JUDGMENT
S.C. Parija, J.
1. This Writ Petition has been filed under Articles 226 and 227 of the Constitution praying for quashing of the F.I.R. dated 23.07.2007 which has been registered as Mahila P.S. Case No. 129 of 2007 under Sections 376/420/379/506 IPC.
2. The brief facts of the case, as narrated in the Writ Petition is that the Petitioner who was working as an instructor in ‘Art of Living Courses’ in Ravi Sankar Vidyamandir at Plot No. 2.103, IRC Village, Nayapalli, Bhubaneswar, persuaded informant (Opp. Party No. 2) to assist him in the programme after she had completed the same course.
3. On 4th January, 2004 Petitioner persuaded her (informant) to stay back at Ravi Sankar Vidyamandir after 8 P.M. after classes were over. Thereafter, Petitioner expressed his desire to marry her by divorcing his wife and Petitioner also promised the Opposite Party No. 2 to send her abroad for conducting ‘Art of Living’ programme to make a fixed deposit of Rs. 10,00,000/- (Ten lakhs) in her name. In this process Petitioner offered her a glass of juice to drink. After consumption of the glass of juice informant (Opposite Party No. 2) became drowsy and taking advantage of the same Petitioner had sexual intercourse with her.
4. The same process was repeated on 2nd May, 2004 and this time Petitioner took naked photographs of the Opposite Party No. 2 with the help of digital Camera installed in the room. This time Petitioner threatened the informant to co-operate with him or else the photographs would be made public.
5. The informant further alleged that all her marriage proposals were broken by the Petitioner. The informant being frustrated left home on 26th April, 2007 and started living at ‘Vikas Dhara’, a working Women’s Hostel at Baramunda, Bhubaneswar till second week of May, 2007 and finally returned home on 13th of June, 2007.
6. On the above allegation, the informant (Opposite PartyNo. 2) lodged F.I.R. before the Mahila Police Station, Bhubaneswar, which was registered as Mahila P.S. Case No. 129 of 2007, the police took up investigation and recorded statements of 11 persons under Section 161 Cr.P.C. and seized a Panasonic Camera with 26 numbers cassettes from the house of the Petitioner and send the informant for medical examination. It is admitted by the Learned Counsel for the Petitioner that the matter is under investigation and no charge sheet has been filed till date.
7. The contention of the Petitioner is that even if the allegations made in the impugned F.I.R. are taken at their face value and accepted in their entirety, no cognizable offence is made out against the Petitioner and therefore, the same should be quashed to prevent abuse of the process of the Court.
8. In the counter affidavit filed on behalf of State of Orissa, Opposite Party No. 1 , it has been stated that the informant, Opposite Party No. 2 had lodged an F.I.R. before the LLC, Manila Police Station, wherein she alleged different offences committed by the present Petitioner (accused), which has been registered as Bhubaneswar Mahila P.S. Case No. 129 of 2007, under Sections 376/420/379/506/292(A) IPC, giving rise to G.R. Case No. 2818 of 2007 pending before the Learned S.D.J.M., Bhubaneswar. After registering the case, the investigation was carried out and during the course of investigation, the Investigating Officer has examined 11 witnesses and have recorded their statements under Section 161 Cr.P.C, copies of which have been annexed as Annexure-A/1 series.
9. It has been further stated in the said counter affidavit that the Investigating Officer has seized three numbers of nude photographs which are said to have been taken by the present Petitioner (accused) for blackmailing the informant (Opposite Party No. 2) and that the Investigating Officer has also seized one Handy Digital Camera (Panasonic) and 26 cassettes from the possession of the present Petitioner (accused).
10. It is further stated in the said counter affidavit that while analyzing the evidence of different witnesses, it is prima facie believed that the Petitioner (accused) has committed cognizable offences and materials are available during the course of investigation in support of such allegation made in the F.I.R. and that the plea of innocence as pleaded by the Petitioner in this Writ Petition can only be established after completion of the investigation. Hence it is pleaded that at this stage of investigation, keeping in view the nature of offences alleged and the materials collected so far during investigation, in support of the allegations in the F.I.R., no interference is warranted by this Court.
11. Learned Counsel for the Petitioner has relied on a decision of the Supreme Court in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. in support of his claim that this Court in exercise of its extra ordinary power under Article 226 of the Constitution also exercises the inherent power as provided under Section 482 Cr.P.C. and both the extra ordinary power as well as the inherent power can be exercised by the High Court either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. The relevant portion of the said decision is extracted below:
It is settled that High Court can exercise its power of judicial review in criminal matters. In State of Haryana v. Bhajan Lal 1992 Supp (I) SCC 335, this Court examined the extraordinary power under Article 226 of the Constitution and also the inherent powers under Section 482 of the Code which it said could be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. While laying down certain guidelines where the Court will exercise jurisdiction under these provisions, it was also stated that these guidelines could not be inflexible or laying rigid formulae to be followed by the Courts. Exercise of such power would depend upon the facts and circumstances of each case but with the sole purpose to prevent abuse of the process of any Court or otherwise to secure the ends of justice. One of such guideline is 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. Under Article 227 the power of superintendence by the High Court is not only of administrative nature but is also of judicial nature. This Article confers vast powers on the High Court to prevent the abuse of the process of law by the inferior Courts and to see that the stream of administration of justice remains clean and pure. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. xxx xxx
12. Relying on the aforementioned decision of the Apex Court, Learned Counsel for the Petitioner contends that the nomenclature under which a petition is filed in not quite relevant and that does not debar the Court from exercising its extraordinary or inherent jurisdiction which it otherwise possess, in a given case, either to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. Even accepting the position, as contended by the Learned Counsel for the Petitioner, that exercise of extraordinary power under Articles 226 of the Constitution is akin to the inherent power of this Court under Section 482 Cr.P.C., the parameters of such power has to be borne in mind while exercising the same. The inherent power under Section 482 Cr.P.C. envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the Court, and (iii) to otherwise secure the ends of justice. The rule of inherent power has its source in the maxim “Quando lex aliquid alique, concedit conceditur et id sine quo res ipsa esse non potest” which means that when the law gives a person anything, it gives him that without which the thing itself cannot exist. While exercising powers under the Section, the Court does not function as a Court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiate to do real and substantial justice for the administration of which alone Courts exist. Authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent such abuse. It would be an abuse of process of the Court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers Court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of the Court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint; the Court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
13. In the case of R.P. Kapur v. State of Punjab , the Supreme Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings.
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
14. In dealing with the last case, 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 clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would bean instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.
15. The scope of exercise of power under Article 226 of the Constitution and Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice were set out in some detail by the Supreme Court in State of Harayana and Ors. v. Ch. Bhajan Lal and Ors. . The Hon’ble Court made it clear that 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 to 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 informant 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 introverted 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.
16. The Supreme Court in the case of State of Madhya Pradesh v. Awadh Kishore Gupta and Ors. reported in AIR 2004 SC 517, while referring to earlier decision of the Apex Court came to hold that the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard and fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole, if it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is malafide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in Court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis of quashing the proceeding.
17. These aspects were highlighted in State of Karnataka v. M. Devenddrappa and Anr. , wherein it was held that while exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed, at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on record but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
18. Applying the principles of law, as discussed above, to the facts of the present case and keeping in view the nature of allegations made in the impugned F.I.R. and the offences alleged therein and considering the materials on record, including the statement of witnesses recorded during investigation under Section 161 Cr.P.C. I am of the view that no interference is warranted at this stage, in exercise of inherent jurisdiction either under Article 226 of the Constitution or under Section 482 Cr.P.C.
19. Writ Petition is accordingly dismissed.