V.K.Singh

Advocate at Supreme Court of India.

www.vksnco.com

Mr. Singh is the founder member and the Managing partner of the firm, V.K.Singh & Co.. (Law Offices). He has the vide expertise over the matters related to Civil & Commercial Disputes, Family and Matrimonial Disputes, Consumer Disputes and Recovery of Debts for Banking & Financial Institutions and Alternate Dispute Resolution. He is known for his self developed and distinguished negotiation skills, extempore arguments. His experience covers a wide range of litigations, legal consultancy and arbitrations. He possesses superb drafting skill, well acclaimed consummate and effective argumentation skill and unparallel client counseling skill.

Criminal Practice Experience.

Mr.Singh has vast knowledge in Criminal Practice and advised, drafted and contested the matters of his respective clients in Bail Matters ,Dowry Cases, Narcotic Drug Cases (NDPS Cases),Criminal Trial ,Rape Cases or Sexual Harassment Cases, Fraud Cases ,Cheating Cases ,EOW Cases, Anti corruption Cases, Criminal Writ Petition, Criminal Revision ,Criminal Appeal, Criminal SLP etc. .in  Hon’ble Supreme Court of India ,High Courts and all District Courts in India.

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. That, the prosecutrix has alleged that she met with accused when she get the invitation of attending the seminar on 13.12.2016 is also unbelievable as date 13.12.2016 was gazette holiday on the occasion of Milad-Un-Nabi (Birthday of Prophet Mohammad). Moreover, the RTI reply of the IIM, Noida which was filed during arguments on bail by ld. Defence counsel also reflects that no seminar / conference was held on 13.12.2016 at IIM, Noida, U.P. as it was gazette holiday nor any invitation letter issued from IIM, Noida to the prosecutrix has been placed on record nor the same was handed over by the prosecutrix to the I.O. at the time of the investigation of the present case FIR.

  1. … this witness has admitted that the entrance of the hotel is manned by security guard 24 hours and no one can enter in the hotel without permission of the guard and there are guidelines of Delhi Police not to allot any room to local resident of Delhi and they had checked the IDs of the guests before allotting them room and retained their copies and as the prosecutrix has supplied her I.D. proof and as per I.D. proof, she was not resident of Delhi and was allotted Room no.224 for one night and room no.223 was booked for 2 nights and they did not receive any complaint from any guest of the aforesaid rooms during their stay. .. she could have brought the incident to the notice to the guard of that hotel or could have make a call to the police or to inform the manager or to the waiter or could have easily come out from the hotel room to make a call to the police or raised an alarm but she did not make any call nor bring the notice of hotel staff or to any one of the alleged incident of rape.

.. There is delay of 32 days to report the matter to the police and the prosecutrix is not been able to explain the delay to lodge the complaint to the police for the alleged offence of rape….

xxx xxx xxx

  1. That, there is no evidence in respect of intoxicated substance allegedly given by the accused to the prosecutrix in a coffee and there is no medical report in this regard and the prosecution is not able to prove the same against the accused.
  2. Therefore, in these facts and circumstances, this court is of the considered view that prosecution has not been able to prove its case as well as the charges of the offence u/s328/376(2)(n)/343/506 IPCagainst the accused beyond reasonable doubt and hence, accused XXXXXXX  is hereby acquitted from the charges punishable u/s 328/376(2)(n)/343/506 IPC.”

(emphasis supplied)

The appellant-prosecutrix submits that the Trial Court had failed to appreciate that there is a presumption under Section 114A of the Indian Evidence Act, 1872, as to absence of consent in a case for prosecution of the offence under Section 376IPC and consequently the onus to prove that he had not committed the offence under Section 376(2)(n) IPC had shifted to the accused-respondent no. 2.

The appellant-prosecutrix further contends that the Trial Court had erred in not appreciating the fact that the appellant- prosecutrix is a chronic asthmatic patient, cannot do regular activities without medication, has a physical deformity in her left leg and is also suffering from cerebral palsy due to which it is difficult for her to raise her voice even in an emergency situation.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

Having perused the paper book, this Court is of the view that the presumption under Section 114A of the Indian Evidence Act, 1872 would only be attracted if the factum of sexual intercourse is proved.

In the present case, it is noteworthy that the appellant-prosecutrix had refused internal medical examination.

Further this Court is in agreement with the view of the Trial Court that testimony of the appellant-prosecutrix is ‘highly unreliable’, ‘untrustworthy’ and ‘inspires no confidence’ for the following reasons:-

  1. The appellant-prosecutrix alleged that she had received an invitation to attend a seminar on 13th December, 2016 at IIM, Noida. However, 13th December, 2016 was a gazetted holiday on the occasion of Milad- Un-Nabi (Birthday of Mohammad). Furthermore, the RTI reply sent by IIM, Noida stated that on account of the gazetted holiday, there was no seminar scheduled for 13th December, 2016 and they had not sent any invitation to the appellant-prosecutrix. B. There is a major contradiction in the statement of the appellant-

prosecutrix inasmuch as, in the written complaint dated 05th January, 2017 made to the DCP, Dwarka, and the complaint dated 17th January, 2017 to the SHO PS Pahar Ganj, the appellant-prosecutrix had not mentioned that she had come in contact with the accused-respondent no. 2 through LinkedIn for the purpose of research work. However, she has mentioned the aforesaid fact in her statement before the Court.

  1. The appellant-prosecutrix had submitted her I.D. proof to the hotel and in the same she had mentioned her address of Aligarh, UP as Delhi Police Guidelines do not permit the hotel to allot a room to a local Delhi resident.
  2. The entrance of the hotel room is manned by security guards 24 hours and no one can enter the hotel without the permission of the guard. The appellant-prosecutrix could have easily come out of the hotel room to make a call to the police or raise an alarm or could have requested any of the hotel staff to make a call. The appellant- prosecutrix is mobile and does not suffer from such a serious disability that she could not have raised an alarm.

Appellant-prosecutrix had made 529 calls to accused-respondent no.2 between 16th December, 2016 (after the date of rape) to 29th January, 2017 (before filing of the complaint). Her act of making so many repeated calls is not consistent with her allegations.

Keeping in view the aforesaid cumulative findings, this Court is of the view that the testimony of the appellant-prosecutrix is unreliable and inspires no confidence and there are compelling reasons for rejecting of her testimony. Further, Section 114A of the Indian Evidence Act, 1872, is not attracted as the factum of sexual intercourse is not proved. There are also various lacunae in the case of the prosecution and the benefit of doubt will have to enure to the benefit of the accused-respondent no. 2. Consequently, the present appeal being bereft of merits, is dismissed.

—————————————————————————————————————————————–

IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL.A. 626/2019 & CRL.M.As. 10219-10221/2019

XXXXXXXXXXXXX             ….. Appellant

versus

STATE AND ANR.                ….. Respondents

 

 

in view of the judgment of the Allahabad High Court in Sukhwasi v. State of Uttar Pradesh [2007 (59) ACC 739], a petition under Section 156(3) CrPC could well be considered to be a complaint and proceeded with on that basis.

In the judgment of the Supreme Court in Tapinder Singh v. State of Punjab AIR 1970 SC 1566 to contend that no enquiry or investigation can be undertaken by the police without the prior registration of an FIR.

In the judgment in Madhu Bala v. Suresh Kumar (1997) 8 SCC 476, it was submitted that the application under Section 156(3) CrPC could be treated as a complaint. If the learned MM differed with the view expressed by the police in the status report, he could proceed to record the complainant‟s evidence. It is further contended that under Section 460 CrPC, the irregularity in the magistrate taking cognizance under Section 190(1)(a) or (b) is a curable one and the criminal proceedings do not get vitiated on that score.

Although the Supreme Court  in P.Sirajuddin v. State of Madras AIR 1970 SC 520 held that it is permissible for the police to conduct a preliminary enquiry even before the registration of an FIR, those observations were not in the context of the order passed by the a Magistrate while exercising powers under Section 156 (3) CrPC. That section makes it clear that the only option available thereunder to the Magistrate is to order “an investigation.” There is nothing in Section 156 (3) CrPC to suggest that a Magistrate can ask for a „status report‟ from the police which is not meant to be a report of investigation in terms of Section 173 (1) CrPC. Even if the Magistrate does not expressly pass an order to that effect, when pursuant to an application under Section 156 (3) CrPC he asks for a report from the police, the police has to register an FIR and submit a report of investigation. Even if no FIR is formally registered but a detailed investigation is carried out and a report submitted, the learned Magistrate is bound to apply his mind to such report and discuss its contents before proceeding to the next stage.

. In Madhu Bala v. Suresh Kumar, the Supreme Court in para 10 observed as under:

“From the foregoing discussion it is evident that whenever a Magistrate directs an investigation on a complaint the police has to register a cognizable case on that complaint treating the same as the FIR and comply with the requirements of the above Rules. It, therefore, passes our comprehension as to how the direction of a Magistrate asking, the police to ‘register a case’ makes an order of investigation under Section 156(3) legally unsustainable. Indeed, even if a Magistrate does not pass a direction to register a case, still in view of the provisions of Section 156(1) of the Code which empowers the Police to Investigate into a cognizable ‘case’ and the Rules framed under the Indian Police Act, 1861 it (the police) is duty bound to formally register a case and then investigate into the same. The provisions of the Code, therefore, does not in any way stand in the way of a Magistrate to direct the police to register a case at the police station and then investigate into the same. In our opinion when an order for investigation under Section 156(3) of the Code is to be made the proper direction to the Police would be ‘to register a case at the police station treating the complaint as the First Information Report and investigate into the same.” (emphasis supplied).

The Supreme Court in H.S. Bains v. U.T. of Chandigarh (supra). There the Supreme Court explained the courses open to the learned MM to follow upon receipt of such report by the police as under (SCC @ p. 634-35):

“It is seen from the provisions to which we have referred in the preceding paragraphs that on receipt of a complaint a Magistrate has several courses open to him. He may take cognizance of the offence and proceed to record the statements of the complainant and the witnesses present under Section 200. Thereafter, if in his opinion there is no sufficient ground for proceeding he may dismiss the complaint under Section 203. If in his opinion there is sufficient ground for proceeding he may issue process under Section 204. However, if he thinks fit, he may postpone the issue of process and either enquire into the case himself or direct an investigation to be made by a Police Officer or such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. He may then issue process if in his opinion there is sufficient ground for proceeding or dismiss the complaint if there is no sufficient ground for proceeding. On the other hand, in the first instance, on receipt of a complaint, the Magistrate may, instead of taking cognizance of the offence, order an investigation under Section 156(3). The police will then investigate and submit a report under Section 173(1). Oft receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(b) and straightaway issue process. This he may do irrespective of the view expressed by the police in their report whether an offence has been made out or not. The Police report under Section 173 will contain the facts discovered or unearthed by the police and the conclusion drawn by the police therefrom. The Magistrate is not bound by the conclusions drawn by the Police and he may decide to issue process even if the Police recommend that there is no sufficient ground for proceeding further. The Magistrate after receiving the Police report, may, without issuing process or dropping the proceeding decide to take cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statements upon oath of the complainant and the witnesses present under Section 200 Criminal Procedure Code and thereafter decide whether to dismiss the complaint or issue process. The mere fact that he had earlier ordered an investigation under Section 156(3) and received a report under Section 173 will not have the effect of total effacement of the complaint and therefore the Magistrate will not be barred from proceeding under Sections 200, 203 and 204. Thus, a Magistrate who on receipt of a complaint, orders an investigation under Section 156(3) and receives a police report under Section 173(1), may, thereafter, do one of three things : (1) he may decide that there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under Section 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report : (3) he may take cognizance of the offence under Section 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under Section 200. If he adopts the third alternative, he may hold or direct an inquiry under Section 202 if he thinks fit. Thereafter he may dismiss the complaint or issue process, as the case may be.”

In Hemant Dhasmana v. CBI (supra) the Supreme Court revisited the law on the topic and in para 15, it was observed as under (SCC @ p. 542-43):

“15. When the report is filed under the Sub-section the magistrate (in this case the Special Judge) has to deal with it by bestowing his judicial consideration. If the report is to the effect that the allegations in the original complaint were found true in the investigation, or that some other accused and/or some other offence were also detected, the Court has to decide whether cognizance of the offences should be taken or not on the strength of that report. We do not think that it is necessary for us to vex our mind, in this case, regarding that aspect when the report points to the offences committed by some persons. But when the report is against the allegations contained in the complaint and concluded that no offence has been committed by any person it is open to the Court to accept the report after hearing the complainant at whose behest the investigation had commenced. If the Court feels, on a perusal of such a report that the alleged offences have in fact been committed by some persons the Court has the power to ignore the contract conclusions made by the investigating officer in the final report. Then it is open to the Court to independently apply its mind to the facts emerging there from and can even take cognizance of the offences which appear to him to have been committed, in exercise of his power under Section 190(1)(b) of the Code. The third option is the one adumbrated in Section 173(8) of the Code.”

A reference was made to the judgment of the three-Judge Bench in Bhagwant Singh v. Commissioner of Police (1985) 2 SCC 537 where again the three options open to the court on a receipt of the report under Section 173(2) CrPC were discussed. Those three options read as under (SCC @ p.543

“(1) The court may accept the report and drop the proceedings; or (2) the court may disagree with the report and take cognizance of the offence and issue process if it takes the view that there is sufficient ground for proceeding further; or (3) the court may direct further investigation to be made by the police.”

One of the submissions, which has been made by the learned counsel for the appellant also needs to be considered. Learned counsel for the appellant had submitted that complaint has not been filed by a competent person. It is submitted that complaint is not made by Vanshika, but has been filed only by father of Vanshika, hence it is not maintainable. The above submission has been refuted by Shri Santosh Krishnan. He submits that it is not necessary that a complaint under Section 498A should be filed only by the victim of offence. He submits that complaint filed by father of the victim, respondent No.2 was also fully maintainable. Section 498A provides as follows:-

“498A. Husband or relative of husband of a woman subjecting her to cruelty.— Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.—For the purpose of this section, “cruelty” means—

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life,
limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

  1. Section 498A provides for an offence when husband or the relative of the husband, subject her to cruelty. There is nothing in Section 498A, which may indicate that when a woman is subjected to cruelty, a complaint has to be filed necessarily by the women so subjected. A perusal of Section 498A, as extracted above, indicates that the provision does not contemplate that complaint for offence under Section 498A should be filed only by women, who is subjected to cruelty by husband or his relative. We, thus, are of the view that complaint filed by respondent No.2, the father of Vanshika cannot be said to be not maintainable on this ground. We, thus, reject the submission of the counsel
    for the appellant that complaint filed by respondent No.2 was not maintainable.
  2. In view of the foregoing discussions, insofar as the offence under Section 498A and Section 3/4 of D.P. Act is concerned, we are of the view that present is a case, which is covered by Category 7 as enumerated by State of Haryana Vs. Bhajan Lal (supra) and the High Court erred in refusing to exercise under Section 482 Cr.P.C——————————————————————————————————————-

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.594 of 2019

(arising out of SLP (Crl.) No.8103/2018)

RASHMI CHOPRA  …APPELLANT(S)

 

VERSUS

 

THE STATE OF UTTAR PRADESH & ANR….RESPONDENT(S)

 

Section 375 IPC defines the expression “rape”,

which indicates that the first clause operates, wherethe   woman   is   in   possession   of   her   senses,   andtherefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression “against her will” means that the   act   must   have   been   done   in   spite   of   the opposition of the woman. An inference as to consent can   be   drawn   if   only   based   on   evidence   or probabilities of the case. “Consent” is also stated to be   an   act   of   reason   coupled   with   deliberation.   It denotes an active will in the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression “consent”. Section 90, though,   does   not   define   “consent”,   but   describes what is not consent. “Consent”, for the purpose of Section 375, requires voluntary participation not only after   the   exercise   of   intelligence   based   on   the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful

study of all relevant circumstances. (See  State   of H.P. v. Mango Ram (2000) 7 SCC 224”

10.2 In the case of  Deepak  Gulati   v.  State  of  Haryana (2013) 7 SCC 675, The Hon’ble Supreme  Court observed and held in paragraphs 21 and 24 as under: “21. Consent may be express or implied, coerced or misguided,   obtained   willingly   or   through   deceit. Consent   is   an   act   of   reason,   accompanied   by deliberation, the mind weighing, as in a balance, the good   and   evil   on   each   side.   There   is   a   clear distinction between rape and consensual sex and in acase like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the   latter   falls   within   the   ambit   of   cheating   or deception. There is a distinction between the mere breach   of   a   promise,   and   not   fulfilling   a   false promise.   Thus,   the   court   must   examine   whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual   intercourse   on   account   of   her   love   and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where   an   accused   on   account   of   circumstances which he  could  not  have  foreseen, or  which  were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.

In the matter of Anurag Soni Versus State of Chhattisgarh( The Hon’ble Supreme Court recently held that.’

“The   prosecution   has   been successful   by   leading   cogent   evidence   that   from   the   very

inspection 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.   As   observed   hereinabove,   the   consent   given   by   the prosecutrix was on misconception of fact.  Such incidents are on increase   now­a­days.     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.  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 tantamounts 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 appellantaccused for the offence punishable under Section 376 of the IPC.The appellant­accused must face the consequences of the crimecommitted by him.

 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 appellant­accused under Section 376 of the IPC. We also maintain the conviction of the appellant­accused 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 appellant­accused, 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.”

 

 

 

 

Now in respect of the offence of cheating, the law is fairly well settled in various judgments of the Apex Court, some of which are relied upon  like Hridaya Ranjan Prasad Verma & ors -vs Stat of Bihar and anr (2000) 4 SCC 168; wherein it was observed that, “It is held time and again that the distinction between mere breach of contract and the offence of cheating is a fine one.

It would depend upon the intention of the accused at the time of inducement, which may be judged by his subsequent conduct but for this subsequent conduct is not the sole test. Mere breach of contract cannot give rise to criminal prosecution for cheating unless fraudulent or dishonest intention is shown right at the beginning of transaction that is the time when the offence is said to have been committed.

Therefore, it is the intention which is gist of the offence. To hold a person guilty of cheating, it is necessary to show that he had fraudulent or dishonest intention at the time of making the promise. From his mere failure to keep up promise subsequently such an culpable intention right at the beginning that is when he made the promise cannot be presumed”

Where  predominantly case  of civil nature and which has been given the robe of criminal offence that too, after availing civil remedies. Therefore, as held by the Apex Court in the case of State of Haryana and others -vs- Bhajan Lal and otherss 1992 Supp (1) SCC 335, where a criminal proceeding is manifestly attended with malafide intention and/or the proceeding is maliciously instituted with object to serve the oblique purpose of recovering the amount, such proceeding needs to be quashed and set aside. The allegations made in the present complaint, even after taken, as they are, also do not make out ingredients of the criminal offence, though at the most they may attract civil dispute, for which respondent No.3 has already taken recourse to the civil law and therefore, on this count also, complaint needs to be quashed and set aside.

In the case of Chandran Ratnaswami -vs- K.C. Palanisamy and ors (2013) 6 SCC 740, relied upon by learned counsel for applicant, wherein it was held that, when the disputes are of civil nature and finally adjudicated by the competent authority, as in the present case, by the Company Law Board and the disputes are arising out of alleged breach of joint venture agreement and when such disputes have been finally resolved by the Court of competent jurisdiction, then it is apparent that complainant wants to manipulate and misuse the process of Court. In this judgment, it was held that, it would be unfair if the applicants are to be tried in such criminal proceeding arising out of the alleged breach of a Joint Venture Agreement. It was further held that the wholesome power under Section 482 of Code of Criminal Procedure entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be abuse of the process of the Court or that the ends of justice require that the proceedings ought to be quashed.

in the case in Indian Oil Corpn-vs- NEPC India Ltd and ors, 2006 (3) SCC Cri 736, the Apex Court was pleased to caution about the growing tendency in business circles to convert purely civil disputes into criminal cases. It was observed that:-

“Any effort to settle civil disputes and claims which do not involve any criminal offence, by applying pressure through criminal prosecution should be deprecated and discouraged”

The  Hon’ble Supreme Court in the case of V.Y. Jose and anr -vs- State of Gujarat (2009) 3 SCC 78, wherein the Apex Court was once again pleased to observe that:-

“Section 482 serves a salutary purpose that a person should not undergo harassment litigation, even though no case has been made out against him. A matter which essentially involves disputes of civil nature, should not be allowed to be subject matter of a criminal offence, the latter being a shortcut of executing a decree which is non-existent”.

 

Where there is no purely matter of Civil in nature FIR can not be quashed.

In the latest judgment of Apex Court in the case of Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and ors -vs- State of Gujarat and anr, in Criminal Appeal No.1723 of 2017  it was found that the case involves allegations of extortion, forgery, fabrication of documents, utilization of those documents to effectuate transfers of title before registering authorities and the deprivation of the complainant of his interest in land on the basis of fabricated power of attorney. Hence, it was held that such allegations in the F.I.R., cannot be construed to be of a merely private or civil dispute. They implicate serious offence having a bearing on a vital societal interest and therefore, it was held that the High Court was justified in declining to quash the F.I.R., though the matter was amicably settled between the private parties.

In the case of State of Maharashtra and ors -vs- Arun Gulab Gawali, (2009) 9 SCC 701, Court has explained the parameters and ambit of section 482 of the Code of Criminal Procedure, in the light of decision of Apex Court.

 The based judgments for quashing u/s 482 of Cr.P.C is  State of Haryana -vs- Bhajanlal.

 

Bail/Anticipatory bail section 354 of IPC

Per Contra, learned APP has vehemently opposed the bail application by stating that the petitioner has been evading arrest and has not joined the investigation. He further alleged that the anticipatory bail application has been previously rejected by the learned ASJ keeping in view the seriousness of the allegations. Hence, the present petition is liable to be set aside.

  1. I have heard the learned counsel for the parties and perused the material available on record.
  2. Before adverting to the question raised in the present petition, it is seen that the petitioner is charged for the offences under Sections 354/354A/506 of IPC. Section 354 IPC, makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. In Raju Pandurang Mahale vs State Of Maharashtra And Anr reported in (2004) 4 SCC 371, it has been observed that :

“What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a women, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such ourtrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast: Scrupulously chast.” Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupluous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod, (1876) 7 C & P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency, a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is given as “womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.” In State of Punjab v. Major Singh, AIR (1967) SC 63 a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possess the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh’s case (supra) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deal Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194.

When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role be consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminist decency.”

Determining the parameters in granting anticipatory bail in cases of serious offences. The Supreme Court in Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr reported in (2016) 1 SCC 152 after analyzing the entire law has observed as under:-

“(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.”

——————————————————————————————————————————-

IN THE HIGH COURT OF DELHI AT NEW DELHI

BAIL APPLN. 1752/2017 & CRL.M.A. 14404/2017

SANJAY JAIN                                         …..Petitioner

versus

STATE OF NCT OF DELHI                     ….Respondent

HON’BLE MS. JUSTICE SANGITA DHINGRA SEHGAL

  1. By way of the present petition filed under Section 438 of the Criminal Procedure Code,1973 (hereinafter referred as ‘Cr.P.C.), the petitioner seeks grant of anticipatory bail in respect of FIR No. 0308 dated 21.07.2017, under Section 354/354A/506 of The Indian Penal Code,1860(hereinafter referred as ‘IPC’), registered by P.S. Jafarabad, New-Delhi.
  2. Briefly stated the facts of the case are that the complaint was lodged on 21.07.2017 by one Dimple who alleged that, on 17.07.2017 at around 4 pm her brother-in-law (devar), who used to stay with her mother-in-law, had come to her house when she was alone at home and forcefully tried to make physical relations with her and even threatened her when she objected. The alleged incident was narrated by her, to her husband who did not pay any heed to it and then, later she narrated it to her brother and her aunt. She reported the incident to the police officials and the complaint was lodged under the Sections 354/354A/506 of IPC.
  3. Ms. Ishita Jain, the learned counsel for the petitioner contended that that the present FIR filed against the petitioner is false and fabricated; that the petitioner visited the house of the prosecutrix on an invitation made by her for lunch; that the prosecutrix threatens her husband and his family members many a times of filing false cases of domestic violence, sexual harassment etc; that in the year 2005, she filed a false case of domestic violence against her husband, which was later on withdrawn by her; that her behavior towards her husband and his family is unreasonable; that she even went on a vacation, with her husband along with the petitioner and a friend, a month before filing the FIR. Hence, the present petition should be allowed.
  4. Per Contra, learned APP has vehemently opposed the bail application by stating that the petitioner has been evading arrest and has not joined the investigation. He further alleged that the anticipatory bail application has been previously rejected by the learned ASJ keeping in view the seriousness of the allegations. Hence, the present petition is liable to be set aside.
  5. I have heard the learned counsel for the parties and perused the material available on record.
  6. Before adverting to the question raised in the present petition, it is seen that the petitioner is charged for the offences under Sections 354/354A/506 of IPC. Section 354 IPC, makes penal the assault or use of criminal force to a woman to outrage her modesty. The essential ingredients of offence under Section 354 IPC are: (a) that the assault must be on a woman; (b) that the accused must have used criminal force on her; (c) that the criminal force must have been used on the woman intending thereby to outrage her modesty. In Raju Pandurang Mahale vs State Of Maharashtra And Anr reported in (2004) 4 SCC 371, it has been observed that :

“What constitutes an outrage to female modesty is nowhere defined. The essence of a woman’s modesty is her sex. The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive. Modesty in this Section is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex. The act of pulling a women, removing her saree, coupled with a request for sexual intercourse, is such as would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention having such ourtrage alone for its object. As indicated above, the word ‘modesty’ is not defined in IPC. The shorter Oxford Dictionary (Third Edn.) defines the word ‘modesty’ in relation to woman as follows: “Decorous in manner and conduct; not forward or lowe; Shame-fast: Scrupulously chast.” Modesty is defined as the quality of being modest; and in relation to woman, “womanly propriety of behaviour; scrupluous chastity of thought, speech and conduct.” It is the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions. As observed by Justice Patterson in Rex v. James Llyod, (1876) 7 C & P 817. In order to find the accused guilty of an assault with intent to commit a rape, court must be satisfied that the accused, when he laid hold of the prosecutrix, not only desired to gratify his passions upon her person but that he intended to do so at all events, and notwithstanding any resistance on her part. The point of distinction between an offence of attempt to commit rape and to commit indecent assault is that there should be some action on the part of the accused which would show that he was just going to have sexual connection with her. Webster’s Third New International Dictionary of the English Language defines modesty as “freedom from coarseness, indelicacy or indecency, a regard for propriety in dress, speech or conduct”. In the Oxford English Dictionary (1933 Edn.), the meaning of the word ‘modesty’ is given as “womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.” In State of Punjab v. Major Singh, AIR (1967) SC 63 a question arose whether a female child of seven and a half months could be said to be possessed of ‘modesty’ which could be outraged. In answering the above question the majority view was that when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind that must fall within the mischief of Section 354 IPC. Needless to say, the “common notions of mankind” referred to have to be gauged by contemporary societal standards. It was further observed in the said case that the essence of a woman’s modesty is her sex and from her very birth she possess the modesty which is the attribute of her sex. From the above dictionary meaning of ‘modesty’ and the interpretation given to that word by this Court in Major Singh’s case (supra) the ultimate test for ascertaining whether modesty has been outraged is whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman. The above position was noted in Rupan Deal Bajaj (Mrs.) and Anr. v. Kanwar Pal Singh Gill and Anr., [1995] 6 SCC 194.

When the above test is applied in the present case, keeping in view the total fact situation, the inevitable conclusion is that the acts of accused appellant and the concrete role be consistently played from the beginning proved combination of persons and minds as well and as such amounted to “outraging of her modesty” for it was an affront to the normal sense of feminist decency.”

  1. The petitioner has been charged for the offence under Section 354 IPC i.e assault/criminal force to a woman to outrage her modesty as well as for the offence under Section 354A IPC i.e physical contact with explicit sexual overtures and demand of sexual favour. Further, for the offence under Section 506 IPC, which states that “506. Punishment for criminal intimidation.– Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.–And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 1[imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”
  2. Keeping in view the above legal proposition, it is observed in the facts and circumstances of the present case that the prosecutrix has made specific allegations in her complaint against the petitioner during lodging of the FIR and has further stated on similar lines during recording of her statements under Section 164 Cr.P.C where it has been explicitly stated by her that the petitioner always tried to make physical relations with her in absence of her husband; that even her husband as well as her mother-in-law never supported her to proceed against the petitioner; that on 17.07.2017, he visited her house and forcibly tried kissing her, touching her, tore off her clothes and harassed her.
  3. On perusal of the statements made by her against the petitioner, it is observed that the allegations against the petitioner are grave and serious. Also, in Status Report, it has been stated that the investigation is still in process and the petitioner herein is evading arrest by not joining the investigation. Thus, the chance of the petitioner escaping the procedure of law, tampering with the evidence or threatening the complainant exists. In my view, since the case is at the threshold and the investigations are underway, it will be practically scuttling the investigation in case the anticipatory bail is granted to the petitioner which will create hurdles in arriving at the truth.
  4. Determining the parameters in granting anticipatory bail in cases of serious offences. The Supreme Court in Bhadresh Bipinbhai Sheth vs State Of Gujarat & Anr reported in (2016) 1 SCC 152 after analyzing the entire law has observed as under:-

“(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(c) The possibility of the applicant to flee from justice;

(d) The possibility of the accused’s likelihood to repeat similar or other offences;

(e) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(g) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because overimplication in the cases is a matter of common knowledge and concern;

(h) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(j) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused in entitled to an order of bail.”

  1. In view of the aforesaid settled principles, the facts and circumstances of the present case and perusing the allegations leveled against the petitioner, and considering the gravity of offence, this court is not inclined to grant anticipatory bail to the petitioner. Accordingly, the petition stand dismissed along with the pending application.
  2. Observations made in the order shall have no impact on the merits of the case.

SANGITA DHINGRA SEHGAL