MISS XYZ versus STATE OF GUJARAT & ANR
[2019] 13 S.C.R. 1098, Supreme Court of India, 2019
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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[2019] 13 S.C.R.
MISS XYZ
v.
STATE OF GUJARAT & ANR
 (Criminal Appeal No.1619 of 2019)
OCTOBER 25, 2019
[UDAY UMESH LALIT,  INDU MALHOTRA AND
R. SUBHASH REDDY]
Code of Criminal Procedure, 1973 – s.482 – Appellant-
informant was the Personal Assistant of the 2nd respondent-
Managing Director of the Company – In her complaint she alleged
that when she was not well, the 2nd respondent started visiting her
residence and when she was in sleep, he took inappropriate pictures
of her and committed rape on her under the threat of termination of
employment and publication of her pictures – It was further alleged
that the 2nd respondent on coming to know that appellant’s marriage
was fixed, contacted the person with whom her marriage was fixed
and informed him that the appellant is not of good character and
she had physical relationship with him and  other boys – 2nd
respondent also allegedly sent him the nude/inappropriate pictures
of the appellant – Case registered against the 2nd respondent for
the alleged offence u/ss.376, 499 and 506(2), IPC – High Court
quashed the proceedings against the 2nd respondent – On appeal,
held: High Court exceeded the scope of its jurisdiction u/s.482 CrPC
– Even before the investigation is completed by the investigating
agency, the High Court entertained the Writ Petition, and by virtue
of interim order granted by the High Court, further investigation
was stalled – Having regard to the allegations made by the
appellant,
whether the 2nd respondent by clicking inappropriate pictures of
the appellant has blackmailed her or not, and further the 2nd
respondent has continued to interfere by calling the person with
whom appellant’s marriage was fixed or not are the matters for
investigation – In view of the serious allegations made in the
complaint, the High Court should not have made roving inquiry
while considering the application filed u/s.482, CrPC – High Court
got carried away by the agreement/settlement arrived at between
the parties, and recorded finding that the physical relationship of
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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 –
Impugned order set aside – 2nd respondent to co-operate with the
investigation – Till then no coercive action be taken against him –
Penal Code, 1860 – ss.376, 499 & 506(2) – Evidence Act, 1872 –
s.114-A.
Evidence Act, 1872 – s.114-A – Absence of consent in certain
prosecution for rape – Presumption of – Held: Where sexual
intercourse by the accused is proved and the question is whether it
was without the consent of the woman alleged to have been raped,
and such woman states in her evidence that she did not consent, the
court shall presume that she did not consent.
Allowing the appeal, the Court
HELD: 1. The High Court exceeded the scope of its
jurisdiction conferred under Section 482 CrPC, and quashed the
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 2nd respondent has continued to
interfere by calling ‘SM’ or not are the matters for investigation.
In view of the serious allegations made in the
complaint, the High
Court should not have made a roving inquiry while considering
the application filed under Section 482 CrPC. The High Court
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 ‘SM’ and further
interference is also a matter for  investigation. By looking at the
contents of the complaint and the serious allegations made against
the 2nd respondent, the High Court committed error in quashing
the proceedings. Section 114-A of the Indian Evidence Act, 1872
MISS XYZ v. STATE OF GUJARAT & ANR
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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. Whether in a given case
power under Section 482 is to be exercised or not, depends on
the contents of the complaint, and the material placed on record.
In that view of the matter, it is a fit case to set aside the order
passed by the High Court and allow the investigating agency to
proceed with the further investigation in accordance with law. No
opinion expressed on the merits of the complaint, and it is open
to the investigating agency and competent court, to proceed in
accordance with law. The impugned order by the High Court is
set-aside. The 2nd respondent shall appear before the concerned
Police Station on 18-11-2019 at 11.00 a.m. and co-operate with
the investigation. Till then no coercive action shall be taken
against him. [Paras 13-15][1104-D-H; 1105-A-F]
State of Haryana v. Bhajanlal & Ors. AIR 1992 SC
604 : [1990] 3 Suppl. SCR 259; Pramod Suryabhan
Pawar v. The State of Maharashtra & Anr. 2019 AIR
4010 – referred to.
Case Law Reference
[1990] 3 Suppl. SCR 259
referred to
Para 8
2019 AIR 4010
referred to
Para 14
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1619 of 2019.
From the Judgment and Order dated 13.12.2018 of the High Court
of Gujarat at Ahmedabad in Special Criminal Application (Quashing)
No. 9897 of 2017.
Amit Anand Tiwari, Ms. Shakun Sharma, Jeet P. Bhat, Shashwat
Singh, Advs. for the Appellant.
Mukul Rohatgi, Sr. Adv., Aniruddha P. Mayee, Ms. Deepanwita
Priyanka, Saurabh Kirpal, Sujay Kantawala, Pitambar R. Abhichandani,
Ms. Jesal Wahi, Ms. Puja Singh, Advs. for the Respondents.
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The Judgment of the Court was delivered by
R. SUBHASH REDDY,J.
1. Leave granted.
2. This appeal is filed by the 2nd respondent in R/Special Criminal
Application No.9897 of 2017 filed before the High Court of Gujarat, at
Ahmedabad. By the impugned order, High Court has allowed R/Special
Criminal Application by quashing FIR No. CR-I-60-2017 registered on
the file of Mahila Police Station, Ahmedabad City, District Ahmedabad.
3. The  appellant  herein,  is  the  informant  in  crime registered in
FIR No.CR-I-60-2017 on the file of Mahila Police Station, Ahmedabad
City. On her complaint the aforesaid crime is registered against the 2nd
respondent for the alleged offence punishable under Sections 376, 499
and 506(2) of the Indian Penal Code, 1860.
4. The complaint was filed with the following averments:
She is a permanent resident of Jodhpur, Rajasthan State and had
come to Ahmedabad in Gujarat City for employment and she met the 2nd
respondent, who is the Managing Director of the G.S.P. Crop Science
Pvt. Ltd. After conducting interview she was appointed as his Personal
Assistant in the month of November, 2014. When the appellant was not
well, the 2nd respondent started visiting her residence and when she was
in sleep, the 2nd respondent has taken an inappropriate pictures of her.
When she was attending the office, the 2nd respondent by showing her
pictures, was blackmailing her. When she visited Odhav, Kathwada and
Nandesari, Baroda on official work of the
company, the 2nd respondent
used to take advantage of the situation when the appellant was alone,
and was blackmailing to make viral her pictures and to terminate her
employment. As the financial condition of the appellant was not stable,
she did not disclose this to anyone. In December, 2014 the 2nd respondent
took the appellant to Baroda for some work, by threatening to publish
her nude pictures, committed rape on her. Even after coming back to
Ahmedabad, the 2nd respondent again took her to Baroda on the pretext
of some work and committed rape by similar threats in the hotel. The 2nd
respondent was also visiting her rented premises at Ahmedabad and
used to commit rape on her under the threat of termination of employment
and publication of her pictures. The 2nd respondent rented an apartment
at Adani Pratham in August, 2015. When the appellant was residing in
the said apartment,the 2nd respondent used to come to the said apartment
MISS XYZ v. STATE OF GUJARAT & ANR
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and was demanding sexual favours. As she was fed up with the
exploitation by the 2nd respondent, she vacated the rental premises in
June, 2016. In view of serious threat by the 2nd respondent to her life,
she left for Jodhpur and her marriage was fixed with one Mr.Shoukin
Malik who is the resident of Badi Sadri, Rajasthan in the month of
December, 2016. The 2nd respondent having come to know about the
marriage of the appellant with Shoukin Malik, he contacted Mr.Shoukin
Malik on telephone and informed him that the appellant is not of good
character, she had physical relationship with him and with other boys.
As Mr.Shoukin Malik refused to meet the 2nd respondent, the 2nd
respondent sent a cover to the residence of Shoukin Malik containing
her nude/inappropriate pictures.
5. In view of such allegations as referred above made in the
complaint, a case is registered against the 2nd respondent for the alleged
offence under Sections 376, 499 and 506(2) of IPC.
6. When the complaint is under investigation, the 2nd respondent
has filed R/Special Criminal Application No.9897 of 2017 before the
High Court of Gujarat seeking quashing of FIR itself and also further
consequential steps taken pursuant to the registration of crime.
7. Primarily, it was the case of the 2nd respondent before the High
Court that there was absolutely no truth in the allegation of rape as
alleged by the appellant and it was only consensual sex between
the
parties. It is further alleged that in view of the allegations made by the
appellant, a settlement is purported to have been arrived at, between
them in the month of July, 2016. A written agreement was also entered
into and the same is signed by the parties. It is stated in the agreement
that the dispute between the parties is settled and the 2nd respondent has
allegedly paid a huge amount to the appellant. It is further the case of
the 2nd respondent that whatever the electronic and other materials lying
with the parties were agreed to be destroyed. Further it was the case of
the 2nd respondent that the alleged telephonic calls made by the 2nd
respondent to Mr. Shoukin Malik of Rajasthan was absolutely false and
baseless. Pleading that the complaint filed and investigation taken up is a
gross abuse of process, the 2nd respondent has sought quashing of the
proceedings.
8. By referring to the rival contentions of the parties and the
material on record, the High Court has recorded a finding that the case
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of the 2nd respondent falls under Exceptions 5 and 7 as carved out in the
judgment of this Court in State of Haryana vs. Bhajanlal & Ors.1 and
further the allegations and facts as mentioned in the FIR, appear to be
improbable and the same is malicious prosecution, quashed the
proceedings registered against the 2nd respondent.
9. We have heard Sri Amit Anand Tiwari, learned counsel for the
appellant, Ms. Deepanwita Priyanka, learned counsel for the State and
Sri Mukul Rohatgi, learned senior counsel for 2nd respondent.
10. Mainly, it is contended by the learned counsel for the appellant
that the High Court has passed the impugned order by exceeding the
scope of power conferred under Section 482 CrPC. In view of the serious
allegations made against the 2nd respondent, the High Court should not
have exercised power under Section 482 of the CrPC to scuttle the
investigation. It is submitted that the High Court has committed error in
summoning the Police Inspector, and on relying on such statement, for
quashing the FIR. It is stated that the alleged settlement was under the
guise of threat and coercion by the 2nd respondent, and it is not entered
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
1 AIR 1992 SC 604
MISS XYZ v. STATE OF GUJARAT & ANR
[R. SUBHASH REDDY,J.]
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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 21st
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 2nd respondent has continued to interfere by calling
Shoukin Malik or not are the matters for investigation. In view of the
serious allegations made in the complaint, we are of the view that the
High Court should not have made a roving inquiry while considering the
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
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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 21st August,2019 in Criminal Appeal
No.1165 of 2019, but we are of the view that the said judgment would
not render any assistance to support his case. Whether in a given case
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.
15. For the aforesaid reasons, this criminal appeal is allowed and
the impugned order dated 13th December, 2018 passed in R/Special
Criminal Application No.9897 of 2017 by the High Court of Gujarat is
set-aside. The 2nd respondent shall appear before the concerned Police
Station on 18-11-2019 at 11.00 a.m. and co-operate with the investigation.
Till then no coercive action shall be taken against him.
Divya Pandey
Appeal allowed.
MISS XYZ v. STATE OF GUJARAT & ANR
[R. SUBHASH REDDY,J.]