Himachal Pradesh High Court
Rajiv Goyal vs State Of H.P. And Another on 28 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MMO No. 528 of 2021 .
Reserved on: 24.11.2023 Date of Decision: 28.12.2023.
Rajiv Goyal ...Petitioner
of
Versus
State of H.P. and another
rt ...Respondents
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.
For the Petitioner : Mr. O.C. Sharma, Advocate.
For the Respondents : Ms. Avni Kochhar, Deputy Advocate General for respondent No.1-State.
Mr. Vishal Verma and Mr. Rajesh Kumar, Advocates, for respondent No.2-complainant.
Rakesh Kainthla, Judge The petitioner has filed the present petition for quashing of FIR No. 56/19, dated 31.10.2019 registered under Sections 376 and 506 of IPC and Section 67 of the Information Technology Act, 2000 in Women Police Station, Solan, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 28/12/2023 20:33:23 :::CIS 22. The informant made a complaint to the Police that she had filed a case under the Domestic Violence Act in 2014. The .
petitioner used to help and call her to Shimla to discuss the case.
He gave something to her in her drink and had sexual relations with her forcefully. He obtained the nude photographs and videos. Subsequently, the case was resolved and the victim of started residing with her husband. The petitioner started threatening her. She blocked him. The victim came in contact rt with one lady and became close friends. She called the victim to her house and took photographs of the victim. She started taking money from the victim. When the victim refused, she started trolling the victim on Facebook. She also uploaded photographs of the victim. The petitioner came in contact with her and supplied photos and videos of the victim to that lady.
These photographs were uploaded on the internet. The matter was reported to the police. The police registered the FIR and conducted the investigation.
3. The petitioner filed the present petition for quashing of FIR. It has been asserted that the FIR shows that sexual relations were maintained in the year 2014. No complaint was made for five years. The delay shows the voluntary participation ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 3 of the victim. The report of FSL does not show the commission of the offence punishable under Section 67 of the Information .
Technology Act. The victim filed a false complaint against the petitioner to harass him at the instance of her husband. The police of Women Police Station, Solan conducted the investigation but the incident had taken place at Shimla and the of Women Police Station, Solan had no jurisdiction to carry out the investigation. Therefore, it was prayed that the present petition rt be allowed and the FIR be quashed.
4. Respondent No. 1 filed a reply reproducing the contents of the FIR. It was asserted that the police conducted an investigation and presented the challan before the Court. The co-accused Pooja Chauhan absconded and the proclamation was issued against her. There is sufficient material on record to connect the petitioner with the commission of the crime. The victim is residing in the jurisdiction of Women's Police Station, Solan, where she found that her nude photographs were uploaded on the social media. Therefore, the police at Solan had the jurisdiction. Hence, it was prayed that the present petition be dismissed.
::: Downloaded on - 28/12/2023 20:33:23 :::CIS 45. A rejoinder denying the contents of the reply and affirming those of the petition was filed.
.
6. The victim was impleaded as respondent no. 2, however, no reply was filed on her behalf.
7. I have heard Mr. Om Chand Sharma, learned Counsel of for the petitioner and Ms. Avni Kochhar, learned Deputy Advocate General for respondent no. 1/State.
8. rt Mr Om Chand Sharma, learned counsel for the petitioner submitted that the police at Police Station Solan did not have the jurisdiction. The police should have registered the zero FIR and transferred the case to the Police Station, Shimla where the incident had taken place as per the FIR. The FIR was lodged after the delay of five years which is sufficient to cast doubt upon the version of the victim. The medical evidence does not support the version of the victim. Nothing incriminating was found in the mobile phone of the petitioner. No offence for the commission of an offence punishable under Section 376 of IPC is made out against the petitioner, as the victim had consented to the relationship. Hence, he prayed that the present petition be allowed and the FIR be quashed.
::: Downloaded on - 28/12/2023 20:33:23 :::CIS 59. Ms. Avni Kochhar, learned Deputy Advocate General for respondent no. 1/State submitted that the victim specifically .
stated that something was administered to her in her drink and the relationship was maintained by taking advantage of this fact. The cause of action arose to the victim when her photographs and videos taken by the petitioner were uploaded of on the internet. The victim was residing in Solan and the Court at Solan had the jurisdiction to investigate the offence. Hence, rt she prayed that the present petition be dismissed.
10. Mr. Vishal Verma and Mr. Rajesh Kumar, learned counsel for respondent No.2-complainant adopted the arguments advanced by the learned Deputy Advocate General.
11. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
12. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon'ble Supreme Court in Supriya Jain v. State of Haryana, 2023 SCC OnLine SC 765 :
(2023) 7 SCC 711 wherein it was observed at page 716:-
17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 6 together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably .
refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander [Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986], this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) of "27...27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of rt quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 7 cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers.
.
27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
rt 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise to and constitute a "civil wrong" with no "element of criminality" and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 8 find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim .
and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion of that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed rt therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge sheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 9 extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has .
been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
13. Similar is the judgment in Gulam Mustafa v. State of of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:-
rt
26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held:
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 10 not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report .
and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the of FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
rt (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
::: Downloaded on - 28/12/2023 20:33:23 :::CIS 11103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and .
that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
of (emphasis supplied)
14. It was laid down in CBI v. Aryan Singh, 2023 SCC rt OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial by leading evidence. It was observed:
10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial based on the evidence led by the prosecution/investigating agency. Therefore, the High ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 12 Court has materially erred in going into detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the .
stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider "whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not".
11. One other reason pointed out by the High Court of is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions rt issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.
15. This position was reiterated in Abhishek v. State of M.P. 2023 SCC OnLine SC 1083 wherein it was observed:
12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined.
In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [(2019) 14 SCC 568], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 13 the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint.
.
In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such of standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an rt enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab (AIR 1960 SC 866) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint.
16. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.
17. It was submitted that the police at Women Police Station, Solan did not have jurisdiction in the present case. The ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 14 police should have registered zero FIR and transmitted the same to Shimla where the incident had taken place. Reliance was .
placed upon the judgment of the Delhi High Court in Kirti Vashisht vs. State 2019 (Supplement) Criminal Court Cases 679 in support of this submission. The FIR clearly mentions that the incident had taken place in Shimla; however, the photographs of and videos were put on social media by the petitioner and co-accused Pooja rt Thakur. Taking the photographs and preparing the video was an integral part of the incident and when the photographs were put on social media, an offence under the Information Technology Act was committed. The offence of taking the photographs, and uploading them was a continuing offence, which had taken place within the jurisdiction of more than one Court and each Court will have the jurisdiction as per Section 178 of Cr.P.C. The photographs were circulated at Solan where they were seen by the victim; hence, the police of Women Police Station, Solan had the jurisdiction to investigate the present case.
18. In any case, the FIR cannot be quashed on the ground that the police had no territorial jurisdiction to investigate the matter. It was laid down by the Hon'ble Supreme Court in ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 15 Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 that SHO has a statutory authority to investigate any cognizable .
offence and the investigation cannot be quashed on the ground of lack of territorial jurisdiction. It was observed:-
"8. In our view, the submission made by the learned counsel for the appellant requires to be accepted. The of limited question is whether the High Court was justified in quashing the FIR on the ground that the Delhi Police Station did not have territorial jurisdiction to investigate the offence. From the discussion made by the learned rt Judge, it appears that the learned Judge has considered the provisions applicable to criminal trials. The High Court arrived at the conclusion by appreciating the allegations made by the parties that the SHO, Police Station Paschim Vihar, New Delhi was not having territorial jurisdiction to entertain and investigate the FIR lodged by the appellant because the alleged dowry items were entrusted to the respondent at Patiala and that the alleged cause of action for the offence punishable under Section 498-A IPC arose at Patiala. In our view, the findings given by the High Court are, on the face of it, illegal and erroneous because:
(1) The SHO has statutory authority under Section 156 of the Criminal Procedure Code to investigate any cognizable case for which an FIR is lodged. (2) At the stage of investigation, there is no question of interference under Section 482 of the Criminal Procedure Code on the ground that the investigating officer has no territorial jurisdiction. (3) After the investigation is over, if the investigating officer arrives at the conclusion that the cause of action for lodging the FIR has not arisen within his territorial jurisdiction, then he is required to submit a report accordingly under Section 170 of ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 16 the Criminal Procedure Code and to forward the case to the Magistrate empowered to take cognizance of the offence.
.
9. This would be clear from the following discussion.
Section 156 of the Criminal Procedure Code empowers the police officer to investigate any cognizable offence. It reads as under:
"156. Police officer's power to investigate cognizable case.--(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate of any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to enquire into or rt try under the provisions of Chapter XIII. (2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under Section 190 may order such an investigation as above-
mentioned."
10. It is true that territorial jurisdiction also is prescribed under sub-section (1) to the extent that the officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to enquire into or try under the provisions of Chapter XIII. However, sub- section (2) makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called into question on the ground that the case was one which such officer was not empowered to investigate. After the investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the officer in charge of the police station that ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 17 there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall forward the accused under .
custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the investigating officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then the FIR can be forwarded to the police station having jurisdiction over the area in which the of crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.
11. Chapter XIII of the Code provides for "jurisdiction of rt the criminal courts in enquiries and trials". It is to be stated that under the said chapter there are various provisions which empower the court for enquiry or trial of a criminal case and that there is no absolute prohibition that the offence committed beyond the local territorial jurisdiction cannot be investigated, enquired or tried. This would be clear by referring to Sections 177 to
188. For our purpose, it would suffice to refer only to Sections 177 and 178 which are as under:
"177. Ordinary place of enquiry and trial.--Every offence shall ordinarily be enquired into and tried by a court within whose local jurisdiction it was committed.
178. Place of enquiry or trial.--(a) When it is uncertain in which of several local areas an offence was committed, or
(b) where an offence is committed partly in one local area and partly in another, or
(c) where an offence is continuing one, and continues to be committed in more local areas than one, or
(d) where it consists of several acts done in different local areas, ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 18 it may be enquired into or tried by a court having jurisdiction over any of such local areas."
12. A reading of the aforesaid sections would make it clear .
that Section 177 provides for an "ordinary" place of enquiry or trial. Section 178, inter alia, provides for place of enquiry or trial when it is uncertain in which of several local areas an offence was committed or where the offence was committed partly in one local area and partly in another and where it consisted of several acts done in different local areas, it could be enquired into or tried by a of court having jurisdiction over any of such local areas. Hence, at the stage of investigation, it cannot be held that the SHO does not have territorial jurisdiction to investigate the crime.
rt
13. This Court in State of W.B. v. S.N. Basak [AIR 1963 SC 447 : (1963) 2 SCR 52] dealt with a similar contention wherein the High Court had held that the statutory powers of investigation given to the police under Chapter XIV were not available in respect of an offence triable under the West Bengal Criminal Law Amendment (Special Courts) Act, 1949 and hence the investigation was without jurisdiction. Reversing the said finding, it was held thus:
"The powers of investigation into cognizable offences are contained in Chapter XIV of the Code of Criminal Procedure. Section 154 which is in that chapter deals with information in cognizable offences and Section 156 with the investigation into such offences and under these sections the police has the statutory right to investigate into the circumstances of any alleged cognizable offence without authority from a Magistrate and this statutory power of the police to investigate cannot be interfered with by the exercise of power under Section 439 or the inherent power of the court under Section 561-A of the Criminal Procedure Code. As to the powers of the judiciary in regard to the statutory right of the police to investigate, the Privy Council in King Emperor v. KhwajaNazir ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 19 Ahmad [(1944) 71 IA 203, 212: AIR 1945 PC 18] (IA at p. 212) observed as follows--
'The functions of the judiciary and the police .
are complementary, not overlapping and the combination of individual liberty with due observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under Section of 491 of the Criminal Procedure Code to give directions in the nature of habeas corpus. In such a case as the present, however, the court's functions begin when a charge is rt preferred before it, and not until then. It has sometimes been thought that Section 561-A has given increased powers to the court which it did not possess before that section was enacted. But this is not so. The section gives no new powers, it only provides that those which the court already inherently possesses shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act.' With this interpretation, which has been put on the statutory duties and powers of the police and of the powers of the Court, we are in accord. The High Court was in error therefore in interfering with the powers of the police in investigating into the offence which was alleged in the information sent to the officer in charge of the police station."
14. Further, the legal position is well settled that if an offence is disclosed the court will not normally interfere with an investigation into the case and will permit an ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 20 investigation into the offence alleged to be completed. If the FIR, prima facie, discloses the commission of an offence, the court does not normally stop the .
investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. [State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561: 1982 SCC (Cri) 283] It is also settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash an FIR or a complaint, the High Court would have to proceed of entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations. [Pratibha Rani v. Suraj rt Kumar, (1985) 2 SCC 370, 395 : 1985 SCC (Cri) 180]
15. Hence, in the present case, the High Court committed a grave error in accepting the contention of the respondent that the investigating officer had no jurisdiction to investigate the matters on the alleged ground that no part of the offence was committed within the territorial jurisdiction of the police station at Delhi. The appreciation of the evidence is the function of the courts when seized of the matter. At the stage of the investigation, the material collected by an investigating officer cannot be judicially scrutinized for arriving at a conclusion that the police station officer of a particular police station would not have territorial jurisdiction. In any case, it has to be stated that in view of Section 178(c) of the Criminal Procedure Code, when it is uncertain in which of the several local areas an offence was committed, or where it consists of several acts done in different local areas, the said offence can be enquired into or tried by a court having jurisdiction over any of such local areas. Therefore, to say at the stage of the investigation that the SHO, Police Station PaschimVihar, New Delhi was not having territorial jurisdiction, is on the face of it, illegal and erroneous. That apart, Section 156(2) contains an embargo that no proceeding of a police ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 21 officer shall be challenged on the ground that he has no territorial power to investigate. The High Court has completely overlooked the said embargo when it .
entertained the petition of Respondent 2 on the ground of want of territorial jurisdiction.
19. It was held in Rasiklal Dalpatram Thakkar v. State of Gujarat, (2010) 1 SCC 1 that once an investigation is commenced under Section 156(1), it cannot be interrupted on the ground that of the Police Officer was not empowered. It was observed:-
24. From the aforesaid provisions it is quite clear that a rt police officer in charge of a police station can, without the order of a Magistrate, investigate any cognizable offence which a court having jurisdiction over such police station can inquire into or try under Chapter III of the Code. Sub-
section (2) of Section 156 ensures that once an investigation is commenced under sub-section (1), the same is not interrupted on the ground that the police officer was not empowered under the section to investigate. It is in the nature of a "savings clause" in respect of investigations undertaken in respect of cognizable offences. In addition to the powers vested in a Magistrate empowered under Section 190 CrPC to order an investigation under sub-section (1) of Section 202 CrPC, sub-section (3) of Section 156 also empowers such Magistrate to order an investigation on a complaint filed before him.
26. In the instant case, the stage contemplated under Section 181(4) CrPC has not yet been reached. Prior to taking cognizance on the complaint filed by the Bank, the learned Chief Metropolitan Magistrate, Ahmedabad had directed an inquiry under Section 156(3) CrPC and as it appears, a final report was submitted by the investigating agency entrusted with the investigation stating that since the alleged transactions had taken place within the ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 22 territorial limits of the city of Mumbai, no cause of action had arisen in the State of Gujarat and therefore, the investigation should be transferred to the police agency .
in Mumbai. There seems to be little doubt that the Economic Offences Wing, State CID (Crime), which had been entrusted with the investigation, had upon initial inquiries recommended that the investigation be transferred to the police agency of Mumbai.
27. In our view, both the trial court as well as the Bombay High Court had correctly interpreted the provisions of of Section 156 CrPC to hold that it was not within the jurisdiction of the investigating agency to refrain itself from holding a proper and complete investigation merely upon arriving at a conclusion that the offences had been rt committed beyond its territorial jurisdiction.
28. A glance at the material before the Magistrate would indicate that the major part of the loan transaction had, in fact, taken place in the State of Gujarat and that having regard to the provisions of sub-section (2) of Section 156 CrPC, the proceedings of the investigation could not be questioned on the ground of jurisdiction of the officer to conduct such investigation. It was open to the learned Magistrate to direct an investigation under Section 156(3) CrPC without taking cognizance on the complaint and where an investigation is undertaken at the instance of the Magistrate, a police officer empowered under sub- section (1) of Section 156 is bound, except in specific and specially exceptional cases, to conduct such an investigation even if he was of the view that he did not have jurisdiction to investigate the matter.
29. Having regard to the law in existence today, we are unable to accept Mr Syed's submissions that the High Court had erred in upholding the order of the learned trial Judge when the entire cause of action in respect of the offence had allegedly arisen outside the State of Gujarat. We are also unable to accept the submission that it was for the investigating officer in the course of the ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 23 investigation to decide whether a particular court had jurisdiction to entertain a complaint or not.
30. It is the settled law that the complaint made in a .
criminal case follows the place where the cause arises, but the distinguishing feature in the instant case is that the stage of taking cognizance was yet to arrive. The investigating agency was required to place the facts elicited during the investigation before the court in order to enable the court to come to a conclusion as to whether it had jurisdiction to entertain the complaint or not.
of Without conducting such an investigation, it was improper on the part of the investigating agency to forward its report with the observation that since the entire cause of action for the alleged offence had rt purportedly arisen in the city of Mumbai within the State of Maharashtra, the investigation should be transferred to the police station concerned in Mumbai.
31. Section 156(3) CrPC contemplates a stage where the learned Magistrate is not convinced as to whether the process should issue on the facts disclosed in the complaint. Once the facts are received, it is for the Magistrate to decide his next course of action. In this case, there are materials to show that the appellant had filed his application for a loan with the Head Office of the Bank at Ahmedabad and that the processing and the sanction of the loan was also done in Ahmedabad which clearly indicates that the major part of the cause of action for the complaints arose within the jurisdiction of the Chief Metropolitan Magistrate, Ahmedabad. It was not, therefore, desirable on the part of the investigating agency to make an observation that it did not have territorial jurisdiction to proceed with the investigation, which was required to be transferred to the police station having jurisdiction to do so.
32. On the materials before him the learned Magistrate was fully justified in rejecting the final report submitted by the Economic Offences Wing, State CID (Crime) and to order a fresh investigation into the allegations made on ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 24 behalf of the Bank. The High Court, therefore, did not commit any error in upholding the views expressed by the trial court. As mentioned hereinbefore, Section 181(4) .
CrPC deals with the court's powers to inquire into or try an offence of criminal misappropriation or of a criminal breach of trust if the same has been committed or any part of the property, which is the subject of the offence, is received or retained within the local jurisdiction of the said court.
33. The various decisions cited by Mr Syed, and in of particular the decision in Satvinder Kaur case [(1999) 8 SCC 728: 1999 SCC (Cri) 1503] provide an insight into the views held by the Supreme Court on the accepted position that the investigating officer was entitled to transfer an rt investigation to a police station having jurisdiction to conduct the same. The said question is not in issue before us and as indicated hereinbefore, we are only required to consider whether the investigating officer in respect of an investigation undertaken under Section 156(3) CrPC can file a report stating that he had no jurisdiction to investigate into the complaint as the entire cause of action had arisen outside his jurisdiction despite there being material available to the contrary. The answer, in our view, is in negative and we are of the firm view that the powers vested in the investigating authorities, under Section 156(1) CrPC, did not restrict the jurisdiction of the investigating agency to investigate into a complaint even if it did not have territorial jurisdiction to do so. Unlike as in other cases, it was for the court to decide whether it had jurisdiction to entertain the complaint as and when the entire facts were placed before it."
20. Even assuming that the police had no territorial jurisdiction it will not take away the jurisdiction of the Court taking the cognisance. In R.A.H. Siguran vs. Shankare Gowda 2017 (16) SCC 126, the proceedings were quashed by the High Court on ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 25 the ground that the police officer who had conducted the investigation was not competent to do so under provisions of the .
Immoral Traffic (Prevention) Act, 1956. It was held by the Hon'ble Supreme Court that the investigation could not have been quashed on this ground. It was observed:
"It is well-settled law that even if the investigation is not of conducted by an authorized officer, the trial is not vitiated unless prejudice is shown.
10. In H.N. Rishbud and Anr. v. The State of Delhi, AIR 1955 rt SC 196, (1955) 1 SCR 1150 the question considered by this Court was whether after the court takes cognizance, a trial can be held to be initiated merely on the ground that investigation was invalid. Answering in the negative, this Court held that if the plea of invalidity of investigation is raised at a sufficiently early stage, the court, instead of taking cognizance direct reinvestigation by the competent investigating officer. But, after cognizance is taken the trial cannot be quashed for invalidity of investigation.
11. The observations in the said judgment are:-
"9. The question then requires to be considered whether and to what extent the trial which follows such investigation is vitiated. Now, trial follows cognizance and cognizance is preceded by the investigation. This is undoubtedly the basic scheme of the Code in respect of cognizable cases. But it does not necessarily follow that an invalid investigation nullifies the cognizance or trial based thereon. Here we are not concerned with the effect of the breach of a mandatory provision regulating the competence or procedure of the Court as regards cognizance or trial. It is only with reference to such a breach that the question as to whether it ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 26 constitutes an illegality vitiating the proceedings or a mere irregularity arises. A defect or illegality in an investigation, however serious, has no direct .
bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided in section 190 of the Code of Criminal Procedure as the material on which cognizance is taken. But it cannot be maintained that a valid and legal police report is the foundation of the of jurisdiction of the Court to take cognizance. section 190 of the Code of Criminal Procedure is one out of a group of sections under the heading "Conditions requisite for initiation of proceedings". The rt language of this section is in marked contrast with that of the other sections of the group under the same heading i.e. Sections 193 and 195 to 199. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases excepting in compliance therewith. But Section 190 does not.
While no doubt, in one sense, clauses (a), (b) and
(c) of Section 190(1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is, therefore, a nullity. Such an invalid report may still fall either under clause (a) or (b) of Section 190(1), (whether it is the one or the other we need not pause to consider) and in any case, cognizance so taken is only in the nature of the error in a proceeding antecedent to the trial. To such a situation section 537 of the Code of Criminal Procedure which is in the following terms is attracted:
"Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered on appeal or revision on account of any error, omission or ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 27 irregularity in the complaint, summons, warrant, charge, proclamation, order, judgment or other proceedings before or .
during the trial or in any enquiry or other proceedings under this Code, unless such error, omission or irregularity, has, in fact, occasioned a failure of justice."
If therefore, cognizance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to the investigation, there can be of no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That illegality committed in rt the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor (AIR 1944 PC 73) and Lumbhardar Zutshi v. King (AIR 1950 PC 26). These no doubt relate to the illegality of arrest in the course of an investigation while we are concerned in the present cases with the illegality with reference to the machinery for the collection of the evidence. This distinction may have a bearing on the question of prejudice or miscarriage of justice, but both cases clearly show that the invalidity of the investigation has no relation to the competence of the Court. We are, therefore, clearly, also, of the opinion that where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless miscarriage of justice has been caused thereby.
10. It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during the trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 28 while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such .
reinvestigation as the circumstances of an individual case may call for. Such a course is not altogether outside the contemplation of the scheme of the Code as appears from Section 202 under which a Magistrate taking cognizance on a complaint can order an investigation by the police. Nor can it be said that the adoption of such a course of is outside the scope of the inherent powers of the Special Judge, who for purposes of procedure at the trial is virtually in the position of a Magistrate trying a warrant case. When the attention of the rt Court is called to such an illegality at a very early stage it would not be fair to the accused not to obviate the prejudice that may have been caused thereby, by appropriate orders, at that stage but to leave him to the ultimate remedy of waiting till the conclusion of the trial and of discharging the somewhat difficult burden under section 537 of the Code of Criminal Procedure of making out that such an error has, in fact, occasioned a failure of justice.
It is relevant in this context to observe that even if the trial had proceeded to a conclusion and the accused had to make out that there was, in fact, a failure of justice as the result of such an error, an explanation to section 537 of the Code of Criminal Procedure indicates that the fact of the objection having been raised at an early stage of the proceeding is a pertinent factor. To ignore the breach in such a situation when brought to the notice of the Court would be virtually to make a dead letter of the peremptory provision which has been enacted on grounds of public policy for the benefit of such an accused. It is true that the peremptory provision itself allows an officer of a lower rank to make the investigation if permitted by the Magistrate. But this is not an indication by ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 29 the Legislature that an investigation by an officer of a lower rank without such permission cannot be said to cause prejudice. When a Magistrate is .
approached for granting such permission he is expected to satisfy himself that there are good and sufficient reasons for authorising an officer of a lower rank to conduct the investigation. The granting of such permission is not to be treated by a Magistrate as a mere matter of routine but it is an exercise of his judicial discretion having regard to of the policy underlying it. In our opinion, therefore, when such a breach is brought to the notice of the Court at an early stage of the trial the Court have to consider the nature and extent of the violation and rt pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer, as it considers appropriate with reference to the requirements of Section 5-A of the Act. It is in the light of the above considerations that the validity or otherwise of the objection as to the violation of Section 5(4) of the Act has to be decided and the course to be adopted in these proceedings, determined."
12. The above view has been repeatedly followed in subsequent decisions of this Court. In Union of India and Ors. represented through Superintendent of Police v. T. Nathamuni, (2014) 16 SCC 285, the position was discussed as follows:-
"12. It is clear that in the case of an investigation under the Delhi Special Police Establishment Act, an officer below the rank of Inspector cannot investigate without the order of a competent Magistrate. In the present case, the order of the Special Judge was obtained by filing an application. That order dated 24-9-2009 shows that it was passed on request and in the interest of justice, investigation pursuant to such order did not suffer from want of jurisdiction and hence, in the facts of ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 30 the case, the High Court erred in law in interfering with such investigation more so when it was already completed.
.
13. The question raised by the respondent is well answered by this Court in a number of decisions rendered from a different perspective. The matter of investigation by an officer not authorised by law has been held to be irregular. Indisputably, by the order of the Magistrate investigation was conducted by the Sub-Inspector, CBI who, after of completion of an investigation, submitted the charge sheet. It was only during the trial, that an objection was raised by the respondent that the order passed by the Magistrate permitting the Sub- rt Inspector, CBI to investigate is without jurisdiction. Consequently, the investigation conducted by the officer is vitiated in law. Curiously enough the respondent has not made out a case that by reason of the investigation conducted by the Sub- Inspector a serious prejudice and miscarriage of justice has been caused. It is well settled that the invalidity of the investigation does not vitiate the result unless a miscarriage of justice has been caused thereby.
14. In M.C. Sulkunte v. State of Mysore [(1970) 3 SCC 513], the main question raised by the appellant in an appeal against the order of conviction was that the sanction to investigate the offence given by the Magistrate was not proper inasmuch as he had not recorded any reason as to why he had given permission to the Inspector of Police to investigate the offence of criminal misconduct of obtaining illegal gratification. Considering Section 5-A of the Act, Their Lordships observed: (SCC p. 517, para 15) "15. Although laying the trap was part of the investigation and it had been done by a police officer below the rank of a Deputy Superintendent of Police, it cannot on that ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 31 ground be held that the sanction was invalid or that the conviction ought not to be maintained on that ground. It has been .
emphasised in a number of decisions of this Court that to set aside a conviction it must be shown that there has been a miscarriage of justice as a result of an irregular investigation. The observations in State of M.P. v. Mubarak Ali [1959 Supp (2) SCR 201], at pp. 210-11 to the effect that when the of Magistrate without applying his mind only mechanically issues the order giving permission the investigation is tainted rt cannot help the appellant before us."
15. In Muni Lal v. Delhi Admn [(1971) 2 SCC 48], this Court was considering the question with regard to the irregularity in an investigation for the offence under the Prevention of Corruption Act. Following earlier decisions, this Court held: (SCC p. 52, para
14) "14. From the above proposition it follows that where cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the preceding investigation will not vitiate the result unless miscarriage of justice has been caused thereby and the accused has been prejudiced.
Assuming in favour of the appellant, that there was an irregularity in the investigation and that Section 5-A of the Act was not complied with in substance, the trial by the Special Judge cannot be held to be illegal unless it is shown that miscarriage of justice has been caused on account of the illegal investigation. The learned counsel for the appellant has been unable to show us how there has been any miscarriage of justice in ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 32 this case and how the accused has been prejudiced by any irregular investigation."
16. In State of Haryana v. Bhajan Lal 1992 Supp (1) .
SCC 335], this Court while considering Section 5-A of the Act, held as under: (SCC pp. 384-85, para 119) "119. It has been ruled by this Court in several decisions that Section 5-A of the Act is mandatory and not a directory and the investigation conducted in violation thereof bears the stamp of illegality but that illegality of committed in the course of an investigation does not affect the competence and the rt jurisdiction of the court for trial and where the cognizance of the case has in fact been taken and the case is proceeded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. See (1) H.N. Rishbud v. State of Delhi [AIR 1955 SC 196], (2) Major E.G. Barsay v. State of Bombay [AIR 1961 SC 1762], (3) Munnalal v. State of U.P [AIR 1964 SC 28], (4) Sailendranath Bose v. State of Bihar [AIR 1968 SC 1292], (5) Muni Lal v. Delhi Admn. [(1971) 2 SCC 48] and (6) Khandu Sonu Dhobi v. State of Maharashtra [(1972) 3 SCC 786]. However, in Rishbud case [AIR 1955 SC 196] and Muni Lal case [(1971) 2 SCC 48], it has been ruled that if any breach of the said mandatory proviso relating to the investigation is brought to the notice of the court at an early stage of the trial, the court will have to consider the nature and extent of the violation and pass appropriate orders as may be called for to rectify the illegality and cure the defects in the investigation."
17. In A.C. Sharma v. Delhi Admn [(1973) 1 SCC 726], provisions of Section 5-A were again considered by this Court and held as under (SCC p. 735, para 15) ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 33 "15. As the foregoing discussion shows the investigation in the present case by the Deputy Superintendent of Police cannot be .
considered to be in any way unauthorised or contrary to the law. In this connection, it may not be out of place also to point out that the function of investigation is merely to collect evidence and any irregularity or even illegality in the course of collection of evidence can scarcely be considered by itself of to affect the legality of the trial by an otherwise competent court of the offence so investigated. In H.N. Rishbud v. State of Delhi [AIR 1955 SC 196], it was held that illegality rt committed in the course of investigation does not affect the competence and jurisdiction of the court for trial and where cognizance of the case has in fact been taken and the case has proceeded to termination of the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. When any breach of the mandatory provisions relating to the investigation is brought to the notice of the court at an early stage of the trial the Court will have to consider the nature and extent of the violation and pass appropriate orders for such reinvestigation as may be called for, wholly or partly, and by such officer, as it considers appropriate with reference to the requirements of Section 5A of the Prevention of Corruption Act, 1947. This decision was followed in Munnalal v. State of U.P. [AIR 1964 SC 28] where the decision in State of M.P. v. Mubarak Ali [AIR 1959 SC 707], was distinguished. The same view was taken in State of A.P. v. N. Venugopal [AIR 1964 SC 33] and more recently in Khandu Sonu Dhobi v. State of Maharashtra [(1972) 3 SCC 786]. The ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 34 decisions of the Calcutta, Punjab and Saurashtra High Courts relied upon by Mr Anthony deal with different points: in any .
event, to the extent, they contain any observations against the view expressed by this Court in the decisions just cited those observations cannot be considered good law."
13. In view of the above, we are satisfied that the High Court was not justified in quashing the proceedings merely on the ground that the investigation was not valid.
of It is not necessary for this Court to go into the question raised by learned counsel for the appellants that there was no infirmity in the investigation."
21. rt Therefore, it is not permissible to quash the proceedings at this stage simply on the ground that these were not conducted by an officer not having jurisdiction and the accused is free to show prejudice during the trial.
22. It was submitted that the relationship, if any, was the result of consent which is apparent from the fact that there was a delay. Reliance was placed upon the judgment of the Hon'ble Supreme Court in Pramod Suryakant Parmar vs. State of Maharashtra (2019) 9 SCC 608 in support of this submission.
This judgment dealt with the sexual relationship on the pretext of the marriage which is not the case here. Hence, the cited judgment does not apply to the facts of the present case.
::: Downloaded on - 28/12/2023 20:33:23 :::CIS 3523. It was submitted that there is an inordinate delay in reporting the matter to the police, which is fatal to the .
prosecution case. First of all, it was laid down by the Hon'ble Supreme Court in Chanchalpati Das v. State of W.B., 2023 SCC OnLine SC 650 that the delay in reporting the matter cannot be a ground to quash the FIR. It was observed:
of "16. As regards inordinate delay in filing the complaint, it has been recently observed by this Court in Hasmukhlal D. rt Vora v. State of Tamil Nadu 2022 SCC Online SC 1732 that though inordinate delay in itself may not be a ground for quashing a criminal complaint, however unexplained inordinate delay must be taken into consideration as a very crucial factor and ground for quashing a criminal complaint."
24. Calcutta High Court also held in Shreekant Sharma v.
State of W.B., 2023 SCC OnLine Cal 1961 that the delay in sexual offences cannot be used to quash the FIR. It was observed:
20. Next the issue under consideration for this Court is whether a delay in filing an FIR by the victim should be a cogent reason for quashing the investigation against the accused and the co-accused. This Court is inclined to answer in the negative as there is a catena of judgments by the Supreme Court, as well as High Courts which hold that delay in filing F.I.R. in cases of sexual assault, should not be equated with other cases to quash proceedings or hold an accused not guilty. The Supreme Court, in Satpal Singh v. State of Haryana, reported in (2010) 8 SCC 714 held that:::: Downloaded on - 28/12/2023 20:33:23 :::CIS 36
"13. In a rape case, the prosecutrix remains worried about her future. She remains in a traumatic state of mind. The family of the victim generally shows .
reluctance to go to the police station because of society's attitude towards such a woman. It casts doubts and shame upon her rather than comfort and sympathise with her. The family remains concerned about the honour and reputation of the prosecutrix. After only having a cool thought it is possible for the family to lodge a complaint in sexual offences.
of (Vide Karnel Singh v. State of M.P. (1995) 5 SCC 518: AIR 1995 SC 2472; and State of Punjab v. Gurmeet Singh (1996) 2 SCC 384: AIR 1996 SC 1393).
14. This Court has consistently highlighted the rt reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. [vide State of Andhra Pradesh v. M. Madhusudhan Rao (2008) 15 SCC 582].
15. However, no straight jacket formula can be laid down in this regard. In the case of sexual offences, the criteria may be different altogether. As the honour of the family is involved, its members have to decide whether to take the matter to court or not. In such a fact-situation, near relations of the prosecutrix may take time as to what course of action should be adopted. Thus, delay is bound to occur. This Court has ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 37 always taken judicial notice of the fact that "ordinarily the family of the victim would not intend to get a stigma attached to the victim. Delay in lodging the .
First Information Report in a case of this nature is a normal phenomenon" [vide Satyapal v. State of Haryana (2009) 6 SCC 635: AIR 2009 SC 2190]."
21. In State of Himachal Pradesh v. Prem Singh reported in (2009) 1 SCC 420: AIR 2009 SC 1010, the Supreme Court considered the issue at length and observed as under:--
"So far as the delay in lodging the FIR is concerned, the of delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the rt prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the FIR."
22. The Bombay High Court in State of Maharashtra v. Savala Sagu 1997 Bom CR Cri, 1997 Cri LJ 786 observed that:
"15. We wish to emphasise that any unmarried girl on account of her bashfulness and the circumstance that not only her own honour but that of her family was at stake, would have been extremely reluctant and loath to disclose to the police, her traumatic experience of being raped. It is only after an efflux of time when she is able to get over a part of her trauma, will she think of lodging the FIR. In our view, no mathematical time limit in lodging an FIR can be fixed in cases of rape. Courts in such cases should adopt a realistic approach rather than one which is unimaginative and theoretical. After all our conduct in life is governed by brass realities."
23. In X v. State of Kerala Crl. A. No. 649 of 2021, decided on 01-07-2022, the Kerala High Court observed that:
::: Downloaded on - 28/12/2023 20:33:23 :::CIS 38"The delay in a case of sexual assault cannot be equated with a delay in a case involving other offences since several factors weigh on the mind of the victim .
and members of her family. In a tradition-bound society like ours, particularly in rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there was a delay in lodging the FIR."
24. In the Supreme Court's decision of Tulsidas Kanolkar v. State of Goa, (2003) 8 SCC 590, where the of victim of rape was a mentally challenged person and there was a delay in reporting the crime, the Court took into consideration the unusual circumstances while holding the accused guilty and observed that:
rt "We shall first deal with the question of delay. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. A delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is a possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, a satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of first information report does not in any way render prosecution version brittle."::: Downloaded on - 28/12/2023 20:33:23 :::CIS 39
25. Therefore, the FIR cannot be quashed on the grounds of delay.
.
26. In any case, the victim has provided sufficient explanation for the delay in reporting the matter. She stated that she moved on and started residing with her husband. It was only when her photographs were put on social media, she made a of complaint to the police.
27. rt The victim specifically stated in the FIR that the petitioner gave something to her in her drink and made a sexual relationship with her forcefully. This Court has to accept the contents of the FIR as correct while exercising jurisdiction under Section 482 of Cr.P.C. and it is not permissible to enter into an inquiry to determine the correctness or otherwise of these allegations. It was laid down by the Hon'ble Supreme Court in State of Maharashtra v. Maroti, (2023) 4 SCC 298: 2022 SCC OnLine SC 1503 that the High Court exercising the power under Section 482 of Cr.P.C. cannot examine the truthfulness, sufficiency and admissibility of the evidence. It was observed:
21. If FIR and the materials collected disclose a cognizable offence and the final report filed under Section 173(2)CrPC on completion of investigation based on it would reveal that the ingredients to constitute an offence ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 40 under the POCSO Act and a prima facie case against the persons named therein as accused, the truthfulness, sufficiency or admissibility of the evidence are not .
matters falling within the purview of exercise of power under Section 482CrPC and undoubtedly they are matters to be done by the trial court at the time of trial. This position is evident from the decisions referred to supra.
22. In the decision in M.L. Bhatt v. M.K. Pandita [M.L. Bhatt v. M.K. Pandita, (2023) 12 SCC 821: 2002 SCC OnLine SC 1300: JT (2002) 3 SC 89], this Court held that while of considering the question of quashing of FIR the High Court would not be entitled to appreciate by way of sifting the materials collected in course of investigation including the statements recorded under Section 161CrPC.
rt
23. In the decision in Rajeev Kourav v. Baisahab [Rajeev Kourav v. Baisahab, (2020) 3 SCC 317 : (2020) 2 SCC (Cri) 51], a two-judge Bench of this Court dealt with the question as to the matters that could be considered by the High Court in quashment proceedings under Section 482CrPC. It was held therein that statements of witnesses recorded under Section 161CrPC being wholly inadmissible in evidence could not be taken into consideration by the Court while adjudicating a petition filed under Section 482CrPC. In that case, this Court took note of the fact that the High Court was aware that one of the witnesses mentioned that the deceased victim had informed him about the harassment by the accused, which she was not able to bear and hence wanted to commit suicide. Finding that the conclusion of the High Court to quash the criminal proceedings, in that case, was on the basis of its assessment of the statements recorded under Section 161CrPC, it was held that statements thereunder, being wholly inadmissible in evidence could not have been taken into consideration by the Court while adjudicating a petition filed under Section 482CrPC. It was also held that the High Court committed an error in quashing the proceedings by assessing the statements recorded under Section 161CrPC.
::: Downloaded on - 28/12/2023 20:33:23 :::CIS 4128. The victim specifically stated that the petitioner had raped her after administering the intoxicant to her. There is a .
presumption under Section 114-A of IPC that if the victim says that she had not consented, the Court has to presume the absence of consent. It was laid down by the Hon'ble Supreme Court in Naim Ahamed vs. State (NCT of Delhi), 2023 SCC OnLine of SC 89 that Section 114A of the Indian Evidence Act provides that when the victim states in a case of rape that she had not rt consented, the Court has to presume that there was no consent.
It was observed:-
"10. It would be germane to note that the basic principles of criminal jurisprudence warrant that the prosecution has to prove the guilt of the accused beyond reasonable doubt by leading cogent evidence, however, considering the ethos and culture of the Indian Society, and considering the rising graph of the commission of the social crime - 'Rape', the courts have been permitted to raise a legal presumption as contained in Section 114A of the Indian Evidence Act. As per Section 114A, a presumption could be raised as to the absence of consent in certain cases pertaining to Rape. As per the said provision, if sexual intercourse by the accused is proved and the question arises as to whether it was without the consent of the woman alleged to have been raped, and if she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."
29. It was laid down by the Hon'ble Supreme Court in ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 42 Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615, that in view of Section 114-A when the victim says that she had not .
consented, the Court has to presume the absence of the consent.
It was observed:-
"15. In this connection, reference may be made to the amendment made in the Evidence Act. Section 114-A was of introduced and the presumption has been raised as to the absence of consent in certain prosecutions for rape. Section 114-A reads as under:
"114-A. Presumption as to the absence of consent in rt certain prosecutions for rape.-In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of Section 376 of the Indian Penal Code (45 of 1860), 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 she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."
16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. The presumption has been introduced by the legislature in the Evidence Act looking to atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her."
30. This judgment was followed in Anurag Soni Vs State of ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 43 Chhattisgarh, 2019 (13) SCC 1. Therefore, in view of the binding precedents of the Hon'ble Supreme Court, the Court cannot infer .
consent, when the victim stated that she had not consented to the sexual intercourse.
31. It was submitted that there is nothing to corroborate the version of the victim and the medical evidence does not of support her version. The incident had taken place in the year rt 2014 and the matter was reported in the year 2019, therefore, nothing was to be found in the medical evidence. Hence, the fact that nothing was found in the medical evidence cannot be used for quashing the FIR.
32. The report of the FSL shows that the installed apps, contacts, pictures and videos were found in the data extracted from the mobile phone of the petitioner. This report corroborates the version of the victim that her photographs and videos were taken by the petitioner. Hence, there is sufficient corroboration of the statement of the victim.
33. Reliance was placed upon the part of the report, wherein it was stated that data relevant to the case could not be found in the data extracted from the SIM card; however, the ::: Downloaded on - 28/12/2023 20:33:23 :::CIS 44 mobile phone contained pictures and videos. Hence, the fact that they were not found in the SIM card will not assist the petitioner.
.
34. No other point was urged.
35. Therefore, the present petition cannot be quashed in the exercise of the extraordinary jurisdiction of this Court.
of Hence, the present petition fails and the same is dismissed.
36. The observation made herein before shall remain rt confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 28th December, 2023 (Chander) ::: Downloaded on - 28/12/2023 20:33:23 :::CIS