JUDGMENT
R.K. Dash, J.
1. The petitioners, accused in complaint case No. 52 of 1993 by filing this case Under Section 482, Cr PC have invoked the inherent juisdiction of the Court to quash the order of the learned SDJM, Sadar, Cuttack whereby he has taken cognizance of the offence Under Sections 313, 354, 376 and 506 read with Section 34, IPC.
2. The opp. party-complainant filed the aforesaid complaint alleging inter alia, that she being a divorcee came to Cuttack in search of a job to earn a living since her parents due to impecuniocity were unable to maintain her. Petitioner No. 1 originally belonged to Dhamnagar to which place the complainant-opp. party belongs. But after marriage he has been staying in his in-law’s house at Cuttack and doing tax practice. Being in need of a maid-servant to attend to domestic works, he engaged the complainant-opp. party on a monthly remuneration of Rs. 100/-, besides boarding and lodging. His wife has taken up a job in the Agro-Industries Department at Bhubaneswar and everyday she returns home late in the evening. Taking advantage of the absence of his wife as also the helplessness of the co. plainant, opp. party, he was exhibiting indecent behaviour towards her. It is alleged that in or about the month of February, 1993 he forcibly removed her wearing apparel and committed rape on her. This was not the only occasion that he had sexual intercourse with her. it is alleged that subsequently also he cohabited with her, as a result she became pregnant. Coming to know of this, he wanted to terminate her pregnancy for which he gave her some medicines. She however, did not take these medicines and disclosed her miserable plight to one Abdul Rasid Khan, a local gentleman, on whose advice she complained to the Secretary of the Basti Committee and because of this, petitioner No. 1’s wife assaulted her saying that she was spreading false and vexatious insinuation against her husband. The further case of the complainant-opp. party is that in order to terminate her pregnancy, all the petitioners connived together, got her admitted in the City Hospital in a psendo name and caused miscarriage without her consent. Next day, they got her discharged from the hospital and sent to her parental home. Narrating her whole plight, she made a complaint to the police and sought for legal action, but since the petitioner No. 1 is an influential man, no action was taken. Then she approached the learned SDJM, Cuttack and filed the complaint Under Sections 376, 313, 354, 323, 341 and 506 read with Section 34, IPC.
3. Since the offences Under Section 376 and 313, IPC are exclusively triable by the Court of Session, the learned SDJM proceeded with an enquiry as envisaged in Section 202, Cr PC and on conclusion thereof took cognizance of the offence.
4. Learned counsel appearing for the petitioners perfervidly advanced his argument contending inter alia that the allegations as set out in the complaint are quite absurd and inherently improbable on the basis of which no prudent man can reach a just conclusion that there is sufficient ground for proceeding against the petitioners. He further urged that even if the uncontroverted allegations are believed to be true, yet the same do not disclose commission of any offence punishable Under Sections 376 and 313, IPC. Therefore, in order to prevent the abuse of the process of the Court the impugned order of the learned Court below taking cognizance of the offence should be quashed.
Learned counsel for the complainant-opp. party on the other hand submitted that the impugned order of the trial Court being based on appreciation of the available materials, the Court should be slow to interfere with the same.
5. Before adverting to the contention reised at the Bar, at the outset, it is necessary to note that scope of exercise of inherent power of the Court to quash a criminal proceeding is very limited and as has been held in a catena of decisions such power should be exercised sparingly and in rarest of rare cases. In this context it would be apposite to refer to a decision of the Supreme Court in the case of State of Bihar v. Murad Ali Khan : AIR 1989 SC 1 where it has been observed that jurisdiction of the Court Under Section 482, Cr PC has to be exercised sparingly and with much circumspection and the High Court should not embark upon the enquiry whether the allegations in the complaint are likely to be established by evidence or not. (See also Talab Haji Hussain v. Madhukar Purusottam Mondkar : 1958 SCR 1226 : (AIR 1958 SC 376). L.U. Yadhav v. Shankarrao Apasaheb Pawar and Ors. : (1983) 4 SCC 231 : (AIR 1983 SC 1219) and J.P. Sharma v. Vinod Kumar Jain and Ors.: (1986) 3 SCC 67 : (AIR 1986 SC 833). Ratio laid down in all these decisions has been followed in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. : AIR 1992 SC 604.
6. Keeping in view the well-settled principle of law with regard to exercise of inherent power, a bird’s eye view may be taken of the available materials which weighed with the Court below to take cognizance of the offence. The complainant-opp. party in her sworn testimony has given out in detail as to how she was ravished and forced to terminate her pregnancy. She has stated that while she was working as a maid servant, petitioner No. 1 had an evil eye on her and had been making overtures towards her. Though she had raised protest, but her helplessness made her a victim of his lust. It is alleged that towards end of February, 1993 he forcibly ravished her against her will. Learned counsel appearing for the petitioners strenuously contended that a reading of the complaint petition and the evidence led in support thereof during enquiry would reveal that she was a consenting party to the alleged sexual intercourse and, therefore, taking of cognizance Under Section 376, IPC is unsustainable. I am not inclined to accept such submission since her uncontroverted statement does not even remotely suggest that she had either express or implied consent for sexual intercourse. A mere act of helpless resignation in the face of inevitable compulsion when volitional faculty is either clouded by fear or vitiated by duress cannot be said to be consent. A woman is said to consent only when she agrees to submit herself while in free and unconstrained position of her physical and mental power to act in the manner she wanted. Consent, therefore, means conscious acceptance of what is proposed to be done by another.
7. Coming to the next grievance of the petitioners that evidence is lacking that the miscarriage had been done without consent of the complainant-opp. party so as to bring the case within the mischief of Section 313, IPC, it is worthwhile to read the evidence of the complainant-opp. party as also the allegations made in the complaint. She in her statement recorded Under Section 202, Cr PC has given a graphic picture as to how she was taken to the hospital and with show of knife was forced to agree for abortion. This allegation of her also finds mention in the complaint petition. It is alleged that the petitioners succeeded in their attempt and caused miscarriage against her will. The learned SDJM on consideration of the available materials was prima facie satisfied that the petitioners committed the alleged offence. Needless to mention that at the the time of passing the impugned order it is not within the province of the Magistrate to examine the correctness or otherwise of the allegations because this is the function of the trial Court. If it appears from the allegations made in the complaint and the statement recorded Under Section 200 or 202, Cr PC that the ingredients of the offence are disclosed, then the Court would be well within its jurisdiction to issue process against the accused person/persons. This action of the Magistrate issuing process if challenged in a proceeding Under Section 482, Cr PC the Court cannot assess the materials to find out whether the case would ultimately end in conviction or acquittal. It has been well-settled by a long course of decision that for the purpose of exercising inherent power to quash an FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same. It has no jurisdiction to examine the correctness or otherwise of the allegations. (See Pratibha Rani v. Suraj Kumar and Anr. :AIR 1985 SC 628).
8. Having given my anxious consideration to the peculiar facts and circumstances and keeping in mind the principles of law governing the field, I am not inclined to interfere with the impugned order. Consequently the Criminal Misc. Case fails and the same is dismissed. Before parting with, I may note that uninfluenced by any observation made in this order, the trial Court will be free to dispose of the case on the basis of available evidence.
