1995 Supreme(Raj) 563

Supreme Court
Honble A.S. ANAND & M.K. MUKHERJEE, JJ.
Mrs. Rupan Deol Bajaj and Another - Appellant
Versus
Kanwar Pal Singh Gill and Another - Respondents
Criminal Appeals Nos. 1183 & 1184 of 1995
Decided On : October 12, 1995

Headnote:(a) Criminal Procedure Code, 1973 – Sec. 482 – Exercising inherent powers for quashing complaint or F.I.R. – Material available on the record should be sufficient to proceed against the accused – The High Court is not justified in embarking upon an inquiry as to the probability, reliability or genuineness of the allegation made – Case wil proceed – Inherent powers can be exercised to quash the cognizance, in suitable cases – By way of illustration the Court gave categories of cases wherein the extra ordinary powers could be used. (Paras 22 and 7)(b) Penal Code, Sec. 354 and 509 – Modesty? – How to ascertain? – Intention and knowledge to be proved – These may not be proved by direct evidence – May be inferred from the attending circumstances – Sequences of events and slapping on posterior of the lady was the final to the earlier overtures of Mr. Gill are to be considered together – Modesty and its meaning explained – Dictionaries referred. (Paras 13, 14 and 16)

       At the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given case, as the present one, the complainant, as the person aggrieved raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the Court that a case for taking cognizance was made out, but the Court overrules such objections, it is just and desirable that the reasons therefor be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis. Reasons introduced clarity and minimise chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant it has got to be set aside and we do hereby set it aside. (Para 27)

       The High Court is not justified in embarking upon an enquiry as to the probability, reliability or genuineness of the allegation made therein. Of course as has been pointed out in Bhajan Lals case (supra) an FIR or a complaint may be quashed if the allegations made therein are so absurd and inherently improbable that no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused but the High Court has not recorded such a finding obviously because on the allegation in the FIR it was not possible to do so. (Para 22)

       It may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised : (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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under Sec. 156 (1) of the Code except under an order of a Magistrate within the purview of Sec. 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, (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 Sec. 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. 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 accused and with a view to spite him due to private and personal grudge. (Para 7)

       Needless to say ``the common notions of mainkind referred to by the learned Judge have to be gauged by contemporary societal standards. The other learned Judge (Bachawat J.) observed that the essence of a womans modesty is her sex and from her very birth \she possesses the modesty which is the attribute of her sex. From the above dictionary meaning of `modesty and the interpretation given to that word by this Court in Major Singhs case (supra) it appears to us that the ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman. When the above test is applied in the present case, keeping in view the total fact situation, it cannot but be held that the alleged act of Mr. Gill in slapping Mrs. Bajaj on her posterior amounted to `out-raging of her modesty for it was not only an affront to the normal sense of feminine decency but also an affront to the dignity of the lady ``sexual overtones or not, notwithstanding. (Para 14)

       It is undoubtedly correct that if intention or knowledge is one of the ingredients of any offence, it has got to be proved like other ingredients for convicting a person. But, it is also equally true that those ingredients being state of mind may not be proved by direct evidence and may have to be inferred from the attending circumstances of given case. (Para 16)