Delhi High Court
Vikas Malu vs State Of Nct Of Delhi & Anr. on 16 February, 2024
Author: Sudhir Kumar Jain
Bench: Sudhir Kumar Jain
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: January 24, 2024
Decided on: February 16, 2024
+ CRL.M.C. 6099/2023 & CRL.M.A. 22926/2023 (stay)
DR HARSHITA MALU & ANOTHER ..... Petitioners
Through: Mr. Tanveer Ahmed Mir,
Senior Advocate with
Mr. Vaibhav Suri, Mr. Saud
Khan, Mr. Tushan Rawal,
Mr. Shivaz Berry and Mr. R.
Jude Rohit, Advocates.
V
STATE OF NCT OF DELHI & ANOTHER
..... Respondents
Through: Mr. Sanjeev Bhandari, ASC
(Criminal) with Mr. Kunal
Mittal, Mr. Arjit Sharma
and Ms. Rishika, Advocates
for State along with Insp.
Manjusha, P.S. R.K. Puram.
Mr. Kumud Shekhar and
Mr. Murari Singh,
Advocates for R-2.
+ CRL.M.C. 6100/2023 & CRL.M.A. 22928/2023 (stay)
VINEET MALU ..... Petitioner
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.02.2024 CRL.M.C. 6099/2023 & connected matters Page 1
11:45:33
Through: Mr. Tanveer Ahmed Mir,
Senior Advocate with
Mr. Vaibhav Suri, Mr. Saud
Khan, Mr. Tushan Rawal,
Mr. Shivaz Berry and Mr. R.
Jude Rohit, Advocates.
V
STATE OF NCT OF DELHI & ANOTHER
..... Respondents
Through: Mr. Sanjeev Bhandari, ASC
(Criminal) with Mr. Kunal
Mittal, Mr. Arjit Sharma
and Ms. Rishika, Advocates
for State.
Mr. Kumud Shekhar and
Mr. Murari Singh,
Advocates for R-2.
+ CRL.M.C. 6101/2023 & CRL.M.A. 22930/2023 (stay)
VIKAS MALU ..... Petitioner
Through: Mr. N. Hariharan, Senior
Advocate with Mr. Vaibhav
Suri, Mr. SaudKhan,
Mr. Tushan Rawal,
Mr. Shivaz Berry and Mr. R.
Jude Rohit, Advocates.
V
STATE OF NCT OF DELHI & ANOTHER
..... Respondents
Signature Not Verified
Digitally Signed
By:HARVINDER KAUR
BHATIA
Signing Date:19.02.2024 CRL.M.C. 6099/2023 & connected matters Page 2
11:45:33
Through: Mr. Sanjeev Bhandari, ASC
(Criminal) with Mr. Kunal
Mittal, Mr. Arjit Sharma
and Ms. Rishika, Advocates
for State.
Mr. KumudShekhar and
Mr. Murari Singh,
Advocates for R-2.
CORAM
HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT
1. The present petitions are filed under section 482 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as "the Code") for
quashing of the cognizance & summoning order dated 19.08.2023
(hereinafter referred to as "the impugned order") passed by the
court of Ms. Apoorva Rana, Metropolitan Magistrate, District Courts,
Dwarka in Criminal Case bearing no. 7443/2023 and chargesheet
dated 16.06.2023 and FIR bearing no. 0525/2022 registered at P.S.
Kapashera under sections 323/354/376/377/506/509/34 IPC along
with consequential proceedings.
2. The facts of the case are that the respondent no. 2 (hereinafter
referred to as "the complainant") submitted a written complaint
dated 15.11.2022 to the SHO, P.S. Kapashera, New Delhi wherein
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alleged that she was raped and threatened by her husband Vikas Malu
(petitioner in CRL.M.C. 6101/2023 and hereinafter referred to as
"Vikas Malu") and the son of Vikas Malu, namely Vineet Malu
(petitioner in CRL.M.C. 6100/2023 and hereinafter referred to as
"Vineet Malu").The complainant further alleged in the complaint
that she was molested and beaten by the two daughters of Vikas Malu
namely, Harshita Malu and Sakshi Malu (petitioners in
CRL.M.C.6099/2023 and hereinafter referred to as "Harshita Malu"
and "Sakshi Malu" respectively). Accordingly present FIR bearing
no. 0525/2022 was registered under sections 323/354/376/377/34 IPC
on the basis of complaint made by the complainant against Vikas
Malu, Vineet Malu, Harshita Malu and Sakshi Malu.
2.1 Briefly stated, the facts as mentioned in the FIR are that Vikas
Malu in February 2019 called the complainant for an event
discussion at A-15, Pushpanjali Farm, Bijwasan, Delhi and offered
her a hard drink which she refused and thereafter, Vikas Malu felt
offended and mercilessly beaten her and forcibly raped her at the
above said place and made a video of the incident. Vikas Malu
subjected the complainant to repeated instances of sexual assault,
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coercion and threats. Vikas Malu pressurized the complainant by
stating that if she does not comply with his demands then he would
make her videos viral. The complainant due to social stigma
associated with such incidents refrained from reporting or disclosing
the same as Vikas Malu always boasted of his money and muscle
power and his high contacts in Delhi Police. The complainant after
some time refused to surrender before Vikas Malu and confined
herself at her house at Shalimar Bagh, Delhi and did not allow Vikas
Malu to further rape her. Vikas Malu proposed to the complainant for
marriage and solemnised court marriage with the complainant on
13.03.2019 before SDM, Jhandewalan. The complainant soon after
marriage found Vikas Malu as sexual beast and a sadistic person.
Vikas Malu on 13/14.03.2019 also made unnatural physical
relations forcibly with the complainant. Vikas Malu also used to take
sexual drugs and injections at time of committing unnatural sex
which resulted into his impotency. The marriage reception was held
at Kochi in May, 2019.
2.2 Vikas Malu by threatening the complainant forced her to sleep
on the same bed along with Vineet Malu by her side and Vikas Malu
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on the other side and due to which she felt very uncomfortable as she
became sandwiched between both of them. Vineet Malu took
advantage of this and touched her inappropriately the whole night.
Sakshi, Harshita and Vineet, the children of Vikas Malu also started
to take advantage of her helplessness as they were aware of the
sexual atrocities being committed on her by Vikas Malu. The
complainant always felt a change in the behaviour of Vineet Malu
who deliberately and intentionally used to touch the complainant
inappropriately. The complainant asked Vineet Malu to restrict his
movements many times but he always ignored words of the
complainant. The complainant on 11.08.2022 brought bad behaviour
of the children to notice of Vikas Malu. Harshita and Sakshi on
14.08.2022 directed the complainant to walk on her hands and legs
like an animal and on her refusal, Harshita said "Chal saali ko maza
chakhate hain, hamare order ko mana kar rahi hai". Thereafter
Harshita and Sakshi pinned down the complainant to the floor and
Sakshi held both her hands and Harshita started to slap on her face.
The complainant became semi-conscious then Sakshi spread her legs
and inserted her middle finger in the private part of the complainant
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and thereafter forcibly put fingers in the mouth of the complainant.
The complainant was mercilessly beaten and was threatened that her
videos would go viral and the complainant and her mother would be
killed.
2.3 The complainant further alleged that Vineet Malu on
17.10.2022 entered into room of the complainant, forcibly held her
and forced her to sit on his lap and when the complainant refused and
tried to escape, then Vineet Malu raped her and also made the video
of the incident. Vineet Malu threatened her not to disclose this
incident to anyone and he would make the said video viral. The
complainant tried to tell about this incident to Vikas Malu but he
rebuked her and also did not listen to her.
2.4 The complainant on 17.10.2022 around 11:00 am was forced
to accompany Vikas Malu and his children to Sardarshahar,
Rajasthan. On the way, when they reached Hansi, the complainant
received a call from her mother who informed the complainant about
her illness. The complainant told about the same to Vikas Malu but
he got angry and tried to hit her with a bottle but the complainant
managed to save herself. The complainant then went to her
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matrimonial house to collect her belongings but she was not allowed
to enter by the guards on instructions of Vikas Malu. The
complainant was continuously threatened by Vikas Malu and his
relatives of dire consequences of being killed through accident or
professional murderers and her videos would be viral. The
complainant also alleged that Vikas Malu is very influential person
with high contacts and illegal business. Accordingly, due to delay in
making complainant, initial inquiry was made and thereafter present
FIR bearing no.0525/2022 dated 20.11.2022 was registered under
sections 323/376/377/506/509/34 IPC at P.S. Kapashera, Delhi and
investigation was conducted.
3. The respondent no. 1/State filed a Status Report wherein
besides mentioning the contents of the complaint/FIR, it stated about
investigation being conducted in pursuance of the complaint. The
medical examination of the complainant was conducted on
20.11.2022 at Deen Dayal Upadhyay Hospital vide MLC bearing no.
461/2022 with consent of the complainant. The statement of the
complainant under section 164 of the Code was recorded on
21.11.2022 wherein the complainant supported her version as
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mentioned in the FIR. A raid was conducted on 22.11.2022 at the
house of Vikas Malu in presence of the complainant to collect
bedsheets and clothes as evidences but the complainant could not
identify bedsheets and clothes. The CCTV footage and a DVR were
seized. The complainant provided 06 CDs containing supporting
evidence regarding sexual and physical harassment with her but
nothing incriminating was found. CDRs were also procured and
scrutinised. It was revealed that on 14.08.2022 and 17.10.2022, Vikas
Malu and his children and the complainant were present at
Pushpanjali Farms. A Look Out Circular (LOC) was also opened
against Vikas Malu on 18.01.2023 which was closed on 02.02.2023
as Vikas Malu joined investigation and was granted interim
protection by this Court. Vikas Malu also produced his mobile phone
make 'HTC' used by him in 2019 but nothing incriminating was
found on checking.
3.1 Vikas Malu during investigation stated that he was in touch
with the complainant since 2008-09 and was in a relationship with
the complainant since 2017. Vikas Malu to support his version
submitted documents which includes air tickets, hotel bookings,
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salary details and employment contract of the complainant, printouts
of WhatsApp chats, marriage certificate and one hard disk containing
videos of parties/functions/trips etc. with the complainant. Vikas
Malu with regard to the allegation that he used a 'Huawei' make
phone for recording obscene video of the complainant disclosed that
the said phone since 2019 was in possession of and was used only by
the complainant.
3.2 The complainant was enquired about the documents, travel
details and other documents submitted by Vikas Malu. The
complainant stated that she travelled abroad with Vikas Malu only
for event related purposes and she was never an employee of Vikas
Malu. Vikas Malu opened some firm/company in her name just to
save tax liability. The salary as claimed by Vikas Malu was never
given to her and the account in which the salary stated to be credited
was actually operated by associate of Vikas Malu. The complainant
categorically denied that she was an employee of or shared a room
with Vikas Malu.
3.3 Harshita, Sakshi and Vineet were also interrogated during
investigation and mobile phone of Vineet Malu was also taken into
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possession. The capability test of Vikas Malu and Vineet Malu was
also conducted from Deen Dayal Upadhyay Hospital. The DVR
installed at the house of Vikas Malu and the mobile phones of Vineet
Malu and Vikas Malu were deposited in FSL to retrieve the data. The
FSL result in respect of the DVR is received but the FSL result in
respect of the mobile phones of Vineet Malu and Vikas Malu is still
awaited. The other relevant witnesses including the cab driver and
PSO who took the complainant back from Hansi, Haryana to Delhi
and other domestic helpers were also examined during the
investigation.
3.4 The charge sheet after completion of investigation was filed
against Vikas Malu for offences punishable under sections
323/354/376/377/506/509/34 IPC and against Vineet Malu for
offences punishable under sections 323/354/376/506/509/34 IPC
before the concerned court. Harshita Malu and Sakshi Malu were
kept in column 12 of the chargesheet.
4. Harshita also got registered FIR bearing no.0526/2022 dated
20.11.2022 under sections 354/354A/354B/506/509/34 IPC at P.S.
Kapashera and Vineet Malu also got registered FIR bearing no.
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0086/2023 dated 02.02.2023 for offences punishable under section 8
of the Protection of Children from Sexual Offences Act, 2012
(POCSO Act) at P.S. Kapashera and in both the FIRs, the
complainant was implicated.
5. The court of Ms. Apoorva Rana, Metropolitan Magistrate,
District Courts, Dwarka vide the impugned order, took cognizance
for offences punishable under sections 323/354/376/377/506/509/34
IPC against Vikas Malu; offences punishable under sections
323/354/376/506/509/34 IPC against Vineet Malu and offences
punishable under sections 323/354/509/34 IPC against Harshita Malu
and Sakshi Malu and summoned the petitioners. The relevant portion
of the impugned order is verbatim reproduced as under:-
I have gone through the charge sheet and other
documents annexed alongwith it.
Perusal of the same shows that accused persons Vikas
Malu and Vineet Malu have been charge sheeted under
column no. 11 of the charge sheet while persons namely
Sakshi Malu and Harshita Malu have been kept as suspects
in column no. 12 of the charge sheet.
Now, perusal of the statement of the victim recorded u/s
164 Cr.PC highlights that there are specific allegations
against suspect Sakshi and Harshita made by the
complainant to the effect that the said persons had given
beatings to the complainant and suspect Sakshi Malu had
also inserted her middle finger in vagina of the complainant
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alongwith assistance of suspect Harshita. Allegations to this
effect have also been made by the complainant in her MLC.
Thus, specific allegations have also been levelled by the
complainant against suspects Sakshi Malu and Harshita
Malu with respect to commission of aforesaid acts by them.
In the opinion of this court, sufficient grounds are made
out for proceeding against suspect Sakshi Malu and
Harshita Malu as well. Accordingly, I take cognizance of the
offence u/s 323/354/376/377/506/509/34 IPC.
Accused Vikas Malu is being proceeded against for
offence u/s 323/354/376/377/506/509/34 IPC.
Accused Vineet Malu is being proceeded against for
offence u/s 323/354/376/506/509/34 IPC.
In light of judgment of Hon'ble Supreme Court of India
in case titled as "Priya Patel vs. State of M.P (2006 SC),
suspect Sakshi Malu and Harshita Malu are being
proceeded against for offence u/s 323/354/509/34 IPC at this
stage.
Accused Vikas Malu is stated to be on anticipatory bail.
Accused Vineet Malu, Sakshi Malu and Harshita Malu
have not been arrested.
Accordingly, issue summons to all accused persons
namely Vikas Malu, Vineet Malu, Sakshi Malu and
Harshita Malu for NDOH.
6. The petitioners Vikas Malu, Vineet Malu, Harshita Malu and
Sakshi Malu being aggrieved by the impugned order, filed the present
petitions and challenged the impugned order primarily on the grounds
that the petitioners have been falsely implicated at the instance of the
complainant who has deliberately and consciously lodged a false
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complaint with a clear malicious intent for oblique motives and to
extort pecuniary demands from the petitioners. The complaint is
reflecting matrimonial discord between the complainant and Vikas
Malu which was given a colour of serious criminal offences. There is
no evidence which could even remotely attract the offences as
alleged against the petitioners. Vikas Malu and the complainant were
in a consensual committed relationship and travelled to different
destinations and shared the same room. Vikas Malu and the
complainant got married on 13.03.2019 before the Marriage
Registrar, Jhandewalan, Delhi and thereafter the complainant enjoyed
a happy married life. The complainant in March, 2022 demanded
USD 9,00,000/- (approximately INR 7.2 crores) from Vikas Malu
which is the genesis of the marital discord between them.
6.1 The complaint filed by the complainant is not credible and
does not inspire any confidence. The complainant has made 05
separate statements out of which 03 statements have been recorded as
an afterthought to cover up the loopholes/lacunae discovered during
the course of investigation. There are material improvements in the
statements of the complainant. The complainant deliberately did not
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disclose her past association of over 11 years with Vikas Malu. The
complainant travelled with Vikas Malu to more than 07 countries on
34 different occasions before the first alleged incident in February
2019. The complainant has concocted a story to falsely implicate
Vikas Malu and his children in order to settle her personal scores on
account of dispute in their marriage.
6.2 The majority of allegations were found to be false and wrong
during the investigation and the Investigating Officer admitted that
the allegations of the complainant could not be substantiated. The
complainant did not provide any material in support of her
allegations and refused to hand over her phone when she was directed
to produce it. The investigating authorities have observed that no
such video as alleged by the complainant has surfaced during
investigation. The statement given by the mother of the complainant
was found to be contradictory with version of the complainant. The
complainant was an employee of Vikas Malu's company since
29.09.2017 and the complainant withdrew salaries from the said
company till November 2019. The complainant despite repeated
requests from the Investigating Officer did not submit her mobile
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phone for forensic examination. The complainant is a well-educated
mature lady and a social media influencer who would never live in an
atmosphere where she is being beaten up, sexually assaulted and
threatened on a daily basis. The material collected during
investigation clearly reveals that the present case is not one of rape
but of marital discord and the complainant with utterly oblique
motives has deliberately given it a colour of sexual abuse and assault.
The allegations levelled by the complainant, even if taken on their
face value do not inspire any confidence as they are absolutely absurd
and inherently improbable. The FIR is malafide has been lodged with
ulterior motives. The Investigating Officer has acknowledged
through the chargesheet and the documents appended thereto that
there is nothing on record to substantiate the allegations. The
chargesheet has been filed only on the basis of the statement of the
complainant recorded under section 164 of the Code which does not
inspire confidence in any manner. The petitioners have also raised
several other grounds.
7. The complainant filed reply to the present petitions wherein
the complainant has denied all allegations levelled against her and the
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contentions raised by the petitioners. It is stated that the complainant
was forced to marry Vikas Malu to save her dignity and respect in the
society as he blackmailed her to marry him or else, he would make
her obscene video viral. The complainant soon after with Vikas Malu
was subjected to rape, unnatural sex, and gruesome cruelty. Vikas
Malu in his fits of rage has physically and mentally abused the
complainant on many occasions. The complainant denied that she has
falsely accused the petitioners of serious offences without any basis
in order to extort money from them. The complainant had to run from
pillar to post just to get the present FIR registered. The complainant
has received various threats that she would be destroyed and killed.
7.1 The complainant was working as an event
coordinator/supervisor with M/s Creative, an event management firm
of Mr. Dinesh Tuli who used to organise events for Vikas Malu and
the complainant looked after the said events only as an event
supervisor. There was no inter-personal relationship between them
before their marriage. The complainant never acted friendly or tried
to establish contact with Vineet Malu, who at that time was only 6-7
years old when he used to visit the office to meet his father Vikas
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Malu. The opening of M/s High Sky Marketing Solution in the
complainant's name was Mr. Dinesh Tuli's idea and the complainant
had no control over the business of the said firm. The complainant
has never asked Vikas Malu for money for starting any business
rather Vikas Malu himself wanted to open a franchise named
'Bershka' in the name of the complainant. The complainant used to
travel with Vikas Malu only as an event supervisor and not for
leisure. Vikas Malu use to bear expenses of the travels as the events
were organised for his company. Vikas Malu had a fallout with his
first wife in 2012 but the complainant did not take advantage of the
same or developed any relationship with Vikas Malu. The allegation
that the complainant demanded USD 900,000 from Vikas Malu is
absolutely false, incorrect and out of imagination. The marital discord
between the complainant and Vikas Malu happened when the
complainant made Vikas Malu to listen audio recordings of the bad
behaviour of his children. The children of Vikas Malu wanted to
throw the complainant out of their house and wanted to bring their
biological mother back and due to this reason they mistreated and
harassed her. Vikas Malu is an influential person and has caused
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tampering and destruction of evidences. Vikas Malu snatched the
mobile phone of the complainant (iPhone 7 Plus Rose Gold colour)
which contained all the recordings of sexual atrocities and physical
and verbal abuse to which the complainant was subjected.
7.2 The complainant stated that the present petitions should be
dismissed on the grounds that the accused can be convicted for rape
solely on the basis of the victim's testimony if the court has reason to
believe that the testimony is reliable and trustworthy. There is no rule
of law or practice that the evidence of the prosecutrix cannot be
relied upon without corroboration. The testimony of the prosecutrix
must be appreciated in the background of the entire case and non-
examination of other witnesses may not be a serious infirmity in the
prosecution case particularly where the witnesses had not seen the
commission of the offence. FIR is not an encyclopaedia disclosing all
facts and details relating to the offence. It is not meant to be a
detailed document containing chronicle of all intricate and minute
details. FIR is not even considered a substantive piece of evidence
and can only be used to corroborate or contradict the testimony given
by the complainant in court.
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7.2 The complainant further stated that the rape was committed in
February 2019. The Investigating Officer has deliberately not
searched for the 'Huawei' phone on which Vikas Malu and the
'iPhone 13 Plus' on which Vineet Malu recorded the obscene videos
and no action has been taken to seize these mobile phones. Vikas
Malu has deliberately wiped off some crucial previous data and then
submitted the phone to the Investigating Officer. It is completely
incorrect to say that the complainant did not take any steps to register
a complaint. The complainant ran from pillar to post just to get the
present FIR registered and even after getting the FIR registered, she
continued to receive threats from relatives of Vikas Malu. The threat
calls were made through WhatsApp and there is no application to
record WhatsApp calls. The travel history of the complainant and
Vikas Malu before marriage was formal and only work related and
they never shared a room. The witness Dinesh Tuli has business ties
with Vikas Malu and therefore he would not produce any evidence
against Vikas Malu. The witness Sarika Malu is also an interested
witness and has provided a false and concocted story due to
vengeance.
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8. The learned Senior Counsels for the petitioners advanced oral
arguments and also submitted written submissions. It was argued that
the present petition is maintainable as filing of chargesheet does not
deter this court from exercising its inherent plenary powers under
section 482 of the Code when the chargesheet prima facie does not
disclose an offence against the petitioners and referred Anand
Kumar Mohatta V State of NCT of Delhi (2019) 11 SCC 706
wherein it was held as under:-
16. There is nothing in the words of this Section which
restricts the exercise of the power of the Court to prevent
the abuse of process of court or miscarriage of justice only
to the stage of the FIR. It is settled principle of law that the
High court can exercise jurisdiction under Section 482 of
Cr.P.C even when the discharge application is pending with
the trial court. Indeed, it would be a travesty to hold that
proceedings initiated against a person can be interfered
with at the stage of FIR but not if it has advanced, and the
allegations have materialized into a charge sheet. On the
contrary it could be said that the abuse of process caused
by FIR stands aggravated if the FIR has taken the form of
a charge sheet after investigation. The power is
undoubtedly conferred to prevent abuse of process of
power of any court.
8.1 It was further argued that during investigation, no evidence
against the petitioners was surfaced in terms of the allegations
levelled by the complainant. The Metropolitan Magistrate has not
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considered the fact that the contents of the statement of the
complainant under section 164 of the Code have been proved false by
the investigating authorities. The complainant pursuant to the alleged
incident on 14.08.2022 did not call the police helpline nor did she
raise any alarm or visited the doctor for the injuries sustained by her
on the contrary, she continued to stay in the same house and travelled
to Dubai with the family on 20.08.2022 and returned on 14.10.2022.
The present case is an offshoot of matrimonial discord and the
investigation carried out in the present matter by collecting
documents and statements recorded reveals that the case is registered
to maliciously prosecute the petitioners. The complainant has roped
the son and daughters of Vikas Malu on account of admitted marital
discord which had arisen out of monetary disagreement. The learned
Senior Counsels for the petitioners have placed reliance on Salib
alias Shalu alias Salim V State of U.P 2023 SCC OnLine SC 947
wherein it was held as under:-
28. At this stage, we would like to observe something
important. Whenever an accused comes before the Court
invoking either the inherent powers under Section 482 of
the Code of Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of the Constitution to get the
FIR or the criminal proceedings quashed essentially on the
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ground that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the Court
owes a duty to look into the FIR with care and a little
moreclosely. We say so because once the complainant
decides to proceed against the accused with an ulterior
motive for wreaking personal vengeance, etc., then he
would ensure that the FIR/complaint is very well drafted
with all the necessary pleadings. The complainant would
ensure that the averments made in the FIR/complaint are
such that they disclose the necessary ingredients to
constitute the alleged offence. Therefore, it will not be just
enough for the Court to look into the averments made in
the FIR/complaint alone for the purpose of 20 ascertaining
whether the necessary ingredients to constitute the alleged
offence are disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to look into many other
attending circumstances emerging from the record of the
case over and above the averments and, if need be, with due
care and circumspection try to read in between the lines.
The Court while exercising its jurisdiction under Section
482 of the CrPC or Article 226 of the Constitution need not
restrict itself only to the stage of a case but is empowered to
take into account the overall circumstances leading to the
initiation/registration of the case as well as the materials
collected in the course of investigation. Take for instance
the case on hand.Multiple FIRs have been registered over a
period of time. It is in the background of such
circumstances the registration of multiple FIRs assumes
importance, thereby attracting the issue of wreaking
vengeance out of private or personal grudge as alleged.
8.2 There is a delay of about four years in lodging of the complaint
which shows the ulterior motive behind lodging of the complaint.
The statement of the complainant under section 164 of the Code is
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the only evidence and the contents of the same have not been proved
during the investigation and the same cannot be relied upon for
summoning of the accused as contents of the statement are false. The
learned Senior Counsels for the petitioners placed reliance on Vineet
Kumar V State of Uttar Pradesh (2017) 13 SCC 369 wherein it
was held as under:-
41. Inherent power given to the High Court under Section
482 Cr.P.C. is with the purpose and object of advancement
of justice. In case solemn process of Court is sought to be
abused by a person with some oblique motive, the Court
has to thwart the attempt at the very threshold. The Court
cannot permit a prosecution to go on if the case falls in one
of the Categories as illustratively enumerated by this Court
in State of Haryana v Bhajan Lal. Judicial process is a
solemnproceeding which cannot be allowed to beconverted
into an instrument of operation orharassment. When there
is material toindicate that a criminal proceeding
ismanifestly attended with mala fide andproceeding is
maliciously instituted with anulterior motive, the High
Court will nothesitate in exercise of its jurisdiction under
Section 482 Cr.P.C. to quash theproceeding under
Category 7 as enumerated in State of Haryana v Bhajan
Lal, which is to the following effect:
"(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 on the accused and with a view
to spite him due to private and personal grudge."
Above Category 7 is clearly attracted in the facts of the
present case. Although, the High Court has noted the
judgment of the State of Haryana v Bhajan Lal, but did not
advert to the relevant facts of the present case, materials on
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which Final Report was submitted by the IO. We, thus, are
fully satisfied that the present is a fit case where High
Court ought to have exercised its jurisdiction under Section
482 Cr. P.C. and quashed the criminal proceedings.
8.3 The learned Senior Counsel for the petitioners Harshita and
Sakshi also argued that the prosecution has relied upon the
WhatsApp chats and stated that Vikas Malu was informed about the
said incident but WhatsApp chats are dated 20.01.2023 i.e. after two
months of registration of FIR which clarifies the fact that the
complainant never informed about any such incident to Vikas Malu.
The transcript conversation on which reliance is placed does not
disclose commission of any offence.
8.4 The learned Senior Counsel for Vineet Malu also argued that
the allegation against Vineet Malu is that the complainant after her
wedding reception in Kochi was forced by Vikas Malu to sleep in the
same bed with him and Vineet Malu who was at that time 15 years of
age. The complainant did not raise any alarm when the unwelcomed
gestures were felt by her during the night and the messages
exchanged on the family group during the said period do not reflect
any hostility between Vineet Malu and the complainant. The
complainant also alleged that Vineet Malu committed rape after
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beating her and a video of the same was recorded by him but no
incriminating material could be brought on record to prove the said
allegation and also the medical documents do not show any sign of
beatings. The mother of the complainant in her statement under
section 161 of the Code has not mentioned about any mention of the
beating/injuries by the complainant. The taxi driver who took the
complainant from Hansi did not state in his statement recorded before
the investigating authorities that there were any signs of beatings.
8.5 There are contradictions in the initial statements made by the
complainant with statements of various employees recorded under
section 161 of the Code in relation to her meeting with Vikas Malu
for the first time when she was being sexually assaulted and raped in
February 2019 as alleged by the complainant. The statements of
employees recorded under section 161 of the Code reflect that the
complainant was working as a receptionist at the office of Vikas
Malu's company in Kirti Nagar from the year 2008. The ledger
account of the company showed that the complainant was paid salary
in the year 2010. The complainant was residing in Dubai for majority
of time from the year 2017 with Vikas Malu. The complainant also
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visited 7 countries with Vikas Malu on 24 occasions before her
marriage with Vikas Malu. There are also material contradictions in
the supplementary statement dated 12.04.2023 of the complainant
with that of her statements previously made on 15.11.2022,
21.11.2022, 13.12.2022 and 26.03.2022 in relation to her being called
at the farm house by Vikas Malu. The complainant in her
supplementary statement stated that she was told by Dinesh Tuli to
visit the Farmhouse in February, 2019 and alleged that incident
happened on 21.02.2019. Later, the complainant in her statement
dated 13.12.2022 stated that the incident had happened in the
beginning of February, 2019. The witness Dinesh Tuli in his
statement under section 161 of the Code stated that he met with the
complainant for the first time in year 2010-2011 and he never asked
the complainant to visit farmhouse of Vikas Malu. The complainant
in her statement dated 12.04.2023 stated that the incident took place
on 21.02.2019 but investigation revealed that the complainant along
with Vikas Malu was attending Celebrity Cricket League organized
in Chandigarh from 27.02.2019 till 01.03.2019 and stayed at Hotel
Taj, Chandigarh.
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8.6 The learned Senior Counsels for the petitioners prayed that the
present petitions be allowed and the impugned order dated
19.08.2022, chargesheet dated 16.06.2023 and FIR bearing no.
0525/2022 registered at P.S. Kapashera under sections
323/354/376/377/506/509/34 IPC along with consequential
proceedings be quashed.
9. The Additional Standing Counsel for the respondent no.1/State
advanced oral arguments and also submitted written submissions. He
submitted that the allegations levelled against the petitioners are
serious and specific. There are no discrepancies in different versions
of the complainant. The complainant has supported her case in the
complaint dated 15.11.2022, FIR dated 20.11.2022, examination
report of the complainant during the investigation before the
Investigating Officer as well as the statement recorded under section
164 of the Code and the present case is fit for framing of charge. The
alleged discrepancies in statements of the complainant cannot be a
ground for quashing the proceedings. The transcript of the call
recordings and the screenshots of the conversation established that
the complainant was forced into marrying Vikas Malu. The
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complainant had also complained of the acts of Vineet Malu,
Harshita and Sakshi to Vikas Malu. The mobile phones of Vikas
Malu were taken into possession through seizure memo and the
exhibits were sent for Forensic Examination and the result of the
same is awaited. The final reports of the MLC are also awaited. The
Additional Standing Counsel further submitted that as per the
cardinal principle of law, while exercising the powers under section
482 of the Code, at the stage quashing of the criminal proceedings,
the court is not required to conduct a mini trial.
9.1 The Additional Standing Counsel to counter the arguments
raised by the learned Senior Counsels for the petitioners as regard to
the discrepancies in the version of the complainant submitted that the
petitioners have not referred the contents of the FIR and the statement
recorded under section 164 of the Code. The complainant has
supported the version of the FIR in her statement under section 164
of the Code. There are no discrepancies and discrepancies if any, are
matter of trial and cannot to be tested under section 482 of the Code.
9.1.1 The Additional Standing Counsel to counter the argument
raised on behalf of the petitioners that there was no established
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chronology of events since the complainant attended parties with
Vikas Malu despite the allegations argued that there was established
chronology as regards the series of events as Vikas Malu called the
complainant at his farm house for some event discussion as per the
FIR where he raped her and also made a video of the same. Vikas
Malu continued to rape the complainant and threatened her to make
her video viral and the complainant did not report the said incident
due to the said threats, social stigma, his money and muscle power.
He also argued that the complainant in the last week of February,
2019 gathered the courage and refused to surrender before Vikas
Malu and confined herself at her house at Shalimar Bagh and this
action of the complainant led to a marriage proposal by Vikas Malu.
The complainant in order to save her respect agreed to marry Vikas
Malu. The complainant under threats of making her videos viral by
Vikas Malu accompanied him to attend the Celebrity Cricket League
at Chandigarh from 27.02.2019 to 01.03.2019.
9.1.2 The Additional Standing Counsel to counter the argument
raised on behalf of the petitioners that there was nothing in the MLC
dated 20.11.2022 to support the allegations made by the complainant
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argued that forceful sexual assault was committed on 17.10.2022 at
4:00 am which was complained of after about a month on 15.11.2022
and medical examination was done on 20.11.2022. The result of the
MLC dated 20.11.2022 of the complainant is still awaited and as
such, the FIR along with consequential proceedings cannot be
quashed.
9.1.3 The Additional Standing Counsel in response to the argument
advanced on behalf of the petitioners that the complainant never
complained about the alleged acts of Vineet Malu, Harshita and
Sakshi to Vikas Malu argued that screenshots of chats between the
complainant and Vikas Malu clearly reflect the complaints made by
the complainant to Vikas Malu regarding the acts done by Vineet
Malu, Sakshi Malu and Harshita Malu.
9.2 The Additional Standing Counsel further argued that as per the
settled legal position, the contents of the chargesheet cannot be
looked into under section 482 of the Code rather they must be tested
during the trial. The Senior Counsels for the petitioners have only
referred the selected portions of the chargesheet filed against Vikas
Malu and the trial court took cognizance and summoned the
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petitioners after considering contents of the chargesheet. The court of
Metropolitan Magistrate at the stage of taking cognizance and
summoning is required to apply its judicial mind only with a view to
take cognizance of the offence and to find out whether a prima facie
case has been made out for summoning the accused. The
Metropolitan Magistrate is not required to consider the defence or to
evaluate the merits of the case.
9.3 The Additional Standing Counsel regarding Salib alias Shalu
alias Salim V State of U.P. and Others 2023 SCC OnLine SC 947
as relied upon by the Senior Counsels for the petitioners stated that it
pertains to quashing of FIR registered under section 506 IPC but the
present case involves serious allegations of rape which need to be
tested during the course of trial and also stated that the parameters
laid down in State of Haryana V Bhajan Lal, 1992 Supp. 1 SCC
335 are not applicable to the facts of the present case. The Additional
Standing Counsel placed reliance on various judgments of the
Supreme Court in Dr. Dhruvaram Murlidhar Sonar V State of
Maharashtra and Others, (2019) 18 SCC 191; Hazrat Deen V
State of Uttar Pradesh and Others, (2022) SC 1781; State of
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Punjab V Gurmit Singh and Others, (1996) 2 SCC 384; Sham
Singh V State of Haryana, (2018) 18 SCC 34; State of U.P. V
Pappu alias Yunus and Another, (2005) 3 SCC 594; State of
Rajasthan V Ashok Kumar Kashyap, (2021) 11 SCC 191; Central
Bureau of Investigation V Aryan Singh etc., 2023 SCC Online SC
379; Jagdish Kumar Dhingra V Central Bureau of Investigation;
(2010) SCC OnLine Del 2762; Pradeep S. Wodeyar V State of
Karnataka, 2021 SCC OnLine SC 1140 and others.
10. The counsel for the complainant/respondent no.2 also
advanced oral arguments and submitted written submissions. The
counsel for the respondent no 2 primarily argued that the powers
possessed by this Court under section 482 of the Code are required to
be exercised with great caution and decision in exercise of power
under section 482 of the Code must be based on sound principles and
inherent power should not be exercised to stifle a legitimate
prosecution. The counsel for the complainant placed reliance on the
judgment titled as R.P. Kapur V State of Punjab AIR 1960 SC 866
wherein it was held as under:-
Before dealing with the merits of the appeal it is necessary
to consider the nature and scope of the inherent power of
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the High Court under Section 561-A of the Code. The said
section saves the inherent power of the High Court to make
such orders as may be necessary to give effect to any order
under this Code or to prevent abuse of the process of any
court or otherwise to secure the ends of justice. There is no
doubt that this inherent power cannot be exercised in
regard to matters specifically covered by the other
provisions of the Code. In the present case the Magistrate
before whom the police report has been filed under Section
173 of the Code has yet not applied his mind to the merits
of the said report and it may be assumed in favour of the
appellant that his request for the quashing of the
proceedings is not at the present stage covered by any
specific provision of the Code. It is well-established that the
inherent jurisdiction of the High Court can be exercised to
quash proceedings in a proper case either to prevent the
abuse of the process of any court or otherwise to secure the
ends of justice. Ordinarily criminal proceedings instituted
against an accused person must be tried under the
provisions of the Code, and the High Court would be
reluctant to interfere with the said proceedings at an
interlocutory stage. It is not possible, desirable or expedient
to lay down any inflexible rule which would govern the
exercise of this inherent jurisdiction. However, we may
indicate some categories of cases where the inherent
jurisdiction can and should be exercised for quashing the
proceedings. There may be cases where it may be possible
for the High Court to take the view that the institution or
continuance of criminal proceedings against an accused
person may amount to the abuse of the process of the Court
or that the quashing of the impugned proceedings would
secure the ends of justice. If the criminal proceeding in
question is in respect of an offence alleged to have been
committed by an accused person and it manifestly appears
that there is a legal bar against the institution or
continuance of the said proceeding the High Court would
be justified in quashing the proceeding on that ground.
Absence of the requisite sanction may, for instance, furnish
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cases under this category. Cases may also arise where the
allegations in the first information report 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; it is a
matter merely of looking at the complaint or the first
information report to decide whether the offence alleged is
disclosed or not. In such cases 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 person. A third category of cases in which the
inherent jurisdiction of the High Court can be successfully
invoked may also arise. In cases falling under this category
the allegations made against the accused person do
constitute offence alleged but there is either no legal
evidence adduced in support of the case or evidence
adduced clearly or manifestly fails to prove the charge. In
dealing with this class of cases it is important to bear in
mind the distinction between a case where there is no legal
evidence or where there is evidence which is manifestly and
clearly inconsistent with the accusation made and cases
where there is legal evidence which on its appreciation may
or may not support the accusation in question. In exercising
its jurisdiction under Section 561-A the High Court would
not embark upon an enquiry as to whether the evidence in
question is reliable or not. That is the function of the trial
Magistrate, and ordinarily it would not be open to any
party to invoke the High Court's inherent jurisdiction and
contend that on a reasonable appreciation of the evidence
the accusation made against the accused would not be
sustained. Broadly stated that is the nature and scope of the
inherent jurisdiction of the High Court under Section 561-
A in the matter of quashing criminal proceedings, and that
is the effect of the judicial decisions on the point (Vide : In
Re : Shripad G. Chandavarkar [AIR 1928 Bom 184] , Jagat
Chandra Mozumdar v. Queen Empress [(1899) ILR 26 Cal
786] , Shanker Singh (Dr) v. State of Punjab [(1954) 56
Punjab LR 54] , Nripendra Bhusan Ray v. Gobind Bandhu
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Majumdar [AIR 1924 Cal 1018] and Ramanathan
Chettiyar v. K. Sivarama Subrahmanya Ayyar [ILR 47
Mad 722] .
10.2 The counsel for the complainant further submitted that inherent
jurisdiction under section 482 of the Code must be exercised
sparingly, carefully and with caution and only when such exercise is
justified by the tests specifically laid down in the section itself. The
Court while exercising its power under section 482 of the Code does
not function as a court of appeal or revision. The counsel referred the
judgment titled as Didigam Bikshapathi V State of Andhra
Pradesh, AIR 2008 SC 527 wherein it was held as under:-
[Section 482] does not confer any new powers on the High
Court. It only saves the inherent power which the Court
possessed before the enactment of the Code. It envisages
three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an order
under the Code (ii) to prevent abuse of the process of court,
and (iii) to otherwise secure the ends of justice. It is neither
possible nor desirable to lay down any inflexible rule which
would govern the exercise of inherent jurisdiction. No
legislative enactment dealing with procedure can provide
for all cases that may possibly arise. Courts, therefore, have
inherent powers apart from express provisions of law
which are necessary for proper discharge of functions and
duties imposed upon them by law....."
10.3 The counsel for the complainant also countered the arguments
advanced on behalf of the petitioners that there is no evidence to
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attract the offences alleged; allegations are false and matrimonial
discord was given colour of rape. The counsel for the complainant
also submitted that the allegations against the complainant that she
has lodged a false complaint cannot be entertained as this stage. The
allegations made by the complainant and her statement recorded
under section 164 of the Code prima facie disclose the elements of
alleged offences. The counsel for the complainant argued that the
present petitions be dismissed.
11. The present petitions are filed under section 482 of the Code
for quashing of FIR bearing no.0525/2022, chargesheet dated
16.06.2023 and the impugned order besides other consequential
reliefs. The Supreme Court has continuously observed that the
extraordinary power under section 482 of the Code should be
exercised sparingly and with great care and caution and can be used
to prevent abuse of the process of the court or to secure ends of
justice and the exercise of inherent powers entirely depends on facts
and circumstances of each case. Section 482 saves the inherent power
of the High Court and reads as follows:-
Section 482. Saving of inherent power of High Court.-
Nothing in this Code shall be deemed to limit or affect the
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inherent powers of the High Court to make such orders as
may be necessary to give effect to any order under this
Code, or to prevent abuse of the process of any Court or
otherwise to secure the ends of justice.
11.1 The Supreme Court in Sushil Suri V Central Bureau of
Investigation and Another (2011) 5 SCC 708 considered the scope
and ambit of the inherent jurisdiction of the High Court and observed
as under:-
Section 482 Code of Criminal Procedure itself envisages
three circumstances under which the inherent jurisdiction
may be exercised by the High Court, namely, (i) to give
effect to an order under Code of Criminal Procedure; (ii) to
prevent an abuse of the process of court; and (iii) to
otherwise secure the ends of justice. It is trite that although
the power possessed by the High Court under the said
provision is very wide but it is not unbridled. It has to be
exercised sparingly, carefully and cautiously, ex
debitojustitiae to do real and substantial justice for which
alone the Court exists.
12. The learned Senior Counsels for the petitioners argued that the
present petitions are maintainable as chargesheet prima facie does not
disclose any offence against the petitioners and the present FIR and
consequential proceedings are abuse of process of law and based on
false and frivolous allegations and referred Anand Kumar Mohatta
V State of NCT of Delhi (supra) wherein it was held that there is
nothing in section 482 of the Code which restricts the exercise of the
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power of the Court to prevent the abuse of process of Court or
miscarriage of justice only to the stage of the FIR. It was further
observed that the High Court can exercise jurisdiction under section
482 of the Code even when the discharge application is pending
before the trial court and it would be a travesty to hold that
proceedings initiated against a person can be interferred with at the
stage of FIR but not if it has advanced and the allegations have
materialized into a chargesheet. The learned Senior Counsels for the
petitioners also placed reliance on Salib alias Shalu alias Salim V
State of U.P (supra) wherein it was held that whenever an accused
comes before the Court either under section 482 of the Code or
extraordinary jurisdiction under Article 226 of the Constitution to get
the FIR or the criminal proceedings quashed essentially on the
ground that such proceedings are manifestly frivolous or vexatious or
instituted with the ulterior motive for wreaking vengeance, then in
such circumstances the Court owes a duty to look into the FIR with
care and a little more closely. The learned Senior Counsels for the
petitioners also placed reliance on Vineet Kumar V State of Uttar
Pradesh (supra) wherein it was held that if solemn process of Court
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is sought to be abused by a person with some oblique motive, the
Court has to thwart the attempt at the very threshold and the court
cannot permit a prosecution to go on if the case falls in one of the
Categories as illustratively enumerated in State of Haryana V
Bhajan Lal (supra).
12.1 The Additional Standing Counsel for the respondent no.
1/State and counsel for the respondent no. 2/the complainant argued
that the contents of the chargesheet cannot be looked into under
section 482 of the Code and can only be tested during the trial. The
Metropolitan Magistrate at the stage of taking cognizance and
summoning is only required to apply his judicial mind only with a
view to take cognizance of the offence and to find out whether prima
facie case has been made out for summoning the accused. It was also
argued that Salib alias Shalu alias Salim V State of U.P. and
Others (supra) pertains to quashing of FIR registered under section
506 IPC but the present case involves serious allegations of rape
which can be tested during trial. It was argued that parameters laid
down in State of Haryana V Bhajan Lal (supra) are not applicable
to the facts of the present case. The counsel for the respondent no.
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2/the complainant also referred R.P. Kapur V State of Punjab
(supra) wherein it was held that the inherent power under section 482
of the Code cannot be exercised in regard to matters specifically
covered by the other provisions of the Code and inherent jurisdiction
of the High Court can be exercised to quash proceedings in a proper
case either to prevent the abuse of the process of any court or
otherwise to secure the ends of justice. It was also observed that
ordinarily criminal proceedings instituted against an accused person
must be tried under the provisions of the Code and the High Court
would be reluctant to interfere with the said proceedings at an
interlocutory stage. The counsel for the respondent no. 2/the
complainant also referred Didigam Bikshapathi V State of Andhra
Pradesh (supra).
12.2 The Supreme Court in Vineet Kumar V State of Uttar
Pradesh (supra) observed as under:-
This Court time and again has examined scope of
jurisdiction of High Court under Section 482 Cr.P.C. and
laid down several principles which govern the exercise of
jurisdiction of High Court under Section 482 Cr.P.C. A
three-Judge Bench of this Court in State of Karnataka vs.
L. Muniswamy and others, 1977 (2) SCC 699,held that the
High Court is entitled to quash a proceeding if it comes to
the conclusion that allowing the proceeding to continue
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would be an abuse of the process of the Court or that the
ends of justice require that the proceeding ought to be
quashed.
The Supreme Court also referred the judgment titled as State of
Karnataka V L. Muniswamy 1977 (2) SCC 699 wherein it was
observed as under:-
7....In the exercise of this wholesome power, the High Court
is entitled to quash a proceeding if it comes to the
conclusion that allowing the proceeding to continue would
be an abuse of the process of the Court or that the ends of
justice require that the proceeding ought to be quashed.
The saving of the High Court's inherent powers, both in
civil and criminal matters, is designed to achieve a salutary
public purpose which is that a court proceeding ought not
to be permitted to degenerate into a weapon of harassment
or persecution. In a criminal case, the veiled object behind
a lame prosecution, the very nature of the material on
which the structure of the prosecution rests and the like
would justify the High Court in quashing the proceeding in
the interest of justice. The ends of justice are higher than
the ends of mere law though justice has got to be
administered according to laws made by the legislature.
The compelling necessity for making these observations is
that without a proper realisation of the object and purpose
of the provision which seeks to save the inherent powers of
the High Court to do justice, between the State and its
subjects, it would be impossible to appreciate the width and
contours of that salient jurisdiction.
12.3 The Supreme Court in State of Haryana V Bhajan Lal
(supra) which is also referred in Vineet Kumar V State of UP
(supra) considered the scope and ambit of section 482 of the Code
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and after noticing various earlier pronouncements has enumerated 07
categories of cases by way of illustration where the power under
section 482 of the Code can be exercised to prevent abuse of the
process of the Court or to secure ends of justice which are as under:-
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 or the inherent powers under
Section 482 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 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 channelized and inflexible guidelines or 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 entirety do not prima
facie constitute any offence or make out a case against
the accused;
(2) where the allegations in the First Information
Report and other materials, if any, accompanying the
F.I.R. 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 the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused;
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(4) where the allegations 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;
(6) where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a 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 on the accused and with a view to
spite him due to private and personal grudge.
12.4 The Supreme Court in Priya Vrat Singh and Others V
Shyam Ji Sahai, (2008) 8 SCC 232 as referred in Vineet Kumar V
State of UP (supra) relied on Category 7 as laid down in State of
Haryana V Bhajan Lal (supra). In this case, the Allahabad High
Court had dismissed an application filed under section 482 of the
Code to quash the proceedings under sections 494/120B/109 IPC
and sections 3 and 4 of Dowry Prohibition Act, 1961. The Supreme
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Court after noticing the background facts and parameters for exercise
of power under section 482 of the Code observed as under:-
8. Further, it is pointed out that the allegation of alleged
demand for dowry was made for the first time in December
1994. In the complaint filed, the allegation is that the dowry
torture was made sometime in 1992. It has not been
explained as to why for more than two years no action was
taken.
9. Further, it appears that in the complaint petition apart
from the husband, the mother of the husband, the
subsequently married wife, husband's mother's sister,
husband's brother-in-law and Sunita's father were
impleaded as party. No role has been specifically ascribed
to anybody except the husband and that too of a dowry
demand in February 1993 when the complaint was filed on
6-12-1994 i.e. nearly after 22 months. It is to be noted that
in spite of service of notice, none has appeared on behalf of
Respondent 1.
10. The parameters for exercise of power under Section 482
have been laid down by this Court in several cases.
11. "19. The section does not confer any new power on the
High Court. It only saves the inherent power which the
Court possessed before the enactment of the Code. It
envisages three circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give effect to
an order under the Code, (ii) to prevent abuse of the
process of court, and (iii) to otherwise secure the ends of
justice. It is neither possible nor desirable to lay down any
inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with
procedure can provide for all cases that may possibly arise.
Courts, therefore, have inherent powers apart from express
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provisions of law which are necessary for proper discharge
of functions and duties imposed upon them by law. That is
the doctrine which finds expression in the section which
merely recognises and preserves inherent powers of the
High Courts. All courts, whether civil or criminal, possess,
in the absence of any express provision, as inherent in their
constitution, all such powers as are necessary to do the
right and to undo a wrong in course of administration of
justice on the principle quando lex aliquid alicui concedit,
concedere videtur id sine quo res ipsa esse non potest (when
the law gives a person anything it gives him that without
which it cannot exist). While exercising powers under the
section, the Court does not function as a court of appeal or
revision. Inherent jurisdiction under the section though
wide has to be exercised sparingly, carefully and with
caution and only when such exercise is justified by the tests
specifically laid down in the section itself. It is to be
exercised ex debito justitiae to do real and substantial justice
for the administration of which alone courts exist.
Authority of the court exists for advancement of justice and
if any attempt is made to abuse that authority so as to
produce injustice, the court has power to prevent abuse. It
would be an abuse of process of the court to allow any
action which would result in injustice and prevent
promotion of justice. In exercise of the powers court would
be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process
of court or quashing of these proceedings would otherwise
serve the ends of justice.
20. As noted above, the powers possessed by the High Court
under Section 482 of the Code are very wide and the very
plenitude of the power requires great caution in its exercise.
Court must be careful to see that its decision in exercise of
this power is based on sound principles. The inherent
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power should not be exercised to stifle a legitimate
prosecution. The High Court being the highest court of a
State should normally refrain from giving a prima facie
decision in a case where the entire facts are incomplete and
hazy, more so when the evidence has not been collected and
produced before the Court and the issues involved, whether
factual or legal, are of magnitude and cannot be seen in
their true perspective without sufficient material. Of
course, no hard-and-fast rule can be laid down in regard to
cases in which the High Court will exercise its
extraordinary jurisdiction of quashing the proceeding at
any stage." [See Janata Dal v. H.S. Chowdhary, Raghubir
Saran (Dr.) v. State of Bihar and Minu Kumari v. State of
Bihar, SCC p. 366, paras 19-20.]
12. The present case appears to be one where Category 7 of
the illustrations given in State of Haryana v. Bhajan Lal is
clearly applicable.
12.5 The learned Senior Counsels for the petitioners primarily
argued that the proceedings arising out of present FIR are malafide
and are maliciously instituted with ulterior motive and such covered
under category 07 as enumerated in Bhajan Lal (supra). The
petitioners have stated that the proceedings out of present FIR are
outcome of personal grudge on part of the complainant due to marital
discord between the complainant and Vikas Malu. This Court is well
in its power to exercise power as per the mandate of section 482 of
the Code after considering averments as mentioned in present
petitions. The arguments advanced by the Additional Standing
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Counsel for the respondent no.1/State and counsel for the respondent
no.2/the complainant that the allegations as levelled by the
complainant can be tested during trial and cannot be considered in the
present petitions are without any basis particularly in view of legal
position arising out of various decisions delivered by the Supreme
Court. The present petitions under section 482 of the Code are
maintainable.
13. The complainant in her complaint dated 15.11.2022 primarily
alleged that Vikas Malu in February, 2019 called the complainant for
event discussions at his home bearing property no.A-15, Pushpanjali
Farm, Bijwasan, Delhi and offered her a hard drink but the
complainant refused to drink. Vikas Malu felt offended and raped the
complainant after beating her. Vikas Malu also allegedly made video
at that time. Vikas Malu thereafter repeatedly committed rape with
the complainant. The complainant in last week of February, 2019 did
not allow Vikas Malu to commit further rape upon her. The
complainant got married to Vikas Malu on 13.03.2019 before the
SDM, Jhandewalan, Delhi. The complainant in May, 2019 was
inappropriately touched by Vineet Malu. On 14.08.2022, Harshita
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Malu and Sakshi Malu slapped the complainant and Sakshi Malu also
forcibly inserted fingers inside the private parts of the complainant.
The complainant also alleged that Vineet Malu raped her on
17.10.2022 and also recorded a video of the said act. The
complainant in her statement under section 164 of the Code also
reasserted and reiterated contents of the complaint dated 15.11.2022.
14. It is reflecting from the material placed on record and collected
during investigation including statements of various witnesses that
the complainant and Vikas Malu were known to each other since
2008-09 as the complainant was employed as a receptionist at office
of Vikas Malu situated at Kirti Nagar. The complainant subsequently
became personal secretary of Vikas Malu and was receiving salary
from Kevin Metpack Private Limited. The complainant also stayed in
Dubai since 2017 and the company of Vikas Malu namely Kaane
American International Tobacco Co. FZE had sponsored her
employment and residence visa which was valid till 2020. The
complainant travelled with Vikas Malu to more than 7 countries on
more than 24 different occasions before their marriage. The material
collected during investigation clearly and amply established that the
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complainant and Vikas Malu were having consensual relationship
with each other.
15. The learned Senior Counsels for the petitioners argued that the
present FIR as per investigation was maliciously instituted by the
complainant to seek vengeance against Vikas Malu by falsely
implicating him and his entire family and present case is an offshoot
of a marital discord and relied on Salib alias Shalu alias Salim V
State of U.P. (supra). The learned Senior Counsels after referring to
para 102(7) of State of Haryana V Bhajan Lal (supra) argued that
present complaint was lodged due to nefarious motive and after delay
of about four years. It was further argued that the contents of
statement of the complainant under section 164 of the Code were
dislodged and disproved by subsequent investigation and due to this
reason, the said statement cannot be relied upon and referred Vineet
Kumar V State of Uttar Pradesh (supra).
15.1 The Additional Standing Counsel for the respondent no.1/State
primarily argued that the complainant has levelled serious and
specific allegations against the petitioners and the complainant has
supported her case in the complaint dated 15.11.2022, FIR dated
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20.11.2022, statements recorded during investigation by the
Investigating Officer and in her statement recorded under section 164
of the Code and as such, the present case is a fit case for framing of
charge against the petitioners and thereafter to put them to trial. It
was further argued that there are no material discrepancies in various
statements of the complainant. The trial court has taken cognizance
against the petitioners after due application of judicial mind. It was
further argued that FSL report in respect of exhibits collected during
investigation and the medical opinion on MLC of the complainant are
still awaited. The Additional Standing Counsel for the respondent
no.1/State also argued that Vikas Malu raped the complainant in
February, 2019 at his farm house and subsequently also and made
video of the act. The complainant did not report the said incidents of
rape due to fear but subsequently refused to surrender before Vikas
Malu to further rape her. The complainant got married with Vikas
Malu to save her dignity and respect and the complainant due to
threats of making the obscene video viral, accompanied Vikas Malu
to Chandigarh to attend the Celebrity Cricket League during
27.02.2019 to 01.03.2019.
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15.2 The counsel for the respondent no.2/the complainant during
arguments, rebutted the arguments advanced by the learned Senior
Counsels for the petitioners which are that there is no evidence to
attract the offences as complained of by the complainant, allegations
as made by the complainant are false and the present case is lodged
by the complainant due to matrimonial discord which was given the
colour of rape.
15.3 The Supreme Court in State of Haryana V Bhajan Lal
(supra) has enumerated certain categories of cases where power
under 482 of the Code can be exercised to prevent abuse of the
process of the Court or secure ends of justice which as argued by the
learned Senior Counsels for the petitioners include (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 and (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 on the
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accused and with a view to spite him due to private and personal
grudge.
15.3.1 The Supreme Court in Vineet Kumar V State of UP
(supra) also observed as under:-
The fact is that no medical examination was got done on the
date of incident or even on the next day or on 07.11.2015,
when IO asked the complainant and her husband to get
done the medical examination. Subsequently it was done on
20.11.2015, which was wholly irrelevant. Apart from bald
assertions by the complainant that all accused have raped,
there was nothing which could have led the Courts to form
an opinion that present case is fit a case of prosecution
which ought to be launched. We are conscious that
statement given by the prosecutrix/complainant
under Section 164 Cr.P.C. is not to be lightly brushed away
but the statement was required to be considered along with
antecedents, facts and circumstances as noted above.
The Supreme Court in Vineet Kumar V State of UP (supra)
also referred Prashant Bharti V State (NCT of Delhi), (2013) 9
SCC 293 wherein despite statement under section 164 of the Code by
the prosecutrix, the Supreme Court held that the case was fit where
the High Court ought to have quashed the criminal proceedings.
15.3.2 The Supreme Court in Salib alias Shalu alias Salim V
State of UP and Others (supra) as referred by the learned Senior
Counsels for the petitioners observed as under:-
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At this stage, we would like to observe something
important. Whenever an accused comes before the Court
invoking either the inherent powers under Section 482 of
the Code of Criminal Procedure (CrPC) or extraordinary
jurisdiction under Article 226 of the Constitution to get the
FIR or the criminal proceedings quashed essentially on the
ground that such proceedings are manifestly frivolous or
vexatious or instituted with the ulterior motive for
wreaking vengeance, then in such circumstances the Court
owes a duty to look into the FIR with care and a little more
closely. We say so because once the complainant decides to
proceed against the accused with an ulterior motive for
wreaking personal vengeance, etc., then he would ensure
that the FIR/complaint is very well drafted with all the
necessary pleadings. The complainant would ensure that
the averments made in the FIR/complaint are such that
they disclose the necessary ingredients to constitute the
alleged offence. Therefore, it will not be just enough for the
Court to look into the averments made in the
FIR/complaint alone for the purpose of ascertaining
whether the necessary ingredients to constitute the alleged
offence are disclosed or not. In frivolous or vexatious
proceedings, the Court owes a duty to look into many other
attending circumstances emerging from the record of the
case over and above the averments and, if need be, with due
care and circumspection try to read in between the lines.
The Court while exercising its jurisdiction under Section
482 of the CrPC or Article 226 of the Constitution need not
restrict itself only to the stage of a case but is empowered to
take into account the overall circumstances leading to the
initiation/registration of the case as well as the materials
collected in the course of investigation.
16. The complainant as mentioned hereinabove alleged
commission of rape by Vikas Malu in February, 2019 and
subsequently also but the complainant till registration of present FIR
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did not make any complaint against Vikas Malu regarding
commission of rape by him on various occasions including
commission of rape in month of February, 2019. The complainant
happens to be an educated and mature lady and could not explain that
why she did not make any complaint against Vikas Malu regarding
rape on various occasions and recording of video. The plea of the
complainant that Vikas Malu pressurized the complainant with threat
of making the said video viral does not inspire much confidence
under the given facts and circumstances of the case. The complainant
in her supplementary statement dated 12.04.2023 stated that the first
incident of rape was committed on 21.02.2019 but as per
investigation, the complainant enjoyed Celebrity Cricket League
organized at Chandigarh from 27.02.2019 till 01.03.2019 with Vikas
Malu and had stayed with him at Hotel Taj, Chandigarh. Had Vikas
Malu committed rape upon the complainant on 21.02.2019, then the
complainant would not have accompanied Vikas Malu to enjoy
Celebrity Cricket League organized at Chandigarh from 27.02.2019
till 01.03.2019. Vikas Malu during investigation, has also produced
his mobile phone make 'HTC' stated to be used by him in the year
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2019 but on checking, no incriminating material was found in mobile
phone. The allegations made against Vikas Malu are appearing to be
highly improbable, concocted and do not appeal to reasons of a
common and prudent man and could not be established during
investigation. The complainant was staying and living with Vikas
Malu even before marriage out of her own consent and due to their
consensual relationship. It appears that the complainant did not enjoy
harmonious matrimonial relationship and soon after marriage,
differences started to arise in their marital relationship.
16.1 There is factual force in arguments advanced by the learned
Senior Counsels on basis of State of Haryana V Bhajan Lal (supra)
that allegations against the petitioners are absurd and inherently
improbable and present criminal proceedings are maliciously
instituted. The arguments advanced by the Additional Standing
Counsel for the respondent no.1/State and the counsel for the
respondent no.2/the complainant that the complainant has levelled
serious and specific allegations against the petitioners and the
complainant has supported her case in various statements and as
such, the petitioners should be put to trial are not supported by the
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outcome of the investigation. The investigating agency could not
collect even minimum incriminating material against the petitioners
for their implication in the present case. The petitioners could not be
subjected to prolonged criminal trial for want of FSL and other
reports. The arguments advanced by the Additional Standing Counsel
for the respondent no.1/State that the complainant did not report
incidents of rape due to fear and got married with Vikas Malu to save
her dignity and respect and under threats by Vikas Malu of making
the obscene video of the complainant viral are also not good enough
to inspire confidence of this Court as the complainant accompanied
Vikas Malu to Chandigarh immediately after alleged commission of
rape in February, 2019 and thereafter, also till 17.10.2022 i.e. the day
when the complainant came back to her parental home from Hansi on
way to Sardarshahar, Rajasthan. The complainant happens to be a
well educated and mature lady and as such, it does not appeal to
reason that the complainant did not report about the commission of
rape out of threats of making her video viral by Vikas Malu and no
such video could be recovered during investigation.
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16.1.1 The Additional Standing Counsel for the respondent
no.1/State argued that the complainant supported her allegations in
her statement under section 164 of the Code and due to this reason,
the present petitions be dismissed. The said argument does not inspire
much confidence in view of the observations made by the Supreme
Court in Vineet Kumar V State of UP (supra) and Prashant Bharti
V State (NCT of Delhi) (supra) as referred hereinabove.
17. The complainant against Vineet Malu alleged that Vikas Malu
in May, 2019 at Kochi after wedding reception had forced the
complainant to sleep on the same bed between Vikas Malu and
Vineet Malu. It is also alleged that at that time, she was
inappropriately touched by Vineet Malu. The said allegation of the
complainant does not inspire any confidence as at that time, Vineet
Malu was stated to be just 15 years old and the complainant herself
did not raise any alarm for the inappropriate and unwarranted gesture
on the part of Vineet Malu. The complainant even subsequently did
not report the said incident to any of the family members. The
Investigating Officer during the investigation collected the family
photographs, which reflect that the complainant was celebrating the
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birthday of Vineet Malu. The complainant alleged that Vineet Malu
on 17.10.2022 committed rape upon her after giving mercilessly
beating and also recorded a video of the said act. The said allegation
of the complainant also appears to be general and without any
specification and has not been supported by any other corroborating
material as no such video was recovered during the investigation and
there is no medical document which can demonstrate that the
complainant was beaten by Vineet Malu. It is also pertinent to
mention that on 17.10.2022, the complainant accompanied the
petitioners to Sardarshahar, Rajasthan although on the way, she came
back to her parental home from Hansi. The allegations against Vineet
Malu were not established during investigation.
18. The complainant also alleged that Harshita and Sakshi on
14.08.2022, commanded her to walk like an animal and on refusal,
the complainant was pinned down on the floor by Harshita and
Sakshi and thereafter, after beating the complainant, Sakshi spread
the complainant's legs and inserted her middle finger in vagina of the
complainant and thereafter, put her fingers in the complainant's
mouth. These allegations of the complainant against the petitioners
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are highly improbable and do not pass the test of reasonableness. It is
highly improbable that the complainant had met with such treatment
by Harshita and Sakshi.
19. The Additional Standing Counsel for the respondent no.1/State
during the course of arguments, referred the MLC of the complainant
prepared on 20.11.2022 wherein the complainant has complained of
forcible sexual intercourse on 17.10.2022 at Pushpanjali Farm at 4:00
am by Vineet Malu, who was stated to be 19 years of age at that time.
The complainant also complained of unnatural intercourse by her
husband i.e. Vikas Malu since marriage and also alleged sexual
assault on her. The Additional Standing Counsel for the respondent
no.1/State argued that the complainant in MLC also supported her
version as mentioned in the complaint dated 15.11.2022 and
subsequently.
20. The learned Senior Counsels for the petitioners to rebut the
said arguments, also referred the MLC of the complainant wherein it
is mentioned that there was no tear, injury, bleeding or discharge in
the external genitalia of the complainant and the external genitalia
were found to be normal. The MLC as referred by the Additional
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Standing Counsel for the respondent no.1/State is not reflective of
any forcible sexual intercourse on 17.10.2022 at 4:00 am by Vineet
Malu and there was no sign of unnatural sex on the body of the
complainant. Accordingly, the arguments so advanced by the
Additional Standing Counsel for the respondent no.1/State do not
provide any help or assistance to the case of the prosecution.
21. It is reflecting from the above discussion that the allegations as
made by the complainant in the complaint dated 15.11.2022 and
subsequently including her statement under section 164 of the Code
do not inspire any confidence and appear to be highly improbable. It
is reflecting that the complainant was not enjoying good matrimonial
life with Vikas Malu and was also not having a cordial relationship
with the other petitioners namely, Vineet Malu, Harshita and Sakshi.
The complainant since the commission of rape for the first time in
February, 2019 had not brought the said fact to the notice of any
person and also did not file any complaint being a mature and well-
educated lady. The complainant also moved around with the
petitioners even after February, 2019 and till 17.10.2022. The
complainant and Vikas Malu developed consensual relationship with
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each-other with the explicit consent of the complainant. The
proceedings arising out of the present FIR, if allowed to be
continued, shall be a gross abuse of the process of law.
22. Accordingly, the present petitions are allowed and FIR bearing
no.0525/2022 dated 20.11.2022 registered under sections
323/354/376/377/506/509/34 IPC at P.S. Kapashera along with
consequential proceedings arising therefrom including the
chargesheet dated 16.06.2023, the impugned order i.e. the
summoning order dated 19.08.2023 are quashed.
23. The present petitions bearing nos. CRL.M.C. 6099/2023,
CRL.M.C. 6100/2023 and CRL.M.C. 6101/2023 stand disposed of
along with pending applications, if any.
DR. SUDHIR KUMAR JAIN
(JUDGE)
FEBRUARY 16, 2024
N/SD/AM
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