Karnataka High Court

Apoorv Katiyar vs State Of Karnataka on 22 January, 2025

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

                           1



Reserved on   : 10.12.2024
Pronounced on : 22.01.2025


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 22ND DAY OF JANUARY, 2025

                          BEFORE

         THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

          WRIT PETITION No.16146 OF 2022 (GM-RES)

BETWEEN:

APOORV KATIYAR
S/O DR SUBEER KATIYAR,
AGED ABOUT 25 YEARS,
R/AT NO.G-08, G-BLOCK,
DIAMOND DISTRICT APARTMENT,
DOMALURU,
BANGALORE-560064.
                                             ... PETITIONER

(BY SRI. HASHMATH PASHA, SR.ADVOCATE FOR
    SRI. KARIAPPA N.A., ADVOCATE)

AND:

1.   STATE OF KARNATAKA
     BY JEEVANBHEEMANAGAR POLICE STATION,
     BANGALORE CITY.
     (REPRESENTED BY
     LEARNED SPECIAL PUBLIC PROSECUTOR)

2.   MISS XXXX
     D/O XXXX,
                               2



    XXXX,
    XXXX.
                                                 ... RESPONDENTS

(BY SRI B. N. JAGADEESHA, ADDL. SPP FOR R-1, SRI S SAMARTHA, ADVOCATE FOR R-2)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN S.C.NO.907/2022 PENDING ON THE FILE OF HONBLE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY, FOR OFFENCE UNDER SECTION 376 OF INDIAN PENAL CODE, ANNEXURE-C WHICH IS ARISING OUT OF CRIME NO. 221/2021 OF JEEVANABHEEMANAGAR POLICE STATION, BANGALORE CITY AS PER ANNEXURE-A (FIR) AND ANNEXURE-B ORDER OF TAKING COGNIZANCE DTD. 23.11.2021.

THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.12.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner is before this Court calling in question

proceedings in S.C.No.907 of 2022 registered for offence

punishable under Section 376 of the IPC.

2. Heard Sri Hashmath Pasha, learned senior counsel

appearing for petitioners, Sri B N Jagadeesha, learned

Additional State Public Prosecutor appearing for respondent

No.1 and Sri S Samartha, learned counsel appearing for

respondent No.2/complainant.

3. Facts in brief germane are as follows:

It is the case of the prosecution that the complainant and

the petitioner are known to each other through common

friends. The entire case revolves round an incident that

happens on 05-09-2021. On 05-09-2021 it transpires that the

complainant attends a birthday party between 3pm to 9 p.m.

during which time the petitioner is said to have outraged the

modesty of the petitioner. 5 days thereafter, the complainant

registers the crime against the complainant which becomes a

crime in Crime No.221 of 2021 initially for offence punishable

under Sections 354A and 354 of the IPC. The police, conduct

investigation into the matter, dropped the aforesaid offences

and file a charge sheet for the offence punishable under

Section 376 of the IPC. On filing of the charge sheet, the

learned Magistrate takes cognizance of the offence on

23-11-2021 and on 11-07-2022 commits the matter to the

Court of Sessions which is now pending as S.C.No.907 of

2022. The petitioner being aggrieved by the invocation of

Section 376 of the IPC and the order of cognizance is at the

doors of this Court in the subject petition.

4. This Court, in terms of its order dated 05-09-2022,

owing to the submission that it was a consensual act between

the petitioner and the complainant, following the judgment in

the case of SHAMBHU KARWAR v. STATE OF UTTAR

PRADESH, stayed further proceedings. The said interim order

is in subsistence.

5. The learned senior counsel Sri Hashmath Pasha would

vehemently contend that on the night of 05-09-2021 the

petitioner and the complainant indulged in social drinking and

certain consensual acts, be it kissing or even physical

relationship. Even after the alleged incident happening on the

said day, the complainant was in touch with the petitioner,

wished him for his birthday and also was in conversation. He

would therefore, submit that though it was a solitary incident

that is narrated and reported, it was a consensual act and

consensual act would not amount to the offence of rape and at

best, it can attract Section 354 or 354A of the IPC, as was

alleged and even that would not get attracted is his

submission. He would seek quashment of the proceedings.

6. Per-contra, the learned counsel appearing for the 2nd

respondent/complainant would contend that the petitioner

indulged in all sorts of acts after drinking. Merely because it

was social drinking would not permit the petitioner to have

forcible sex with the complainant. He would contend that the

offence is rightly considered to be a rape and the matter

committed to the Court of Sessions for trial. He would seek

dismissal of the petition.

7. The learned Additional State Public Prosecutor would

also the toe the lines of the complainant to contend that there

are 3 versions in the crime. One of the complainant, the other

of the accused/petitioner and the third of a witness.

Therefore, deciphering the evidence cannot be done under

Section 482 of the Cr.P.C. and therefore, seeks dismissal of

the petition. He would contend that there is no consensual act

in the case at hand as is projected by the learned senior

counsel. It was an act of forcible sex which amounts to rape.

Both of them, in unison, seeks dismissal of the petition.

8. I have given my anxious consideration to the

submissions made by the learned counsel for the respective

parties and have perused the material on record.

9. The afore-narrated facts are not in dispute. The issue

revolves round what happened on the evening of 05-09-2021.

Petitioner sought to host a birthday party and the next day

was his birthday date. Therefore, to bring in the birthday

there was a social gathering. The complainant is said to have

entered the house of the petitioner at about 3.30 p.m. on

05.09.2021, what happened on 05-09-2021 is what forms the

fulcrum of the entire lis. The narration in the complaint is

what led to registration of the crime. Therefore, I deem it

appropriate to notice the complaint. The complaint reads as

follows:

"To,

Police Sub-Inspector Jeevan Bheema Nagar Police Station Bangalore -560075

From

XXXXXX d/o XXXXXX Age-25 years XXXXXXXXXXXXX Caste Hindu Brahmin

Respected Sir,

Subject - In continuation to my complaint dated 10- 09-21, I am giving my further statement against accused Apoorv Katiyar for Sexual Assault and Rape.

I have been staying at the above-mentioned address along with my flatmate Rittika Haldar since last year. I work as

a content director at 42Signs. I have known Apoorv Katiyar since 2019.

On the 5th of September, 2021, he invited me to his birthday at his house which is located in G-08, Diamond District, Domlur. I reached around 3:30 pm at his house. I went outside of the flat around 8.30 pm in the evening, and I was standing in the common area of the same apartment complex. As it started to rain heavily, I got drenched.

I came back inside his apartment again to change my clothes and take a bath. I walked towards his bathroom and before I could lock the door of the bathroom, he forcibly entered the bathroom, and started kissing me. I resisted and told him not to come near me. He physically overpowered me and forced himself onto me. He kept forcing himself on me and I kept pushing him back, I fell on the bathroom floor a couple of times because it was slippery and he was stronger than me. I managed to come out of the bathroom and back into the room where I fell again. He picked me up and started taking off my clothes to which I resisted. I also yelled at him to not do it, but he did not stop. He then pulled down my jeans and my underwear and penetrated me, I pushed him back really hard and started crying. I then picked up whatever I could find and walked out of the house without telling anyone, around 9 pm. I was in a state of denial and shock, I could not register what had happened to me, since I trusted this person and could not believe that it could happen to me. I had also left house as I rushed out.

I came back home and immediately took a shower because I felt dirty. But before I went to sleep, I was in a complete state of shock and denial, I could not forgive him for what he had done, however, I wanted my valuables back and tried to message him in a cordial manner and even wished him happy birthday since I wanted to politely ask for my valuables back which could be misused by him. But I felt humiliated and abused and discontinued the conversation, and with great difficulty, put myself to sleep.

The next morning I could not keep the incident to myself and I gathered the courage to speak to my flatmate and my mother. I

also spoke to a psychologist later in the day on the telephone. I still could not come to terms with what had happened to me. They asked me to take action against him, but I had still not come to terms with the atrocious behaviour perpetrated on me. I was trying to slowly understand and explain the incident to myself as I was still in a state of denial with what had happened. I was scared to approach the police and other authorities since I was embarrassed and ashamed of the whole incident. The psychologist also asked me to go to the doctor, I did not have the courage to go and report the incident.

I still had my valuable belongings in his house which I wanted back, so I tried to message him asking him to parcel my valuables back to me.

It took me three days to actually register what had happened, and when I realized it and saw my bruises on my body every morning, I felt really angry at myself. I wanted to punish him for what he had done to me. So finally I gathered the courage and went to the police station to file an FIR against him.

Since I could not speak the local language, I found it difficult to explain the actual incident that had transpired. At the police station also, I was still in a state of shock and could not express myself and wrote down my complaint in a hurry and rushed out. It mentally drained me and stressed me out quite a bit. By the time I filed the official complaint, my brain wasn't at its best functioning capacity, due to which I worded my complaint in a way that did not communicate the details very effectively.

I then had to go to the hospital to get my medical examination done. Since it had already been five days, the doctor asked me why I hadn't come on the day of the incident. I said I wasn't mentally ready to do anything about it. I then proceeded to tell the doctor the exact details of what had transpired, so she took my vaginal swabs, also referred me to the forensics and psychiatry departments to get further evaluations. Later I confided in my close friend and psychologist once again and I am now in a better position to give an account of the actual incident that had occurred on the 5th of September, 2021.

Thanking you, Yours Faithfully,

XXXX.

Sd/-"

(Emphasis added)

The complaint then becomes a crime for offence punishable

under Section 354 and 354A of the IPC in Crime No.221 of

2021. The police then, at the time of investigation, seek

inclusion of offence under Section 376 of the IPC and

investigate into the matter. After investigation, they file a

charge sheet. Summary of the charge sheet as obtaining in

column No.7 reads as follows:
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(Emphasis added)

While filing the charge sheet witness statements were also

taken. The statement of the witnesses recorded is appended

to the petition, upon which, charge sheet is filed for the

offence punishable under Section 376 of the IPC. It is the

complainant's version that on 05-09-2021 it began to

profusely rain. The complainant and the petitioner got

drenched. The complainant then gets into the bathroom to

have a shower. The petitioner also stops the door and comes

in, forcibly tries to kiss the complainant, pushes her down and

physically overpowers her, removes her pant and pushes his

private part into that of the complainant and within one or two

seconds it transpires that the complainant runs away crying by

wearing whatever clothes that are available, picks a cab and

goes home.

10. The defence of the petitioner, as contended by the

learned senior counsel is, that the complainant and the

petitioner indulged in social drinking and all the acts that are

alleged to have happened are on consensus, there no rape

that can be alleged in the case at hand. The witnesses who

tender their statement confirm the fact that the complainant

and the petitioner were drenched in rain and went into the

room, they were outside partying, the complainant comes out

suddenly crying, takes her belongings and moves out of the

house without talking to anyone. It is an admitted fact that

the complainant the following day, called the petitioner and

spoke cordially. The complainant defends this to be for the

reason that her bag and chain were in the house of the

petitioner and it had to be brought back by way of dunzo. In

the teeth of the aforesaid facts, or even the report of the FSL

that does not indicate presence of any spermatozoa in the

private parts of the complainant, it cannot be concluded that

there was no act of rape or attempt to rape. These are all

factors that are seriously disputed for which evidence is a

must.

11. As projected by the learned senior counsel for the

petitioner, there is no act that projects even to its prima facie

sense that it was on consensus. The acts of the petitioner on

the night of 05-09-2021 does prima facie amount to a sexual

assault upon the complainant. Whether it amounts to rape or

otherwise is a matter that is to be tried. If the petition, in the

teeth of such seriously disputed questions of fact is

entertained, it would run foul of the judgment of the Apex

Court in the case of KAPTAN SINGH v. STATE OF UTTAR

PRADESH1 wherein it is held as follows:

"9.1. At the outset, it is required to be noted that in the present case the High Court in exercise of powers under Section 482 CrPC has quashed the criminal proceedings for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC. It is required to be noted that when the High Court in exercise of powers under Section 482 CrPC quashed the criminal proceedings, by the time the investigating officer after recording the statement of the witnesses, statement of the complainant and collecting the evidence from the

(2021) 9 SCC 35

incident place and after taking statement of the independent witnesses and even statement of the accused persons, has filed the charge-sheet before the learned Magistrate for the offences under Sections 147, 148, 149, 406, 329 and 386 IPC and even the learned Magistrate also took the cognizance. From the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court, it does not appear that the High Court took into consideration the material collected during the investigation/inquiry and even the statements recorded. If the petition under Section 482 CrPC was at the stage of FIR in that case the allegations in the FIR/complaint only are required to be considered and whether a cognizable offence is disclosed or not is required to be considered. However, thereafter when the statements are recorded, evidence is collected and the charge-sheet is filed after conclusion of the investigation/inquiry the matter stands on different footing and the Court is required to consider the material/evidence collected during the investigation.

Even at this stage also, as observed and held by this Court in a catena of decisions, the High Court is not required to go into the merits of the allegations and/or enter into the merits of the case as if the High Court is exercising the appellate jurisdiction and/or conducting the trial. As held by this Court in Dineshbhai Chandubhai Patel [Dineshbhai Chandubhai Patel v. State of Gujarat, (2018) 3 SCC 104 : (2018) 1 SCC (Cri) 683] in order to examine as to whether factual contents of FIR disclose any cognizable offence or not, the High Court cannot act like the investigating agency nor can exercise the powers like an appellate court. It is further observed and held that that question is required to be examined keeping in view, the contents of FIR and prima facie material, if any, requiring no proof. At such stage, the High Court cannot appreciate evidence nor can it draw its own inferences from contents of FIR and material relied on. It is further observed it is more so, when the material relied on is disputed. It is further observed that in such a situation, it becomes the job of the investigating authority at such stage to probe and then of the court to examine questions once the charge-sheet is filed along with such material as to how far and to what extent reliance can be placed on such material.

9.2. In Dhruvaram Murlidhar Sonar [Dhruvaram Murlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 :

(2020) 3 SCC (Cri) 672] after considering the decisions of this Court in Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , it is held by this Court that exercise of powers under Section 482 CrPC to quash the proceedings is an exception and not a rule. It is further observed that inherent jurisdiction under Section 482 CrPC though wide is to be exercised sparingly, carefully and with caution, only when such exercise is justified by tests specifically laid down in the section itself. It is further observed that appreciation of evidence is not permissible at the stage of quashing of proceedings in exercise of powers under Section 482 CrPC. Similar view has been expressed by this Court in Arvind Khanna [CBI v. Arvind Khanna, (2019) 10 SCC 686 : (2020) 1 SCC (Cri) 94] , Managipet [State of Telangana v. Managipet, (2019) 19 SCC 87 : (2020) 3 SCC (Cri) 702] and in XYZ [XYZ v. State of Gujarat, (2019) 10 SCC 337 : (2020) 1 SCC (Cri) 173] , referred to hereinabove.

9.3. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, we are of the opinion that the High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

10. The High Court has failed to appreciate and consider the fact that there are very serious triable issues/allegations which are required to be gone into and considered at the time of trial. The High Court has lost sight of crucial aspects which have emerged during the course of the investigation. The High Court has failed to appreciate and consider the fact that the document i.e. a joint notarised affidavit of Mamta Gupta Accused 2 and Munni Devi under which according to Accused 2 Ms Mamta Gupta, Rs 25 lakhs was paid and the possession was transferred to her itself is seriously disputed. It is required to be noted that in the registered agreement to sell dated 27- 10-2010, the sale consideration is stated to be Rs 25 lakhs and with no reference to payment of Rs 25 lakhs to Ms Munni Devi and no reference to handing over the possession.

However, in the joint notarised affidavit of the same date i.e. 27-10-2010 sale consideration is stated to be Rs 35 lakhs out of which Rs 25 lakhs is alleged to have been paid and there is a reference to transfer of possession to Accused 2. Whether Rs 25 lakhs has been paid or not the accused have to establish during the trial, because the accused are relying upon the said document and payment of Rs 25 lakhs as mentioned in the joint notarised affidavit dated 27-10-2010. It is also required to be considered that the first agreement to sell in which Rs 25 lakhs is stated to be sale consideration and there is reference to the payment of Rs 10 lakhs by cheques. It is a registered document. The aforesaid are all triable issues/allegations which are required to be considered at the time of trial. The High Court has failed to notice and/or consider the material collected during the investigation.

11. Now so far as the finding recorded by the High Court that no case is made out for the offence under Section 406 IPC is concerned, it is to be noted that the High Court itself has noted that the joint notarised affidavit dated 27-10-2010 is seriously disputed, however as per the High Court the same is required to be considered in the civil proceedings. There the High Court has committed an error. Even the High Court has failed to notice that another FIR has been lodged against the accused for the offences under Sections 467, 468, 471 IPC with respect to the said alleged joint notarised affidavit. Even according to the accused the possession was handed over to them. However, when the payment of Rs 25 lakhs as mentioned in the joint notarised affidavit is seriously disputed and even one of the cheques out of 5 cheques each of Rs 2 lakhs was dishonoured and according to the accused they were handed over the possession (which is seriously disputed) it can be said to be entrustment of property. Therefore, at this stage to opine that no case is made out for the offence under Section 406 IPC is premature and the aforesaid aspect is to be considered during trial. It is also required to be noted that the first suit was filed by Munni Devi and thereafter subsequent suit came to be filed by the accused and that too for permanent injunction only. Nothing is on record that any suit for specific performance has been filed. Be that as it may, all the aforesaid aspects are required to be considered at the time of trial only.

12. Therefore, the High Court has grossly erred in quashing the criminal proceedings by entering into the merits of the allegations as if the High Court was exercising the appellate jurisdiction and/or conducting the trial. The High Court has exceeded its jurisdiction in quashing the criminal proceedings in exercise of powers under Section 482 CrPC.

13. Even the High Court has erred in observing that original complaint has no locus. The aforesaid observation is made on the premise that the complainant has not placed on record the power of attorney along with the counter filed before the High Court. However, when it is specifically stated in the FIR that Munni Devi has executed the power of attorney and thereafter the investigating officer has conducted the investigation and has recorded the statement of the complainant, accused and the independent witnesses, thereafter whether the complainant is having the power of attorney or not is to be considered during trial.

14. In view of the above and for the reasons stated above, the impugned judgment and order [Radhey Shyam Gupta v. State of U.P., 2020 SCC OnLine All 914] passed by the High Court quashing the criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and the same deserves to be quashed and set aside and is accordingly quashed and set aside. Now, the trial is to be conducted and proceeded further in accordance with law and on its own merits. It is made clear that the observations made by this Court in the present proceedings are to be treated to be confined to the proceedings under Section 482 CrPC only and the trial court to decide the case in accordance with law and on its own merits and on the basis of the evidence to be laid and without being influenced by any of the observations made by us hereinabove. The present appeal is accordingly allowed."

(Emphasis supplied)

The Apex Court holds that, the High Court in exercise of its

jurisdiction under Section 482 of the Cr.P.C. should not

interfere when the facts obtaining in the case at hand are

seriously disputed.

12. In the light of the judgment rendered by the Apex

Court in the case of KAPTAN SINGH supra and seriously

disputed questions of fact shrouded in the case at hand as

narrated hereinabove, the proceedings against the petitioner

cannot be interdicted or obliterated. Finding no merit in the

petition, the petition deserves to be rejected and is

accordingly rejected.

Interim order of any kind subsisting shall stand

dissolved.

Since the committal is of the year 2022, the Sessions

Court shall endeavour to conclude the trial within an outer

limit of 9 months from the date of receipt of the copy of this

order, if not earlier, in accordance with law.

Ordered accordingly.

Sd/-

______________________ JUSTICE M.NAGAPRASANNA

Bkp CT:MJ / SS