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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.