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PETITIONER: STATE OF KERALA & ORS.

       Vs.

RESPONDENT: O.C.KUTTAN & ORS.

DATE OF JUDGMENT:       17/02/1999

BENCH: G B Pattanaik, M.B. Shah

JUDGMENT:

Pattanaik.J

       Leave granted in both the matters.

       These two appeals one by State of Kerala and another by the State Women’s  Commission  as  well  as  the  alleged victim  lady  are directed against one and the same order of the High Court of Kerala. By the impugned Judgment and Order Dated 4th November, 1997 the Division Bench of  Kerala  High Court  in  exercise  of its extraordinary jurisdiction under Article 226 of  the Constitution of India  has  quashed  the criminal  proceedings as against five of the accused persons manely Shri  O.C.Kuttan,  Shri  G.  Mohanan,  Shri  S.Suresh Kaimal, Shri Tony Antony and Shri K.C. Pater, on coming to a conclusion  that  the uncontroverted allegations made in the F.I.R. and other statements do not constitute the offence of rape.

       On 23.7.96, Seens gave a vivid account as to how she was being exploited and sexually harassed by large number of accused  persons  under  threat, coercion, force, allurement and  on  the  basis  of  the  said  statement,  a  case  was registered as  Crime  No.    5.96  of Vanitha Polic Station, Ernakulam.  The case was  registered  under  Sections  366A, 372, 376  and  344  read  with Section 34 I.P.C.  The Police started investigating into the said allegations and  in  the course  of  investigation  the  victim  girl was examined on 24.8.96 and  on  25.8.96.    These  respondents  filed  writ petitions  in the kerala High Court praying therein that the FIR and the Criminal Proceedings arising  out  of  the  said allegations  should  be  quashed  as  against them since the allegations do not make out any offence so far as  they  are concerned.  When those writ petitions were listed before the learned  Single  Judge,  the learned Single Judge was of the opinion that the matter should be heard by a Division  Bench to decide the question whether criminal proceedings could be quashed  in  exercise  of  extraordinary  jurisdiction under Article 226 of the Constitution of India and that is how the matter was heard by the Division Bench.    By  the  impugned Judgment,  the  Division Bench though indicated how the lady has unfolded her pathetic story as  a  victim  of  rape  and narrated the events of her life right from the time when she went  to  school till she was arrested by the Police, but on comparison of the three statements of the victim girl and on entering into an arena of conjecture and improbability  came to  the  conclusion  that the lady was more than 16 years of

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age when  she  came  to  Ernakulam  and  indulged  into  the activities  of  leading immoral life and further she was not put to force of death or hurt or her consent was obtained by putting her in fear of death or hurt and on the  other  hand it  is  she,  who  exercised her discretion to have sex with those persons whom she liked  or  got  money  and  willingly submitted  herself  to  the  sexual activities and therefore this is a fit case where the High Court would  be  justified in  quashing  the  criminal proceedings as against those who have approached the court.

       Mr.  Ramachandran, learned Senior Counsel  appearing for the  State of Kerala and Ms.  Indira Jaisingh, appearing for the Kerala Women’s Commission, vehemently argued that in view of the graphic statements of the lady herself, the High Court committed serious error  in  preventing  investigation against  the  accused  respondents,  who happened to be very influential people of the society.  The learned counsel also urged that the conclusion of the High Court  that  the  lady was  more than 16 years of age by shifting the materials and evidence on record at this stage was wholly unwarranted.  It was further urged that the allegations made by the lady  not only amounts to commission of offence of rape alone but also the  offence  under  lmmoral  Traffic Act and the High Court never applied its mind to find out whether  the  allegations taken  at  their  face value would constitute other offences for which the criminal case had been registered.   According to  the  learned  counsel  for the appellants in the case in hand to quash the proceedings at the stage of lodging of FIR in case of an offence which is having a cancerous growth  in the society is against the interest of justice and cannot be held  to be an abuse of process of court as concluded by the High Court.

       Mr.   UR  Lalit,  appearing  for  accused Kuttan and Mohanan, Mr.  Ranjit Kumar and  Mr.    Anam,  appearing  for other  accused respondents however contended with force that if the statements of the alleged victim lady do not make out any offence then the High Court would be fully justified  in quashing  the  FIR  so  far as those alleged accused persons against whom the allegation do not make out the  offence  as in  such a case allowing the investigation to continue would be an abuse of the process  of  court.    According  to  Mr. Lalit,  a  bare  look  at the statements made by Seena would make it explicitly clear that these respondents had not even been named in the earliest statement  dated  23rd  of  July, 1996  on  the  basis of which the case was registered but in course of investigation, she has been  examined  on  24.8.96 and  25.8.96  wherein  she  has  added  the names of several persons  including  the  present  respondents  which   would suggest  that  the additions of names of persons are nothing but  an  after-thought  made  after  due  deliberations  and several  people  have been unnecessarily added and have been subjected to harassment.  Mr.  Lalit also further urged that the statements of the lady would further indicate that there was no force, no coercion, no fear of life was exercised  by any  of  these  accused persons even if the allegations that they had sexual intercourse with the lady  is  believed  and she  being  found  to  be more than 16 years of age when she came to Emakulam, the High  Court  was  fully  justified  in holding  that  the allegations do not constitute the offence of rape and therefore, was well within its powers  to  quash the  proceedings  so far as these respondents are concerned. According to Mr.  Lalit the impugned order of the High Court is a fair and just order and has been  passed  by  the  High

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Court  to  prevent  the  abuse  of  process  of  court,  and therefore, this court should not interfere with the same  in exercise of its powers under Article 136 of the Constitution of India.    It  may  be  stated at this stage that Shri O C Kuttan was the Assistant Commissioner  of  Excise  and  Shri G.Mohanan was the Managing Director of Keral State Beverages Corporation,  whereas Shri S.Suresh Kaimal was the Assistant Collector of  Customs,  Trivandrum  Airport  and  Shri  Tony Antony  was a businessman and Shri K C Peter was an Advocate and at the relevant point of time  was  Additional  Director General of Prosecution.

       At  the  outset there cannot be any dispute with the proposition that when allegations in the FIR do not disclose prima facie commission of a cognizable offence then the High Court  would  be   justified   in   interfering   with   the investigation and quashing the same as has been held by this Court in Sanchaita Investment’s case 1982(1)SCC 561.  In the case of  State  of  Haryana  and  Other  Vs.  Bhajan Lal and Others 1992  Supp.(1)SCC  335,  this  court  considered  the question  as  to  when  the  High Court can quash a criminal proceeding in exercise of its powers under  Section  482  of the  Code  of Criminal Procedure or under Article 226 of the Constitution of India and had indicated  some  instances  by way  of  illustrations, though on facts it was held that the High  Court  was  not  justified  in  quashing   the   first information report.   this Court held that such powers could be exercised either to prevent abuse of the process  of  any court  or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and  inflexible  guidelines  or rigid  formulae  and  to  give  an exhaustive list of myriad kinds of cases wherein such power should be exercised.   But as  an  illustration  several circumstances were enumerated. Having said so, the court gave a  note  of  caution  to  the effect  that  the power of quashing the criminal proceedings should be exercised very sparingly with  circumspection  and that  too  in  the rarest of rare cases, that the court will not be justified in embarking upon  an  inquiry  as  to  the reliability  or  genuineness or otherwise of the allegations made in the FIR or the complaint and that the  extraordinary or  inherent  powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.  It is too well settled that the first information report  is  only an  initiation to move the machinery and to investigate into a cognizable offence and, therefore,  while  exercising  the power  and  deciding whether the investigation itself should be quashed, utmost care should be taken by the court and  at that  stage  it  is  not possible for the court to shift the materials or to weigh the materials and  then  come  to  the conclusion one way or the other.  In the case of State of UP vs.  O.P.Sharma 1996(7) SCC 705, a three Judge Bench of this Court  indicated  that  the  High  Court  should be loath to interfere  at  the  threshold  to  thwart  the   prosecution exercising  its  inherent  power  under Section 482 or under Articles 226 and 227 of the Constitution of  India,  as  the case may  be  and allow the law to take its own course.  The same view was reiterated by yet another three  Judges  Bench of this  Court in the case of Rashmi Kumar vs.  Mahcsh Kumar Bhada 1997(2) SCC 397, where this court sounded  a  word  of caution  and  stated that such power should be sparingly and cautiously exercised only when the court is of  the  opinion that  otherwise  there will be gross miscarriage of justice. The court had also observed that social stability and  order is  required  to  be  regulated  by  proceeding  against the

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offender as it is an offence against the society as a whole. Bearing in mind the parameters laid down  in  the  aforesaid judgments  and  on  a  thorough scrutiny of the statement of Senna dated 23rd of July, 1986, which was treated as an  FIR and  on  the basis of which criminal case was registered and her subsequent statements dated 24.8.96 and 25.8.96, we have no hesitation to come to the conclusion that the High  Court committed  gross  error  in  embarking  upon  an  inquiry by shifting of evidence and coming to a conclusion with  regard to  the  age  of  the  lady  on  the  date of alleged sexual intercourse, she had with the accused persons  and  also  in recording  a  finding that no offence of rape can be said to have been committed on the allegations made as she was never forced to have sex but on the other hand she  willingly  had sex with  those  who  paid  money.    We  do  not  think  it appropriate to express  any  opinion  on  the  materials  on record  as that would embarrass the investigation as well as the accused persons, but suffice it to say that this  cannot be  held  to  be a case where the court should have scuttled investigation by quashing the  FIR,  particularly  when  the criminal  case  had been registered under several provisions of the Penal Code as well as under Immoral Traffic Act.   We also do not approve of the uncharitable comments made by the High  Court  in  paragraph  (12) of the Judgment against the woman who had given the FIR.  It is not possible and it  was not  necessary  to  make any comment on the character of the lady at this stage.  We also have no hesitation to  come  to the conclusion that the High Court exceeded its jurisdiction to  record  a finding that the lady exercised her discretion to have sex with those whom she liked or got money  and  she willingly  submitted herself to most of them who came to her for sex.  We refrain from making any further observations in the case as that may affect the investigation or the accused persons but we have no hesitation to come to the  conclusion after  going  through the statements of the victim lady that the  High  Court  certainly  exceeded  its  jurisdiction  in quashing  the FIR and the investigations to be made pursuant to the same so  far  as  respondents  are  concerned.    We, accordingly  set  aside the impugned order of the High Court and direct the Investigating  Agency  to  proceed  with  the investigation  and  conclude  the  same  as expeditiously as possible in  accordance  with  law.    These   appeals   are accordingly allowed.