Case: MISS XYZ Vs. THE STATE OF GUJARAT

Inspector, and on relying on such statement, for quashing the FIR. It is stated that the alleged settlement was under the guise of threat and coercion by the 2nd respondent, and it is not entered into by the appellant with her free will and consent. It is stated that the 2nd respondent misused the photographs taken by him, and repeatedly used the same to blackmail her, to secure sexual favours from the appellant. It is contended that the 2nd respondent taking advantage of his position as a Managing Director of the Company, has exploited the appellant and committed rape on her at her residence and in the apartment secured by the 2nd respondent and also during her tours to Baroda. It is submitted that it is not open for the High Court to make a roving inquiry, while considering the application filed under Section 482 CrPC. 11. Learned counsel for the first respondent-State has submitted that the Investigating Officer made an attempt to secure data from the service providers of the mobile phones, but the same was not provided. In the meantime, in view of interim orders passed by the High Court, further investigation was not made. 12. Sri Mukul Rohatgi learned senior counsel appearing for the 2nd respondent, by taking us through the settlement documents arrived, between the parties, and other material placed on record, has submitted that there is absolutely no basis for the allegation of rape by the 2nd respondent, and it was only consensual sex between the parties. It is submitted that having regard to the allegations made, parties arrived at a settlement and entered into a written agreement in the month of July, 2016. As the appellant is not disputing the said documents, the allegation of rape is false. It is submitted that parties were in consensual sex for several years and in absence of any allegation against the 2nd respondent of committing rape subsequent to the agreement, there is no basis for such allegations. It is also submitted that there is no truth in the allegation made by the 2nd respondent about his telephone talk with Shoukin Malik, to defame the appellant. It is contended that having received huge money from the 2nd respondent pursuant to the settlement arrived at, false complaint is filed by the appellant to harass the 2nd respondent. Learned senior counsel also relied on the recent judgment of this Court dated 21 st August, 2019 passed in Criminal Appeal No.1165 of 2019 wherein in similar circumstances FIR was quashed by this Court. 13. Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2 nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent. 14. Though Learned senior counsel Sri Mukul Rohatgi relied on the judgment of this Court dated 21 st August,2019 in Criminal Appeal No.1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]13. Having heard learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the Writ Petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2 nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against the 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.Though Learned senior counsel Sri Mukul Rohatgi relied on the judgment of this Court dated 21 st August,2019 in Criminal Appeal No.1165 of 2019, but we are of the view that the said judgment would not render any assistance to support his case. Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law. It is made clear that we have not expressed any opinion on the merits of the complaint, and it is open to the investigating agency and competent court, to proceed in accordance with law.