It is most significant to note that in a learned, laudable, landmark, logical and latest judgment titled Suresh Garodia vs The State of Assam and Another in Criminal Appeal No. 185 of 2024 (Arising out of SLP(Crl.) No. 9142 of 2022) and cited in 2024 LiveLaw (SC) 40 and also cited in Neutral Citation No.: 2024 INSC 39 that was pronounced as recently as on January 9, 2024 in the exercise of its criminal appellate jurisdiction, the Apex Court quashed criminal proceedings against a man accused of raping a minor noting that the FIR was registered after a gap of 34 years and that too only on a bald statement that the prosecutrix was a minor at the time of the offence. The Bench of Apex Court comprising of Hon’ble Mr Justice BR Gavai and Hon’ble Mr Justice Sandeep Mehta minced just no words in holding that, “We find that lodging a case after 34 years and that too on the basis of a bald statement that the prosecutrix was a minor at the time of commission of offence, could itself be a ground to quash the proceedings. No explanation whatsoever is given in the FIR as to why the prosecutrix was keeping silent for a long period of 34 years.” We thus see that while arriving at a conclusion that continuation of the proceedings would lead to nothing else but abuse of process of law the orders of the High Court and the Magistrate were quashed.
At the very outset, this brief, brilliant, bold and balanced judgment authored by Hon’ble Mr Justice BR Gavai for a Bench of the Apex Court comprising of himself and Hon’ble Mr Justice Sandeep Mehta sets the ball in motion by first and foremost putting forth in para 1 that, “Leave granted.”
While setting the background of this notable judgment, the Bench then points out in para 2 that, “The appellant has approached this Court being aggrieved by the order dated 22nd August 2022 passed by the learned Single Judge of the Gauhati High Court, dismissing the application filed by the appellant under Section 482 of the Criminal Procedure Code, 1973 (for short, “Cr.P.C.”) for quashing of criminal proceedings under Sections 376/506 of the Indian Penal Code, 1860 (for short, ‘IPC’) so also for quashing of the order dated 4th July 2017 passed by the learned Magistrate for taking cognizance under Section 376/506 of IPC.”
To put things in perspective, the Bench envisages in para 3 that, “The facts, giving rise to the present appeal, are thus:-
3.1 On 4th December 2016, the prosecutrix lodged a First Information Report (for short, “FIR”) before the Bharalumukh Police Station, District Kamrup (M), Guwahati, alleging therein that when she was fifteen years of age, the appellant herein committed rape on her and as a result of which she gave birth to a child, namely, Jasim Ahmed Garodia on 7th April 1983.
3.2 After the FIR was lodged, final report came to be filed. However, the learned Magistrate, after considering the said final report, rejected the same and directed that the cognizance be taken on the basis of the police report. Being aggrieved thereby, the appellant filed a petition under Section 482 Cr.P.C. before the High Court, which was rejected vide impugned order. Hence, the present appeal.”
Do note, the Bench notes in para 8 that, “After completion of the investigation, the Investigating Officer (for short, “I.O.”) filed the final report, which reads as under:-
“The brief of the final report is that on 04.12.2016 the informant lodged an FIR before the Police Station and informed that in the year 1982 she was raped by Suresh Garodia and as a result of which on 07.04.1983 a male child, Jasim Ahmed Garodia was born and further the accused coerced her and threatened the informant not to lodge FIR. The investigation was done on receipt of the FIR. During the investigation the statement of informant and her son Jasim Ahmed Garodia and the statement of accused was recorded. The statement under Section 164 Cr.P.C. of informant and her son was recorded. The blood sample of all the three persons were collected and sent for ossification test at F.S.L. Kolkata the report of the same was collected. During investigation it was found that Jasin Ahmed Garodia is the son of Suresh Garodia. It is further found during investigation that Suresh Garodia even provided cash money and other facilities as his son. Due to greed of property of Suresh Garodia, his son Jasim Ahmed Garodia with the aid of his mother Sabina Ahmed lodged this FIR after a period of 34 (thirty four) long years. Due to property dispute between Suresh Garodia and Jasim Ahmed Garodia this case has been lodged. And I pray before this Hon’ble Court that as the matter relates to civil matter as such Suresh Garodia shall be discharged from this case and as such, the final report is submitted. A notice was though sent to the informant but the notice could not be served as the informant refused to receive the notice.””
Quite significantly, the Bench notes in para 9 that, “A perusal of the said report clearly reveals that the statement of the prosecutrix as well as her son were recorded. In the statement, the son of the prosecutrix even admitted that the appellant herein was providing cash money and other facilities to him as his son. The final report states that only on account of greed for property of the appellant – Suresh Garodia, the prosecutrix, in connivance with her son, has filed the FIR after a period of 34 years. The I.O. opined that the case was of a civil nature and therefore the appellant herein should be discharged from the said case. No doubt that the learned Magistrate, while exercising his powers under Section 190 Cr.P.C., is not bound to accept the final report of the I.O. However, if the learned Magistrate disagrees with the finding of the I.O., the least that is expected of him is to give reasons as to why he disagrees with such a report and as to why he finds it necessary to take cognizance despite the negative report submitted by the I.O. Nothing of that sort has been done by the learned Magistrate in his order dated 4th July 2017.”
While citing the most relevant case law, the Bench elucidates in para 10 stating that, “This Court, in the case of State of Haryana and Others v. Bhajan Lal and Others 1992 Supp (1) SCC 335, has observed thus:
“102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of 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 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 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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.””
Be it noted, the Bench notes in para 11 that, “In the said case, the Court has given a caution that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The Court would normally not embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint.”
Further, the Bench notes in para 12 that, “However, we find that the present case would fall under category Nos. 5 and 7 of the categories of cases culled out by this Court in the said case.”
Most significantly, the Bench holds in para 13 that, “We find that lodging a case after 34 years and that too on the basis of a bald statement that the prosecutrix was a minor at the time of commission of offence, could itself be a ground to quash the proceedings. No explanation whatsoever is given in the FIR as to why the prosecutrix was keeping silent for a long period of 34 years. The material on record shows that the relationship was consensual, inasmuch as the son who is born out of the said relationship has been treated by the appellant as his son and all the facilities, including cash money, have been provided to him.”
Equally significant is what is then added by the Bench in para 14 that, “We find that the finding of the I.O. that the case was filed only for the greed for the property of the appellant herein cannot be said to be erroneous. We find that the continuation of the proceedings would lead to nothing else but an abuse of process of law.”
As a corollary, the Bench directs in para 15 that, “Therefore, the impugned order dated 22nd August 2022 passed by the High Court and the order of the learned Magistrate dated 4th July 2017 are hereby quashed and set aside and the present appeal is allowed.”
Finally, the Bench concludes by holding in para 16 that, “Pending application(s), if any, shall stand disposed of.”
In sum, we thus see that the Apex Court very rightly, robustly and reasonably quashes the rape case as the FIR was lodged after a very long delay of 34 years of the alleged incident. There can be no gainsaying that a crime as heinous as rape must be registered most promptly after the crime. No doubt, if a woman does not act even after many years of the rape crime, it definitely gives rise to an inference that the sex was consensual and so it is high time and rape victim must certainly lodge the FIR most promptly is what is the real bottom-line of this notable judgment and a lapse of 34 years in just registering a FIR severely weakens the prosecutrix case which the prosecution and the rape victim must always bear in mind and act well in time as any delay only serves to get their case quashed as we see in this leading case also! No denying!
Sanjeev Sirohi