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2008 DIGILAW 509 (GAU)

Girish Baruah v. State of Assam

2008-07-18

I.A.ANSARI

body2008
JUDGMENT I.A. Ansari, J. 1. By making this application under Section 482, Cr.P.C., the present petitioner, who is accused in Bongaigaon Police Station Case No. 127 of 2008, under Sections 493/376/325, IPC, has sought for quashing of the First Information Report ('FIR'), which has led to the registration of the said case, and also the investigation presently being carried on in consequence of the said FIR. 2. Before delving upon the ground on which the petitioner's case for quashing of the FIR rests, appropriate it is to point out that according to the FIR, the informant and the present petitioner were in love with each other, the present petitioner promised to marry her and induced her, with the promise so made, to live and cohabit with him as her husband, but did not, eventually, marry her and, instead, married another girl on 20.3.2008 and, on hearing about the marriage of the present petitioner, when the informant went to the house of the petitioner and questioned him about what she had heard, the petitioner not only declined to marry the informant, but also threatened the informant, assaulted her and drove her out of his house and as a result of such assault, she had sustained grievous injuries on her neck and other parts of her body. 3. Appearing on behalf of the petitioner, Mr. G.M. Paul, learned Counsel, submits that even if the contends of the FIR, in question, are assumed to be true in their entirety, the FIR does not disclose commission of any offence under Sections 493/376/325, IPC and, hence, the police ought not to have registered any case against the present petitioner. This apart, an offence, under Section 493, according to Mr. Paul, is a non-cognizable offence and, hence, police could not have registered a case under Section 493, IPC and/or investigate the same, on the basis of an FIR, without any order from the Magistrate. It is further submitted by Mr. Paul that under no circumstances, the contents of the FIR, in question, can be taken to constitute an offence under Section 376, IPC. Support for this submission is sought to be derived by Mr. Paul from the case of Uday v. State of Karnataka (2003) 4 SCC 48. It is reiterated by Mr. Paul that the FIR does not disclose commission of an offence under Section 493 or commission of an offence under Section 376, IPC. Support for this submission is sought to be derived by Mr. Paul from the case of Uday v. State of Karnataka (2003) 4 SCC 48. It is reiterated by Mr. Paul that the FIR does not disclose commission of an offence under Section 493 or commission of an offence under Section 376, IPC. Mr. Paul further submits that neither the FIR nor the investigation, in the present case, which is being carried out pursuant to the FIR, is sustainable in law and may, therefore, be set aside and quashed. 4. Resisting the above submissions, Mr. K. Munir, learned Additional Public Prosecutor, Assam, concedes that the FIR does not disclose commission of any offence under Section 493, IPC, but the FIR does disclose, according to learned Additional Public Prosecutor, commission of an offence under Section 376 IPC as well as Section 325, IPC. In support of his submission that the FIR does, disclose commission of an offence under Section 376, IPC, learned Additional Public Prosecutor places reliance on the case of Bipul Medhi & etc. v. State of Assam 2008 Cri. LJ 1099 (Gau.)(DB). 5. At any rate, submits Mr. Munir, learned Additional Public Prosecutor, the FIR contains sufficient materials warranting registration of a case not only under Section 376, IPC, but also under Section 325, IPC. In such circumstances, the power, contained under Section 482, Cr.PC, cannot be invoked to quash the FIR and/or the investigation, which, on the strength of the FIR, is presently being carried on. 6. Before entering into the merit of the petitioner's case, it is necessary to point out that the law with regard to quashing of criminal complaint or FIR is no longer res integra. A catena of judicial decisions has settled the position of law on this aspect of the matter. I may refer to the case of R.P. Kapoor v. State of Punjab AIR 1960 SC 866 , wherein the question, which arose for consideration was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. I may refer to the case of R.P. Kapoor v. State of Punjab AIR 1960 SC 866 , wherein the question, which arose for consideration was whether a first information report can be quashed under Section 561A of the Code of Criminal Procedure, 1898. The court held, on the facts before it, that no case for quashing of the proceeding was made out; Gajendragadkar, J, speaking for the court, however, observed that though, ordinarily, criminal proceedings, instituted against an accused, must be tried under the provisions of the Code, there are some categories of cases, where the inherent jurisdiction of the court can and should be exercised for quashing the proceedings. One such category, according to the court, consists of cases, where the allegations in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases, no question of appreciating evidence arises and it is a matter merely of looking at the FIR or the complaint in order to decide whether the offence alleged is disclosed or not. In such cases, said the court, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused. From the case of R.P. Kapoor (supra), it becomes abundantly clear that when a mere look into the contents of a complaint or FIR shows that the contents thereof, even if taken at their face value and accepted to be true in their entirety, do not disclose commission of offence, the complaint or the FIR, as the case may be, shall be quashed. 7. As a corollary to what has been Discussed above, it is also clear that if the contents of a complaint or an FIR constitute offence, such a complaint or FIR cannot be quashed except where the complaint or the FIR is, otherwise also, not sustainable in law. 8. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. 1992 Supp (1) SCC 335, observed as follows: 102. 8. Laying down the scope of interference by the High Court in matters of quashing of FIR or complaint, the Apex Court, in the leading case of State of Haryana and Ors. v. Bhajanlal and Ors. 1992 Supp (1) SCC 335, observed as follows: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section482 of the Code, which we have extracted and reproduced above, we give the following categories of cases by way of illustration, wherein such power could be exercised either to prevent abuse of the process of the 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 of rigid formulae and to give an exhaustive list of myriad kinds of cases, wherein such power should be exercised: (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely, do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations made in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2)of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegation in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned act (under which criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance of the accused and with a view to spite him due to private and personal private grudge (emphasis is added) 9. In the case of Bhajanlal (supra), the Apex Court gave a note of caution on the powers of quashing of criminal proceeding in the following words: 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extra ordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. (emphasis is added). 10. (emphasis is added). 10. It is clear from a close reading of the principles laid down in the case of R.P. Kapoor (supra) and Bhajanlal (supra) that broadly speaking, quashing of a First Information Report or a complaint is possible (a) when the allegations made in the First Information Report or the complaint, even if taken at their face value and accepted in their entirely as true, do not prima facie constitute any offence or make out a case against the accused; (b) when the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the sasie do not disclose the commission of any offence and/or make out a case against the accused; and (c) when the allegations made in the FIR or complaint are so absurd and inherently improbable that on the basis of such absurd and inherently improbable allegations, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. 11. It is, thus, clear that in a quashing proceeding, it is not, within the ambit of the powers of the High Court, under Section 482, CrPC, to determine the truth, veracity, correctness or otherwise of the accusations made in the FIR or a complaint. In the case at hand too, therefore, this Court has to proceed on the assumption that the allegations made in the FIR are true and, then, determine whether the contents of the FIR, if assumed to be true, disclose commission of an offence under Section 376, IPC or not. 12. While considering the question as to whether the FIR, in the present case, discloses commission of an offence under Section 376, IPC, it is important that one clearly understands as to what the word 'consent', appearing in various penal provisions of Indian Penal Code, in general, and in Section375 thereof, in particular, means or conveys. It may be pointed out that the Indian Penal Code does not define 'consent' in positive terms. There is, however, a negative definition of the word 'consent' in Section 90 of the Indian Penal Code, which lays down as to what cannot be regarded as 'consent' under the Indian Penal Code. The relevant provisions of Section 90, IPC read as follows: 90. Consent known to be given under fear or misconception. There is, however, a negative definition of the word 'consent' in Section 90 of the Indian Penal Code, which lays down as to what cannot be regarded as 'consent' under the Indian Penal Code. The relevant provisions of Section 90, IPC read as follows: 90. Consent known to be given under fear or misconception. A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear or injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. 13. From a minute reading of Section 90, IPC, which explains as to what cannot be regarded as consent for the purpose of the Indian Penal Code, it becomes clear that 'consent' given under fear of injury, or under a misconception of fact, is not a 'consent' at all. It is, however, worth noticing that giving of 'consent' under fear of injury or misconception of fact, is not sufficient to hold that no 'consent' existed unless it is further established that the wrongdoer knew, or had reason to believe, that the 'consent' given was in consequence of such fear or misconception. The factors, set out in the first part of Section 90, namely, that 'the consent given by a person under fear of injury or under misconception of fact' is not consent are from the point of view of the victim; whereas the factors, set out in the second part of Section 90, namely, that 'the person doing the act knows, or has reason to believe, that consent was given in consequence of such fear or misconception' are corresponding provisions from the point of view of the accused. Thus, the second part of Section 90lays emphasis on the knowledge or reasonable belief of the person, who obtains 'consent', that the 'consent' given by the victim is in consequence of fear of injury or misconception of fact. What is, however, of paramount importance to note is that the existence, of the twin requirements of Section90 must be cumulatively satisfied in order to enable a court to hold that no 'consent' in law existed at the relevant time. What is, however, of paramount importance to note is that the existence, of the twin requirements of Section90 must be cumulatively satisfied in order to enable a court to hold that no 'consent' in law existed at the relevant time. In other words, when these two conditions precedent are coexistent in a case, it can be safely held that no 'consent', as envisaged under the Indian Penal Code, existed. Such a finding can be reached by examining as to whether the person, giving consent, had given the same under fear of injury or misconception of fact and, further, whether the offender knew, or had reason to believe, that but for fear or misconception, 'consent' would not have been given. These aspects of the word "consent", as envisaged under the Indian Penal Code, have been succinctly described in Deelip Singh alias Dilip Kumar v. State of Bihar (2005) 1 SCC 88 . 14. In the light of what has been indicated above, it becomes clear that the submission of the body by a woman under fear or misconception of fact cannot be construed as consented sexual act for the purpose of Section 375, IPC, for, Section 375, IPC requires voluntary participation by the victim not only after 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 'consent' existed or not has to be ascertained on the basis of the facts of a given case. [See State of H.P. v. Mango Ram (2000) 7 SCC 224 ]. 15. However subtle may be, there is, indeed, a firm and fine distinction between 'consent' and 'submission'. Every 'consent' involves 'submission', but every 'submission' is not 'consent' and the mere fact that a woman had submitted to the promise of the accused does not necessarily indicate that her 'consent' existed unless the evidence on record establishes that the sexual act. Which the prosecutrix had allowed, was accompanied with deliberation after the mind had weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent according to one's will or pleasure. 16. Which the prosecutrix had allowed, was accompanied with deliberation after the mind had weighed, as in a balance, the good and the evil on each side with the existing capacity and power to withdraw the assent according to one's will or pleasure. 16. It is also of immense importance to note that though a cursory reading or hurried look into the decision of Uday (supra) reflects as if the Supreme Court has held that 'consent' given by a prosecutrix to sexual intercourse with a person with whom she is deeply in love, on the basis of a promise made by such a person that he would marry her on a latter day, can never be said to have been given under a misconception of fact, a careful and cautious reading of the Supreme Court's latter decision, in Deelip Singh (supra), which, if I may point out, has considered and explained the decision rendered in Uday (supra), shows that while a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, a representation deliberately made by the accused with a view to obtaining assent of the victim without having intended to marry her will vitiate the 'consent'. If the facts of a given case reveal that at the very inception of making of the promise to marry, the accused did not really entertain the intention to marry the victim and the promise to marry held out by him was a mere hoax, 'consent' ostensibly given by the victim, will not exculpate the accused from the ambit of Section 375, IPC. 17. Explaining as to what the decision in Uday (supra) conveys, or should be read as, the Apex Court, in Deelip Singh (supra), has pointed out that in Uday (supra), the court was cautious enough to add that no straight-jacket formula can be evolved for determining whether the 'consent' was given under a misconception of fact and, in the ultimate analysis, it is on the basis of the facts of each case, as may be discernible from the evidence on record and the surrounding circumstances, that the court has to decide the question as to whether the 'consent' given was voluntary or was under a misconception of fact. 18. 18. The Apex Court has also emphasized, in Deelip Singh (supra), that for the purpose of determining as to whether 'consent' existed or not, not only the previous conduct of the accused, but even his contemporaneous acts or the subsequent conduct can be legitimate guides. This, in turn, shows that while determining the question whether 'consent' existed or not, the court has to take into account not only the previous or contemporaneous act of the accused, but also his subsequent conduct. To put it a little differently, the previous or the contemporaneous acts of an accused or even his subsequent conduct may help the court determine as to whether the offer of marriage made by the accused was a mere hoax to obtain 'consent' or was it an honestly made promise or marriage. I must, however, hasten to add that mere failure of an accused to keep to his promise of marriage, on a future date, will not be sufficient proof, in the absence of anything more, that the promise made by the accused was never intended to be acted upon by him. 19. Referring to its observations, made in the case of Uday (supra), that it is the prosecution's burden to prove presence of a valid 'consent'' in order to attract the ingredients of the offence of rape, the Apex Court, in Deelip Singh (supra), has clarified that while reading its said observations made in Uday (supra), the courts must remember that this proportion would not apply if a case is covered by the provisions of Section 114A of the Evidence Act, which we may notice, lays down that in a prosecution for rape under Sub-section (2) of Section 376, IPC, 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 she states in her evidence before the court that she did not 'consent, the court shall presume that she did not 'consent'. 20. 20. What transpires from the above observations made in Deelip Singh (supra) is that in a prosecution under Section 376(2), IPC, when sexual intercom by the accused with the prosecutrix is proved to have taken place and the prosecutrix, in such d case, claims, in her evidence before the court, that she had not consented to the Sexual act, the court shall draw a presumption that she had not consented to the sexual act and the burden would, then, shift to the accused to prove that his sexual act with the prosecutrix was with her 'consent' The burden on the accused to discharge such presumption would, however, not be as heavy as on the prosecution if the prosecution, in a given case, is required to prove that the 'consent' did not exist. 21. It may, however, be borne in mind that even if a prosecutrix had consented believing in the words of the accused that the promise for marriage made to her by the accused is honest and genuine, this will not be sufficient to hold that no 'consent' existed for the purpose of Section 90, IPC unless it is further established that the accused, at the time, when he had made the promise, did not have the intention of keeping to his promise. In a given case, thus, even a strong probability, if revealed from the materials on record, that the accused intended to marry the prosecutrix at the time, when he had made the promise for marriage, may absolve the accused, for, in such a case, it cannot be said that the 'consent' was given under a misconception of fact and that the accused knew, or had reason to believe, that the 'consent' given was under such misconception of fact. 22. Conversely, if a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain 'consent' of the woman, for, such a 'consent' given by the woman would not, in the light of the provisions of Section 90, IPC, amount to 'consent' in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. What is imperative to bear in mind, in such cases, is that killing of a man is, ordinarily, conceived as murder by a common man; but in law, every killing does not amount to murder. Similarly, the word 'consent', as is understood in common parlance, may not be, for the purpose of the Indian Penal Code, 'consent's' all. 23. Turning to Section 417, IPC, it needs to be noted that Section 417, IPC makes punishable offence of cheating. Cheating has been defined in Section 415, IPC. The ingredients of the offence of cheating require (i) deception of a person, (ii) whereby, fraudulently or dishonestly, inducing the person, so deceived, to deliver any property to any person or to consent that any person shall retain any property, or (iii) intentionally inducing that person to do or omit to do anything, which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. Deception of a person is common to the second and third requirements of the provisions of Section 415. The ingredients, as pointed out under (i) and (ii) hereinbefore, are alternative to each other and this is made significantly clear by use of disjunctive conjunction "or". The definition of the offence of cheating embraces cases in which no transfer of property is occasioned by the deception and also cases in which such a transfer occurs. Deception is the quintessence of the offence. [See Devender Kumar Singla v. Baldev Krishan Singla (2005) 9 SCC 15 ] 24. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her, with the accused, causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to 'cheating'. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under Section 417, IPC if the victim's having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a 'case, unless so deceived, the victim would not have permitted sexual act by the accused. In other words, had such a victim not been deceived, she would not have permuted sexual act or would have refrained from allowing such sexual act and, clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation. 25. Since the definition of the offence of 'cheating' indicates, as already pointed out above, that even when no parting of property is occasioned deception, the deception may still amount to 'cheating' if, as a result of the deception, a woman does anything or omits to do anything, which she would not have, but for such deception, done or omitted to do, it logically follows that where an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to offence of 'cheating' if the act of the woman in letting such a man have sexual intercourse with her or the act of the woman in omitting to resist the act of sexual intercourse by such a man with her causes or is likely to cause damage or harm to the person of such a woman, her mind or reputation. 26. The case of Uday (supra), which Mr. Paul relies upon, to sustain his submission that in the case at hand, the prosecutrix was a consenting party, what needs to be borne in mind is that Uday's case (supra) is not a case of quashing of an FIR, but is a case, which arose out of conviction of a person, under Section 376, IPC, following a full-fledged trial. Paul relies upon, to sustain his submission that in the case at hand, the prosecutrix was a consenting party, what needs to be borne in mind is that Uday's case (supra) is not a case of quashing of an FIR, but is a case, which arose out of conviction of a person, under Section 376, IPC, following a full-fledged trial. Hence, the decision in Uday's case (supra) cannot be considered divorced from, or completely independent of, the facts of its own case. What, in general, Uday's case (supra) conveys is, indeed, a relevant question and this question has been pointedly dealt with by a Division Bench of this Court, in Bipul Medhi (supra), in the manner as indicated above. 27. In the light of the position of law, which emerges from the discussions held above, when one turns to the presently impugned FIR, what clearly transpires is that according to the contents of the FIR, the present accused, with promise to marry, induced the informant to cohabit with him as husband and wife. There is no indication from the FIR that the accused-petitioner ever intended to carry out his promise and/really intended to marry the informant. In fact, the subsequent conduct of the accused-petitioner, as reflected by the FIR, reveals that he never intended to marry the informant, though he had promised the informant that he would marry her and he induced her, on the strength of such false promise, to live with him as his wife and have sexual intercourse with him. 28. Thus, even if the informant consented to have sexual act with the accused-petitioner, her consent, in the face of the contents of the FIR, was not consent in law inasmuch as her consent was based, according to the FIR, on misrepresentation of facts as has already been discussed above. In such circumstances, there being no legal consent present in the sexual intercourse, which the accused-petitioner, according to the FIR, had with the informant, such alleged sexual intercourse by the accused-petitioner amounted to prima facie an offence of 'rape' within the meaning of Section375, IPC unless the investigation reveals otherwise. In such circumstances, there being no legal consent present in the sexual intercourse, which the accused-petitioner, according to the FIR, had with the informant, such alleged sexual intercourse by the accused-petitioner amounted to prima facie an offence of 'rape' within the meaning of Section375, IPC unless the investigation reveals otherwise. This apart, if what the FIR states be true and this Court must, at this stage, assume the contents of the FIR to be true, it becomes clear that the FIR also does disclose commission of an offence under Section 417, IPC inasmuch as the accused-petitioner can be taken to have, dishonestly or fraudulently, induced the informant to have sexual intercourse with him. The informant, according to the FIR, would not have had permitted the accused to have sexual intercourse with her, had she not been induced by the deception, which the accused had played on her. By such act of sexual intercourse with her, the accused has, thus, caused harm to her body, mind and reputation. Thus, in the backdrop of the contents of the FIR, the acts of the accused also amount to an offence of 'cheating'. In other words, the FIR discloses that had the informant not been deceived by the alleged false promise, she would not have permitted the accused-petitioner to have sexual intercourse with her or she would have refrained from allowing such sexual act and she would not have suffered thereby harm to her body, mind or reputation. 29. Coupled with the above, the FIR also clearly discloses that the accused had assaulted the petitioner and had also threatened her. In such circumstances, even the commission of an offence under Section 506, IPC is reflected to have been committed by the accused. Though the accusations, made in the present FIR, may be entirely untrue, this Court has no option but to proceed on the assumption that the accusations made in the FIR are correct. Seen in this light the FIR, in the facts and circumstances of the present case, cannot be quashed. Furthermore, according to the FIR, the accused-petitioner had assaulted the informant and caused grievous injury on her person. It is in such circumstances that a case under Section 325, IPC has also been registered against the accused-petitioner. Registration of the FIR even under Section 325, IPC cannot be said to be illegal and would not warrant quashing of the FIR. 30. It is in such circumstances that a case under Section 325, IPC has also been registered against the accused-petitioner. Registration of the FIR even under Section 325, IPC cannot be said to be illegal and would not warrant quashing of the FIR. 30. Because of what have Discussed and pointed out above, this criminal petition fails and the same shall accordingly stand dismissed. Petition dismissed.