Gujarat High Court
Jitendra Ramcharan Meena vs State Of Gujarat on 28 April, 2022
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION NO. 1479 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? NO
2 To be referred to the Reporter or not ?
NO
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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JITENDRA RAMCHARAN MEENA
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR ABHIRAJ R TRIVEDI(5576) for the Applicant(s) No. 1
for the Respondent(s) No. 4
MR. HARDIK C THAKKAR(7133) for the Respondent(s) No. 4
NOTICE NOT RECD BACK for the Respondent(s) No. 3
MS MD MEHTA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 28/04/2022
ORAL JUDGMENT
1. Heard learned Advocate Mr.Abhiraj Trivedi on behalf of the applicant, learned APP Ms.M.D. Mehta for the respondent State and learned Advocate Mr.Hardik Thakkar appearing for respondent No.4.
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2. By way of this petition the petitioner prays for quashing of an FIR being C.R. No.I-36/2016 registered with Makarpura Police Station, Vadodara on 16.2.2016 for the offences punishable under Sections 376 and 506(2) of IPC, which has culminated into Sessions Case No.168 of 2016.
3. The complainant alleges in the FIR that on 13.2.2016 when the husband of the complainant had gone for attending his duties at around 2 p.m., the accused had knocked on the door of the house where the complainant was sleeping and whereas the complainant under the impression that it was her husband, had opened the door and whereas the allegation is that the applicant - accused had forcibly entered into the house, threatened the complainant, and had gagged the complainant by putting piece of cloth into the mouth of the complainant and had committed the offence of rape upon the complainant. It is further alleged that since the applicant had threatened the complainant that if she tells anybody about the incident, he will kill her husband, therefore, the complainant had not told anyone about the incident. It is further alleged that even on the date of filing of the FIR i.e. 16.2.2016, at around 2 p.m., the accused had knocked on the door of the complainant and the complainant had informed the same to her husband and whereas when the husband of the complainant had come home, the complainant had complained of stomach pain, more particularly since the complainant was eight months pregnant and it is at the hospital that the complainant had informed her husband of the incident which had happened at the night of 13.2.2016. It appears that upon the FIR being registered, the Investigating Officer had started investigation and whereas it also appears that later on the Investigating Officer had filed charge-sheet before the concerned Court on 9.11.2006.
4. Learned Advocate Mr.Trivedi on behalf of the petitioner would assail the FIR as well as subsequent filing of the charge-sheet by pointing out Page 2 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 that the allegation of rape by the complainant was completely improbable and whereas from subsequent investigation it would also appear that the complainant had lodged a false complaint against the present petitioner. Learned Advocate Mr.Trivedi would raise a grievance that even at the stage of filing of the charge-sheet, in spite of overwhelming evidence to the contrary, which would show that there was no material against the present petitioner - accused, for filing the charge-sheet against him, yet the Investigating Officer without considering any of such material, in a rather perfunctory manner had filed the charge-sheet. Learned Advocate Mr.Trivedi would draw the attention of this Court to the statement of the husband of the complainant dated 16.2.2016 i.e. on the date of registration of the FIR and whereas learned Advocate Mr.Trivedi would emphasize on the portion where the husband of the complainant states that on the night of the incident, the accused being his neighbour, had been requested by the husband of the complainant to send his sister-in-law to the house of the complainant since the complainant was having some health issues, more particularly the husband of the complainant going on a night shift on that day. It is further stated that when the husband of the complainant had gone back to his house at around 3 a.m. at night, the complainant had been taken to the Railway Hospital for treatment and whereas at that time after taking an injection the complainant and her husband had returned back. It is further mentioned that later on, on 16.2.2016 at around 2 a.m., when during night duty the husband of the complainant had visited the complainant since she was having some health issues at that time the complainant had allegedly informed her husband about the offence of rape being committed on her on 13.2.2016. Learned Advocate would thereafter draw the attention of this Court to the statement of one Manisha, sister-in-law of the accused and whereas according to the said witness, on the night of the incident, she was present all through out during night hours, including the period when the Page 3 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 alleged offence had taken place and including the such period when the complainant had been taken by her husband to the hospital for a check up and whereas the said witness denies such an incident having happened. The learned Advocate Mr.Trivedi would thereafter draw the attention of this Court to the statement of Divyaben, who was a nurse working with the Railway Hospital who would also state that on the intervening night between 13.2.2016 and 14.2.2016, the complainant and her husband had come for treatment and whereas it is stated that at the relevant point of time the said Divyaben who was working as a nurse with the Railway Hospital had informed that the complainant may be kept for some time in the hospital for observation, whereas at such time, the husband of the complainant had informed the witness that Manisha i.e. the sister-in-law of the accused is present in their house and whereas they have locked house and come and so they would be better returning back to their home. The presence of Manisha at the house of the complainant on the said date is also confirmed by one Alpaben staff nurse of the Railway Hospital and also by one Anvarmiya Malek, who was also working in the Railway Hospital. Learned Advocate would thereafter draw the attention of this Court to the medical examination of the complainant, who would that there was no external injury on the private part of the complainant. Furthermore, learned Advocate Mr.Trivedi would draw the attention of this Court to a report by the Directorate of Forensic Science, whereby a report of Lie-dictator test conducted on the accused had been produced. It would be relevant to mention here that such test had been conducted by the Directorate of Forensic Science, Gandhinagar upon appropriate permission granted by the learned Magistrate on an application by the then Investigating Officer. The report of the Directorate of Forensic Science inter alia showing that the polygraph test of the accused - applicant shows that he was speaking the truth. It also shows that the allegation of rape having been committed on the complainant does not appear to be correct. It Page 4 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 would be pertinent to mention here that while the polygraph test was directed to be conducted of the accused, the complainant as well as her husband, and whereas it appears that the complainant and her husband did not remain present and whereas the above mentioned finding by the DFS was upon the polygraph test conducted of the present applicant only. Learned Advocate would thereafter draw the attention of this Court to a suicide note written by the husband of the complainant dated 18.10.2016, who had committed suicide on 18.6.2016. The perusal of the said suicide note shows that the husband of the complainant was seeking forgiveness and whereas it also appears that the allegation of rape against the present applicant was falsely done, more particularly at the instance of a person, who was named in the suicide note. Learned Advocate Mr.Trivedi relying upon the said material referred to herein above would submit that as such the above referred material, except the suicide note, being material which had been gathered by the Investigating Officer, during the course of investigation, the same had not been considered at all by the Investigating Officer while filing the charge-sheet, more particularly according to the learned Advocate, the material relied upon would clearly show that the allegations levelled against the present applicant were absolutely baseless.
5. It appears that in light of the submissions as above, vide an order dated 21.2.2022 this Court had directed the respondent No.3 to remain personally present, more particularly to answer the allegations levelled against her of not having conducted the investigation properly. It further appears that vide order dated 21.4.2022 this Court had also directed the DCP, having jurisdiction over Makarpura Police Station, Vadodara City to remain personally present and where as the DCP was also directed to look into the allegations made with regard to the charge-sheet being filed without there being any material to implicate the present applicant.
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6. Learned APP Ms.Mehta would submit that along with respondent No.3, who is presently posted as Dy. Superintendent of Police, Police Head Quarters, Rajpipla, District Narmada, Mr.Yashpal Jaganiya, DCP Zone- 3, Vadodara City is also present. Learned APP Ms.Mehta would submit a report by the then Investigating Officer, which according to the learned APP, has been perused by the DCP and whereas according to the learned APP, at the relevant point of time, there appeared to have sufficient material to implicate the present applicant in connection with the offence concerned and to file the charge-sheet in that regard. Learned APP would rely upon the report, more particularly the aspect of semen having been found in the clothes worn by the complainant on the date in question. Learned APP would submit that the semen found on the clothes belongs to Blood Group A whereas Blood Group of the husband of the complainant was "O+". Learned APP would further rely upon the call detail records of the accused which according to the learned APP would show that on the date in question, at approximately the time when the offence had taken place the accused was present in the locality of the place where the offence was committed.
7. Learned APP would rely upon a statement dated 22.6.2016 wherein the complainant appears to have stated that while in the complaint and the subsequent statements she had mentioned that the alleged offence had taken place on the night of 13.2.2016 and whereas according to the complainant in reality the alleged offence had taken place in the intervening night between 12.2.2016 and 13.2.2016 and whereas the complainant had tried to explain the said change of date, which had occurred on her mistake in the statement. Learned APP would submit that since there was enough material available at the stage of investigation, that I.O. had filed the charge-sheet. To a query raised by this Court as to whether the hand-writing as found in the suicide note belonged to the deceased husband of the complainant, learned APP upon Page 6 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 instruction would submit that the said suicide note had been sent for examination to the FSL and whereas the said suicide note was confirmed as being written by the deceased husband of the complainant.
8. Learned APP would, therefore, submit that while the FIR inter alia alleges commission of a very serious offence and since material has been recovered during investigation which would point out to the involvement of the present applicant, therefore, while this Court may not interfere in the impugned FIR and further proceedings arising therefrom, learned APP would further submit that no error has been committed by the Investigating Officer, while filing the charge-sheet in question. Learned APP would further submit that the blood group of the present applicant being the same blood group as of the semen, which was found on the clothes of the complainant, it could be presumed that the semen was of the accused.
9. Submissions of the learned APP have been adopted by the learned Advocate Mr.H. C. Thakkar on behalf of the original complainant. Learned Advocate would submit that since the FIR reveals commission of cognizable offence and since after the investigation, material connecting the applicant to the crime in question has been recovered, this Court may not interfere in this application.
10. Heard learned Advocates for the parties, who have not submitted anything else.
11. At the outset, this Court would note that while the jurisdiction of this Court, in a petition under Section 482 of Cr.P.C. as well as Article 226 of the Constitution of India praying for quashment of the complaint is very wide but as observed by the Hon'ble Apex Court in various judgements including a recent judgement in case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, Page 7 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 reported in 2021 SCC Online SC 315, the power has to be exercised sparingly and with circumspection. This Court is also conscious about the limitations while exercising the present jurisdiction, more particularly this Court is not required to hold a mini-trial and to examine facts in detail, to come to any conclusion, one way or the other.
11.1. Having observed as above, it would also be relevant to note that the exercise of the present jurisdiction also requires this Court to ensure that there is no abuse of process of law and also to ensure that the ends of justice are secured. Having regard to the above said observations and keeping in view boundaries set by the Hon'ble Apex Court, this Court examines the submissions of the learned Advocates for the parties.
12. At the outset, before analyzing the submissions of the learned Advocates for the parties, it also requires to be noted that in addition to praying for quashing of the impugned FIR as well as the Sessions Case arising therefrom, the applicant has also prayed for compensation from the officer concerned, who had filed the charge-sheet against the present applicant.
13. Insofar as the impugned proceedings are concerned, while the complainant has levelled a very serious allegations against the applicant and in the considered opinion of this Court, the allegations of rape being one of the most heinous crime against the human body normally an analysis of material gathered during investigation would not be undertaken by a Court exercising jurisdiction under Article 226 of the Constitution of India or Section 482 of the Cr. P.C., in a petition for praying for quashing of a complaint, but in the considered opinion of this Court, the present is not a normal case with normal facts. The complainant has in her first information inter alia stated that she was pregnant by 7 months and she has come to Baroda to stay with her Page 8 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 husband from Rajasthan on 1.2.2016. The complainant also states that on 13.2.2016 her husband had gone for his duty at 8 p.m., and at around 2 a.m., the applicant had come and knocked on the door and committed the act in question etc. As far as the date of 13.2.2016 is concerned, upon investigation carried out on the date of the FIR itself on which date statements of the witnesses including the husband of the complainant, sister-in-law of the applicant, nurses of the Railway Hospital, revealed that on the date of the incident in question i.e. on the night of 13.2.2016, sister-in-law of the applicant was present in the house of the complainant throughout the night hours and whereas the said witness clearly denies any such incident happening. Presence of the said witness i.e. sister-in-law of the present applicant in the house on the night concerned is confirmed by the husband of the complainant and nurses of the Railway Hospital, where the complainant had gone at around 3 a.m., on 13.2.2016 since she complained of stomach ache. Thus, prima facie it appears that on the night of the incident sister-in-law of the applicant was indeed present in the house of the complainant and has noted herein above, the said person clearly denies such an incident having happened.
14. It would also be worthwhile to mention here that the complainant according to her statement was 7 months pregnant and at around 2 O'clock in the night she claims to have been sexually assaulted by the applicant. According to the sequence of events as appearing from the investigation papers after the accused had left committing the act in question the complainant had called her husband and complained about the stomach ache and whereas the husband of the complainant had taken her to the Railway Hospital where the complainant had been examined by the doctor and whereas she had been given an injection and asked her to stay in the hospital for observation. Accepting the version as it is, it appears that a 7 month pregnant lady after being sexually assaulted forcefully against her will, within one hour of the said assault, comes to Page 9 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 a hospital and neither does the victim inform about the assault to anyone, nor do the medical staff at the hospital make out that 7 month pregnant lady is under physical distress.
14.1. It also requires to be mentioned here that the complainant had been medically examined on 16.2.2016 immediately after filing of the complaint and accepting either version, the same would be within 3-4 days after the incident. In the medical examination, no injury marks are found, more particularly having regard to the fact that the complainant was 7 month pregnant and the act alleged is taken to have been done forcefully.
15. It also appears that at the relevant point of time, the Investigating Officer had, since it appears that on account of some inconsistencies in the statements, sought permission from the learned Magistrate for conducting polygraph test on the applicant, the complainant and her husband, and after getting permission, the Investigating Officer had asked the applicant, the complainant and her husband to remain present for the said test. It appears that the applicant had appeared for the polygraph test and both the complainant and her husband had preferred not to appear for the said test. On perusal of the FSL Report dated 26.5.2016 it appears that the applicant appears to be speaking the truth and the allegation of the applicant having raped the victim appears to be false and the husband of the applicant appears to have sought for money to settle the complaint.
16. It would be further pertinent to mention at this stage that unfortunately the husband of the complainant had committed suicide on 18.10.2016 and whereas the husband of the complainant had written a suicide note and whereas it is informed by the learned APP Ms.Mehta that upon verification by the FSL it is confirmed that the suicide note was written by the husband of the complainant. In the suicide note, Page 10 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 apart from seeking forgiveness of everyone, the husband of the complainant also states that the present applicant had been falsely implicated by alleging that he had committed rape of the complainant at the behest of one Vijaysingh Meena.
17. From the above narration, while it appears that there was overwhelming evidence to show that the applicant had not committed the alleged crime in question, yet the Investigating Officer had submitted charge-sheet to the learned Magistrate on 9.11.2016 since it prima facie appears to this Court that filing of the charge-sheet without taking into consideration the above aspect was not proper, therefore, this Court had directed the Officer, who had filed the charge-sheet to explain and the DCP concerned to look into the issue and submit an explanation. Today, the Officer who had filed the charge-sheet, Ms.C. N. Chaudhary, presently working as Dy. S. P., Rajpipla and Mr.Yeshpal Jagania, DCP, Zone-3 have remained present. The Officer concerned and the DCP have submitted that the material that was weighed with the Officers at the time of filing of the charge-sheet was a statement of the complainant dated 22.2.2016 and the fact of the FSL Report of the semen on the clothes worn by the complainant on the said date, which belonged to "A" Blood Group, which was the Blood Group of the applicant, as against the Blood Group of the husband of the complainant, which was "O+" Group. In the statement dated 22.2.2016, the complainant inter alia states that while on her first information, she had stated that the alleged offence was committed by the applicant on the night of 13.2.2016 (i.e. 2 a.m. on 14.2.2016) and according to her, what she had intended to mean was that the offence had taken place in the intervening night between 12.2.2022 and 13.2.2022 (i.e. 2 a.m. on 13.2.2016). It would be pertinent to mention that the attendant circumstances as mentioned herein above would clearly show that the same was an after- thought, more particularly to come out of the fact of the presence of the Page 11 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 sister-in-law of the applicant at the house concerned, as had come out in the statement of the husband of the complainant and the staff members of the Railway Hospital. Furthermore, it also appears that this was a case of improvement by the complainant, more particularly since in her first statement she has clearly mentioned that her husband had gone on night duty on 13.2.2016 at 8 p.m., and it is on that night at 2 a.m. (i.e. 2 a.m. on 14.2.2016) that the applicant had come to her house, knocked the door, come inside and committed the act in question. Thus, it clearly appears that while giving the first information, the complainant wanted to state that the alleged incident happened in the intervening night between 13.2.2016 and 14.2.2016, yet since later on presence of sister- in-law of the applicant was established, therefore, a convenient improvement had been made. As noted herein above, the offence of rape is one of the most heinous crimes against the human body and whereas insofar as the present case is concerned, the offence was committed when the complainant was 7 months pregnant. To believe that such a person would forget or have any confusion about the date of the offence is quite absurd.
17.1. Insofar as the presence of semen found in the clothes i.e. Pyjamas worn by the complainant, while attendant circumstances as mentioned herein above were not present, then the presence of semen belonging to a Blood Group of the alleged assailant might point towards a sexual assault, but at the same time in view of the overwhelming material, which would show that the offence concerned may not have happened at all, merely on account of presence of semen may not even establish a prima facie case against the accused. It, thus, appears that on the date when the charge-sheet was filed discussion the improved version as coming out from the statement of the complainant dated 22.2.2016, there were statements which pointed out to the fact that the incident did not happen, there Page 12 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 was a scientific report by the DFS which prima facie pointed out to the innocence of the applicant and most importantly there was a suicide note confirmed to be written by the husband of the applicant wherein he mentioned that the applicant had been falsely implicated at the behest of a third person. In view of such material, the later material referred to herein above more particularly being of impeccable character, the Investigating Officer, merely on basis of the statement dated 22.2.2016 and fact of semen belonging to a Blood Group of the applicant found on the clothes of the complainant ought not to have filed the charge-sheet, such material, in the considered opinion of this Court, not even prima facie establishing commission of offence by the applicant.
17.2. From the discussion herein above, in the considered opinion of this Court, there does not appear to be any material on basis of which it could be even prima facie alleged that the applicant had committed the offence in question. At this stage, this Court seeks to rely upon the observation of the Hon'ble Apex Court in case of M/s Neeharika Infrastructure Pvt. Ltd. (supra), where the Hon'ble Apex Court had reiterated the principles which have to be borne in mind while considering a case for quashing of a complaint under Article 226 of the Constitution of India and Section 482 of Cr.P.C. Paragraph 57 being relevant for the present purpose is reproduced herein below for benefit:-
"57. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:
i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;
ii) Courts would not thwart any investigation into the cognizable Page 13 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 offences;
iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported.
Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the Page 14 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."
18. As observed herein above, while this Court is conscious of the observations of the Hon'ble Apex Court for quashing of a complaint should be an exception than an ordinary rule and the power of quashing should be exercised sparingly with circumspection, but at the same time it would also be relevant to observe that the Hon'ble Apex Court has also laid down that in exceptional cases where non-interference would result in miscarriage of justice, the Court should not interfere. In the instant case this Court is of the considered opinion that non-quashing of the FIR and subsequent proceedings arising therefrom would amount to a clear case of miscarriage of justice inasmuch as a person who has been falsely implicated for an offence of rape, more particularly when such falsity of the allegation appears to be clear based upon impeccable material, then non-quashing of such an FIR would amount to nothing Page 15 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 but a miscarriage of justice.
18.1. The Hon'ble Apex Court has in the above decision also stated that quashing of a complaint should be in appropriate case regard being had to the parameters laid down by the Hon'ble Apex Court in case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp. (1) SCC 335. Paragraph 102 of the said judgement, whereby the Hon'ble Apex Court has set out instances for High Courts exercising extraordinary power under Article 226 of the Constitution of India and/or inherent power under Section 482 of Cr.P.C., being relevant for the present purpose is reproduced herein below for benefit:-
"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 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 Page 16 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 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 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.
(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."
19. In the instant case, in the considered opinion of this Court, instances 3 and 5 as set out by the Hon'ble Apex Court would be clearly attractive more particularly since the evidence collected in support of the allegations made in the FIR do not disclose commission of offence by the applicant. More importantly, apart from the facts being mentioned herein above i.e. the fact of sister-in-law of the applicant being present in the house at the time when the incident had happened as coming out from the statement of the husband of the complainant and others and the fact of the FSL after forensic examination i.e. polygraph test had opined Page 17 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022 R/SCR.A/1479/2017 JUDGMENT DATED: 28/04/2022 that the applicant is falsely implicated and the fact of the husband of the complainant in his suicide note having stated that the applicant was falsely implicated, and considering these aspects along with the fact that the complainant at the relevant point of time was 7 months pregnant and within an hour of the alleged incident she had gone to the hospital complaining about the stomach pain and neither the doctor and the nurses make out the distress of the complainant, nor the complainant mentioning about the incident to any of the persons and further fact that there was no injuries whatsoever upon the complainant when she was examined approximately three days after the incident in question, would clearly show that the allegations were completely absurd and improbable i.e. as observed in instance No.3 & No.5 by the Hon'ble Apex Court.
20. Having regard to the discussions, observations and conclusions arrived at herein above, this Court is inclined to take a lenient stand against the Police Officer concerned i.e. Respondent No.3 herein for having filed the charge-sheet, more particularly since there is no other allegations against the applicant with regard to filing of the FIR, more particularly after directing the Officers concerned to be more careful in future.
21. In that view of the matter, the impugned FIR being C.R. No.I- 36/2016 registered with Makarpura Police Station, Vadodara on 16.2.2016 for the offences punishable under Sections 376 and 506(2) of IPC, which has culminated into Sessions Case No.168 of 2016 and all further proceedings arising therefrom cannot be permitted to proceed and, therefore, the same are hereby quashed and set aside. Rule is made absolute accordingly.
Sd/-
(NIKHIL S. KARIEL,J) V.V.P. PODUVAL Page 18 of 18 Downloaded on : Sat Dec 24 15:50:24 IST 2022