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“  REPORTABLE”   

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 175 OF 2013 (Arising out of SLP (Criminal) No. 1800 OF 2009)

Prashant Bharti …. Appellant

Versus

State of NCT of Delhi …. Respondent

J U D G M E N T

JAGDISH SINGH KHEHAR, J.

1. Leave granted.

2. On  16.2.2007,  Priya  (hereinafter  referred  to  as,  the  

complainant/prosecuterix),  aged  21  years,  a  resident  of  Tughlakabad  

Extension,  New Delhi,  made a  phone call  to  the  Police  Control  Room  

(hereinafter  referred  to  as,  the  PCR).   Police  personnel  immediately  

reached her residence.  She made a statement to the police, leading to the  

registration of first information report no. 47 of 2007 at Police Station Lodhi  

Colony, New Delhi, under Sections 328 and 354 of the Indian Penal Code.  

In her statement to the police, the complainant/prosecuterix alleged, that  

the  appellant  herein  Prashant  Bharti  (hereinafter  referred  to  as,  the  

appellant-accused)  was  known  to  her  for  about  four  months.   The  

appellant-accused was  a  resident  of  Lodhi  Colony,  New Delhi.   It  was  

alleged that on the preceding day i.e., on 15.2.2007, the appellant-accused

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had made a phone call to the complainant/prosecuterix, at about 8.45 pm,  

and asked her to meet him at Lodhi Colony, New Delhi.  When she -

reached Lodhi Colony, he drove her around in his car.  He also offered the  

complainant/prosecuterix  a  cold  drink  (Pepsi)  allegedly  containing  a  

poisonous/intoxicating  substance.   According  to  the  

complainant/prosecuterix she felt inebriated after taking the cold drink.  In  

her aforesaid state, the appellant-accused started misbehaving with her.  

He  also  touched  her  breasts.   Inspite  of  the  complainant/prosecuterix  

stopping  him,  it  was  alleged,  that  the  appellant-accused  continued  to  

misbehave  with  her.   The  complainant/prosecuterix  then  got  the  car  

stopped, and hired an auto-rickshaw to return to her residence.  In her  

statement, the complainant/prosecuterix requested the police to take legal  

action against the appellant-accused.

3. Immediately  after  recording  the  statement  of  Priya  (the  

complainant/prosecuterix) on 16.2.2007, the police took her to the All India  

Institute of Medical Sciences (hereinafter referred to as, the AIIMS), New  

Delhi.  She was medically examined at 1.44 pm.  It is sufficient to record  

herein, that as per the medical report prepared at the AIIMS, there was no  

evidence of poisoning.

4. Based on the  statement  made by the complainant/prosecuterix,  

the appellant-accused Prashant Bharti was arrested at 6 pm, on the same  

day on which the complainant recorded her statement, i.e., on 16.2.2007, a  

day after the occurrence.

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5. After a lapse of five further days, on 21.2.2007, at 8.20 am, the  

complainant/prosecuterix made a supplementary statement to the police.  

On this occasion, she alleged, that Prashant Bharti, the appellant-accused,  

had been having physical relations with her in his house, on the assurance  

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that he would marry her.  It was alleged by the complainant/prosecuterix,  

that the appellant-accused had subsequently refused to marry her.  With  

reference to  the incident  of  15.2.2007,  she alleged,  that  she had been  

administered some intoxicant in a cold drink (Pepsi) by Prashant Bharti, so  

as  to enable  him to have a physical  relationship  with her.   But,  it  was  

alleged, that she did not succumb to his said desire on 15.2.2007.  The  

complainant/prosecuterix  further  alleged,  that  after  she  returned  to  her  

residence on 15.2.2007, she did not feel well and accordingly, had gone to  

sleep.  She therefore explained, why she had  made her earlier complaint,  

on the following day of the incident.  In her supplementary statement, she  

requested  the  police  to  take  legal  action  against  Prashant  Bharti,  the  

appellant-accused, for having physical relations with her (on 23.12.2006,  

25.12.2006 and 1.1.2007) at his residence, on the basis of a false promise  

to marry her.

6. Immediately  after  recording  her  supplementary  statement,  the  

complainant/prosecuterix  was  taken  to  the  AIIMS.  She  was  medically  

examined at the AIIMS at 12 noon, on 21.2.2007.  In the medical report  

prepared at the AIIMS after her examination, it was recorded, that she had  

no external injuries, and that her hymen was not intact.  It was pointed out,

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that  a  vaginal  smear  was  not  taken,  because more  than a month had  

elapsed  from  the  date  of  the  alleged  intercourse(s).   Likewise,  it  was  

pointed  out,  that  her  clothes  were  not  sent  for  forensic  examination,  

because she had changed the  clothes  worn  by  her  at  the  time of  the  

alleged occurrence(s).  In other words, the assertions made by the -

accused could not be tested scientifically, because the complainant was  

being medically examined, after a substantial delay.

7. Based  on  the  supplementary  statement  of  Priya  (the  

complainant/prosecuterix)  recorded  on  21.2.2007,  the  offence  under  

Section 376 was added to the case.

8. On 27.2.2007, the statement of the complainant/prosecuterix was  

recorded under  Section 164 of  the Code of  Criminal  Procedure by the  

Metropolitan Magistrate,  New Delhi  (in  first  information report  no.  47 of  

2007).  A relevant extract of the aforesaid statement, is being reproduced  

below:-

“…  then Prashant asked for my number and detail  of address.  I  gave my office telephone number to him.  In evening, Mr. Prashant  Bharti  called  me  and  talked  about  loan  and  after  some  days,  Prashant Bharti came to meet in my office and thereafter we became  good friends and one day, Prashant Bharti told me that he loves me  and wish to marry me and thereafter, we started meeting frequently  and I consented for marriage.

One  day,  when  all  the  family  members  were  gone  somewhere,  Prashant Bharti called me to his home for party and he told me that  he  will  marry  me  soon  and  will  inform  to  his  parents  about  our  relationship and he made relation with me.  And, whenever his home  was vacant, he usually calls me up and when his parents came, I  asked him to tell them about our relationship and he did not inform  this and on this issue, we have fight with each other and I informed  to  his  parents.   Then his  parents  called Prashant  about  this  and

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Prashant Bharti denied our relationship to his father and neither he  wish to marry me and on that day, I was sent to my home by his  parents.

After two days, Prashant Bharti  called me and asked me to meet  him, as he wish to tender apology and when I was going to reach my  home from office, then I, through auto rickshaw, reached at Central  School, Lodhi Colony, where Prashant Bharti was standing near to  his Santro Car, and he met me there and he asked me that he has  committed mistake and he wish to tender apology and after some -

time, he took me to his car and thereafter,  he told me that he is  feeling thirsty and thereafter, he brought Pepsi in car and we both  took the Pepsi.  And, after drinking the same, I lost my conscious  and thereafter, he started misbehaving with me and I asked him that  why he was doing so, then he told me that, as I complained to his  father,  he will  take revenge from me, and he forcibly misbehaved  with me, and I immediately got down from the car and by Auto, I  came  to  my  house  and  as  I  was  unwell,  I  could  not  lodge  my  complaint with police.  On the next day, I called 100 number PCR  and there police official, accompanies me and I informed everything  to SHO Surinder Jeet and on that basis, he was arrested.”

9. By an order dated 12.3.2007, the Additional Sessions Judge, Delhi  

granted bail to the appellant-accused.  In the aforesaid order passed on  

12.3.2007,  the following factual  position was relied upon,  to extend the  

benefit  of  bail  to  the appellant-accused.  The appellant-accused was in  

Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007.  He was at  

Noida before 7.55 pm.  He, thereafter, remained at different places within  

Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc.  From  

9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage  

anniversary  function  celebrated  at  Rangoli  Lawns  at  Ghaziabad,  Uttar  

Pradesh.  An affidavit to the aforesaid effect filed by the appellant-accused  

was found to be correct  by the investigating officer,  on the basis of  his  

mobile phone call details.  Verification of the mobile phone call details of

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the complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls  

were made by the appellant-accused to the complainant/prosecuterix, and  

that, it was the complainant/prosecuterix who had made calls to him.  The  

complainant/prosecuterix,  on  and  around  the  time  referred  to  in  the  

complaint  dated 16.2.2007, was at  different places of New Delhi  i.e.,  in  

Defence Colony, Greater Kailash, Andrews Ganj and finally at -

Tughlakabad Extension, as per the verification of the investigating officer  

on  the  basis  of  her  mobile  phone  call  details.   Even  though  the  

complainant/prosecuterix  was  married  to  one  Manoj  Kumar  Soni,  S/o  

Seeta Ram Soni (as indicated in an affidavit appended to the Delhi police  

format  for  information  of  tenants  and  duly  verified  by  the  investigating  

officer,  wherein she had described herself  as married), in the complaint  

made to the police (on 16.2.2007 and 21.2.2007), she had suggested that  

she  was  not  married.   At  the  time  when  the  complainant/prosecuterix  

alleged,  that  the  appellant-accused  had  misbehaved  with  her  and  had  

outraged her modesty on 15.2.2007 (per her complaint dated 16.2.2007),  

she was actually in conversation with her friends (as per the verification  

made by the investigating officer on the basis of  her mobile phone call  

details).  Even though the complainant/prosecuterix had merely alleged in  

her  complaint  dated  16.2.2007,  that  the  accused  had  outraged  her  

modesty  by  touching  her  breasts,  she  had  subsequently  through  a  

supplementary  statement  (on  21.2.2007),  levelled  further  allegations  

against  the  accused  of  having  repeatedly  raped  her  (on  23.12.2006,  

25.12.2006 and 1.1.2007), on dates preceding the first complaint.  

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10. On 28.6.2007, the police filed a chargesheet under Sections 328,  

354 and 376 of the Indian Penal Code.  In the chargesheet, it was clearly  

mentioned,  that  the  police  investigation,  from different  angles,  had  not  

yielded any positive result.  However, the chargesheet was based on the  

statement made by the complainant/prosecuterix before the Metropolitan  

Magistrate,  New  Delhi  under  Section  164  of  the  Code  of  Criminal  

Procedure, which was found to be sufficient for the charges alleged -

against  the  appellant-accused.   A relevant  extract  of  the  chargesheet  

depicting the aforesaid factual position, is being reproduced below:-

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

(emphasis is ours)

11. Aggrieved by the first information report (bearing no. 47 -

of  2007)  registered  at  the Police  Station Lodhi  Colony,  New Delhi,  the  

appellant-accused filed  Writ  Petition  (Crl.)  no.  1112 of  2007 before  the  

Delhi  High  Court  for  quashing  the  said  first  information  report  on  the  

ground, that the appellant-accused had been falsely implicated.  The High  

Court, dismissed the said writ petition on 27.8.2007, without going into the  

merits of the controversy, by recording the following observations:-

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“This Court cannot quash the FIR on the ground that FIR was false  FIR.   In  case  of  a  false  FIR,  it  must  be  brought  to  its  logical  conclusion and Investigating Officer must give a report to that effect.  In  this  case,  if  it  is  found  that  the  petitioner  has  been  falsely  implicated and the complaint was false, it would be obligatory on the  part  of  the  Investigating  Officer  to  register  a  case  and  book  the  prosecuterix for falsely implicating the person in an offence under  Section 376 IPC.  It is a very serious matter that a prosecuterix just  by making a false statement can book somebody in offence under  Section 376 IPC, which is serious in nature and invites a minimum  punishment of 07 years.  I consider that Investigating Officer shall  submit  a detailed report  and in case,  it  is  that  the petitioner was  falsely implicated, he would take steps for booking the complainant  for falsely implicating the petitioner.”

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12. Interestingly, even the complainant/prosecuterix filed Writ Petition  

(Crl.) no. 257 of 2008 before the Delhi High Court seeking quashing of the  

first information report lodged by the complainant/prosecuterix herself.  The  

High Court noticed the observations recorded in the order dated 27.8.2007  

(passed in Writ  Petition (Crl.)  no. 1112 of  2007) and dismissed the writ  

petition filed by the complainant/prosecutrix.

13. On 1.12.2008, the Additional Sessions Judge, New Delhi, framed  

charges against the appellant-accused, by observing as under:-

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

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14. Dissatisfied with the action of  the trial  Court  in framing charges  

against him, the appellant-accused filed Criminal Revision Petition no. 08  

of 2009, whereby he assailed the order dated 1.12.2008 passed by the  

Additional Sessions Judge, New Delhi.  The Delhi High Court dismissed  

the revision petition on 16.1.2009, by interalia observing as under:-

“12. Truthfulness  or  falsity  of  the  allegations,  essentially  pertains  to  the  realm  of  evidence  and  the  same  cannot  be  pre- judged at this initial stage.  I do not find any illegality or infirmity in  the  impugned  order.   Consequently,  this  Revision  Petition  is  dismissed in limine while making it clear that anything herein shall  not be construed as an opinion on merits at trial.”

15. Despite notice having been issued to the complainant/prosecuterix  

by this Court in the present case, she failed to enter personal appearance  

(or be represented through counsel).  To procure her presence, bailable -

warrants were issued in furtherance of this Court’s order dated 12.5.2010  

and  again  on  16.10.2012.   Priya,  the  complainant/prosecuterix  entered  

personal  appearance  on  8.11.2012.  During  the  course  of  hearing,  

consequent upon clarifications sought from her in respect of her marital  

status (at the time of the alleged occurrences with the appellant-accused),  

she informed this Court, that even though she was married earlier, she had  

divorced her previous husband before the dates of occurrence.  To verify  

the  factual  position  pertaining  to  her  marital  status  as  on  the  dates  of  

occurrence(s),  she  was  asked  to  produce the  judgment  and decree  of  

divorce, from her previous husband.  She accordingly produced a certified  

copy of the judgment and decree of the Court of the Civil Judge (Senior  

Division),  Kanpur  (Rural)  dated  23.9.2008.   A photocopy  thereof  duly  

attested  by  Priya,  the  complainant/prosecuterix,  and  her  counsel,  were

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taken  on  record.   A  perusal  of  the  same  reveals,  that  the  

complainant/prosecuterix was married to Lalji Porwal on 14.6.2003.  She  

was divorced from her said husband by mutual consent under Section 13B  

of  the  Hindu  Marriage  Act,  1955,  on  23.9.2008.   Priya,  the  

complainant/prosecuterix also affirmed, that she had remarried thereafter.  

She also produced before us a “certificate of marriage” dated 30.9.2008.  A  

photocopy thereof duly attested by Priya and her counsel, was also taken  

on  record.   A perusal  of  the  same  reveals,  that  Priya  (date  of  birth,  

17.6.1986), daughter of Anup Kumar was married to Manoj (date of birth,  

8.12.1983), son of Ram Kumar, on 30.9.2008.

16. The factual position narrated above would enable us to draw some  

positive inferences on the assertion made by the complainant/prosecuterix  

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against  the  appellant-accused  (in  the  supplementary  statement  dated  

21.2.2007).  It  is  relevant  to  notice,  that  she had alleged,  that  she was  

induced into a physical relationship by Prashant Bharti, on the assurance  

that  he  would  marry  her.   Obviously,  an  inducement  for  marriage  is  

understandable  if  the  same  is  made  to  an  unmarried  person.   The  

judgment  and  decree  dated  23.9.2008  reveals,  that  the  

complainant/prosecuterix was married to Lalji Porwal on 14.6.2003.  It also  

reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two  

divorced one another by mutual consent under Section 13B of the Hindu  

Marriage  Act.   In  her  supplementary  statement  dated  21.2.2007,  the  

complainant/prosecuterix accused Prashant Bhati of having had physical

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relations  with  her  on  23.12.2006,  25.12.2006  and  1.1.2007  at  his  

residence, on the basis of a false promise to marry her.  It is apparent from  

irrefutable evidence, that during the dates under reference and for a period  

of  more than one year and eight  months thereafter,  she had remained  

married to Lalji Porwal.  In such a fact situation, the assertion made by the  

complainant/prosecuterix,  that  the  appellant-accused  had  physical  

relations with her, on the assurance that he would marry her, is per se false  

and as such, unacceptable.  She, more than anybody else, was clearly  

aware of the fact that she had a subsisting valid marriage with Lalji Porwal.  

Accordingly, there was no question of anyone being in a position to induce  

her into a physical  relationship under an assurance of  marriage.  If  the  

judgment  and  decree  dated  23.9.2008  produced  before  us  by  the  

complainant/prosecuterix herself is taken into consideration alongwith the  

factual position depicted in the supplementary statement dated 21.2.2007,  

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it  would  clearly  emerge,  that  the  complainant/prosecuterix  was  in  a  

relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the  

appellant-accused, while she was validly married to her previous husband  

Lalji Porwal.  In the aforesaid view of the matter, we are satisfied that the  

assertion made by the complainant/prosecuterix, that she was induced to a  

physical  relationship  by  Prashant  Bharti,  the  appellant-accused,  on  the  

basis of a promise to marry her, stands irrefutably falsified.

17. Would  it  be  possible  for  the  prosecution  to  establish  a  sexual  

relationship  between  Priya,  the  complainant/prosecuterix  and  Prashant

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Bharti, the appellant-accused, is the next question which we shall attempt  

to  answer.   Insofar  as  the  instant  aspect  of  the  matter  is  concerned,  

medical evidence discussed above reveals, that the complaint made by the  

complainant/prosecuterix  alleging  a  sexual  relationship  with  her  by  

Prashant Bharti, the appellant-accused, was made more than one month  

after the alleged occurrences.  It was, therefore, that during the course of  

her medical examination at the AIIMS, a vaginal smear was not taken.  Her  

clothes were also not sent for forensic examination by the AIIMS, because  

she had allegedly changed the clothes which she had worn at the time of  

occurrence.  In the absence of any such scientific evidence, the proof of  

sexual  intercourse  between  the  complainant/prosecuterix  and  the  

appellant-accused  would  be  based  on  an  assertion  made  by  the  

complainant/prosecuterix.  And  an  unequivocal  denial  thereof,  by  the  

appellant-accused.  One’s word against the other.  Based on the falsity of  

the statement made by the complainant/prosecuterix noticed above (and  

other such like falsities, to be narrated hereafter), it is unlikely, that a -

factual  assertion  made  by  the  complainant/prosecuterix,  would  be  

acceptable over that of the appellant-accused.  For the sake of argument,  

even if  it  is  assumed,  that  Prashant  Bharti,  the  appellant-accused and  

Priya,  the complainant/prosecuterix, actually had a physical  relationship,  

as alleged, the same would necessarily have to be consensual, since it is  

the case of  the complainant/prosecuterix  herself,  that  the said  physical  

relationship  was  with  her  consent  consequent  upon  the  assurance  of  

marriage.   But  then,  the  discussion  above,  clearly  negates  such  an

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assurance.  A consensual relationship without any assurance, obviously  

will  not  substantiate the offence under Section 376 of  the Indian Penal  

Code, alleged against Prashant Bharti.

18. Insofar as the assertion made by the complainant/prosecuterix, in  

her first complaint dated 16.2.2007 is concerned, it is apparent, that on the  

basis  thereof,  first  information  report  no.  47  of  2007 was  registered  at  

Police Station Lodhi Colony, New Delhi.  In her aforesaid complaint, Priya,  

the complainant/prosecuterix had alleged, that the appellant-accused had  

called her on her phone at 8.45 pm and asked her to meet him at Lodhi  

Colony, New Delhi.  When she reached there, he drove her around in his  

car.   He  also  offered  her  a  cold  drink  (Pepsi)  containing  a  

poisonous/intoxicating substance.  Having consumed the cold drink, she is  

stated to have felt inebriated, whereupon, he  took  advantage  of  her  and  

started misbehaving with her, and also touched her breasts.  Insofar as the  

instant  aspect  of  the  matter  is  concerned,  the  presence  of  the  

complainant/prosecuterix, as well as the appellant-accused, at the alleged  

place of  occurrence  (Lodhi Colony, New Delhi),  on the  night of -

15.2.2007 after 8.45 pm, has been established to be false on the basis of  

mobile phone call details of the parties concerned.  Details in this respect  

have been summarized in  paragraph 8 above.  The same are not being  

repeated for reasons of brevity.  The proof of the aforesaid factual matter  

must be considered to be conclusive for all intents and purposes, specially,  

in view of the observations made by this Court in Gajraj Vs. State (NCT) of   

Delhi [(2011) 10 SCC 675], wherein it was held as under:-

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“19. In the aforesaid sense of the matter, the discrepancy in the  statement of Minakshi PW23, pointed out by the learned counsel for  the accused-appellant, as also, the reasoning rendered by the High  Court  in  the  impugned  judgment  becomes  insignificant.   We are  satisfied, that the process by which the accused-appellant came to  be identified during the course of investigation, was legitimate and  unassailable.  The  IEMI  number  of  the  handset,  on  which  the  accused-appellant was making calls by using a mobile phone (sim)  registered  in  his  name,  being  evidence  of  a  conclusive  nature,  cannot be overlooked on the basis of such like minor discrepancies .  In fact even a serious discrepancy in oral evidence, would have had  to  yield  to  the  aforesaid  authentic  digital  evidence  which  is  a  byproduct of machine operated electronic record having no manual  interference.   For  the  reasons  recorded hereinabove,  we find  no  merit in the first contention advanced at the hands of the learned  counsel for the accused-appellant.”

The aforesaid factual conclusion, that the two concerned parties were not  

present at Lodhi Colony, New Delhi after 8.45 pm on 15.2.2007, as has  

been established on the basis of the investigation carried out by the police,  

cannot  be altered at  the culmination of  the trial,  since the basis  of  the  

aforesaid  determination  is  scientific  evidence.   Neither  has  the  said  

material  been  contested  by  the  complainant/prosecutrix.   Once  it  is  

concluded,  that  the complainant/prosecuterix  and the appellant-accused  

were at different places, far away from one another, and certainly not in -

Lodhi Colony, New Delhi on the night of 15.2.2007, it is obvious that the  

allegation made by Priya, the complainant/prosecuterix against Prashant  

Bharti, the appellant-accused of having outraged her modesty, was false.  

What stands established now, as has been discussed above, will have to  

be reaffirmed on the basis of the same evidence at the culmination of the  

trial.   Such being the fact situation, we have no other alternative but to

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conclude,  that  the  allegations  levelled  by  the  complainant/prosecuterix,  

which culminated in the registration of a first information report at Police  

Station  Lodhi  Colony,  New  Delhi  on  16.2.2007,  as  well  as  her  

supplementary statement, would never lead to his conviction.

19. The  proposition  of  law,  pertaining  to  quashing  of  criminal  

proceedings, initiated against an accused by a High Court under Section  

482 of  the  Code of  Criminal  Procedure (hereinafter  referred to  as  “the  

Cr.P.C.”)  has  been dealt  with  by  this  Court  in  Rajiv  Thapar  & Ors.  vs.  

Madan Lal Kapoor (Criminal Appeal No…… of 2013, arising out of SLP  

(Crl.) no.4883 of 2008, decided on 23.1.2013) wherein this Court inter alia  

held as under:

22. The  issue  being  examined  in  the  instant  case  is  the  jurisdiction of the High Court under Section 482 of the Cr.P.C., if it   chooses  to  quash  the  initiation  of  the  prosecution  against  an  accused,  at  the  stage  of  issuing  process,  or  at  the  stage  of  committal, or even at the stage of framing of charges.  These are all  stages  before  the  commencement  of  the  actual  trial.   The same  parameters would naturally be available for later stages as well.  The  power vested in the High Court under Section 482 of the Cr.P.C., at  the  stages  referred  to  hereinabove,  would  have  far  reaching  consequences,  inasmuch  as,  it  would  negate  the  prosecution’s/complainant’s  case  without  allowing  the  prosecution/complainant  to  lead  evidence.   Such a  determination  must always be rendered with caution, care and circumspection.  To  invoke its inherent jurisdiction under Section -

482 of the Cr.P.C. the High Court has to be fully satisfied, that the  material  produced by the accused is such, that would lead to the  conclusion,  that  his/their  defence is  based on sound,  reasonable,  and indubitable facts; the material produced is such, as would rule  out and displace the assertions contained in the charges levelled  against the accused; and the material produced is such, as would  clearly reject and overrule the veracity of the allegations contained in  the accusations levelled by the prosecution/complainant.   It should  be sufficient to rule out, reject and discard the accusations levelled  by the prosecution/complainant, without the necessity of recording

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any  evidence.  For  this  the  material  relied  upon  by  the  defence  should not have been refuted, or alternatively, cannot be justifiably  refuted,  being  material  of  sterling  and  impeccable  quality.   The  material  relied  upon  by  the  accused  should  be  such,  as  would  persuade a reasonable person to dismiss and condemn the actual  basis of the accusations as false.    In such a situation, the judicial  conscience of the High Court would persuade it to exercise its power  under  Section  482  of  the  Cr.P.C.  to  quash  such  criminal  proceedings, for that would prevent abuse of process of the court,  and secure the ends of justice.

23. Based on the factors canvassed in the foregoing paragraphs, we  would delineate the following steps to determine the veracity of a prayer for  quashing, raised by an accused by invoking the power vested in the High  Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by the accused is  sound, reasonable, and indubitable, i.e., the material is of sterling and  impeccable quality?

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

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

(iv) Step four, whether proceeding with the trial would result in an  abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the  High Court should persuade it to quash such criminal -

proceedings, in exercise of power vested in it under Section 482 of the  Cr.P.C.  Such exercise of power, besides doing justice to the accused,  would save precious court time, which would otherwise be wasted in  holding such a trial (as well as, proceedings arising therefrom) specially  when, it is clear that the same would not conclude in the conviction of the  accused.”

20. The details in respect of each aspect of the matter, arising out of  

the complaints  made by Priya on 16.2.2007 and 21.2.2007 have been

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examined in extensive detail in the foregoing paragraphs.  We shall now  

determine  whether  the  steps  noticed  by  this  Court  in  the  judgment  

extracted hereinabove can be stated to have been satisfied.  In so far as  

the instant aspect of the matter is concerned, the factual details referred to  

in the foregoing paragraphs are being summarized hereafter.  Firstly, the  

appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh  

on 15.2.2007.  He was at Noida before 7.55 pm.  He, thereafter, remained  

at  different  places  within  Noida  and  then  at  Shakarpur,  Ghaziabad,  

Patparganj,  Jorbagh etc.  From 9.15 pm to 11.30 pm on 15.2.2007, he  

remained present at a marriage anniversary function celebrated at Rangoli  

Lawns at Ghaziabad, Uttar Pradesh.  An affidavit to the aforesaid effect  

filed by the appellant-accused was found to be correct by the investigating  

officer  on the basis  of  his  mobile phone call  details.  The accused was  

therefore not at the place of occurrence, as alleged in the complaint dated  

16.2.2007.  Secondly, verification of the mobile phone call details of the  

complainant/prosecuterix Priya revealed, that on 15.2.2007, no calls were  

made by the appellant-accused to the complainant/prosecuterix, and that,  

it was the complainant/prosecuterix who had made calls to him.  Thirdly,  

the complainant/prosecuterix, on and around the time referred to in the -

complaint  dated 16.2.2007, was at  different places of New Delhi  i.e.,  in  

Defence  Colony,  Greater  Kailash,  Andrews  Ganj  and  finally  at  

Tughlakabad Extension, as per the verification of the investigating officer  

on the basis of her mobile phone call details.  The complainant was also  

not at  the place of  occurrence,  as she herself  alleged in the complaint

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dated 16.2.2007.  Fourthly, at the time when the complainant/prosecuterix  

alleged,  that  the  appellant-accused  had  misbehaved  with  her  and  had  

outraged  her  modesty  on  15.2.2007  (as  per  her  complaint  dated  

16.2.2007), she was actually in conversation with her friends (as per the  

verification made by the investigating officer on the basis of  her mobile  

phone call details).  Fifthly, even though the complainant/prosecuterix had  

merely  alleged in her complaint  dated 16.2.2007, that  the accused had  

outraged  her  modesty  by  touching  her  breasts,  she  had  subsequently  

through a  supplementary  statement  (on  21.2.2007),  levelled  allegations  

against  the  accused  for  offence  of  rape.   Sixthly,  even  though  the  

complainant/prosecuterix was married to one Manoj Kumar Soni, s/o Seeta  

Ram Soni (as indicated in an affidavit appended to the Delhi police format  

for  information  of  tenants  and  duly  verified  by  the  investigating  officer,  

wherein she had described herself as married), in the complaint made to  

the police (on 16.2.2007 and 21.2.2007), she had suggested that she was  

unmarried.    Seventhly, as per the judgment and decree of the Civil Judge  

(Senior Division),  Kanpur (Rural)  dated 23.9.2008, the complainant was  

married to Lalji Porva on 14.6.2003.  The aforesaid marriage subsisted till  

23.9.2008.  The allegations made by the complainant dated 16.2.2007 and  

21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and  

-

15.2.2007, i.e., positively during the subsistence of her marriage with Lalji  

Porwal.  Thereafter, the complainant Priya married another man Manoj on  

30.9.2008.   This  is  evidenced  by  a  “certificate  of  marriage”  dated

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30.9.2008.  In view of the aforesaid, it  is apparent that the complainant  

could not  have been induced into  a physical  relationship,  based on an  

assurance of  marriage.   Eighthly,  the physical  relationship between the  

complainant  and  the  accused  was  admittedly  consensual.   In  her  

complaints Priya had however asserted, that her consent was based on a  

false  assurance  of  marriage  by  the  accused.   Since  the  aspect  of  

assurance  stands  falsified,  the  acknowledged  consensual  physical  

relationship  between the  parties  would  not  constitute  an  offence  under  

Section 376 IPC.  Especially because the complainant was a major on the  

date of occurrences, which fact emerges from the “certificate of marriage”  

dated 30.9.2008, indicating her date of birth as 17.7.1986.  Ninthly, as per  

the  medical  report  recorded  by  the  AIIMS  dated  16.2.2007,  the  

examination  of  the  complainant  did  not  evidence  her  having  been  

poisoned.  The instant allegation made by the complainant cannot now be  

established because even in the medical report  dated 16.2.2007 it  was  

observed that blood samples could not be sent for examination because of  

the intervening delay.  For the same reason even the allegations levelled  

by the accused of  having been administered some intoxicant  in  a cold  

drink (Pepsi) cannot now be established by cogent evidence.  Tenthly, The  

factual position indicated in the charge-sheet dated 28.6.2007, that despite  

best efforts made by the investigating officer, the police could not recover  

the container of the cold drink (Pepsi) or the glass from which the -

complainant  had  consumed  the  same.  The  allegations  made  by  the  

complainant could not be verified even by the police from any direct or

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scientific evidence, is apparent from a perusal of the charge-sheet dated  

28.6.2007.  Eleventhly, as per the medical report recorded by the AIIMS  

dated 21.2.2007 the assertions made by the complainant that the accused  

had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007,  

cannot likewise be verified as opined in the medical report, on account of  

delay  between  the  dates  of  occurrences  and  her  eventual  medical  

examination on 21.2.2007. It was for this reason, that neither the vaginal  

smear was taken, nor her clothes were sent for forensic examination.

21. Most  importantly,  as  against  the  aforesaid  allegations,  no  

pleadings whatsoever have been filed by the complainant.  Even during  

the course of hearing, the material relied upon by the accused was not  

refuted.  As  a  matter  of  fact,  the  complainant/prosecutrix  had  herself  

approached the High Court, with the prayer that the first information lodged  

by her, be quashed.  It would therefore be legitimate to conclude, in the  

facts and circumstances of this case, that the material relied upon by the  

accused has not been refuted by the complainant/prosecutrix.  Even  in the  

charge sheet dated 28.6.2007, (extracted above) the investigating officer  

has acknowledged,  that  he could not find any proof to substantiate the  

charges.   The  charge-sheet  had  been  filed  only  on  the  basis  of  the  

statement of the complainant/prosecutrix under Section 164 of the Cr.P.C.

22. Based on the holistic consideration of the facts and circumstances  

summarized in the foregoing two paragraphs; we are satisfied, that all the  

steps delineated by this Court in Rajiv Thapar’s case (supra) stand -

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satisfied.   All  the  steps  can  only  be  answered  in  the  affirmative.   We  

therefore  have  no  hesitation  whatsoever  in  concluding,  that  judicial  

conscience of the High Court ought to have persuaded it, on the basis of  

the material available before it, while passing the impugned order, to quash  

the  criminal  proceedings  initiated  against  the  accused-appellant,  in  

exercise of the inherent powers vested with it under Section 482 of the  

Cr.P.C.  Accordingly, based on the conclusions drawn hereinabove, we are  

satisfied,  that the first  information report  registered under Sections 328,  

354 and 376 of the Indian Penal Code against the appellant-accused, and  

the consequential  chargesheet  dated 28.6.2007,  as  also the framing of  

charges  by  the  Additional  Sessions  Judge,  New  Delhi  on  1.12.2008,  

deserves to be quashed.  The same are accordingly quashed.

Disposed of in the  aforesaid terms.

…………………………….J. (D.K. Jain)

                                             …………………………….J.

(Jagdish Singh Khehar) New Delhi; January  23, 2013.