Madras High Court
R.Sibiraj vs The State Of Tamil Nadu on 18 July, 2023
Author: V.Sivagnanam
Bench: V.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 18.07.2023
Coram:
The Hon'ble Mr.Justice V.SIVAGNANAM
Crl.O.P.No.26049 of 2021
and Crl.M.P.No.14436 of 2021
R.Sibiraj
...Petitioner
Versus
1.The State of Tamil Nadu,
Rep. by its Inspector of Police,
All Women Police Station,
Thudiyalur, Coimbatore District.
(Crime No.24/2020)
2.Kanimozhi
...Respondents
This Criminal Original Petition is filed under Section 482 of Cr.P.C
praying to call for the records relating to the final report filed in S.C.No.143
of 2021 on the file of the Sessions Judge, Mahila Court, Coimbatore and to
quash the same.
1/20
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For Petitioner : Mr.P.Raja
For Respondent – 1 : Mr.V.J.Priyadarsana
Government Advocate (Crl.Side)
For Respondent – 2 : Ms.L.Arokia Ratna Mary
for M/s.LAW VISION
ORDER
This criminal original petition has been filed by the petitioner seeking to quash the proceedings in S.C.No.143 of 2021 on the file of learned Sessions Judge, Mahila Court, Coimbatore.
2. The brief facts of the case are as follows:
During the month of June 2019, the petitioner/accused contacted the second respondent/de-facto complainant through a marriage broker and approached for marriage. While so, on 16.08.2019, the petitioner/accused brought the second respondent/de-facto complainant to his house, where, he made the second respondent/de-facto complainant unconscious and then, had sexual relationship with her. When the second respondent/de-facto 2/20 https://www.mhc.tn.gov.in/judis complainant questioned the petitioner/accused that why he had sexual relationship with her, the petitioner/accused promised her that he would marry her. Thereafter, often, the petitioner/accused used to have sexual relationship with the second respondent/de-facto complainant under such promise, but, ultimately, the petitioner/accused refused to marry the second respondent/de-facto complainant and planned to marry another girl. Hence, the aggrieved second respondent/de-facto complainant (victim girl) went to All Women Police Station, Bhavani on 21.07.2020 and lodged a complaint against the petitioner/accused. Based on her complaint, the Inspector of Police, All Women Police Station, Bhavani registered the FIR in Crime No.18 of 2020 against the petitioner/accused for the offences under Sections 417, 328, 376(1) r/w.90 of I.P.C. Thereafter, the said case was transferred to the first respondent police. The first respondent police re-registered an FIR in Crime No.24 of 2020 against the petitioner/accused and investigated the case and also, filed a Final Report which was taken on file in S.C.No.143 of 2021 before the Additional Mahila Court, Coimbatore for the offences under Sections 417 & 376(1) I.P.C. Hence, the petitioner/accused has come up with the present petition.3/20
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3. The learned counsel for the petitioner submitted that the petitioner/accused and the second respondent/de-facto complainant were introduced to each other only by way of marriage proposal. The mother of the second respondent/de-facto complainant rejected the marriage proposal of the petitioner/accused, however, the second respondent/de-facto complainant continued in relationship with the petitioner/accused through mobile phone conversations and social media. That apart, the second respondent/de-facto complainant indulged in sexual relationship with the petitioner/accused on several occasions. The sexual relationship between the petitioner/accused and second respondent/de-facto complainant is a consensual relationship. Hence, such consensual relationship between the petitioner/accused and the second respondent/de-facto complainant is not at all rape as alleged by the second respondent/de-facto complainant. Further, the petitioner/accused has not done any false promise to the second respondent/de-facto complainant as alleged in her complaint as well as statement. It is only a breach of marriage proposal. It is to be noted that there was no proof or material evidence on the side of the second 4/20 https://www.mhc.tn.gov.in/judis respondent/de-facto complainant to establish that the petitioner/accused had done false promise that he would marry her. Therefore, the learned counsel prayed this Court to quash the proceedings in S.C.No.143 of 2021 on the file of learned Sessions Judge, Mahila Court, Coimbatore. In support of his submissions, the learned counsel placed reliance on the following decisions of the Hon'ble Supreme Court:
(i) Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr.
reported in (2019) 9 SCC 608
(ii) Sonu alias Subhash Kumar Vs. State of Uttar Pradesh & Anr. reported in AIR 2021 SCC 1405
4. The learned Government Advocate (Crl.Side) appearing for the first respondent police submitted that in the present case, the petitioner/accused committed a rape as alleged by the second respondent/de- facto complainant. As contended by the learned counsel for the petitioner, the sexual relationship between the petitioner/accused and the second respondent/de-facto complainant was not consensual in nature. The petitioner/accused forcibly had sexual relationship with the second 5/20 https://www.mhc.tn.gov.in/judis respondent/de-facto complainant, without her consent. That apart, for the purpose of having sexual relationship with the second respondent/de-facto complainant, the petitioner/accused done a false promise to her that he would marry her. By telling the word, 'Marriage', the petitioner/accused used to have sexual relationship with the second respondent/de-facto complainant, but, ultimately, he refused to marry her. Aggrieved over the act of the petitioner/accused, the second respondent/de-facto complainant lodged a complaint against him. He further submitted that trial has commenced in this case. Before the trial Court, the second respondent/de- facto complainant (victim girl) was examined as P.W.1 and one document was marked as Ex.P1. Now, the case is pending before the trial Court for examination of prosecution witnesses.
5. The learned counsel appearing for the second respondent/de-facto complainant submitted that the petitioner/accused has raped the second respondent/de-facto complainant on false promise that he would marry her. Believing the promise of the petitioner/accused, the second respondent/de- facto complainant consented for sexual relationship with the 6/20 https://www.mhc.tn.gov.in/judis petitioner/accused, but, the petitioner/accused refused to marry the second respondent/de-facto complainant. There is no merit in the case of the petitioner/accused. Therefore, the learned counsel prayed for dismissal of this petition.
6. Heard the learned counsel on either side and perused the materials placed before this Court.
7. From a perusal of the materials available on records, it is evident that the petitioner/accused is an accused in S.C.No.143 of 2021 pending on the file of learned Sessions Judge, Mahila Court, Coimbatore. The second respondent/de-facto complainant lodged a complaint against the petitioner/accused alleging that the petitioner/accused done a false promise that he would marry her and on the basis of which, he convinced her and obtained her consent for having sexual relationship with him and continuously, he had sexual relationship with her, but, subsequently, he refused to marry her. Based on the complaint given by the second respondent/de-facto complainant, the first respondent police registered FIR 7/20 https://www.mhc.tn.gov.in/judis in Crime No.24 of 2020 against the petitioner/accused and filed a Final Report in S.C.No.143 of 2021 before the Additional Mahila Court, Coimbatore for the offences under Sections 417 & 376(1) I.P.C. The first respondent police examined 16 witnesses, out of which, second respondent/de-facto complainant (Witness No.1) is the victim girl; five witnesses viz., Murugeshan (Witness No.2), Kamalam (Witness No.3), Hemalatha (Witness No.4), Arasakumar (Witness No.5) & Prabu (Witness No.6) are hearsay witnesses and two witnesses viz., Hariharan (Witness No.9) & Divya Prakash (Witness No.10) are Forensic Experts. During examination, the second respondent/de-facto complainant spoke about the false promise done by the petitioner/accused and her sexual relationship with him.
8. I have carefully gone through the statement as well as the complaint given by the second respondent/de-facto complainant, in both, the second respondent/de-facto complainant has clearly stated as follows:
“During the month of June 2019, through a marriage broker, the petitioner/accused contacted her and proposed her for marriage. On 21.07.2019, she and her friend met the petitioner/accused in a 8/20 https://www.mhc.tn.gov.in/judis Coffee Shop at Coimbatore. Thereafter, the petitioner/accused contacted her through mobile phone and insisted her to come to his house and meet his family members. On 16.08.2019, at around 6.00 p.m., the petitioner/accused picked up her in a Swift Car bearing Registration No.TN 38 BU 5181 and brought her to his house at around 8.00 p.m. At that time, none of his family members was there in the house. When she asked the petitioner/accused about his family members, he told her that his family members went outside and they will come back to home soon. Thereafter, the petitioner/accused gave a juice to her. After drinking that juice, she lost her consciousness. Few hours later, when she become conscious, she realized that she was sexually raped by the petitioner/accused. When she asked the petitioner/accused that why he had sexually raped her, the petitioner/accused convinced her by promising her that he would marry her. Thereafter, often, the petitioner/accused used to have sexual relationship with her by insisting the promise that he would marry her, but, when she asked the petitioner/accused to marry her, he refused to marry her. Then only, she realized that the petitioner/accused cheated her by promising that he would marry her and he is planning to marry some other girl.”
9. According to the second respondent/de-facto complainant, the petitioner/accused done a false promise that he would marry her and 9/20 https://www.mhc.tn.gov.in/judis obtained her consent for having sexual relationship with her, but, according to the petitioner/accused, it is only a breach of marriage proposal and he had no sexual relationship with the second respondent/de-facto complainant.
10. The judgments relied by the learned counsel for petitioner are not applicable to the case on hand. In the case of Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr. reported in (2019) 9 SCC 608 as well as in the case of Sonu alias Subhash Kumar Vs. State of Uttar Pradesh & Anr. reported in AIR 2021 SCC 1405, the Hon'ble Supreme Court quashed the FIR registered against the appellant therein for the reason that there is no allegation in the FIR to the effect that the promise done by the appellant to marry the complainant was false, but, in the present case, the second respondent/de-facto complainant both in her complaint as well as statement has clearly stated that the petitioner/accused promised her that he would marry her and based on such promise, he had sexual relationship with her. 10/20 https://www.mhc.tn.gov.in/judis
11. As far as this case is concerned, the two factual disputes involved in the present case are as follows:
(i) Whether the sexual relationship between the petitioner/accused and the second respondent/de-facto complainant was a consensual relationship or not? and
(ii) Whether the promise done by the petitioner/accused that he would marry the second respondent/de-facto complainant is true or not?
Though the second respondent/de-facto complainant has made out a prima facie case to proceed against the petitioner/accused, these factual disputes have to be adjudicated by the trial Magistrate after the parties let in evidence before the trial Court.
12. At this juncture, it is pertinent to point out that the Hon'ble Supreme Court has discussed in detail about the inherent powers of the High Courts under Section 482 Cr.P.C in the following cases:
(i) R.P.Kapur Vs. The State of Punjab reported in AIR 1960 SC 866
(ii) State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. reported in AIR 1992 SC 604 11/20 https://www.mhc.tn.gov.in/judis
(iii) M/s.Neeharika Infrastructure Pvt. Limited Vs. State of Maharashtra & Ors. reported in 2021 SCC Online SC 315 12.1. In the case of R.P.Kapur Vs. The State of Punjab reported in AIR 1960 SC 866, the Hon'ble Supreme Court has held as follows:
“6. .................................................... It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first 12/20 https://www.mhc.tn.gov.in/judis information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.” 12.2. Further, in the case of State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. reported in AIR 1992 SC 604, the Hon'ble Supreme Court issued seven guidelines to be followed by the High Courts in the exercise of its inherent power vested by Section 482 Cr.P.C to quash the FIR/complaint, which are as follows:
“(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 13/20 https://www.mhc.tn.gov.in/judis 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 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 Act concerned (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 Act concerned, 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.” 12.3. Similarly, in the case of M/s.Neeharika Infrastructure Pvt.
Limited Vs. State of Maharashtra & Ors. reported in 2021 SCC Online SC 315, the Hon'ble Apex Court has observed as follows:
“80. ............, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an 14/20 https://www.mhc.tn.gov.in/judis interim order of stay of investigation and/or “no coercive steps to be adopted”, during the pendency of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or “no coercive steps to be adopted” during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
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 a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ‘rarest of rare cases (not to be confused with the formation in the context of death penalty).
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 rather 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 and one ought not to tread over the other sphere;15/20
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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 complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. 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 more 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;
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to 16/20 https://www.mhc.tn.gov.in/judis permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or “no coercive steps to be adopted” and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or “no coercive steps” either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of “no coercive steps to be adopted” within the aforesaid parameters, the High Court must clarify what does it mean by “no coercive steps to be adopted” as the term “no coercive steps to be 17/20 https://www.mhc.tn.gov.in/judis adopted” can be said to be too vague and/or broad which can be misunderstood and/or misapplied.” 12.4. It is to be noted that the present case does not meet the parameters laid down by the Hon'ble Supreme Court in the decisions cited supra viz., R.P.Kapur Vs. The State of Punjab reported in AIR 1960 SC 866; State of Haryana & Ors. Vs. Ch.Bhajan Lal & Ors. reported in AIR 1992 SC 604 and M/s.Neeharika Infrastructure Pvt. Limited Vs. State of Maharashtra & Ors. reported in 2021 SCC Online SC 315. Moreover, I do not find any merit in the case of petitioner/accused.
13. For the foregoing reasons, this criminal original petition is dismissed and the learned Sessions Judge, Mahila Court, Coimbatore is directed to complete the trial in S.C.No.143 of 2021, within a period of three months from the date of receipt of a copy of this order. Consequently, connected miscellaneous petition is closed.
18.07.2023 mrr Index: Yes/No Speaking Order (or) Non-Speaking Order 18/20 https://www.mhc.tn.gov.in/judis To
1.The Sessions Judge, Mahila Court, Coimbatore.
2.The Inspector of Police, All Women Police Station, Thudiyalur, Coimbatore District.
3.The Public Prosecutor, High Court, Madras.
19/20 https://www.mhc.tn.gov.in/judis V.SIVAGNANAM, J.
mrr Crl.O.P.No.26049 of 2021 18.07.2023 20/20 https://www.mhc.tn.gov.in/judis