutrix and
medical report, forensic report and other evidence, the trial court
convicted accused/respondents under Section 376(2)(g) IPC and
sentenced each of them to undergo rigorous imprisonment for ten years.
Being aggrieved, the accused/respondents filed appeal before the High      G
Court. In the High Court, the accused/respondents filed petition under
Section 391 Cr.P.C. for taking additional evidence which was allowed
by the High Court. The High Court by the impugned judgment allowed
the appeal by setting aside the conviction of the accused/respondents
under Section 376(2)(g) IPC. The High Court held that regarding the        H
86                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A    ladies quarrel at 07.30 p.m. on 28.07.1997 involving sex workers including
     the prosecutrix at Shaheed Bhagat Singh Jhuggi, FIR No.558/97 was
     registered and in connection with the said FIR No.558/97, the prosecutrix
     and other ladies were arrested and that they were in custody with the
     police till at least 09.30 PM. The High Court therefore doubted the
     prosecution case in FIR No.559/97 and held that when the prosecutrix
B
     and other ladies were in custody with the police between 08.50 PM till
     10.00 PM on 28.07.1997, it is quite impossible that the occurrence of
     rape would have taken place at 09.00 PM on 28.07.1997 as alleged by
     the prosecutrix.
            7. Based upon the Report of Joint Commissioner (Ex.-DW6/A)
C    and the Report of DCP, the High court directed the Registrar General of
     the High Court to make a complaint against SI Jai Bhagwan          (PW-
     7), SI Prem Chand (DW-3) and Head Constable Sagar Chand (DW-5)
     before the concerned court for prosecution for the offences under
     Sections 193 and 195 IPC. Being aggrieved by the remarks made against
D    them and also the direction to lodge a complaint to initiate prosecution
     against them, SI Jai Bhagwan (PW-7), SI Prem Chand (DW-3) and
     Head Constable Sagar Chand (DW-5) have preferred Criminal Appeal
     No.2298 of 2009.
            8. The learned Additional Solicitor General Mr. Vikaramjit Banerjee
E    appearing on behalf of appellant Govt. of NCT of Delhi has submitted
     that the High Court has failed to appreciate the evidence of PW-1-
     Prosecutrix which is corroborated by the medical evidence and the High
     Court erred in relying upon the events in FIR No.558/97 and erred in
     acquitting the respondents/accused. The learned Additional Solicitor
     General further submitted that the High Court erred in relying upon the
F    report of the Joint Commissioner (Ex.-DW6/A) and other materials
     produced at the time of arguments and the High Court ought not to have
     proceeded on presumption and conjectures and erred in not appreciating
     the evidence and materials placed on record.
           9. The learned senior counsel Mr. Mukul Gupta and Mr. Sanjay
G    R. Hegde appearing for the appellants-police have taken us through the
     evidence and other materials and submitted that the police officials have
     correctly investigated the case and without giving an opportunity of
     hearing, the High Court was not right in passing disparaging remarks
     against the police officials and issuing directions to lodge a complaint
H    against the appellants-police officials to initiate the prosecution under
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                             87
                 [R. BANUMATHI, J.]

Sections 193 and 195 IPC which have very serious consequences and             A
impact on their official career.
       10. Though the accused initially engaged a lawyer, in later hearings
of the appeal, they were not represented. Mr. Praveen Chatruvedi was
nominated as the counsel for the respondents through Supreme Court
Legal Services Committee who made meticulous submissions. Contention          B
of the respondents/accused is that PW-1-Prosecutrix was in custody of
police between 08.50 PM to 10.00 PM on 28.07.1997 in connection with
FIR No.558/97 under Section 160 IPC and therefore, the alleged offence
of gang rape (FIR No.559/97) could not have been committed by the
respondents/accused in the manner alleged. It is the contention of the
respondents/accused that the police and prosecutrix have conspired a          C
plot of false rape case implicating the respondents and the High Court
rightly acquitted the accused/respondents and directed to initiate action
against the police.
      11. We have carefully considered the submissions of the
respondents/accused and also the appellant/police officials and perused       D
the impugned judgment and materials on record.
       12. PW-1-Prosecutrix has spoken about the occurrence of rape
committed on her that accused/respondent No.2-Gunjesh Chaudhary
caught hold of her hands and that other three accused namely Pankaj
Chaudhary, Qasim and Jai Lal Yadav had torn her blouse and committed          E
rape on her and that she raised alarm and then her mother came there
and the accused persons ran away. Upon consideration of evidence of
the prosecutrix, the trial court held that there is no reason to disbelieve
the statement of prosecutrix where it is sufficiently corroborated by the
statement of Bashira Khatoon, mother of prosecutrix (PW-3) who saw            F
the accused leaving the jhuggi and identified two of them in the court.
      13. Evidence of the prosecutrix is corroborated by the MLC
(Ex.-PW6/A). Dr. Monika who examined the prosecutrix noted in MLC
(Ex-PW6/A) that “the blouse of the prosecutrix was found to be torn
along the back of the left sleeve and bruises measuring 4 × 4 cm              G
were found on her both thighs”.
       14. Contention of the respondents is that when the prosecutrix
was forcibly held by the accused and gang raped, in all probability, the
prosecutrix must have sustained external injuries and absence of external
injuries raises serious doubts about the prosecution version. The
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88                 SUPREME COURT REPORTS                         [2018] 14 S.C.R.


A    submission of the accused/respondents that the prosecutrix was not
     injured, was belied by the presence of bruises measuring 4 × 4 cm on the
     medial aspects of both the thighs. The blouse was torn along the back
     of left sleeve and such injuries were possible by use of force. Further,
     the version of the prosecutrix is corroborated by MLC(Ex.-PW6/A)
     and that the injuries found could be possible by use of force. In any
B
     event, absence of external injuries does not tantamount to consent nor
     does it discredit the version of prosecutrix.
            15. The evidence of the prosecutrix is also corroborated by FSL
     Report (Ex.-PW7/G) which shows presence of human semen (Ex.-1)
     on the petticoat of the prosecutrix. As per the FSL Report (Ex.-PW7/
C    G), blood was detected on Exhibits 3S1 (gauze cloth piece having brown
     stains labelled ‘Pankaj’); 3S2 (gauze cloth piece having brown stains
     labelled ‘Qasim’); and 3S3 (gauze cloth piece having brown stains labelled
     ‘Jai Lal’). The result of the biological report reads as under :-
                        Exhibits                    Species of      ABO Group
D                                                    Origin           Remarks
      3S1 (gauze cloth piece having brown stains                    Inconclusive
      labelled ‘Pankaj’)
      3S2 (gauze cloth piece having brown stains                    Inconclusive
      labelled ‘Qasim’)
      3S3 (gauze cloth piece having brown stains                     ‘B’ Group
E
      labelled ‘Jai Lal’)
      Semen Status (Ex.-1-petticoat of the                           ‘B’ Group
      prosecutrix)
     The presence of semen status of ‘B’ group on the petticoat of the
     prosecutrix which matches with the blood ‘B’ group of accused Jai Lal
F    (3S3) corroborates the version of the prosecutrix. Of course, the Serology
     Report on Exhibits 3S1 (gauze cloth piece having brown stains labelled
     ‘Pankaj’); 3S2 (gauze cloth piece having brown stains labelled ‘Qasim’)
     remained inconclusive; probably due to disintegration of the sample. Such
     disintegration of the sample does not dilute the version of the prosecutrix.
G          16. The FSL Report (Ex.-PW7/G) was discarded by the High
     Court primarily on the ground that in MLC (Ex.-PW6/A), it is stated that
     “the clothes could not be sealed as patient does not have extra
     clothes” which according to the High Court was inconsistent with the
     statement of SI Jai Bhagwan (PW-7) that “Duty Constable of the
H
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                            89
                 [R. BANUMATHI, J.]

hospital produced before me two sealed parcels containing petticoat          A
and slides which was sent to the FSL”. It is pertinent to note that the
prosecutrix was examined by the doctor at 11.45 PM on 28.07.1997;
whereas SI Jai Bhagwan (PW-7) after getting statement from the doctor
as to the fit mental state of prosecutrix has recorded the statement of
the prosecutrix at 02.30 AM on 29.07.1997. In her evidence during
                                                                             B
cross-examination, the prosecutrix has stated that the petticoat that she
was wearing at the time of incident was seized by the police. Having
regard to the evidence of the prosecutrix, we find no inconsistency
between MLC (Ex.-PW6/A) and the statement of SI Jai Bhagwan
(PW-7).
       17. Drawing our attention to the evidence of prosecutrix who          C
submitted that the prosecutrix regained consciousness only at 10.00 AM
on 29.07.1997 and while so SI Jai Bhagwan could not have recorded her
statement at around 02.30 AM on 29.07.1997 as stated by him and this
again throws serious doubt about the prosecution case. The prosecutrix
(PW-1) was examined in the court on 05.11.1999 nearly two years after        D
the occurrence and she might not have been able to recollect the
happenings as it is. It is also pertinent to note that SI Jai Bhagwan (PW-
7) has enquired the Doctor and the Doctor has declared that prosecutrix
was fit to make the statement and only thereafter the statement of
prosecutrix (PW-1) was recorded (Ex.-PW1/A). In the light of the
evidence of SI Jai Bhagwan that the Doctor declared the prosecutrix fit      E
to make the statement, there is no merit in the contention of the accused
raising doubts about the recording of statement of the prosecutrix at
02.30 AM on 29.07.1997.
       18. On the next day i.e., on 29-07-1997 all the accused/respondents
were arrested by SI Jai Bhagwan (PW-7) and they were medically               F
examined in the hospital between 11.36 AM to 11.38 AM and the doctor
opined that “on clinical examination, there is nothing to suggest that
the said accused persons are incapable of performing sexual
intercourse”. The blood samples and the slide of smear of the accused
were also seized and the case property was deposited in the malkhana         G
from where it was sent to FSL. As pointed out earlier, the FSL Report
(Ex.-PW7/G) showed that the semen stains were found on the petticoat
of the prosecutrix (B group) which matched with the blood group of the
accused/respondent No.4-Jai Lal Yadav.

                                                                             H
90                 SUPREME COURT REPORTS                        [2018] 14 S.C.R.


A           19. It is also relevant to refer to the false explanation of the accused
     in their statement under Section 313 Cr.P.C. Though the accused have
     admitted about their medical examination, in their statement under Section
     313 Cr.P.C. all the accused have given a false version regarding the
     manner and time of arrest as after 04.00 PM on 29.07.1997. The statement
     of the accused that they were arrested only after 04.00 PM on 29.07.1997
B
     is not consistent with the materials placed on record that they were
     medically examined between 11.36 AM to 11.38 AM on 29.07.1997.
     The false explanation by the accused is yet another militating circumstance
     against them.
            20. Further, as pointed out by the trial court, the prosecutrix had
C    no motive to falsely implicate the accused. In their statement under
     Section 313 Cr.P.C., the respondents/accused have stated that the
     prosecutrix was of bad character and she was indulging in prostitution
     regarding which they have lodged complaint against her and they have
     been falsely implicated in the case. As pointed out by the trial court,
D    nothing was brought on record by the accused to show that they have
     lodged complaint against the prosecutrix. Mahanand Jha (DW-1) stated
     that he is the President of the jhuggi area. He further stated that about
     7-8 women including the prosecutrix have been indulging in prostitution
     regarding which he has lodged the complaint. There is nothing on record
     to suggest that the accused were in any way involved in making such
E    complaints against the prosecutrix and other women. The version that
     they lodged complaint against the prosecutrix and therefore, they have
     been falsely implicated in the case, is not substantiated by any record.
     21. The High Court observed that the trial court erred in saying that the
     accused failed to prove the making of previous complaints against the
F    prosecutrix. While saying so, the High Court referred to certain complaints
     made against the prosecutrix including the one allegedly given on
     21.07.1997 which were produced by the Bar at the time of arguments.
     The power conferred under Section 391 Cr.P.C. is to be exercised with
     great care and caution. In dealing with any appeal, the appellate court
     can refer to the additional evidence only if the same has been recorded
G
     as provided under Section 391 Cr.P.C. Any material produced before
     the appellate court to fill-up the gaps by either side cannot be considered
     by the appellate court; more so, to reverse the judgment of the trial
     court. As rightly contended by the learned Additional Solicitor General,
     the High Court has taken into consideration the materials produced by
H
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                               91
                 [R. BANUMATHI, J.]

the Bar, namely, complaints allegedly made against the prosecutrix and          A
other women including the one allegedly given on 21.07.1997 just one
week prior to the incident. The High Court was not right in taking into
consideration those complaints produced at the time of arguments in the
appeal.
       22. As rightly held by the trial court that even if the allegations of   B
the accused that the prosecutrix is of immoral character are taken to be
correct, the same does not give any right to the accused persons to
commit rape on her against her consent. In State of Maharashtra and
Another v. Madhurkar Narayan Mardikar (1991) 1 SCC 57, it was
held that even a woman of easy virtue is entitled to privacy and it is not
open to any person to violate her and she is equally entitled to protection     C
of law. Further, the evidence of such a woman cannot be thrown
overboard merely because she is a woman of easy virtue.
      23. Even in cases where there is some material to show that the
victim was habituated to sexual intercourse, no inference like the victim
being a woman of ‘loose moral character” is permissible to be drawn             D
from that circumstance alone. A woman of easy virtue also could not be
raped by a person for that reason. In State of Punjab v. Gurmeet Singh
and Others (1996) 2 SCC 384, it was held as under:-
      “16. ……Even if the prosecutrix, in a given case, has been
      promiscuous in her sexual behaviour earlier, she has a right to           E
      refuse to submit herself to sexual intercourse to anyone and
      everyone because she is not a vulnerable object or prey for being
      sexually assaulted by anyone and everyone……”(Emphasis
      supplied) [Underlining added].
      While so, the High Court erred in placing reliance upon the               F
complaints allegedly made against the prosecutrix to doubt her version
and to hold that a false case has been foisted against the accused.
       24. It is now well-settled principle of law that conviction can be
sustained on the sole testimony of the prosecutrix if it inspires confidence.
[Vishnu alias Undrya v. State of Maharashtra (2006) 1 SCC 283]. It              G
is well-settled by a catena of decisions of this Court that there is no rule
of law or practice that the evidence of the prosecutrix cannot be relied
upon without corroboration and as such it has been laid down that
corroboration is not a sine qua non for conviction in a rape case. If the
evidence of the victim does not suffer from any basic infirmity and the
                                                                                H
92                 SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A    ‘probabilities factor’ does not render it unworthy of credence, as a general
     rule, there is no reason to insist on corroboration except from medical
     evidence, where, having regard to the circumstances of the case, medical
     evidence can be expected to be forthcoming. [State v. N.K. The accused
     (2000) 5 SCC 30]
B           25. The trial court which had the opportunity of seeing and observing
     the prosecutrix, found the testimony of the prosecutrix reliable being
     corroborated by her mother’s evidence, medical evidence, FSL report
     and other circumstances viz. absence of motive for any false implication
     etc. While so, the High Court ought not to have heavily interfered with
     the verdict of conviction based on the alleged time gap in the registration
C    of two FIRs and other aspects of investigation in connection with FIR
     No.558/97 to reverse the verdict of conviction.
            26. The High Court reversed the verdict of conviction mainly on
     the ground of difference of timing in the registration of FIR No.558/97
     and other aspects of investigation. At about 08.05 PM, a telephonic
D    information was received vide DD No.67-B at Police Station Hauz Khas
     regarding a quarrel at Shaheed Bhagat Singh Jhuggi. The specific case
     of the defence is that the prosecutrix was in police custody in FIR No.558/
     97 under Section 160 IPC till about 10.00 PM. As per the deposition of
     SI Prem Chand (DW-3), he reached the spot with one lady constable
E    Ms. Sarla Toppo and Constable Sagar Chandra (DW-5) at around 08:18
     PM and found the ladies including prosecutrix quarrelling at public place
     in their jhuggis and immediately arrested the ladies and conducted
     investigation and sent the ruqqa with a constable to register the FIR
     under Section 160 IPC. On receipt of information, FIR No.558/97 at
     Police Station Hauz Khas was registered at 09.20 PM on 28.07.1997.
F    SI Prem Chand (DW-3) stated about the arrest and search of four
     women and then released them on bail bonds and he was on the spot up
     to 08:50 PM.
             27. The High Court relied on the statement of Head Constable
     Ratan Lal (DW-4) that SI Prem Chand (DW-3) has made a telephonic
G    call at 08:52 PM to know the serial number of the case and because the
     FIR was registered at 09:20 PM, the High Court came to the conclusion
     that the women involved in the FIR No.558/97 could not have been
     released before 09:20 PM because one of the bail bonds contain the said
     FIR number and also held that it is highly unlikely for the police to have
H    completed all the steps referred to above in respect of each of the four
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                           93
                 [R. BANUMATHI, J.]

women and released them by 08:52 PM and as per the site plan drawn          A
in FIR No.559/97, the distance between the road and jhuggi is such that
it was impossible for the prosecutrix to come back alone and be in her
jhuggi at 09.00 PM.
       28. The occurrence of rape (FIR No.559/97) was at about
09.00 PM regarding which information was received by the same Police        B
Station Hauz Khas at about 09.30 PM. SI Jai Bhagwan (PW-7) along
with constable Khushi Ram (PW-4) reached the spot and learnt that the
prosecutrix was taken to hospital by PCR Van. Thereafter, SI Jai
Bhagwan (PW-7) along with constable Khushi Ram (PW-4) went to
AIIMS and found the prosecutrix there and he recorded her statement
at 02.30 AM on 29.07.1997 after getting the certificate from the doctor.    C
Ruqqa for registration of the case under Section 376 IPC was sent at
02.50 AM and case under FIR No.559/97 under Section 376 IPC read
with Section 34 IPC was registered at 03.15 AM on 29.07.1997.
       29. After referring to the timings of FIR No.558/97, the High
Court held that the quarrelling ladies including the prosecutrix were in    D
custody of the police at least till 08.50 PM and it was highly improbable
that the prosecutrix could have come back and was alone in her jhuggi
at 09.00 PM on 28.07.1997 and that the respondents/accused entered
her jhuggi and committed rape as alleged by her and that even before
09.30 PM, she was picked up from there by PCR Van. The High Court           E
therefore concluded that SI Jai Bhagwan, constable Khushi Ram
(PW-4) and the prosecutrix (PW-1) have fabricated false case against
the accused. In this regard, the High Court relied upon the Report of
Joint Commissioner dated 07.11.2000 (Ex.-DW6/A) and the Report of
S.K. Gautam, DCP.
                                                                            F
       30. The reasoning of the High Court that the ladies were arrested
in connection with FIR No.558/97 under Section 160 IPC and that the
ladies must have remained with the custody of police till 09.20 PM
proceeds on presumptive footing and surmises. In his evidence, Mahanand
Jha (DW-1) has stated that “the said ladies came back to the area at
08.30 PM and started abusing the neighbourers”. Likewise,                   G
Sharabuddin (DW-2) has stated that “the police released the said ladies
including Phoola (PW-1) and after coming back to her jhuggi, she
started abusing the neighbours. Then, I informed PCR Van on
telephone and PCR Van came and took Phoola……..”. The High
Court failed to appreciate the testimonies of DWs 1 and 2 who have          H
94                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A    categorically stated that the prosecutrix had come back and was abusing
     neighbours. The evidence of DWs 1 and 2 clearly shows that the
     prosecutrix was let out by the police at or about 08.20 PM on 28.07.1997.
     Mere fact that FIR No.558/97 under Section 160 IPC was registered at
     09.20 PM does not indicate that the prosecutrix and other quarrelling
     ladies were in the police custody till 09.30 PM on 28.07.1997 (with respect
B
     to the offence in FIR No.558/97).
            31. There were two sets of persons and two sets of officers are
     involved in FIR No.558/97 and FIR No.559/97. The aspect regarding
     FIR No.558/97 was not put to the witnesses even before the trial court.
     Everything was brought about in appeal as additional evidence in exercise
C    of the power of the appellate court under Section 391 Cr. P.C. Placing
     of heavy reliance by the High Court upon the contents in FIR No.558/97
     was not a correct approach.
            32. Unfortunately, the High Court was swayed by the
     Departmental Enquiry Report (Ext.-DW6/A) prepared by Joint
D    Commissioner of Police that was brought on record by Constable
     Dharamvir Singh (DW-6). Going through the entire report, we observe
     that the departmental enquiry was primarily based on the diary entries
     and the statements of one complainant Amod Shastri and statement of
     ASI Kamal Dev. In the report, Joint Commissioner of Police, inter-
E    alia concluded that the rape incident could not have happened at 09.00
     PM while SI Prem Chand (DW-3) indicated that quarrelling ladies
     including the prosecutrix were released at 08.50 PM. It is pertinent to
     note that neither S.K. Gautam, Deputy Commissioner of Police was
     examined nor the said complainant Amod Shastri and ASI Kamal Dev
     were examined. Yet the High Court relied on it to come to a conclusion
F    that the rape incident could not have happened at the alleged time and
     manner.
            33. ASI Kamal Dev who took the prosecutrix to the hospital in
     PCR Van is said to have made the statement before the Deputy
     Commissioner of Police stating that when he questioned the prosecutrix,
G    she was conscious and that she told him that she had been beaten up
     and has not stated anything about the alleged incident of rape. In our
     view, the High Court was not right in placing heavy reliance upon the
     report of the Joint Commissioner and the report of Deputy Commissioner
     who were not examined before the court.
H
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                            95
                 [R. BANUMATHI, J.]

       34. Based upon the report of Joint Commissioner of Police (Ex.-       A
DW6/A) and the report of S.K. Gautam, DCP, the High Court made
disparaging remarks against the police officials and directed prosecution
against the police under Sections 193 and 195 IPC. The police officials
were neither party nor summoned by the High Court before making
such disparaging remarks and giving directions against them in the appeal
                                                                             B
against the conviction. On behalf of the police officials, it is submitted
that the conclusions drawn by the High Court are based on mere surmises
and presumptions. The High Court further relied on the Departmental
Enquiry Report (Ex.-DW6/A) which was not put to test and the maker
of the report was not examined which therefore has no evidentiary value
in the eyes of law.                                                          C
       35. While passing disparaging remarks against the police officials
and directing prosecution against them, in our considered view, the High
Court has failed to bear in mind the well settled principles of law that
should govern the courts before making disparaging remarks. Any
disparaging remarks and direction to initiate departmental action/           D
prosecution against the persons whose conduct comes into consideration
before the court would have serious impact on their official career. In
S.K. Viswambaran v. E. Koyakunju and Others (1987) 2 SCC 109,
this Court held as under:-
      “9. Stung by the remarks made against him without even a               E
      hearing………….”.
      13. We have also to point out a grievous procedural error committed
      by the High Court. Even assuming for argument’s sake that for
      expunging the remarks against Respondents 2 and 3 the conduct
      of the appellant required scrutiny and merited adverse comment,        F
      the principles of natural justice required the High Court to have
      issued notice to the appellant and heard him before passing adverse
      remarks against him if it was considered necessary. By its failure
      the High Court has failed to render elementary justice to the
      appellant.
                                                                             G
      14. ………..In State of U.P. v. Mohd. Naim AIR 1964 SC 703,
      it was held as follows:
          “If there is one principle of cardinal importance in the
          administration of justice, it is this: the proper freedom and
          independence of Judges and Magistrates must be maintained
                                                                             H
96               SUPREME COURT REPORTS                        [2018] 14 S.C.R.


A            and they must be allowed to perform their functions freely and
             fearlessly and without undue interference by anybody, even
             by this Court. At the same time, it is equally necessary that in
             expressing their opinions Judges and Magistrates must be guided
             by considerations of justice, fair play and restraint. It is not
             infrequent that sweeping generalisations defeat the very
B
             purpose for which they are made. It has been judicially
             recognised that in the matter of making disparaging remarks
             against persons or authorities whose conduct comes into
             consideration before courts of law in cases to be decided by
             them, it is relevant to consider (a) whether the party whose
C            conduct is in question is before the court or has an opportunity
             of explaining or defending himself; (b) whether there is evidence
             on record bearing on that conduct justifying the remarks; and
             (c) whether it is necessary for the decision of the case, as an
             integral part thereof, to animadvert on that conduct. It has also
D            been recognised that judicial pronouncements must be judicial
             in nature, and should not normally depart from sobriety,
             moderation and reserve.”
          This ratio has been followed in R.K. Lakshmanan v. A.K.
          Srinivasan and Another (1975) 2 SCC 466 and Niranjan
E         Patnaik v. Sashibhusan Kar and Another (1986) 2 SCC 569
          (to which one of us was a party). Judged in the light of the above
          tests, it may be seen that none of the tests is satisfied in this case.
          It is indeed regrettable that the High Court should have lightly
          passed adverse remarks of a very serious nature affecting the
F         character and professional competence and integrity of the
          appellant in purported desire to render justice to Respondents 2
          and 3 in the petition filed by them for expunction of adverse remarks
          made against them.” [Underlining added].
          36. In Manish Dixit and Others v. State of Rajasthan (2001) 1
G    SCC 596, this Court held as under:-
          “42. ………Such disparaging remarks and the direction to initiate
          departmental action against him could have a very serious impact
          on his official career.

H
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                                 97
                 [R. BANUMATHI, J.]

       43. Even those apart, this Court has repeatedly cautioned that             A
       before any castigating remarks are made by the court against any
       person, particularly when such remarks could ensure serious
       consequences on the future career of the person concerned, he
       should have been given an opportunity of being heard in the matter
       in respect of the proposed remarks or strictures. Such an
                                                                                  B
       opportunity is the basic requirement, for, otherwise the offending
       remarks would be in violation of the principles of natural justice.
       In this case such an opportunity was not given to PW 30
       (Devendra Kumar Sharma). (State of U.P. v. Mohd. Naim AIR
       1964 SC 703, Ch. Jage Ram, Inspector of Police and Another
       v. Hans Raj Midha (1972) 1 SCC 181, R.K. Lakshmanan v.                     C
       A.K. Srinivasan and Another (1975) 2 SCC 466, Niranjan
       Patnaik v. Sashibhusan Kar and Another (1986) 2 SCC 569
       and State of Karnataka v. Registrar General, High Court of
       Karnataka (2000) 7 SCC 333).” [Underlining added]
       Since the High Court has passed strictures against the police              D
officials who were involved in the investigation in FIR No.559/1997
without affording an opportunity of hearing to them, the disparaging
remarks are liable to be set aside.
        37. Insofar as the direction to initiate the prosecution under Sections
193, 195 and 211 IPC is concerned, Section 340 Cr.P.C. provides the               E
procedure for offences enumerated in Section 195(1)(b) Cr.P.C. The
object of Section 340 Cr.P.C. is to ascertain whether any offence
affecting administration of justice has been committed in relation to any
document produced or evidence given in court during the time when the
document or evidence was in custodian legis and whether it is also
expedient in the interest of justice to take such action as required under        F
Section 340 Cr.P.C.
38. Before directing the prosecution to be initiated under Section 195
Cr.P.C., the court has to follow the procedure under Section 340
Cr.P.C. and record a finding that “it is expedient in the interest of
justice……..”. Though wide discretion is given to court under Section              G
340 Cr.P.C., the same has to be exercised with care and caution. To
initiate prosecution under Section 195 Cr.P.C too readily that too against
the police officials who were conducting the investigation may not be a
correct approach. Contention of the learned counsel for the police officials
is that before passing the direction to initiate the prosecution for the
                                                                                  H
98                      SUPREME COURT REPORTS                     [2018] 14 S.C.R.


A    offences under Sections 193, 195 and 211 IPC, the High Court ought to
     have followed the procedure contemplated under Section 340(1) Cr.P.C.
           39. Section 340(1) Cr. P.C. reads as under:-
           340. Procedure in cases mentioned in Section 195 – (1)
           When, upon an application made to it in this behalf or otherwise,
B          any Court is of opinion that it is expedient in the interests of justice
           that an inquiry should be made into any offence referred to in
           Clause (b) of sub-section (1) of Section 195, which appears to
           have been committed in or in relation to a proceeding in that Court
           or, as the case may be, in respect of a document produced or
C          given in evidence in a proceeding in that Court, such Court may,
           after such preliminary inquiry, if any, as it thinks necessary-
                  (a)    record a finding to that effect;
                  (b)    make a complaint thereof in writing;
                  (c)    send it to a Magistrate of the first class having
D
                         jurisdiction;
                  (d)    take sufficient security for the appearance of the accused
                         before such Magistrate, or if the alleged offence is
                         non-bailable and the Court thinks it necessary so to do,
                         send the accused in custody to such Magistrate; and
E
                  (e)bind over any person to appear and give evidence before
                     such Magistrate.
     There are two preconditions for initiating proceedings under Section 340
     Cr. P.C. :
F           (i) materials produced before the court must make out a prima
                 facie case for a complaint for the purpose of inquiry into an
                 offence referred to in clause (b)(i) of sub-section (1) of
                 Section 195 Cr.P.C. and
           (ii)     it is expedient in the interests of justice that an inquiry should
G                   be made into the alleged offence.
            40. Observing that the court has to be satisfied as to the prima-
     facie case for a complaint for the purpose of inquiry into an offence
     under Section 195(1)(b) Cr.P.C., this Court in Amarsang Nathaji as
     himself and as karta and manager v. Hardik Harshadbhai Patel
     and Others (2017) 1 SCC 113 held as under:-
H
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                              99
                 [R. BANUMATHI, J.]

    “6. The mere fact that a person has made a contradictory                   A
    statement in a judicial proceeding is not by itself always sufficient
    to justify a prosecution under Sections 199 and 200 of the Penal
    Code, 1860 (45 of 1860) (hereinafter referred to as “IPC”); but it
    must be shown that the defendant has intentionally given a false
    statement at any stage of the judicial proceedings or fabricated
                                                                               B
    false evidence for the purpose of using the same at any stage of
    the judicial proceedings. Even after the above position has emerged
    also, still the court has to form an opinion that it is expedient in the
    interests of justice to initiate an inquiry into the offences of false
    evidence and offences against public justice and more specifically
    referred to in Section 340(1) CrPC, having regard to the overall           C
    factual matrix as well as the probable consequences of such a
    prosecution. (See K.T.M.S. Mohd. and Another v. Union of
    India (1992) 3 SCC 178). The court must be satisfied that such
    an inquiry is required in the interests of justice and appropriate in
    the facts of the case.
                                                                               D
    7. In the process of formation of opinion by the court that it is
    expedient in the interests of justice that an inquiry should be made
    into, the requirement should only be to have a prima facie
    satisfaction of the offence which appears to have been committed.
    It is open to the court to hold a preliminary inquiry though it is not
    mandatory. In case, the court is otherwise in a position to form           E
    such an opinion, that it appears to the court that an offence as
    referred to under Section 340 CrPC has been committed, the court
    may dispense with the preliminary inquiry. Even after forming an
    opinion as to the offence which appears to have been committed
    also, it is not mandatory that a complaint should be filed as a matter     F
    of course. (See Pritish v. State of Maharashtra and Others
    (2002) 1 SCC 253)
    8. In Iqbal Singh Marwah and Another v. Meenakshi Marwah
    and Another (2005) 4 SCC 370, a Constitution Bench of this
    Court has gone into the scope of Section 340 CrPC. Para 23                 G
    deals with the relevant consideration:
       “23. In view of the language used in Section 340 CrPC the
       court is not bound to make a complaint regarding commission
       of an offence referred to in Section 195(1)(b), as the section is
       conditioned by the words “court is of opinion that it is expedient      H
100                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A               in the interests of justice”. This shows that such a course will
                be adopted only if the interest of justice requires and not in
                every case. Before filing of the complaint, the court may hold
                a preliminary enquiry and record a finding to the effect that it
                is expedient in the interests of justice that enquiry should be
                made into any of the offences referred to in Section 195(1)(b).
B
                This expediency will normally be judged by the court by
                weighing not the magnitude of injury suffered by the person
                affected by such forgery or forged document, but having regard
                to the effect or impact, such commission of offence has upon
                administration of justice. It is possible that such forged
C               document or forgery may cause a very serious or substantial
                injury to a person in the sense that it may deprive him of a very
                valuable property or status or the like, but such document may
                be just a piece of evidence produced or given in evidence in
                court, where voluminous evidence may have been adduced
                and the effect of such piece of evidence on the broad concept
D
                of administration of justice may be minimal. In such
                circumstances, the court may not consider it expedient in the
                interest of justice to make a complaint.”
      The same principle was reiterated in Chintamani Malviya v. High
      Court of Madhya Pradesh (2018) 6 SCC 151.
E
            41. It has been consistently held by this Court that prosecution for
      perjury be sanctioned by the courts only in those cases where perjury
      appears to be deliberate and that prosecution ought to be ordered where
      it would be expedient in the interest of justice to punish the delinquent
      and not merely because there is some inaccuracy in the statement. In
F     Chajoo Ram v. Radhey Shyam and Another (1971) 1 SCC 774, this
      Court held as under:-
            “7. The prosecution for perjury should be sanctioned by courts
            only in those cases where the perjury appears to be deliberate
            and conscious and the conviction is reasonably probable or likely.
G           No doubt giving of false evidence and filing false affidavits is an
            evil which must be effectively curbed with a strong hand but to
            start prosecution for perjury too readily and too frequently without
            due care and caution and on inconclusive and doubtful material
            defeats its very purpose. Prosecution should be ordered when it
H           is considered expedient in the interests of justice to punish the
STATE (GOVT. OF NCT OF DELHI) v. PANKAJ CHAUDHARY                              101
                 [R. BANUMATHI, J.]

      delinquent and not merely because there is some inaccuracy in            A
      the statement which may be innocent or immaterial. There must
      be prima facie case of deliberate falsehood on a matter of substance
      and the court should be satisfied that there is reasonable foundation
      for the charge. In the present case we do not think the material
      brought to our notice was sufficiently adequate to justify the
                                                                               B
      conclusion that it is expedient in the interests of justice to file a
      complaint. The approach of the High Court seems somewhat
      mechanical and superficial: it does not reflect the requisite judicial
      deliberation….”
       42. By perusal of the impugned judgment of the High Court, we
find that the High Court has not recorded a finding that “it is expedient      C
in the interest of justice to initiate an inquiry into the offences
punishable under Sections 193 and 195 IPC against the police
officials and under Section 211 IPC against the prosecutrix”.
Without affording an opportunity of hearing to the police officials and
based on the materials produced before the appellate court, the High           D
Court, in our view, was not right in issuing direction to the Registrar
General to lodge a complaint against the police officials and the said
direction is liable to be set aside.
       43. The High Court erred in brushing aside the evidence of the
prosecutrix by substituting its views on the basis of submissions made on      E
the sequence of events in FIR No.558/97 and the report of the Joint
Commissioner of Police (Ex.-DW6/A) and the report of the Deputy
Commissioner of Police. The High Court erred in taking into consideration
the materials produced before the appellate court viz., the alleged
complaints made against the prosecutrix and other women alleging that
they were engaged in prostitution. Even assuming that the prosecutrix          F
was of easy virtue, she has a right of refuse to submit herself to sexual
intercourse to anyone. The judgment of the High Court reversing the
verdict of conviction under Section 376(2)(g) recorded by the trial court
cannot be sustained and is liable to be set aside.
       44. For the conviction under Section 376(2)(g) IPC, the accused         G
shall be punished with rigorous imprisonment for a term which shall not
be less than ten years, but which may be extended to imprisonment for
life. After the amendment by Act 13 of 2013 (with retrospective effect
from 03.02.2013), the minimum sentence of ten years was increased to
twenty years as per Section 376-D and in the case of conviction, the           H
102                  SUPREME COURT REPORTS                    [2018] 14 S.C.R.


A     court has no discretion but to impose the sentence of minimum twenty
      years. However, prior to amendment, proviso to Section 376(2) IPC
      provided a discretion to the court that “the court may, for adequate
      and special reasons to be mentioned in the judgment, impose a
      sentence of imprisonment for a term of less than ten years.” Though
      the court is vested with the discretion, in the facts and circumstances of
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      the case, we are not inclined to exercise our discretion in reducing the
      sentence of imprisonment of ten years imposed upon the respondents-
      accused.
             45. In the result, the impugned judgment of the High Court is set
      aside and the appeal preferred by the State is allowed. The verdict of
C     conviction of accused-respondent Nos.1 to 4 (CA No.2299/2009) under
      Section 376(2)(g) IPC and also the sentence of imprisonment of ten
      years imposed upon them is affirmed. The respondents-accused Nos.1
      to 4 shall surrender themselves within a period of four weeks from today
      to serve the remaining sentence, failing which they shall be taken into
D     custody. We place on record the valuable assistance rendered by the
      counsel Mr. Praveen Chaturvedi who has been nominated by the Supreme
      Court Legal Services Committee to argue on behalf of the respondents/
      accused.
             46. The direction of the High Court to lodge complaint against the
E     police officials (appellants in Criminal Appeal No.2298 of 2009) is set
      aside and the appeal preferred by them is allowed.

      Divya Pandey                                             Appeals disposed of.



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