Kerala High Court
Tony Antony And Etc. Etc. vs Director General Of Police (Crimes) And ... on 4 November, 1997
Equivalent citations: 1998(2)ALT(CRI)241, 1998CRILJ321
Author: B.N. Patnaik
Bench: B.N. Patnaik
JUDGMENT B.N. Patnaik, J.
1. Common questions of law and fact arise in all these Original Petitions. Hence they were heard together and this common judgment is being delivered in all the five cases.
2. Petitioners are the accused persons in Crime No. 5/96 of Vanitha Police Station, Ernakulam (Crime No. 192/CR/96 of the CBCID). In the said crime case, a special term of police is investigating into the allegations of offences under Sections 366A, 372, 376 and 344 read with Section 34, I.P.C. against the petitioners and some 55 others. All the petitioners contended that no case has been made out and prayed that the criminal proceedings against them may be quashed.
3. At first, all these Original Petitions came up before a learned single Judge for hearing. By order dated 9th April, 1977, the learned single Judge observed that these cases should be heard by a Division Bench of this Court to have an authoritative decision on a legal question regarding the power of the High Court under Article 226 of the Constitution to quash the criminal proceedings which are under investigation against the petitioners and others. Learned single Judge referred to the following decisions, besides others, of the Supreme Court:
State of Haryana v. Bhajanlal 1992 Supp (1) SCC 335 : 1992 Cri LJ 527, State of West Bengal v. Swapan Kumar Guha (1982) 1 SCC 561 : 1982 Cri LJ 819, State of Bihar v. P.P. Sharma 1992 Supp (1) SCC 222 : 1991 Cri LJ 1438; State of Punjab v. Gurmit Singh AIR 1996 SC 1393 : 1996 Cri LJ 1728.
After going through the F.I.R. and the statements of the victim, he held as follows :
Considering Exts. P1 and P2 F.I.R. and contradictions in the statements and the fact that it was now admitted that victim was major etc., prima facie I am of the view that there is substance in the grievance of the petitioners. However, according to me, in view of the importance of this matter on legal question regarding the power of this Court under Article 226 of the Constitution of India in intefering at the stage of investigation, this case should be heard by a Division Bench of this Court.
This is how the matter came up before us for hearing.
4. The unfortunate victim, a drop out of a lower primary school, born and brought up in a remote village in Trivandrum District, in a family living in abject poverty and leading a life of miserable existence, was caught red-handed in House No.C.C.37/1332A at Kumaranasan Nagar, Elamuklam Village, Ernakulam District along with one Sunny, when the City Police raided the house on 16-7-1996 at about 10 a.m. on getting information that she along with others are indulging in prostitution and other immoral activities. Both of them were arrested and Crime Case No. 245/96 was registered under Sections 3 and 7 of the Immoral Traffic (Prevention) Act, 1956 for keeping a brothel and carrying on prostitution. In the First Information Report, the Circle Inspector of Police, Central Police Station has stated that when the police personnel came to the portico of the building, sunny was found seriously injured. He sustained the injury by a fall while running away from the house on apprehension of a raid by the police. He was sent to the General Hospital for treatment after being arrested. When the C.I. of Police and other police personnel entered into the building, they found the victim girl sitting alone on a cot in a room. On being questioned, she disclosed her name and informed that she was 19 years old, belongs to Muslim community and her father's name is Vahid. She also gave her village address and stated that Sunny had brought her from Ernakulam and that she and Sunny were indulging in sexual activities.
Previously, a person named Andrews had informed the police that the victim and others are committing immoral acts in the house. The victim's statement corroborated the statement of Andrews. She was arrested at 11 a.m. on 16-7-1996 as it became evident that Sunny had brought her to the building for the purpose of carrying on prostitution and that prostitution was going on in the building. In the presence of witnesses, the building was searched and upon search a currency notes of 50 rupees was found underneath the pillow of the cot on which she was sitting. She was produced before the Chief Judicial Magistrate, Ernakulam on 17-7-1996. She was remanded to custody and she did not make any complaint of ill-treatment against anybody.
On 23-7-1996 she was released on bail and was given to her parents. But, she did not go with them. On 24-7-1996, she lodged the First Information Report in the present case, running to 19 pages, at Womens Police Station called 'Vanitha Police Station' in the presence of a lady Advocate and social worker, named Subhalakshmi as well as her mother and some other relatives. She was examined by the police again on 24-8-1996 and 25-8-1996 and her statements were recorded in the presence of Advocate Smt. Subhalakshmi. In the F.I.R. and the statements recorded under Section 161, Cr. P.C. she is said to have unfolded her pathetic story as a victim of rape. She has narrated the events of her life right from the time when she went to school till she was arrested by the police in meticulous details. Briefly stated, it is as follows :
She did not attend the school after Std. III. She was beaten by the father many times for not going to school. Her father is a drunkard and has two wives. The first wife is living separate from them and she is the daughter of the second wife. There were days when she had to visit her neighbours and the house of the first wife of her father to get food. The family was facing acute shortage of funds. At the age of 10 or so, her father sent her to various places to work as a maid servant. Once during the absence of the members of the family, where she was working, she had the first sexual intercourse with another servant. She was brought back by her father to their home, where she along with her brothers and sisters were compelled to live on starvation on many days. One of her neighbours, namely Ajitha Begum, took pity on her and suggested that she should go out of her home to some city and work there to live happily. She was enamoured by her suggestion and decided to enjoy the glamorous life by engaging herself in some occupation in some city. Thereafter, began the story of her escapade.
Ajitha Begum once asked her to leave her home surreptitiously without the knowledge of her parents and others and accompany her to Ernakulam as she found a job for her. She agreed to this proposal. In one night preceding 21-10-1995 she escaped from her house and came to the house of Ajitha and concealed herself underneath a cot in a room and waited to proceed to Ernakulam to do the job as promised. Her parents could not trace her in the next morning inspite of a thorough search. They did not lodge any missing report at the Police Station, probably because they decided to abandon her. In the night of 21 -10-1995 Ajitha brought her to Ernakulam and sold her to one Suresh (not the petitioner in O.P. No. 7546 of 1997) and Ajitha left the place. This is the turning point of her career which led her to this situation and ultimate arrest and lodging of the F.I.R.
5. According to her F.I.R. Suresh and Sunny kept her in different houses, threatened her with assault and death, forced her to have sexual intercourse with more than 25 persons in exchange of money and made her to lead a life of a deprave dwoman. Though she resisted in the beginning, yet, later she yielded to their demand because she was left with no other option.
She has narrated that she had sexual intercourse with several persons, several time and at several places like Five Star Hotels at Ernakulam, Luxurious Hotels in Ootty, Kodaikkanal, Munnar, Madras and some other places of Tamil Nadu. When she went out for a pleasure trip with other men, neither Sunny nor Suresh accompanied her. On several occasions, she was left exclusively in the company of strangers. She has further stated that on some occasions she refused to have sexual intercourse with some men, either because they did not pay money or because they looked ugly. She also fell in love with a person called Mathew and did not like to extract anything from him.
As the days passed by she became more and more coquettish and voluptuous by availing the services of beauty parlours. Life was gay and cheerful. Her lust for sex and money grew. In her craze to have life of plenty, both in pleasure and pelf, she immersed herself in the activities of a prostitute practically. She took pills to prevent pregnancy. She had the discretion to have sex with men of her choice.
It may be true that Sunny and Suresh were exercising some control over her. But, it appears that later it was her will that prevailed. Once when a visitor assaulted her because she refused to share his bed, she complained to Sunny and Suresh who promised that they would deal with him properly. Thus she always looked up to them for her personal safety and security. It is improbable to believe that a man who desired to have sex on payment would come to reluctant woman. She did not make the slightest attempt to escape from the clutches of Sunny and Suresh. She did not choose to seek the help of Police, though she had ample opportunity to do so. In these circumstances, it cannot be said that she was not a free agent in having sexual intercoruse with several men.
6. The F.I.R. was recorded on 24-7-1996 after she was released from the jail custody on bail. But, one month thereafter her statement under Section 161, Criminal P.C. was recorded successively on two days. They run to several pages containing a well thought out description of the events that took place during the past 10 months. Though in the F.I.R. she failed to disclose the names of the persons with whom she had sexual intercourse, yet in her later statements recorded under Section 161, Cr.P.C, she named a number of such persons. She has not stated anywhere, at any time, to anybody much less in her statements, that these petitioners had sexual intercourse against her will or consent. She at first stated in the F.I.R. that she did not know the names of those men who had sexual intercourse with her. Nor did she state anywhere in the F.I.R. that any of them ever forced her to have sexual intercourse. The inordinate delay in recording her statements under Section 161, Criminal P.C. after the F.I.R. leads to the irresistible conclusion that during this period of one month she had the opportunity to deliberate, consult and discuss with legal experts in order to narrate a make believe story.
7. At different stages, she has made different statements about her age. At any rate, it is no longer in dispute, that she was more than 16 years of age when she came to Ernakulam and indulged in this activity. She was, therefore, not a minor girl when the alleged incidents took place. She has not stated anywhere that these petitioners procured her for the purpose of prostitution or brought her for the purpose of prostitution. There is nothing in her statements or in any papers placed before this court to show that all these petitioners had the common intention of committing the aforesaid crimes.
8. During the investigation, she was subjected to a psychiatric examination to ascertain why she made inconsistent statements from time to time. But the experts found her to be absolutely normal. No unusual behaviour was noticed due to frequent abuse of sex.
9. The only question that arises for consideration, therefore, is whether the offence of rape is spelt out even if the F.I.R. as well as her statements are taken at their face value.
10. Section 375 of the Indian Penal Code, 1860 defines the offence of rape. It reads as follows :
Rape-A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-
First - Against her will.
Second - Without her consent.
Thirdly-With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.
Fourthly - With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly - With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.
Sixthly - With or without her consent, when she is under sixteen years of age.
Explanation - Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception - Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.
11. Learned Advocate General contended, by referring to the F.I.R. and the statements of the victim, that Sunny and Suresh obtained her consent to indulge in sexual intercourse with these petitioners by putting her in fear of death or hurt. But, it is not found anywhere in the F.I.R. or later statements that these petitioners had put her in fear of death or hurt or that they knew Sunny or Suresh obtained her consent by putting her in fear of death or hurt.
12. From the aforesaid narration, the following facts emerge;
(1) She was more than 16 years of age when she came to Ernakulam and had sexual intercourse with others.
(2) She ran away from her parental home secretty with the help of Ajitha to do a so called job at Ernakulam.
(3) Her parents did not make any complaint to the police after she was found missing from the villages; nor did they try to trace her.
(4) She was unhappy with miserable life at home.
(5) She had the experience of voluntary sexual intercourse with another man before she came to Ernakulam.
(6) She wanted to live secretly and lead a life of pleasure and romance.
(7) She never made any attempt to disclose her activities to anybody.
(8) She did not make any attempt to get rid of this life of pleasure by seeking the help of any authority or her parents or anybody, though she had the scope to do so during the period of 10 months.
(9) She exercise her discretion to have sex with only those whom she liked or got money. She has no complaint that these petitioners obtained her consent by force or by putting her in fear of hurt or death.
(10) In course of time she willingly submitted herself to most of them who came to her for sex.
(11) Until she was caught red-handed she avoided the attention of the police.
This is not a case where the allegation of rape is levelled against one or two persons who have committed it on one or two occasions. This is not a case where a minor girl was lured into this abominable activity. This is not a case where consent of the victim was obtained by the force or on threat of death or hurt every time when a man had sexual intercourse with her. The version of a woman of this disposition is not so sacrosanct as to be taken for granted.
13. Learned Advocate General relied on the decisions of the Supreme Court in State of H.P. Pirthi Chand (1996) 2 SCC 37 : 1996 Cri LJ 1354; State of U.P. v. O.P. Sharma (1996) 7 SCC 705 : 1996 Cri LJ 1878; State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164 : 1996 Cri LJ 1372; and Rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397 and vehemently contended that this Court, in exercise of the powers under Article 226 of the Constitution of India or under Section 482 of the Criminal Procedure Code, 1973, should not quash the criminal proceedings against the petitioners at this stage as the investigation has almost come to a concluding stage.
14. In State of H.P. v. Pirthi Chand (1996) 2 SCC 37 : 1996 Cri LJ 1354, it is laid down as follows (at pp 1356-57 of Cri LJ):
The exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initation to move the machinery and to investigate into a cognizable offence. After the investigation is concluded and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The court has to prima facie consider from the averments in the charge sheet and the statement of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance the criminal process is availed of in laying a complaint or FIR which itself does not disclose at all any cognizable offence - the court may embark upon the consideration thereof and exercise the power.
When the High Court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the court. When investigating officer spends considerable time to collect the evidence and places the charge-sheet before the Court, further action should not be short-circuited by resorting to exercise inherent power to quash the charge-sheet. The social stability and order requires to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon exercising inherent power.
In Rashmi Kumar v. Mahesh Kumar Bhada (1997) 2 SCC 397, the above principle has been reiterated and the following dictum is laid down:
The High Court should sparingly and cautiously exercise the power under Section 482 of the Code to prevent miscarriage of justice. The High Court would be loath and circumspect to exercise its extraordinary power under Section 482 of the Code or under Article 226 of the Constitution. The Court would consider whether the exercise of the power would advance the cause of justice or it would tantamount to abuse of the process of the Court. Social stability and order require to be regulated by proceeding against the offender as it is an offence against the society as a whole. This cardinal principle should always be kept in mind before embarking upon the exercise of the inherent power vested in the court.
In the aforesaid cases, the Supreme Court found that a prima facie case of the offence was made out in the F.I.R. The High Courts in those cases, quashed the F.I.R. and the criminal proceedings on appreciating the evidence collected by the investigating authorities before the accused was put on trial. At any rate, exercise of the power ' under Article 226 of the Constitution to quash a criminal proceeding, if no offence is made out in the F.I.R. against the accused/petitioners, has not been prohibited.
In Madhavrao v. Sambhajirao AIR 1988 SC 709 : 1998 Cri LJ 753, the Supreme Court has laid down as follows (para 7):
The legal position is well-setteled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the Court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.
In State of Haryana v. Bhajan Lal AIR 1992 SC 604 : 1992 Cri LJ 527, it is laid down as follows :
In following categories of cases, the High Court may in exercise of powers under Article 226 or under Section 482 of Cr.P.C. may interfere in proceeding relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power should be exercised sparingly and that too in the rarest of rare cases.
(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 F.I.R. 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 F.I.R. 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 malaciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Where allegations in the complaint did constitute a cognizable offence justifying registration of a case and investigation thereon and did not fall in any of the categories of cases enumerated above, calling for exercise of extraordinary powers or inherent powers, quashing of FIR was not justified.
15. We are of the view that in this case the F.I.R. and her later statements even if are taken at their face value do not make out a case against the petitioners. The uncontroverted allegations made in the F.I.R. and other statements do not constitute the offence of rape.
16. For the reasons stated above, we find that these are fit cases in which this Court in exercise of the jurisdiction under Article 226 of the Constitution of India should quash the criminal proceedings in Crime No. 5/96 of Vanitha Police Station, Ernakulam (Crime No. 192/CR/96ofthc CBCID) against the petitioners to prevent the abuse of the process of Court.
17. The Original Petitions are allowed. The proceeding in Crime No. 5/96 of Vanitha Police Station, Ernakulam is quashed in so far as these petitioners are concerned. No costs.