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1             REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1619 OF 2019 (Arising out of S.L.P.(Crl.)No.4294 of 2019)

Miss XYZ                                ...Appellant

Versus

State of Gujarat & Anr                 ...Respondents

J U D G M E N T  

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.

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2  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

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3  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 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

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4  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

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5  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 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.

1 AIR 1992 SC 604

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6  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

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7  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

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8  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

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9  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 respondent  by  calling

Shoukin Malik and further interference is also a matter

for  investigation. By looking at the contents of the

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10  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

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11  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.

 ...................J.    [UDAY UMESH LALIT]

 ...................J.     [Indu Malhotra]

   .................J.     [R. Subhash Reddy]

New Delhi; October 25, 2019