Telangana High Court

Jaivanta Rao vs The State Of Telangana, And ... on 26 July, 2021

Bench: K.Lakshman

              HON'BLE SRI JUSTICE K. LAKSHMAN

              CRIMINAL PETITION No.895 OF 2021

ORDER:

The present Criminal Petition is filed under Section - 482 of the

Code of Criminal Procedure, 1973, to quash the proceedings against

the petitioner in Crime No.16 of 2021 of Langer House Police Station,

Hyderabad.

2. The petitioner herein is sole accused in the aforesaid Crime.

The offences alleged against him are under Sections - 377 and 506 of

IPC.

3. Heard Mr. K. Ramakanth Reddy, learned counsel for the

petitioner and Mr. C. Hari Preeth, learned counsel for respondent No.2

and also learned Assistant Public Prosecutor appearing on behalf of

respondent No.1 - State.

4. PROSECUTION CASE:

As per the complaint, allegations against the petitioner herein

are as follows:

(i) respondent No.2, de facto complainant, is brother of

Akshay Reddy, while Sateesh is friend of Akshay Reddy;

(ii) the petitioner herein is being called as Kaplapuri Bhavani

Temple Mataj @ Pujari @ Jayanth Rao and has been

running an Ashram at Kapilapur Village, Bhalki Taluka,

Bidar District of Karnataka State;

KL,J Crl.P. No.895 of 2021

(iii) brother of respondent No.2 and his friend, Sateesh since

incurred losses in their business, they approached the

petitioner and sought for his blessings to earn profits in

their business;

(iv) on which, the petitioner told them to do service every day

in his Ashram and give donations to him, so that they

would get good profits;

(v) accordingly, they used to serve in the Ashram and give

donations;

(vi) while so, one day the petitioner called them to his

personal rest Room and forced them to do sex with him,

for which they disagreed, then the petitioner would curse

them to get paralysis and also threatened them to kill by

his devotees;

(vii) under such threat, they have accepted to do sex with the

petitioner and accordingly, the petitioner had sex with

them frequently at his Ashram and also taken them

several times to Bangalore and Hyderabad and had sex

with them in Hotel Rooms;

(viii) on 17.01.2021, the petitioner booked a room in Hotel at

Bangalore and forced them to have sex with him, but

they did not accept for the same;

(ix) while the petitioner and brother of respondent No.2 and

his friend were returning to Kalilapuram and when they

reached Hyderabad, the petitioner told them that he was KL,J Crl.P. No.895 of 2021

suffering from chest pain and accordingly, they admitted

him in Premier Hospital, Langer House, Hyderabad;

(x) after some time thereafter, 500 devotees came to hospital

and tried to beat his brother and friend of his brother, but

both of them escaped from there; and

(xi) due to life threat to them, respondent No.2 lodged the

present complaint against the petitioner.

5. Pursuant to the complaint lodged by respondent No.2 against

the petitioner herein, the police registered a case in Crime No.16 of

2021 and took up for investigation.

6. The petitioner herein has filed the present petition seeking to

quash the proceedings against him in the aforesaid crime.

7. CONTENTIONS OF THE PETITIONER:

i) Mr. K. Ramakanth Reddy, learned counsel for the petitioner,

would submit that the petitioner is innocent of the offences alleged

against and that he did not commit any offences, much less the

aforesaid offences.

ii) The petitioner is a Hindu and professes his religion within

the four walls for the well-being of mankind. He was implicated in

the above crime. The FIR is bereft of relevant details. The petitioner

neither forced the aforesaid persons to do sex with him, nor have had

sex with them as alleged by respondent No.2.

KL,J Crl.P. No.895 of 2021

iii) Learned counsel would further submit that on 18.01.2021

the brother of respondent No.2 and his friend kidnapped the petitioner

and took him to Bangalore in a Car and confined him in a Lodge and

demanded to pay Rs.5.00 Crores, otherwise, threatened him to kill. At

about 18:20 hours, the petitioner made a call to his devotee, Mr. K.

Sandeep Kumar, and informed about his kidnap by the aforesaid

persons. When the petitioner complained of chest pain, they brought

the petitioner and got admitted in Premier Hospital. Mr. K. Sandeep

Kumar and his friend reached the Hospital and on seeing them, the

aforesaid persons fled away. He would further submit that Mr. K.

Sandeep Kumar, also lodged a complaint with Langer House Police

Station at 12:00 hours and the same was registered as Crime No.15 of

2021 against brother of respondent No.2 and his friend for the

offences under Sections - 342, 385, 506 and 365 of IPC.

iv) Learned counsel referring to Crime No.15 of 2021, would

submit that the present crime is nothing but a counter complaint

lodged by respondent No.2 as there was a gap of about seven hours

between the two complaints. He would further submit that the

contention of respondent No.2 that the petitioner insisted his brother

and friend of his brother to do sex with him is totally false for the

reason that there is no medical evidence. There are contradictions and

improvements in the statements of witnesses recorded under Section -

161 of Cr.P.C. Further respondent No.2 filed counter affidavit duly

notarized stating that he gave a complaint in a fit of anger on account KL,J Crl.P. No.895 of 2021

of filing complaint in Crime No.15 of 2021 and there was

miscommunication. Even, respondent No.2 as well as his brother

filed affidavits duly notarizing that there was no forcible act of sex on

the part of the petitioner and that respondent No.2 filed the present

complaint as a counter to the complaint in Crime No.15 of 2021 and,

therefore, they also requested to quash the proceedings against the

petitioner herein. Referring to the said counter as well as affidavits,

learned counsel would submit that the present complaint is nothing but

false one and it lacks the ingredients of offences alleged against the

petitioner.

v) In support of the aforesaid contentions, the learned counsel

has relied on the decision rendered by the Hon'ble Supreme Court in

Navtej Singh Johar v. Union of India1.

vi) With the aforesaid submissions, learned counsel sought to

quash the proceedings against the petitioner herein in the present

petition.

8. CONTENTIONS OF RESPONDENT No.2:

i) Learned counsel for respondent No.2 would contend that

respondent No.2 has filed the present complaint in a fit of anger as one

of the devotees filed complaint against the brother of respondent No.2

and his friend which was registered as Crime No.15 of 2021 and due

. AIR 2018 SC 4321 KL,J Crl.P. No.895 of 2021

to communication gap and, therefore, he requested to quash the

proceedings against the petitioner herein.

9. CONTENTIONS OF PROSECUTION:

i) On the other hand, learned Assistant Public Prosecutor would

submit that after registration of crime, the police have been

investigating the matter and it is under progress. So far, the

Investigating Officer has examined three witnesses and yet to examine

some more witnesses and he has to collect the evidence also. There

are serious allegations against the petitioners which are factual aspects

to be investigated by the Investigating Officer as the contents of the

complaint would show that there was no consensual sex. If the

petitioner is innocent and did not commit any offence, he can prove

his innocence during investigation, but not at the crime stage.

ii) With the above submissions, learned Assistant Public

Prosecutor sought to dismiss the present criminal petition.

10. FINDING OF THE COURT:

i) As mentioned above, respondent No.2, accused Nos.1 and 2

in Crime No.15 of 2021 have filed counter affidavit and third party

affidavits duly notarized respectively before this Court requesting to

allow the present criminal petition by quashing the proceedings

against the petitioner herein.

KL,J Crl.P. No.895 of 2021

ii) In view of the above, now, it has to be seen whether the

proceedings can be quashed against the petitioner in the present crime

basing on the said counter affidavit and third party affidavits reporting

no objection.

iii) As stated above, prima facie, there are serious allegations

against the petitioner herein. The offence under Section - 377 of IPC

is an offence against society. In this regard, it is relevant to mention

the parameters laid down by the Hon'ble Supreme Court in the State

of Madhya Pradesh v. Laxmi Narayan2 which are as under:

"i) that the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the parties have resolved the entire dispute amongst themselves;

ii) such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

iii) x x x x;

iv) x x x x;

2019 (5) SCC 403 KL,J Crl.P. No.895 of 2021

v) while exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impart on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise etc."

iv) In view of the above principle, it is for the Investigating

Officer to investigate into the aspect that the circumstances under

which, respondent No.2 herein and accused Nos. and 2 in Crime

No.15 of 2021 filed counter affidavit and third party affidavits

reporting no objection in quashing the proceedings against the

petitioner herein in Crime No.16 of 2021 and the allegations made by

respondent No.2 in the complaint dated 23.01.2021 in the present

crime. Admittedly, the matter is at crime stage. Therefore, this Court

is not inclined to quash the proceedings against the petitioner herein

merely because respondent No.2 and accused Nos.1 and 2 in Crime

No.15 of 2021 reported no objection by way of counter affidavit and

third party affidavits.

v) With regard to the offence under Section - 377 of IPC, vires

of Section - 377 of IPC was under challenge before the Hon'ble KL,J Crl.P. No.895 of 2021

Supreme Court. A Constitution Bench of the Apex Court has struck

down the said Section partially on the ground that the said section

abridges both human dignity, right to privacy and choice of the

citizenry, and that sexual orientation is an essential and innate facet of

privacy. Consensual private acts of adults neither cause disturbance to

public order nor injurious to public morality or decency. Therefore,

the section held violative of right of freedom of expression and struck

down the same partially.

vi) The Apex Court further held that Section - 377 of IPC in so

far as it criminalises consensual sexual conduct between adults of the

same sex, is unconstitutional. Members of the LGBT community are

entitled, as all other citizens, to the full range of constitutional rights

including the liberties protected by the Constitution. The choice of

whom to partner, the ability to find fulfillment in sexual intimacies

and the right not to be subjected to discriminatory behaviour are

intrinsic to the constitutional protection of sexual orientation.

Members of the LGBT community are entitled to the benefit of an

equal citizenship, without discrimination, and to the equal protection

of law.

vii) As stated above, the allegations against the petitioner are

that he has called the brother of respondent No.2 and his friend to his

personal rest room, forced them to do sex with him, for which they

have disagreed. Thereafter, they have agreed for the same on the

threat given by the petitioner that he would curse them to get paralysis KL,J Crl.P. No.895 of 2021

and that he would ask his devotees to kill them. Thus, under the said

threat, the petitioner had participated in sexual acts with the brother of

respondent No.2 and his friend, Sateesh, on several occasions, both at

Bangalore and Hyderabad.

viii) In the present case, as per the contents of the complaint,

there was sex between two adults of same sex. Both the petitioner and

brother of respondent No.2 and his friend are male members. Now, in

view of the law laid down by the Apex Court in Navtej Singh Johar1,

the only point for consideration by this Court is whether there was

consensual sex or not? As stated above, there is specific allegation

that brother of respondent No.2 and his friend have disagreed to

participate in sexual act with the petitioner, to which the petitioner

herein threatened them that he would curse them to get paralysis and

also threatened that he would ask his devotees to kill them. Under the

said threat, brother of respondent No.2 and his friend have participated

in sexual acts with petitioners. It is a factual aspect to be investigated

into. Whether brother of respondent No.2 and his friend have

participated in sexual acts with petitioner voluntarily or forcibly and

whether there was consensual participation is also a factual aspect to

be investigated into by the Investigating Officer during the course of

investigation.

ix) As stated above, the circumstances which respondent No.2

and accused Nos.1 and 2 in Crime No.15 of 2021 filed counter

affidavit and third party affidavits duly notarized stating that they do KL,J Crl.P. No.895 of 2021

not have objection to quash the proceedings against the petitioner

herein in the present crime is also a matter to be investigated into by

the Investigating Officer. Thus, there are several factual aspects to be

investigated into by the Investigating Officer during the course of

investigation.

x) As discussed above, the Apex Court has struck down

Section - 377 of IPC in so far as it criminalises consensual sexual

conduct between adults of the same sex by declaring it as

unconstitutional. Therefore, the contention of the petitioner that the

Apex Court has struck down Section - 377 of IPC by declaring it as

unconstitutional and, therefore, the proceedings in Crime No.16 of

2021 against the petitioner herein for the offence under Section - 377

of IPC is unsustainable.

xi) It is also relevant to note that another offence registered

against the petitioner is under Section - 506 of IPC. It deals with

punishment for criminal intimidation, and as per Section - 503 of IPC,

whoever threatens another with any injury to his person, reputation or

property, or to the person or reputation of any one in whom that

person is interested, with intent to cause alarm to that person, or to

cause that person to do any act which he is not legally bound to do, or

to omit to do any act which that person is legally entitled to do, as the

means of avoiding the execution of such threat, commits criminal

intimidation. In view of the same, as discussed above, there is a

specific allegation that the petitioner herein has threatened the brother KL,J Crl.P. No.895 of 2021

of respondent No.2 and his friend that if they do not participate in

sexual acts with him, he would curse them to get paralysis and also

threatened them that he would ask his devotees to kill them. Thus,

prima facie, the contents of complaint dated 23.01.2021 constitutes

the ingredients of the said section.

xii) The Apex Court in Kamal Shivaji Pokarnekar v. The

State of Maharashtra3 has categorically held that quashing criminal

proceedings was called for only in a case where complaint did not

disclose any offence, or was frivolous, vexatious, or oppressive. If

allegations set out in complaint did not constitute offence of which

cognizance had been taken by Magistrate, it was open to High Court

to quash same. It was not necessary that, a meticulous analysis of case

should be done before trial to find out whether case would end in

conviction or acquittal. If it appeared on a reading of complaint and

consideration of allegations therein, in light of the statement made on

oath that the ingredients of the offence are disclosed, there would be

no justification for High Court to interfere. The defences that might be

available, or facts/aspects which when established during trial, might

lead to acquittal, were not grounds for quashing complaint at

threshold. At that stage, only question relevant was whether

averments in complaint spell out ingredients of a criminal offence or

not. The Court has to consider whether complaint discloses that prima

facie, offences that were alleged against Respondents. Correctness or

. AIR 2019 SC 847 KL,J Crl.P. No.895 of 2021

otherwise of said allegations had to be decided only in trial. At initial

stage of issuance of process, it was not open to Courts to stifle

proceedings by entering into merits of the contentions made on behalf

of Accused. Criminal complaints could not be quashed only on

ground that, allegations made therein appear to be of a civil nature. If

ingredients of offence alleged against Accused were prima facie made

out in complaint, criminal proceeding shall not be interdicted.

xiii) In Skoda Auto Volkswagen India Private Limited v.

The State of Uttar Pradesh4, the Apex Court referring to the earlier

judgments rendered by it has categorically held that the High Courts

in exercise of its inherent powers under Section - 482 of Cr.P.C has to

quash the proceedings in criminal cases in rarest of rare cases with

extreme caution.

xiv) In M/s. Neeharika Infrastructure Private Limited v.

State of Maharashtra5, a Three-judge Bench of the Apex Court laid

certain conclusions, for the purpose of exercising powers by High

Courts under Section - 482 of Cr.P.C and also Article - 226 of the

Constitution of India, which are as under:

"....

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been

. AIR 2021 SC 931

. AIR 2021 SC 1918 KL,J Crl.P. No.895 of 2021

formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities.

The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopedia which must disclose all facts and details relating to the offence reported. Therefore, when the KL,J Crl.P. No.895 of 2021

investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR."

KL,J Crl.P. No.895 of 2021

xv) As discussed supra, prima facie, there are specific

allegations against the petitioner herein and there are several factual

aspects to be investigated into by the Investigating Officer. Therefore,

this Court is not inclined to interdict the investigation in the present

crime.