HC Cannot Quash Criminal Proceedings On Basis Of Its Assessment Of Statements Recorded Under Section 161 CrPC: SC

In a latest development, we saw just recently how the Supreme Court in a recent judgment titled Rajeev Kourav Vs. Baisahab And Ors. in Criminal Appeal No. 232 of 2020 (Arising out of S.L.P. (Cri.) No. 1174 of 2017) delivered on February 11, 2020 has explicitly held that criminal proceedings cannot be quashed on the basis of statements recorded before police officials in terms of Section 161 CrPC. The judgment that was authored by Justice L Nageswara Rao for himself and Justice Deepak Gupta minces no words in making it absolutely clear that the interference by High Court’s order under Section 482 CrPC is only warranted in order to prevent abuse of process of court and to secure tends of justice. Very rightly so!

To start with, the ball is set rolling in para 1 of this judgment wherein it is envisaged that, “The above Appeal is filed against the judgment of the High Court of Madhya Pradesh, Principal Seat at Jabalpur by which a criminal proceeding against Respondent Nos. 1 and 3 was quashed in exercise of its power under Section 482 of the Code of Criminal Procedure (for short “the CrPC”).”

While elaborating in detail, para 2 then further queers the pitch by stating that, “The Appellant filed a complaint before the Police Station Kareli, District Narsinghpur on which FIR No. 285 of 2014 was registered on 08.05.2014. According to the complaint, it was urged that Respondent Nos. 1 to 3 subjected Nilu, the wife of the Appellant to harassment due to which she committed suicide along with her two children. The first Respondent is the wife of elder brother of the Appellant. The second and third Respondents are the brothers of the first Respondent. The brother of the Appellant and Respondent No. 1 were living separately. Respondent No. 1 was not satisfied with the land which was given by the Appellant’s father to her husband. Respondent No. 1 along with her brothers, Respondent Nos. 2 and 3, started harassing the family of the Appellant especially Nilu. According to the FIR, Respondent Nos. 1 to 3 used to quarrel with the deceased Nilu. On 05.05.2014, Respondent No. 1 filed a false complaint against the Appellant and his parents. She also intimidated Mahendra Singh Kourav, maternal uncle of the Appellant by threatening him that she would pour kerosene oil and set herself on fire along with her children and implicate the entire family of the Appellant in a criminal case. Mahendra Singh Kourav made a complaint about the said incident of intimidation to the Police Station on 07.05.2014. The Appellant, his family members and Respondent Nos. 1 to 3 were called to the Police Station and the matter was settled for the time being. Thereafter, Respondent Nos. 1 to 3 went to the village Jhumri and assaulted the deceased Nilu. Unable to bear the torture, Nilu along with her children Harisharan aged 1 ½ years and Ramsharan aged 1 ½ years committed suicide by jumping in front of a moving train.”

Furthermore, it is then stated in para 3 that, “A final report was filed on 19.07.2014 on completion of investigation. A petition under Section 482 of the CrPC was filed for quashing the criminal proceedings. It was contended on behalf of Respondent Nos. 1 to 3 before the High Court that the ingredients of Section 306 IPC have not been made out and the proceedings are liable to be quashed. According to Respondent Nos. 1 to 3, the FIR and the charge sheet would only disclose that the entire family of the Appellant was being harassed. The Respondents cannot be held guilty of offence under Section 306 as there is nothing on record to show that they have incited the deceased to take the extreme step of committing suicide.”

To put things in perspective, it is then divulged in para 4 that, “The High Court summoned the record of investigation and perused the statements recorded by the Appellant and his family members under Section 161 CrPC. The High Court held that statements recorded under Section 161 CrPC would show that Respondent No. 1 is a quarrelsome lady who has threatened the Appellant’s family of false implication in a criminal case. The High Court observed that none of the persons whose statements under Section 161 CrPC were recorded have mentioned about the complaint of the deceased and that she was thinking of committing suicide due to the harassment of Respondent Nos. 1 to 3. The High Court recorded a finding that Ramsharan Kourav, the uncle of the deceased, has stated in his statement under Section 161 that the deceased informed him that she is unable to bear the torture of Respondent Nos. 1 to 3 and was thinking of putting an end to her life.”

As it turned out, the Bench in para 5 then observes that, “The High Court observed that the allegations made against Respondent Nos. 1 to 3 at the most constitute an offence under Section 506 IPC for criminal intimidation. Read as a whole, the allegations made against Respondent Nos. 1 to 3 did not make out an offence under Section 306/34 IPC. The High Court further held that ingredients of Section 107 IPC are also not satisfied. In that view, the petition filed by Respondent Nos. 1-3 for quashing the criminal proceeding was allowed.”

Most significantly, the Bench then very rightly and remarkably pronounces in para 6 that, “It is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.”

Be it noted, it is then pointed out in para 7 that, “Mr. Shoeb Alam, learned counsel appearing for Respondent Nos. 1 to 3 relied upon several judgments of this Court to submit that allegations only disclose a case of harassment meted out to the deceased. The ingredients of Section 306 and 107 IPC have not been made out. It is submitted that there is nothing on record to show that the Respondents have abetted the commission of suicide by the deceased. He further argued that abetment as defined under Section 107 IPC is instigation which is missing in the complaint made by the Appellant. He further argued that if the allegations against Respondent Nos. 1 to 3 are not prima facie made out, there is no reason why they should face a criminal trial.”

Bluntly put, the Bench then minces no words to convey in simple and straight language in para 8 that, “We do not agree with the submissions made on behalf of Respondent Nos. 1 to 3. The conclusion of the High Court to quash the criminal proceedings is on the basis of its assessment of the statements recorded under Section 161 CrPC. Statements of witnesses recorded under Section 161 CrPC being wholly inadmissible in evidence cannot be taken into consideration by the Court, while adjudicating a petition filed under Section 482 CrPC (Rajendra Singh v. State of U.P. & Anr. (2007) 7 SCC 378).”

What’s more, the Bench then further adds in para 9 that, “Moreover, the High Court was aware that one of the witnesses mentioned that the deceased informed him about the harassment meted out by Respondent Nos. 1 to 3 which she was not able to hear and hence wanted to commit suicide. The High Court committed an error in quashing criminal proceedings by assessing the statements under Section 161 Cr.P.C.”

No doubt, the Bench then very rightly clarifies in para 10 holding that, “We have not expressed any opinion on the merits of the matter. The High Court ought not to have quashed the proceedings at this stage, scuttling a full-fledged trial in which Respondent Nos. 1 to 3 would have a fair opportunity to prove their innocence.”

Finally, it is then held in the last para 11 that, “For the aforementioned reasons, the judgment of the High Court is set aside and the Appeal is allowed.”

It needs no rocket science to conclude what the Supreme Court wants to convey through this latest judgment! It made it amply clear as has already been reiterated above that the quashing of criminal proceedings cannot be meted out by the High Courts if a prima facie case is made out disclosing the ingredients of the alleged offence! The Bench of Apex Court also sought to make it clear that the appreciation of evidence in a petition under Section 482 CrPC was a matter of exceptional circumstance! All the High Courts ought to follow this while deciding in such cases!

Sanjeev Sirohi

Sex After Obtaining Consent By False Promise To Marry Is Rape: Supreme Court.

 

It is significant to note that the Supreme Court most recently on April 9, 2019 has very strongly and sternly reiterated in a latest, landmark and laudable judgment titled Anurag Soni v. State of Chhattisgarh in Criminal Appeal No. 629 of 2019 (Arising out of SLP(Criminal) No. 618/2019) has reiterated in no uncertain terms that the consent for sexual intercourse obtained by a person by giving false promise of marriage would not excuse him from rape charges. All those men who dare to indulge in sex after giving false promise of marriage must now always bear it in mind that they will not be excused from rape charges as has been held in this most recent case. This commendable and notable ruling is bound to send a large and clear warning to all men that they cannot take women for granted and have sex with them by falsely promising to marry and then later reneging and escaping from all liabilities!

First and foremost, the ball is set rolling in this latest judgment authored by Justice MR Shah for himself and Justice L Nageswara Rao by pointing out in para 1 that, “The application for impleadment of the prosecutrix is allowed, in terms of the prayer made.” It is then mentioned in para 1.1 that, “Leave granted”.

For the uninitiated, para 2 then states that, “Feeling aggrieved and dissatisfied with the impugned judgment and order dated 10.10.2018 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Appeal No. 1270/2014; by which the High Court has dismissed the said appeal preferred by the appellant herein – the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused and has confirmed the judgment and order of conviction passed by the learned trial Court convicting the original accused for the offence under Section 376(1) of the IPC and sentencing him to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 50,000/-, in default of payment of fine, to further undergo additional rigorous imprisonment for six months, the original accused has preferred the present appeal.”

To recapitulate, it is then unfolded in para 3 that, “The prosecution case in brief was that the prosecutrix was the resident of Koni, Bilaspur, District Bilaspur. Prosecutrix was familiar with the accused since 2009 and there was love affair between them. The appellant had even proposed her for marriage and this fact was within the knowledge of their respective family members. At the time of incident, accused was posted as Junior Doctor in the government hospital of Maalkharoda and at that time the prosecutrix was doing her studies of Pharmacy in Bhilai. On 28.4.2013 the accused expressed his desire to the prosecutrix that he wanted to meet her and accordingly on 29.4.2013 at 7.25 a.m. the prosecutrix boarded Durg Danapur Express train and reached Sakti railway station from where the accused took her on a motorcycle to his house situated at Maalkharoda and there she stayed from 2 pm of 29.4.2013 to 3 pm of 30.4.2013 and during this period despite refusal of the prosecutirx the accused established physical relation with her on the pretext of marrying her. On 30.4.2013 the accused asked the prosecutrix to leave by saying that on 1st or 2nd May he will talk to his parents about their marriage and he will soon marry with her. On 30.4.2013 at about 6 in the evening accused Anurag Soni and the prosecutirx reached Bilaspur by train and from where their friend namely Umashankar took them on a motorcycle to the house of Mallika Humne, friend of prosecutrix, where the accused dropped her and went back. Next morning accused dropped the prosecutrix at Railway Station, Bilaspur from where she boarded train for Bhilai (Durg). Accused asked the prosecutrix not to tell about the incident to anyone and as a result of which the prosecutrix did not disclose the incident to anyone, but from 2.5.2013 to 5.5.2013 the prosecutrix had repeatedly asked from the accused about the marriage and when she did not receive any reply from the accused, on 6.5.2013, she informed her family members about the incident and then the family members of the prosecutrix had gone to the house of accused at village Kharod and informed his family members about the incident whereupon the family members of accused had said that now marriage of accused and prosecutrix was the only option available. In the meantime, members of both the families used to visit house of each other, however, after keeping the prosecutrix and her family members in dark for about two months, the accused had refused to marry the prosecutrix and performed marriage with another girl and then on 21.6.2013 the prosecutrix submitted written report (Ex. P-3) in the police station Maalkharoda in respect of rape committed by the accused upon her on the pretext of marriage based on which FIR (Ex. P-4) for the offence under Section 376 of IPC was registered against the accused.”

As anticipated, we then see that para 3.1 brings out the following: “That during the course of investigation, the investigating officer recorded the statement of concerned witnesses including the prosecutrix. The investigating officer collected the medical evidence and other evidence. After completion of the entire investigation, a charge sheet was filed against the accused for the offence punishable under Section 376 of the IPC.”

Furthermore, it is then pointed out in para 3.2 that, “That the learned magistrate committed the case to the learned Sessions Court which was numbered as Sessions Trial No. 201/2013. That the learned Sessions Court framed the charge against the accused for the offence under Section 376 of the IPC. The accused denied the charge so framed and claimed trial, and therefore he came to be tried by the learned Sessions Court for the aforesaid offence.”

To be sure, it is then stated in para 3.3 that, “The prosecution in support of its case examined as many as 13 witnesses including the prosecutrix (PW3) as under:

1.  Pritam Soni                   PW1

2.  Manikchand                  PW2

3.  Prosecutrix                    PW3

4.  Patwari Ghanshyam     PW4

5.  Dr. C.K. Singh                 PW5

6.  Dr. K.L. Oraon                PW6

7.  Amritlal                           PW7

8.  Pankaj Soni                     PW8

9.  Dr. P.C. Jain                               PW9

10. Constable Jawaharlal            PW10

11. Sub-Inspector S.P. Singh       PW11

12. Inspector Sheetal Sidar         PW12

13. Srimati Priyanka Soni             PW13

 

Simply put, it is then observed in para 3.4 that, “After the closing pursis were submitted by the prosecution, three witnesses were examined on behalf of the accused in defence. The statement of appellant-accused was recorded under Section 313 of the Cr.P.C. wherein he denied the circumstances appearing against him and pleaded innocence and false implication. As per the accused his marriage was already fixed with one Priyanka Soni and this was in the knowledge of the prosecutrix, even then the prosecutrix and her family members continued to pressurise him to marry the prosecutrix, and then he married with Priyanka Soni on 10.6.2013 in Arya Samaj. Therefore, it was the case on behalf of the accused that a false FIR was lodged against him.”

Needless to say, it is then narrated in para 4 that, “That on appreciation of evidence, the learned Sessions Court observed and held that the prosecutrix gave consent for sexual intercourse on a misrepresentation of fact and the promise by the accused that he would marry the prosecutrix and therefore the said consent cannot be said to be a consent and therefore the accused committed the offence under Section 376 of the IPC. Thereupon, the learned Sessions Court convicted the accused for the offence under Section 376 of the IPC and sentenced him to undergo 10 years rigorous imprisonment.”

Going forward, it is then illustrated in para 5 that, “Feeling aggrieved and dissatisfied with the judgment and order of conviction and sentence passed by the learned Sessions Court, the accused preferred appeal before the High Court. By the impugned judgment and order, the High Court has dismissed the appeal and has confirmed the judgment and order passed by the learned Sessions Court convicting the accused for the offence under Section 376 of the IPC.”

Be it noted, it is then noted in para 6 that, “Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court dismissing the appeal and confirming the conviction and sentence of the accused for the offence under Section 376 of the IPC, the original accused has preferred the present appeal.”

After hearing the learned counsels appearing on behalf of the respective parties at length, it is then observed in para 9 that, “In the present case, the accused has been convicted for the offence under Section 376 of the IPC. It is the case on behalf of the appellant-accused that as it is a case of consensual sex, the Courts below have committed an error in convicting the accused for the offence under Section 376 of the IPC. Both the Courts below have accepted the case of the prosecution that the consent of the prosecutrix was given on the basis of misconception of fact and, therefore, considering Section 90 of the IPC, such a consent cannot be said to be a consent and, therefore, the accused has committed the rape as defined under Section 375 of the IPC and thereby has committed an offence under Section 376 of the IPC. Therefore, the question which has been posed before this Court is, whether in the facts and circumstances of the case and considering the evidence on record, the Courts below have committed any error in holding the accused guilty for the offence under Section 376 of the IPC?”

What’s more, it is then elucidated in detail in para 13 that, “Applying the law laid down by this Court in the aforesaid decisions, the following facts emerging from the evidence on record are required to be considered:

(i)             That the family of the prosecutrix and the accused were known to each other and, therefore, even the prosecutrix and the accused were known to each other.

(ii)          That though the accused was to marry another girl – Priyanka Soni, the accused continued to talk of marriage with the prosecutrix and continued to give the promise that he will marry the prosecutrix.

(iii)       That on 28.04.2013 the appellant expressed his wish telephonically to meet with the prosecutrix and responding to that the prosecutrix went to the place of the accused on 29.04.2013 by train, where the accused received her at the railway station Sakti and took her to his place of residence in Malkharauda.

(iv)       That during her stay at the house of the accused from 2.00 pm on 29.04.2013, they had physical relation thrice;

(v)          That as per the case of the prosecutrix, the prosecutrix initially refused to have physical relation, but then the appellant allured her with a promise to marry and had physical relation with her;

(vi)       That, thereafter the prosecutrix called the accused number of times asking him about the marriage, howeer, the accused did not reply positively;

(vii)    That thereafter the prosecutrix informed about the incident to her family members on 06.05.2013;

(viii) That the family members of the prosecutrix negotiated with the family members of the accused;

(ix)       That on 23.05.2013, the appellant expressed his willingness to marry the prosecutrix and a social function was scheduled on 30.05.2013, which did not take place;

(x)          That, again the family members of both the parties had talks, in which the marriage was negotiated and a social function was scheduled on 10.06.2013, which was again not held and further, the social event was fixed for 20.06.2013;

(xi)       That on 20.06.2013, the appellant telephonically informed the prosecutrix that he has already married;

(xii)    That, Priyanka Soni PW-13, who is the wife of the accused stated that one year prior to the marriage that took place on 10.06.2013, the negotiators were going on; and

(xiii) That the accused married Priyanka Soni on 10.06.2013 in Arya Samaj, even prior to the social function for the marriage of the accused the prosecutrix was scheduled on 10.06.2013 and even thereafter the social event was fixed for 20.06.2013.”

 

Having said this, the Apex Court then hastened to elegantly add further in para 14 that, “Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B-Pharmacy. Therefore, it is not believable that despite having knowledge that appellant’s marriage is fixed with another lady – Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant’s promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant-accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.”

To put it succinctly, it is then held in para 15 that, “Now, so far as the submission on behalf of the accused-appellant that the accused had marriage with Priyanka Soni on 10.06.2013 and even the prosecutrix has also married and, therefore, the accused may not be convicted is concerned, the same cannot be accepted. The prosecution has been successful by leading cogent evidence that from the very inception the accused had no intention to marry the victim and that he had mala fide motives and had made false promise only to satisfy the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical relationship. It was a clear case of cheating and deception.”

It is then held in this same para 15 while condemning the most reprehensible and rapidly multiplying rape crime and without mincing any words that, “As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase now-a-days. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamount to a serious blow to the supreme honour of a woman, and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-accused must face the consequences of the crime committed by him.”

Lastly, it is then held in para 16 that, “In view of the above and for the reasons stated above, we are of the opinion that both the Courts below have rightly convicted the appellant-accused under Section 376 of the IPC. We also maintain the conviction of the appellant-accused under Section 376 of the IPC. However, in the facts and circumstances of the case and the request made by the learned counsel appearing on behalf of the appellant-accused, the sentence of 10 years’ RI awarded by the courts below is hereby reduced to seven years RI, the minimum which was prescribed at the relevant time of commission of offence under Section 376 of the IPC. Consequently, the present appeal is partly allowed to the aforesaid modification in the sentence only.”

What should I say of these two Judges – Justice L Nageswara Rao and Justice MR Shah? What should I say about this extremely landmark and laudable judgment delivered by them? I am too small a fry to comment on them. But one thing is for sure: They have left no doubt in sending a loud and clear message to all men that if you dare to indulge in sex with any women by showing a carrot in the form of a false promise to marry, you too then shall be held liable in the same manner just like any other rapist who forcibly rapes woman as you have obtained her consent falsely for which you certainly must face the consequences! They certainly do deserve all the laurels and lavish praise for not hesitating in calling a spade a spade! This will certainly now deter all men from ever indulging in sex with a women after giving false promise of marrying her! Each and every Judge not just in India but all over the world must always adhere and abide by what has been laid down by these two learned Judges in this latest, landmark and laudable judgment so that no men ever thinks that he can get away most easily even after openly cheating a women by first promising to marry her and then having sex with her and still worse then dumping her shamelessly like a commodity from his own life without incurring any kind of liability whatsoever!

 

Sanjeev Sirohi,