Karnataka High Court
Sri. Shreyas Ganesh Pai vs The State Of Karnataka on 5 July, 2024
Author: M. Nagaprasanna
Bench: M. Nagaprasanna
1
Reserved on : 04.06.2024
Pronounced on : 05.07.2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 05TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE M. NAGAPRASANNA
CRIMINAL PETITION No.3224 OF 2022
C/W
WRIT PETITION No.11523 OF 2022 (GM - RES)
IN CRIMINAL PETITION No.3224 OF 2022
BETWEEN:
SRI SHREYAS GANESH PAI
S/O K.GANESH
AGED ABOUT 30 YEARS
RESIDING AT NO.311
10TH CROSS, F BLOCK
SAHAKARNAGAR
BENGALURU - 560 092.
... PETITIONER
(BY SRI SHASHANK NAGENDRAN, ADVOCATE)
AND:
1 . THE STATE OF KARNATAKA
BY INDIRANAGAR POLICE STATION
BENGALURU CITY
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDINGS
2
BENGALURU - 560 001.
2 . SMT. XXXX
... RESPONDENTS
(BY SRI B.N.JAGADEESH, ADDL.SPP FOR R-1;
SRI ROHAN KOTHARI, ADVOCATE FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CR.P.C., PRAYING TO A. QUASH THE ORDER TAKING COGNIZANCE
DATED 14.01.2022 PASSED BY THE X ACMM, BANGALORE IN
C.C.NO.50232/2022 WHICH READS - PERUSED THE CHARGE SHEET
AND THE DOCUMENTS FILED BY THE I.O PRIMA FACIE THE
OFFENCE ALLEGED IS MADE OUT. COGNIZANCE IS TAKEN FOR THE
OFFENCES P/U/S 323, 509 OF IPC, REGISTER CRIMINAL CASE
AGAINST THE ACCUSED. ISSUE SS TO ACCUSED. CALL ON 21/6.
B. QUASH THE CRIMINAL PROCEEDINGS IN C.C.NO.50232/2022
ON THE FILE OF THE X ACMM, BANGALORE FOR THE OFFENCES
P/U/S 323, 509 OF IPC ARISING OUT OF CR.NO.209/2019 OF
INDIRANAGAR P.S., AS AGAINST THIS PETITIONER.
IN WRIT PETITION No.11523 OF 2022
BETWEEN:
SMT. XXXX
... PETITIONER
(BY SRI ROHAN KOTHARI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
THROUGH INDIRANAGAR POLICE STATION
BENGALURU CITY
REPRESENTED BY
3
THE STATE PUBLIC PROSECUTOR
HIGH COURT, BENGALURU - 560 001.
2. SHREYAS GANESH PAI
S/O K.GANESH
AGED ABOUT 30 YEARS
RESIDING AT NO.311,
10TH CROSS, F BLOCK
SAHAKARNAGAR
BENGALURU - 560 092.
... RESPONDENTS
(BY SRI B.N.JAGADEESH, ADDL.SPP FOR R-1;
SRI SHASHANK NAGENDRAN, ADVOCATE FOR R-2)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF
CR.P.C PRAYING TO DIRECTING THE R1 AGENCY TO CONDUCT
FURTHER INVESTIGATION UNDER SECTION 173(8),CR.P.C IN C.C.
50232/22, VIDE ANNEXURE K IN A FAIR IMPARTIAL AND
THOROUGH MANNER, AND TO SUBMIT A SUPPLEMENTARY CHARGE
SHEET IN RESPECT OF ALLEGATIONS MADE REGARDING OFFENCES
PUNISHABLE UNDER SECTION 376, 354, 354A, 354B AND 506 OF
IPC 1860 AND SECTION 67 OF THE IT ACT, 2000, WITHIN A
STIPULATED TIME FRAME AND ETC.,
THESE PETITIONS HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 04.06.2024, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT MADE THE FOLLOWING:-
4
ORDER
The parties to the lis are the same i.e., complainant and the accused. Therefore, the facts obtaining in Criminal Petition No.3224 of 2022 are noticed for the sake of convenience and the parties will be referred as per their ranking obtaining in the criminal petition.
The petitioner in Criminal Petition No.3224 of 2022, the sole accused in C.C.No.50232 of 2022, is calling in question the entire proceedings in Crime No.209 of 2019 for offences punishable under Sections 323 and 509 of the IPC. Writ Petition No.11523 of 2022 is preferred by the complainant seeking further investigation into the crime, on the score that the investigation has dropped several vital offences that were made in the complaint.
2. Heard Sri Shashank Nagendran, learned counsel appearing for the petitioner in Criminal Petition No.3224 of 2022 and respondent No.2 in W.P.No.11523 of 2022, Sri B.N.Jagadeesh, learned Additional Special Public Prosecutor for respondent No.1 in both the petitions and Sri Rohan Kothari, learned counsel appearing 5 for the petitioner in W.P.No.11523 of 2022 and respondent No.2 in Crl.P.No.3224 of 2022.
3. Facts, in brief, adumbrated are as follows:-
The accused/petitioner and the complainant met through an online platform and began speaking to each other from March 2015. After about 2 months, they first met at the India Coffee House, Bangalore and began to meet several times. The complainant is said to have been scouting for a job as a graphic designer and has told this to the accused. The accused was employed in a Company called Happy Creative Services and informed that there is an opportunity open to the complainant to apply for an internship. The complainant applies and gets selected as an intern and was also offered an offer letter. Since both of them were in the same office friendship developed, friendship into physical proximity and physical proximity into sexual activities. Several differences of opinion sprang between the complainant and the accused and it is alleged that the accused had resorted to physical violence by hitting her, slapping her, pulling her hair and sometimes chocking her and on 6 the very next day the accused is said to be apologetic of the behavior on the previous day. On 07-11-2015 the accused tells that he has met another woman by name Kanchan Kumar online on the score that he would develop intimacy with Kanchan Kumar. It is alleged that the accused was demanding the complainant anal sex and on refusal the accused used to beat her and used to have unnatural sex without consent. The altercation, squabble, physical violence and the like between the two continued.
4. It is the case of the complainant that being fed up with the attitude of the accused, the complainant ends her relationship with him on 09-01-2016. But, the accused did not stop at that, but went on blackmailing the complainant. On 31-01-2016 the complainant had quit the Company, her resignation was accepted and she shifts residence. Two years passed by. On 18-07-2018, it is the case of the complainant that she comes across a video on instagram how Kanchan Kumar was raped by the accused three years ago at the apartment of the accused where she was forced to leave her top and innerwear. Seeing the video the complainant is said to have gathered certain courage and decided to register the crime as she 7 was also subjected to such harassment and had no courage to register the complaint then. Altercation between Kanchan Kumar and the accused go on in the online blog by name Immediate.com.
5. The complainant gathering courage on 24-08-2019 files the complaint before the jurisdictional police. The Police registered the crime in Crime No.209 of 2019 for offences punishable under Sections 323, 354, 354(A), 354(B), 376, 506, 509 of the IPC and Section 67 of the Information Technology Act, 2008. The Police conduct investigation, the investigation leads to the filing of a final report against the accused in C.C.No.50232 of 2022 for only two offences one Section 323 of the IPC for assault and the other, Section 509 insulting modesty of a woman. Challenging registration of criminal case for the aforesaid offences, the accused has preferred the criminal petition. The complainant, on the score that the investigation was shoddy and all other offences are given up, has preferred the writ petition seeking further investigation. It is, therefore, the two are taken up together.
86. The learned counsel appearing for the petitioner would contend that the acts between the complainant and the petitioner were all consensual. Therefore, the Police have rightly dropped the offences punishable under Section 376 and etc. inter alia and have retained Sections 323 and 509 of the IPC. Even those offences are not met in the case at hand is his submission. All consensual acts between the complainant and the accused are projected to be offences after about 3 years of the said occurrence, with there being no explanation for delay. He would further contend that the order of taking of cognizance, by the concerned Court, is cryptic and bereft of reasons and on these grounds seeks quashment of the proceedings.
7. Per contra, the learned counsel representing the complainant would contend that in such cases delay should not be the reason to allow the accused to get away with certain horrendous offences that he has committed upon the complainant.
The learned counsel would submit that the complainant did not have courage till "me too" movement began online of all women being harassed in work places either sexually or physically. On 9 looking into this, the complainant garnered courage and registered the complaint. It is his submission that the Police have not conducted the present investigation vis-à-vis the complaint and, therefore, a further investigation under Section 173(8) of the Cr.P.C should be directed to be conducted by the Police.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are not in dispute. The petitioner and the complainant coming in contact with each other through an online blog portal is a matter of record. The entire issue has now sprung from the complaint dated 24-08-2019 which is in great detail. The genesis of the relationship between the two is quoted at para-3 of the complaint. It goes on from 07-08-2015 when the complainant begins to work as an intern with the Company/Happy Creative Services Limited under the accused. Blossoming of the relationship is noticed and the relationship turning into sexual relationship is also narrated and how it tumbled down on account of 10 the accused getting acquainted to another lady is also narrated.
There are allegations that the accused had forced the complainant to have unnatural sex and had defamed the complainant throughout in the social media. The complainant also narrates as last of the incident between them to be on 09-01-2016 but the complaint itself is registered on 09-09-2019 though it is dated 24-08-2019. The reason for the late registration of the complaint is necessary to be noticed. It reads as follows:
".... .... ....
19. The sexual, physical and emotional violence sustained by me at the hands of the accused was extremely severe and traumatizing. I was left very weak and vulnerable, requiring time to heal, and to come to terms with what had been inflicted on me. Due to my fragile state I could not seek any legal or police assistance in the weeks and months following the incident of rape, as well as the various other offences committed by the accused on me. I also had no support for any legal help and it is only now that I have been able to get the courage to report these violent incidents.
20. On 18-07-2018, one Kanchan Kumar (having Instagram handle @ Kawnchann) shared certain videos on her Instagram account recounting how she had also been raped by the accused. In her video, Kanchan Kumar mentioned how the incident in question took place three years ago, at flat in Indiranagar, and also mentioned the accused by name as well as the name of his dog (Arya). She further mentioned in this video that she had been forced to leave her top and innerwear at the Accused's flat. Sometime after the uploading of these videos, I was contacted by three of my friends (Mrs. Sahana Das, Mr. Vinay Kumar, Mr. Nasoom Parmar) separately via phone calls, Whatsapp messages and Instagram messages, on 11 18-07-2018, informing me that the Accused had allegedly raped another woman with the Instagram handle @ Kawnchann, and directed me to the said videos. When I watched the said videos, I immediately knew that the Shreyas that was being spoken of in the said videos was the Accused, and that Kanchan Kumar was the same woman that the Accused had mentioned to me in the month of November 2015 (see paras 11 and 12 herein- above). A copy of videos uploaded by Kanchan Kumar on Instagram dated 18-07-2018 are uploaded on the enclosed USB drive).
21. Realizing that I was not the only victim of the Accused's depravity, I was emboldened and contacted Kanchan Kumar via a private message on Instagram on 18-07-2018. In this message, I told her that I remembered her top lying in the drawing room of the Accused's flat in November, 2015, and also shared with her that I had been sexually and physically and emotionally abused by the Accused. Thereafter these messaged were publicly shared by Kanchan Kumar on Instagram, after redacting my name.
22. In the following few days, I assisted Kanchan to communicate with several others trying to get in touch with her in connection with the allegations she had made against the Accused. These included women who had also confided in Kanchan Kumar about their own stories of abuse and uncomfortable and offensive interactions with the Accused. Kanchan also shared with me some of the messages she received from such other women, after redacting their names.
23. On 19-07-2018, the Accused shared a post on Instagram responding to the videos uploaded by Kanchan Kumar, threatening to file a suit for defamation, and attempted by present a defence of himself by sharing sceenshots of private conversations had between Kanchan and himself over Whatsapp. The accused in this post, also shared older posts uploaded by him on Facebook, which indicate the scant respect he has for women, and his violent sexual tendencies. This post caused something of a backlash on Instagram, resulting in its removal on 20-07-2018, as it violated Instagram's "Community Guidelines". On 21-07-2018, Kanchan put up a statement on her Instagram account thanking people for supporting her, and requesting them not take any vigilante action. Following this 12 however, Kanchan decided that she would no longer involve herself with anything to do with the Accused as it was affecting her mental health and ability to work on a day-to-day basis. She stated this to me on 08-08-2018, and we have not been in contact since.
(A Screenshot of Facebook status posted by Accused on 16-10- 2017 is annexed hereto as ANNEXURE-6).
(A Screenshot of Instagram post/statement dated 21.07.2018 posted by Kanchan Kumar regarding sexual assault committed by the Accused is annexed hereto as ANNEXURE-7). (A Picture of News report dated 18-07-2018 is annexed hereto as ANNEXURE-8).
24. On 06-09-2018, the Accused, in a further attempt to dislodge the allegations made against him by Kanchan Kumar, uploaded a further blogpost on Medium.Com stating that Kanchan was falsely claiming to have been raped. This blogpost too was taken down by Medium.com, as it violated their Community Guidelines. The Accused thereafter uploaded the same blogpost on Wordpress.com on 07-09-2018, where it remains till date, available at https:
//Lifeofpai743708595.wordpress.com/2018/09/07/the-girl- cried-wolf/.
(A screenshot of the Accused' blogpost dated 07-09-2018 is annexed hereto as ANNEXURE-9).
25. In the aforementioned blogpost and subsequently on Instagram, the Accused, apart from showcasing his debauched and disgusting attitude towards women, has defamed me by making false, disparaging and extremely negative statements about me and has made a calculated attempt to ensure that my identity is made available to the public at large. On the same day i.e., 07-09-2018, Kanchan Kumar deleted her Instagram account (@ Kawnchann), and ceased publicly accessible online activity.
26. In April, 2019, the Accused's Twitter account was suspended. On 26 May 2019, the Accused uploaded a second blog post through which he further defamed me with false claims calculated to bring me into disrepute in society. Further, in this blog post, the Accused admits to having indulged in sexual conduct with me against my consent and goes further in 13 establishing that the Accused has committed the offences I have alleged against him.
(A copy of the Accused's blogpost dated 26-05-2019 is annexed hereto as ANNEXURE-10).
27. Further, on 18-06-2019, an audioclip/podcast was uploaded on the website Youtube.com and Twitter.com, where the Accused had made further derogatory, slanderous and defamatory remarks against me that are false, in an attempt to intimidate, harass and victimize me. The said audioclip was uploaded by a channel called "Shortcut to indie A", and is still on line, accessible at https://www.youtube.com/watch?v- 4VxEc2x0qc&t=1s.
(The aforementioned audioclip is uploaded on the enclosed USB Drive.)
28. It has also been brought to my attention that the offences that I have alleged against the Accused are not the only ones he has been accused of. At present the Accused herein is also one of the Accused in C.C.No.15297 of 2017, arising out of FIR bearing Crime No.142/2016 registered under Sections 353, 332, 504 and 34 IPC by the Cubbon Park Police Station. This case is currently pending on the file of the VIII ACMM, Bangalore.
29. The abovementioned facts and circumstances clearly shows that the Accused has committed various cognizable offences within the jurisdiction of this Police Station, and therefore, necessary steps should be immediately taken against him. While I have submitted materials along with this complaint that substantiate my allegations, a thorough and detailed investigation is required to ensure that the Accused is brought to justice. I undertake to fully cooperate with your good office in pursuance of this mater, and to provide any other information which may be required to pursue the present case."
Based upon the said complaint, a crime comes to be registered in Crime No.209 of 2019 initially for offences including one of rape.
The Police conduct investigation; the investigation leads to filing of 14 the charge sheet. The summary of the charge sheet, as obtaining in column No.7, is as follows:
"F zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ PÁ®A £ÀA 04gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ DgÉÆævÀ£ÀÄ ¸ÁQë- 01 gÀªÀgÀ£ÀÄß D£ï¯ÉÊ£ï Då¥ï ªÀÄÆ®PÀ 2015£Éà E¹éAiÀÄ ¥ÁægÀA¨sÀzÀ°è ¥ÀjZÀAiÀÄ ªÀiÁrPÉÆAqÀÄ £ÀAvÀgÀzÀ ¢£ÀUÀ¼À°è zÉÊ»PÀ ¸ÀA¥ÀPÀðªÀ£ÀÄß ¨É¼É¹PÉÆArzÀÄÝ, ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀzÀ EA¢gÁ£ÀUÀgÀ ¥Éưøï oÁuÁ ¸ÀgÀºÀ¢Ý£À°è §gÀĪÀ ªÉÆÃl¥Àà£À¥Á¼ÀåzÀ 7£Éà PÁæ¸ï gÀ¸ÉÛAiÀÄ°ègÀĪÀ £ÀA.253 Qæ±ï qÉ®éAUï C¥ÁmïðªÉÄAmï£À 5£Éà ªÀĺÀrAiÀÄ ¥Áèmï £ÀA.505 gÀ°è DgÉÆævÀ£ÀÄ ¸ÁQë-01 gÀªÀgÉÆA¢UÉ ¢£ÁAPÀ:06/11/2015 gÀAzÀÄ «£ÁPÁgÀt dUÀ¼À vÉUÉzÀÄ, ¸ÁQë-01 gÀªÀjUÉ PÉʬÄAzÀ ºÀ¯Éè ªÀiÁr, DPÉ ªÀiÁ£ÀPÉÌ ¨sÀAUÀªÀ£ÀÄßAlÄ ªÀiÁqÀĪÀ jÃwAiÀÄ°è ªÀwð¹gÀĪÀÅzÀÄ vÀ¤SÁ PÁ®PÉÌ zÀÈqÀ¥ÀnÖgÀÄvÉÛ.
DzÀÝjAzÀ DgÉÆævÀ£À «gÀÄzÀÝ ªÉÄîÌAqÀ PÀ®AUÀ¼À jÃvÁå F zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖ."
All other offences are taken off and the Investigating Officer found only the offences under Section 323 of IPC which is assault and Section 509 of IPC which is insulting the modesty of a woman to be the ones that can be alleged against the petitioner. The learned Magistrate, by his order dated 14-01-2022, takes cognizance of the offences. The order of taking cognizance reads as follows:
"Perused the charge sheet and the documents filed by the IO. Prima facie the offence alleged is made out. Cognizance is taken for the offences punishable U/s 323, 509 of IPC. Register criminal case against accused.
Issue SS to accused.
Call on 21/6
Sd/- X ACMM Bangalore."15
It is this order that has driven the petitioner to this Court in the subject criminal petition. The petitioner though has sought the prayer to quash the proceedings, what merits consideration at this juncture is, the manner in which cognizance is taken by the learned Magistrate. The order is quoted supra. It does not bear even a semblance of application of mind. No doubt the order of taking of cognizance need not be in great detail, but it should at least reflect some application of mind, as summons would be issued to the accused once cognizance is taken. Therefore, it become necessary for the concerned Court while taking cognizance to apply its mind and then take cognizance and issue summons. It is that the concerned Court should take cognizance only to the offences that are found while filing the final report.
10. It becomes germane to notice the judgments of the Apex Court, which have all dealt with orders of taking cognizance to be wanting application of mind. The Apex Court in the case of PEPSI 16 FOODS LIMITED v. SPECIAL JUDICIAL MAGISTRATE1 has held as follows:
".... .... ....
28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."
(Emphasis supplied) The aforesaid judgment in the case of PEPSI FOODS LIMITED has been reiterated by the Apex Court in the case of SACHIN GARG v.
STATE OF U.P. reported in 2024 SCC OnLine SC 82. The Apex Court holds that the order of the learned Magistrate should not be cryptic or too lengthy. It should at least bear application of mind.
Between the judgments of PEPSI FOODS LIMITED and SACHIN 1 (1998) 5 SCC 749 17 GARG, the Apex Court in the case of SUNIL BHARTI MITTAL v.
CENTRAL BUREAU OF INVESTIGATION2 has held as follows:
".... .... ....
51. On the other hand, Section 204 of the Code deals with the issue of process, if in the opinion of the Magistrate taking cognizance of an offence, there is sufficient ground for proceeding. This section relates to commencement of a criminal proceeding. If the Magistrate taking cognizance of a case (it may be the Magistrate receiving the complaint or to whom it has been transferred under Section 192), upon a consideration of the materials before him (i.e. the complaint, examination of the complainant and his witnesses, if present, or report of inquiry, if any), thinks that there is a prima facie case for proceeding in respect of an offence, he shall issue process against the accused.
52. A wide discretion has been given as to grant or refusal of process and it must be judicially exercised. A person ought not to be dragged into court merely because a complaint has been filed. If a prima facie case has been made out, the Magistrate ought to issue process and it cannot be refused merely because he thinks that it is unlikely to result in a conviction.
53. However, the words "sufficient ground for proceeding" appearing in Section 204 are of immense importance. It is these words which amply suggest that an opinion is to be formed only after due application of mind that there is sufficient basis for proceeding against the said accused and formation of such an opinion is to be stated in the order itself. The order is liable to be set aside if no reason is given therein while coming to the conclusion that there is prima facie case against the accused, though the order need not contain detailed reasons. A fortiori, the order would be bad in law if the reason given turns out to be ex facie incorrect."
(Emphasis supplied) 2 (2015) 4 SCC 609 18 The Apex Court holds that a wide discretion has been granted to the concerned Court to take cognizance against the offences, but not the offenders and exercise of such discretion should bear application of mind.
11. As observed hereinabove, it is not that the learned Magistrate should take cognizance, once a final report is filed before the concerned Court. It is always open to the learned Magistrate not to accept the report and direct further investigation into the matter. The companion petition preferred by the complainant seeks exactly the same relief. Therefore, I deem it appropriate to remit the matter back to the hands of the learned Magistrate to look into the report, analyze the need of necessity of further investigation and then pass necessary orders in accordance with law.
12. Leaving open liberty to the complainant to knock at the doors of the appropriate fora so also to the accused, I pass the following:
19ORDER
(i) Criminal Petition No.3224 of 2022 preferred by the petitioner/accused is allowed in part and the order dated 14-01-2022 passed by the X Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.50232 of 2022 in taking cognizance of the offence against the petitioner is quashed.
(ii) The matter is remitted back to the learned Magistrate to pass necessary orders on the final report, bearing in mind the observations made in the course of the order.
(iii) Writ Petition No.11523 of 2022 preferred by the complainant seeking further investigation stands disposed of, in the light of aforesaid observation.
Liberty is reserved to the complainant to seek further investigation by a specific application preferred before the concerned Court.
Pending applications, if any, stand disposed.
Sd/-
JUDGE bkp CT:MJ