whether the 2nd respondent by clicking inappropriate pictures of the appellant has
blackmailed her or not, and further the 2nd respondent
has continued to interfere by calling Shoukin Malik or
not are the matters for investigation.? -
High court order quashing criminal proceedings are set aside.
Apex court held that
In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the Crl.A. @ SLP(Crl.)No.4294 of 2019 10 complaint and the serious allegations made against the 2 nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.
Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside Crl.A. @ SLP(Crl.)No.4294 of 2019 11 the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law.
Crl.A. @ SLP(Crl.)No.4294 of 2019
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1619 OF 2019
(Arising out of S.L.P.(Crl.)No.4294 of 2019)
Miss XYZ ...Appellant
Versus
State of Gujarat & Anr ...Respondents
J U D G M E N T
R.Subhash Reddy,J.
1. Leave granted.
2. This appeal is filed by the 2nd respondent in
R/Special Criminal Application No.9897 of 2017 filed
before the High Court of Gujarat, at Ahmedabad. By the
impugned order, High Court has allowed R/Special
Criminal Application by quashing FIR No. CR-I-60-2017
registered on the file of Mahila Police Station,
Ahmedabad City, District Ahmedabad.
Crl.A. @ SLP(Crl.)No.4294 of 2019
2
3. The appellant herein, is the informant in crime
registered in FIR No.CR-I-60-2017 on the file of
Mahila Police Station, Ahmedabad City. On her
complaint the aforesaid crime is registered against the
2
nd respondent for the alleged offence punishable under
Sections 376, 499 and 506(2) of the Indian Penal Code,
1860.
4. The complaint was filed with the following
averments:
She is a permanent resident of Jodhpur, Rajasthan
State and had come to Ahmedabad in Gujarat City for
employment and she met the 2nd respondent, who is the
Managing Director of the G.S.P. Crop Science Pvt. Ltd.
After conducting interview she was appointed as his
Personal Assistant in the month of November, 2014. When
the appellant was not well, the 2nd respondent started
visiting her residence and when she was in sleep, the
2
nd respondent has taken an inappropriate pictures of
her. When she was attending the office, the 2nd
respondent by showing her pictures, was blackmailing
her. When she visited Odhav, Kathwada and Nandesari,
Baroda on official work of the company, the 2nd
respondent used to take advantage of the situation when
the appellant was alone, and was blackmailing to make
Crl.A. @ SLP(Crl.)No.4294 of 2019
3
viral her pictures and to terminate her employment. As
the financial condition of the appellant was not
stable, she did not disclose this to anyone. In
December, 2014 the 2nd respondent took the appellant to
Baroda for some work, by threatening to publish her
nude pictures, committed rape on her. Even after
coming back to Ahmedabad, the 2nd respondent again took
her to Baroda on the pretext of some work and committed
rape by similar threats in the hotel. The 2nd
respondent was also visiting her rented premises at
Ahmedabad and used to commit rape on her under the
threat of termination of employment and publication of
her pictures. The 2nd respondent rented an apartment
at Adani Pratham in August, 2015. When the appellant
was residing in the said apartment,the 2nd respondent
used to come to the said apartment and was demanding
sexual favours. As she was fed up with the
exploitation by the 2nd respondent, she vacated the
rental premises in June, 2016. In view of serious
threat by the 2nd respondent to her life, she left for
Jodhpur and her marriage was fixed with one Mr.Shoukin
Malik who is the resident of Badi Sadri, Rajasthan in
the month of December, 2016. The 2nd respondent having
come to know about the marriage of the appellant with
Crl.A. @ SLP(Crl.)No.4294 of 2019
4
Shoukin Malik, he contacted Mr.Shoukin Malik on
telephone and informed him that the appellant is not of
good character, she had physical relationship with him
and with other boys. As Mr.Shoukin Malik refused to
meet the 2nd respondent, the 2nd respondent sent a cover
to the residence of Shoukin Malik containing her
nude/inappropriate pictures.
5. In view of such allegations as referred above made
in the complaint, a case is registered against the 2nd
respondent for the alleged offence under Sections 376,
499 and 506(2) of IPC.
6. When the complaint is under investigation, the 2nd
respondent has filed R/Special Criminal Application
No.9897 of 2017 before the High Court of Gujarat
seeking quashing of FIR itself and also further
consequential steps taken pursuant to the registration
of crime.
7. Primarily, it was the case of the 2nd respondent
before the High Court that there was absolutely no
truth in the allegation of rape as alleged by the
appellant and it was only consensual sex between the
parties. It is further alleged that in view of the
allegations made by the appellant, a settlement is
purported to have been arrived at, between them in the
Crl.A. @ SLP(Crl.)No.4294 of 2019
5
month of July, 2016. A written agreement was also
entered into and the same is signed by the parties. It
is stated in the agreement that the dispute between the
parties is settled and the 2nd respondent has allegedly
paid a huge amount to the appellant. It is further the
case of the 2nd respondent that whatever the electronic
and other materials lying with the parties were agreed
to be destroyed. Further it was the case of the 2nd
respondent that the alleged telephonic calls made by
the 2nd respondent to Mr. Shoukin Malik of
Rajasthan was absolutely false and baseless. Pleading
that the complaint filed and investigation taken up is
a gross abuse of process, the 2nd respondent has sought
quashing of the proceedings.
8. By referring to the rival contentions of the
parties and the material on record, the High Court has
recorded a finding that the case of the 2nd respondent
falls under Exceptions 5 and 7 as carved out in the
judgment of this Court in State of Haryana vs.
Bhajanlal & Ors.
1 and further the allegations and facts
as mentioned in the FIR, appear to be improbable and
the same is malicious prosecution, quashed the
proceedings registered against the 2nd respondent.
1 AIR 1992 SC 604
Crl.A. @ SLP(Crl.)No.4294 of 2019
6
9. We have heard Sri Amit Anand Tiwari, learned
counsel for the appellant, Ms. Deepanwita Priyanka,
learned counsel for the State and Sri Mukul Rohatgi,
learned senior counsel for 2nd respondent.
10. Mainly, it is contended by the learned counsel for
the appellant that the High Court has passed the
impugned order by exceeding the scope of power
conferred under Section 482 CrPC. In view of the
serious allegations made against the 2nd respondent, the
High Court should not have exercised power under
Section 482 of the CrPC to scuttle the investigation.
It is submitted that the High Court has committed error
in summoning the Police Inspector, and on relying on
such statement, for quashing the FIR. It is stated
that the alleged settlement was under the guise of
threat and coercion by the 2nd respondent, and it is not
entered into by the appellant with her free will and
consent. It is stated that the 2nd respondent misused
the photographs taken by him, and repeatedly used the
same to blackmail her, to secure sexual favours from
the appellant. It is contended that the 2nd respondent
taking advantage of his position as a Managing Director
of the Company, has exploited the appellant and
committed rape on her at her residence and in the
Crl.A. @ SLP(Crl.)No.4294 of 2019
7
apartment secured by the 2nd respondent and also during
her tours to Baroda. It is submitted that it is not
open for the High Court to make a roving inquiry, while
considering the application filed under Section 482
CrPC.
11. Learned counsel for the first respondent-State has
submitted that the Investigating Officer made an
attempt to secure data from the service providers of
the mobile phones, but the same was not provided. In
the meantime, in view of interim orders passed by the
High Court, further investigation was not made.
12. Sri Mukul Rohatgi learned senior counsel appearing
for the 2nd respondent, by taking us through the
settlement documents arrived, between the parties, and
other material placed on record, has submitted that
there is absolutely no basis for the allegation of rape
by the 2nd respondent, and it was only consensual sex
between the parties. It is submitted that having
regard to the allegations made, parties arrived at a
settlement and entered into a written agreement in the
month of July, 2016. As the appellant is not disputing
the said documents, the allegation of rape is false.
It is submitted that parties were in consensual sex for
several years and in absence of any allegation against
Crl.A. @ SLP(Crl.)No.4294 of 2019
8
the 2nd respondent of committing rape subsequent to the
agreement, there is no basis for such allegations.
It is also submitted that there is no truth in the
allegation made by the 2nd respondent about his
telephone talk with Shoukin Malik, to defame the
appellant. It is contended that having received huge
money from the 2nd respondent pursuant to the settlement
arrived at, false complaint is filed by the appellant
to harass the 2nd respondent. Learned senior counsel
also relied on the recent judgment of this Court dated
21st August, 2019 passed in Criminal Appeal No.1165 of
2019 wherein in similar circumstances FIR was quashed
by this Court.
13. Having heard learned counsel for the parties and
after perusing the impugned order and other material
placed on record, we are of the view that the High
Court exceeded the scope of its jurisdiction conferred
under Section 482 CrPC, and quashed the proceedings.
Even before the investigation is completed by the
investigating agency, the High Court entertained the
Writ Petition, and by virtue of interim order granted
by the High Court, further investigation was stalled.
Having regard to the allegations made by the
appellant/informant, whether the 2nd respondent by
Crl.A. @ SLP(Crl.)No.4294 of 2019
9
clicking inappropriate pictures of the appellant has
blackmailed her or not, and further the 2nd respondent
has continued to interfere by calling Shoukin Malik or
not are the matters for investigation. In view of the
serious allegations made in the complaint, we are of
the view that the High Court should not have made a
roving inquiry while considering the application filed
under Section 482 CrPC. Though the learned counsels
have made elaborate submissions on various contentious
issues, as we are of the view that any observation or
findings by this Court, will affect the investigation
and trial, we refrain from recording any findings on
such issues. From a perusal of the order of the High
Court, it is evident that the High Court has got
carried away by the agreement/settlement arrived at,
between the parties, and recorded a finding that the
physical relationship of the appellant with the 2nd
respondent was consensual. When it is the allegation
of the appellant, that such document itself is obtained
under threat and coercion,it is a matter to be
investigated. Further, the complaint of the appellant
about interference by the 2nd respondent by calling
Shoukin Malik and further interference is also a matter
for investigation. By looking at the contents of the
Crl.A. @ SLP(Crl.)No.4294 of 2019
10
complaint and the serious allegations made against the
2
nd respondent, we are of the view that the High Court
has committed error in quashing the proceedings.
During the course of hearing, learned counsel for the
appellant, brought to our notice provision/Section
114-A of the Indian Evidence Act, 1872. Section 114-A
of the Indian Evidence Act, 1872 deals with the
presumption as to absence of consent in certain
prosecution for rape. A reading of the aforesaid
Section makes it clear that, where sexual intercourse
by the accused is proved and the question is whether it
was without the consent of the woman alleged to have
been raped, and such woman states in her evidence
before the Court that she did not consent, the court
shall presume that she did not consent.
14. Though Learned senior counsel Sri Mukul Rohatgi
relied on the judgment of this Court dated 21st
August,2019 in Criminal Appeal No.1165 of 2019, but we
are of the view that the said judgment would not render
any assistance to support his case. Whether in a given
case power under Section 482 is to be exercised or not,
depends on the contents of the complaint, and the
material placed on record. In that view of the matter,
we are of the view that it is a fit case to set aside
Crl.A. @ SLP(Crl.)No.4294 of 2019
11
the order passed by the High Court and allow the
investigating agency to proceed with the further
investigation in accordance with law. It is made clear
that we have not expressed any opinion on the merits of
the complaint, and it is open to the investigating
agency and competent court, to proceed in accordance
with law.
15. For the aforesaid reasons, this criminal appeal is
allowed and the impugned order dated 13th December, 2018
passed in R/Special Criminal Application No.9897 of
2017 by the High Court of Gujarat is set-aside. The 2nd
respondent shall appear before the concerned Police
Station on 18-11-2019 at 11.00 a.m. and co-operate with
the investigation. Till then no coercive action shall
be taken against him.
...................J.
[UDAY UMESH LALIT]
...................J.
[Indu Malhotra]
.................J.
[R. Subhash Reddy]
New Delhi;
October 25, 2019
High court order quashing criminal proceedings are set aside.
Apex court held that
In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsels have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion,it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the Crl.A. @ SLP(Crl.)No.4294 of 2019 10 complaint and the serious allegations made against the 2 nd respondent, we are of the view that the High Court has committed error in quashing the proceedings. During the course of hearing, learned counsel for the appellant, brought to our notice provision/Section 114-A of the Indian Evidence Act, 1872. Section 114-A of the Indian Evidence Act, 1872 deals with the presumption as to absence of consent in certain prosecution for rape. A reading of the aforesaid Section makes it clear that, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped, and such woman states in her evidence before the Court that she did not consent, the court shall presume that she did not consent.
Whether in a given case power under Section 482 is to be exercised or not, depends on the contents of the complaint, and the material placed on record. In that view of the matter, we are of the view that it is a fit case to set aside Crl.A. @ SLP(Crl.)No.4294 of 2019 11 the order passed by the High Court and allow the investigating agency to proceed with the further investigation in accordance with law.
Crl.A. @ SLP(Crl.)No.4294 of 2019
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1619 OF 2019
(Arising out of S.L.P.(Crl.)No.4294 of 2019)
Miss XYZ ...Appellant
Versus
State of Gujarat & Anr ...Respondents
J U D G M E N T
R.Subhash Reddy,J.
1. Leave granted.
2. This appeal is filed by the 2nd respondent in
R/Special Criminal Application No.9897 of 2017 filed
before the High Court of Gujarat, at Ahmedabad. By the
impugned order, High Court has allowed R/Special
Criminal Application by quashing FIR No. CR-I-60-2017
registered on the file of Mahila Police Station,
Ahmedabad City, District Ahmedabad.
Crl.A. @ SLP(Crl.)No.4294 of 2019
2
3. The appellant herein, is the informant in crime
registered in FIR No.CR-I-60-2017 on the file of
Mahila Police Station, Ahmedabad City. On her
complaint the aforesaid crime is registered against the
2
nd respondent for the alleged offence punishable under
Sections 376, 499 and 506(2) of the Indian Penal Code,
1860.
4. The complaint was filed with the following
averments:
She is a permanent resident of Jodhpur, Rajasthan
State and had come to Ahmedabad in Gujarat City for
employment and she met the 2nd respondent, who is the
Managing Director of the G.S.P. Crop Science Pvt. Ltd.
After conducting interview she was appointed as his
Personal Assistant in the month of November, 2014. When
the appellant was not well, the 2nd respondent started
visiting her residence and when she was in sleep, the
2
nd respondent has taken an inappropriate pictures of
her. When she was attending the office, the 2nd
respondent by showing her pictures, was blackmailing
her. When she visited Odhav, Kathwada and Nandesari,
Baroda on official work of the company, the 2nd
respondent used to take advantage of the situation when
the appellant was alone, and was blackmailing to make
Crl.A. @ SLP(Crl.)No.4294 of 2019
3
viral her pictures and to terminate her employment. As
the financial condition of the appellant was not
stable, she did not disclose this to anyone. In
December, 2014 the 2nd respondent took the appellant to
Baroda for some work, by threatening to publish her
nude pictures, committed rape on her. Even after
coming back to Ahmedabad, the 2nd respondent again took
her to Baroda on the pretext of some work and committed
rape by similar threats in the hotel. The 2nd
respondent was also visiting her rented premises at
Ahmedabad and used to commit rape on her under the
threat of termination of employment and publication of
her pictures. The 2nd respondent rented an apartment
at Adani Pratham in August, 2015. When the appellant
was residing in the said apartment,the 2nd respondent
used to come to the said apartment and was demanding
sexual favours. As she was fed up with the
exploitation by the 2nd respondent, she vacated the
rental premises in June, 2016. In view of serious
threat by the 2nd respondent to her life, she left for
Jodhpur and her marriage was fixed with one Mr.Shoukin
Malik who is the resident of Badi Sadri, Rajasthan in
the month of December, 2016. The 2nd respondent having
come to know about the marriage of the appellant with
Crl.A. @ SLP(Crl.)No.4294 of 2019
4
Shoukin Malik, he contacted Mr.Shoukin Malik on
telephone and informed him that the appellant is not of
good character, she had physical relationship with him
and with other boys. As Mr.Shoukin Malik refused to
meet the 2nd respondent, the 2nd respondent sent a cover
to the residence of Shoukin Malik containing her
nude/inappropriate pictures.
5. In view of such allegations as referred above made
in the complaint, a case is registered against the 2nd
respondent for the alleged offence under Sections 376,
499 and 506(2) of IPC.
6. When the complaint is under investigation, the 2nd
respondent has filed R/Special Criminal Application
No.9897 of 2017 before the High Court of Gujarat
seeking quashing of FIR itself and also further
consequential steps taken pursuant to the registration
of crime.
7. Primarily, it was the case of the 2nd respondent
before the High Court that there was absolutely no
truth in the allegation of rape as alleged by the
appellant and it was only consensual sex between the
parties. It is further alleged that in view of the
allegations made by the appellant, a settlement is
purported to have been arrived at, between them in the
Crl.A. @ SLP(Crl.)No.4294 of 2019
5
month of July, 2016. A written agreement was also
entered into and the same is signed by the parties. It
is stated in the agreement that the dispute between the
parties is settled and the 2nd respondent has allegedly
paid a huge amount to the appellant. It is further the
case of the 2nd respondent that whatever the electronic
and other materials lying with the parties were agreed
to be destroyed. Further it was the case of the 2nd
respondent that the alleged telephonic calls made by
the 2nd respondent to Mr. Shoukin Malik of
Rajasthan was absolutely false and baseless. Pleading
that the complaint filed and investigation taken up is
a gross abuse of process, the 2nd respondent has sought
quashing of the proceedings.
8. By referring to the rival contentions of the
parties and the material on record, the High Court has
recorded a finding that the case of the 2nd respondent
falls under Exceptions 5 and 7 as carved out in the
judgment of this Court in State of Haryana vs.
Bhajanlal & Ors.
1 and further the allegations and facts
as mentioned in the FIR, appear to be improbable and
the same is malicious prosecution, quashed the
proceedings registered against the 2nd respondent.
1 AIR 1992 SC 604
Crl.A. @ SLP(Crl.)No.4294 of 2019
6
9. We have heard Sri Amit Anand Tiwari, learned
counsel for the appellant, Ms. Deepanwita Priyanka,
learned counsel for the State and Sri Mukul Rohatgi,
learned senior counsel for 2nd respondent.
10. Mainly, it is contended by the learned counsel for
the appellant that the High Court has passed the
impugned order by exceeding the scope of power
conferred under Section 482 CrPC. In view of the
serious allegations made against the 2nd respondent, the
High Court should not have exercised power under
Section 482 of the CrPC to scuttle the investigation.
It is submitted that the High Court has committed error
in summoning the Police Inspector, and on relying on
such statement, for quashing the FIR. It is stated
that the alleged settlement was under the guise of
threat and coercion by the 2nd respondent, and it is not
entered into by the appellant with her free will and
consent. It is stated that the 2nd respondent misused
the photographs taken by him, and repeatedly used the
same to blackmail her, to secure sexual favours from
the appellant. It is contended that the 2nd respondent
taking advantage of his position as a Managing Director
of the Company, has exploited the appellant and
committed rape on her at her residence and in the
Crl.A. @ SLP(Crl.)No.4294 of 2019
7
apartment secured by the 2nd respondent and also during
her tours to Baroda. It is submitted that it is not
open for the High Court to make a roving inquiry, while
considering the application filed under Section 482
CrPC.
11. Learned counsel for the first respondent-State has
submitted that the Investigating Officer made an
attempt to secure data from the service providers of
the mobile phones, but the same was not provided. In
the meantime, in view of interim orders passed by the
High Court, further investigation was not made.
12. Sri Mukul Rohatgi learned senior counsel appearing
for the 2nd respondent, by taking us through the
settlement documents arrived, between the parties, and
other material placed on record, has submitted that
there is absolutely no basis for the allegation of rape
by the 2nd respondent, and it was only consensual sex
between the parties. It is submitted that having
regard to the allegations made, parties arrived at a
settlement and entered into a written agreement in the
month of July, 2016. As the appellant is not disputing
the said documents, the allegation of rape is false.
It is submitted that parties were in consensual sex for
several years and in absence of any allegation against
Crl.A. @ SLP(Crl.)No.4294 of 2019
8
the 2nd respondent of committing rape subsequent to the
agreement, there is no basis for such allegations.
It is also submitted that there is no truth in the
allegation made by the 2nd respondent about his
telephone talk with Shoukin Malik, to defame the
appellant. It is contended that having received huge
money from the 2nd respondent pursuant to the settlement
arrived at, false complaint is filed by the appellant
to harass the 2nd respondent. Learned senior counsel
also relied on the recent judgment of this Court dated
21st August, 2019 passed in Criminal Appeal No.1165 of
2019 wherein in similar circumstances FIR was quashed
by this Court.
13. Having heard learned counsel for the parties and
after perusing the impugned order and other material
placed on record, we are of the view that the High
Court exceeded the scope of its jurisdiction conferred
under Section 482 CrPC, and quashed the proceedings.
Even before the investigation is completed by the
investigating agency, the High Court entertained the
Writ Petition, and by virtue of interim order granted
by the High Court, further investigation was stalled.
Having regard to the allegations made by the
appellant/informant, whether the 2nd respondent by
Crl.A. @ SLP(Crl.)No.4294 of 2019
9
clicking inappropriate pictures of the appellant has
blackmailed her or not, and further the 2nd respondent
has continued to interfere by calling Shoukin Malik or
not are the matters for investigation. In view of the
serious allegations made in the complaint, we are of
the view that the High Court should not have made a
roving inquiry while considering the application filed
under Section 482 CrPC. Though the learned counsels
have made elaborate submissions on various contentious
issues, as we are of the view that any observation or
findings by this Court, will affect the investigation
and trial, we refrain from recording any findings on
such issues. From a perusal of the order of the High
Court, it is evident that the High Court has got
carried away by the agreement/settlement arrived at,
between the parties, and recorded a finding that the
physical relationship of the appellant with the 2nd
respondent was consensual. When it is the allegation
of the appellant, that such document itself is obtained
under threat and coercion,it is a matter to be
investigated. Further, the complaint of the appellant
about interference by the 2nd respondent by calling
Shoukin Malik and further interference is also a matter
for investigation. By looking at the contents of the
Crl.A. @ SLP(Crl.)No.4294 of 2019
10
complaint and the serious allegations made against the
2
nd respondent, we are of the view that the High Court
has committed error in quashing the proceedings.
During the course of hearing, learned counsel for the
appellant, brought to our notice provision/Section
114-A of the Indian Evidence Act, 1872. Section 114-A
of the Indian Evidence Act, 1872 deals with the
presumption as to absence of consent in certain
prosecution for rape. A reading of the aforesaid
Section makes it clear that, where sexual intercourse
by the accused is proved and the question is whether it
was without the consent of the woman alleged to have
been raped, and such woman states in her evidence
before the Court that she did not consent, the court
shall presume that she did not consent.
14. Though Learned senior counsel Sri Mukul Rohatgi
relied on the judgment of this Court dated 21st
August,2019 in Criminal Appeal No.1165 of 2019, but we
are of the view that the said judgment would not render
any assistance to support his case. Whether in a given
case power under Section 482 is to be exercised or not,
depends on the contents of the complaint, and the
material placed on record. In that view of the matter,
we are of the view that it is a fit case to set aside
Crl.A. @ SLP(Crl.)No.4294 of 2019
11
the order passed by the High Court and allow the
investigating agency to proceed with the further
investigation in accordance with law. It is made clear
that we have not expressed any opinion on the merits of
the complaint, and it is open to the investigating
agency and competent court, to proceed in accordance
with law.
15. For the aforesaid reasons, this criminal appeal is
allowed and the impugned order dated 13th December, 2018
passed in R/Special Criminal Application No.9897 of
2017 by the High Court of Gujarat is set-aside. The 2nd
respondent shall appear before the concerned Police
Station on 18-11-2019 at 11.00 a.m. and co-operate with
the investigation. Till then no coercive action shall
be taken against him.
...................J.
[UDAY UMESH LALIT]
...................J.
[Indu Malhotra]
.................J.
[R. Subhash Reddy]
New Delhi;
October 25, 2019
