Karnataka High Court: While considering the interplay of Sections 376 and 511 of Penal Code, 1860 in the instant matter wherein an advocate, who has been accused of committing several sexual offences (including rape) by a law intern, had petitioned the High Court to quash the chargesheet and order of cognizance against him; the Bench of M. Nagaprasanna, J.*, held that it would not be prudent for the Court to exercise its inherent power under Section 482 of CrPC given the peculiar circumstances of the case. The Court opined that any interference by the Court would be rendering approval to the wanton lust and vicious appetite of the accused (‘Petitioner’). Therefore, it is for the accused to come out clean in a full- blown trial.
“If a naive student of law, enters the office of an Advocate, as an intern; in turn gets to face these horrendous acts, it would have a chilling effect on the entire practice and profession”.
Background: The complainant is a 2nd Year law student of SDM College, who was in requirement of a work-cum internship. She got acquainted with the accused, who is practising advocate, via her college friend and joined the accused’s office on 14-08-2021. The accused had indicated that the intern will have to stay up to 8.00 p.m. and further informed that she will be paid a stipend of Rs 6,000 per month.
The accused allegedly befriended the complainant via communication through WhatsApp and complainant is said to have reacted to such WhatsApp messages without knowing the intention of the accused. It was further alleged that the accused was continuously watching the private movements of the complainant like combing hair, washing face etc. through the CCTV footage and used to send the same as pictures to the complainant. It was alleged that the accused also started commenting on the complainant’s dresses started sending messages like he began to miss the complainant and began to like her.
On 25-09-2021, the accused and complainant were discussing a case and there was no one else in the office. The accused called the complainant to his cabin and made suggestive advances towards her. He pulled her hands and kissed her forehead and then made her sit on his lap and began to unbutton the complainant’s dress. It was further stated that said that he moved his hands on the private parts of the complainant and started to undress himself. The complainant traumatized by the said act pushed the accused and ran out and while so doing, it was alleged that the accused threatened the complainant of dire consequences if she reveals anything.
It was also alleged that the accused went on calling the complainant continuously and one such call was recorded by the complainant wherein he had confessed repeatedly that he has attempted to rape the complainant and apologized and requested the complainant to close the issue. The complainant even approached the accused’s wife but was threatened once again.
Therefore, the complainant approached the police on 18-10-2021. Upon conducting the investigation and recording of statements, the police filed a chargesheet against the accused for offences under Sections 376, 376(2)(f), 376(2)(k), 376-C(a), 511, 354-A, 354-B, 354-C, 354-D, 506, 384, 388, 389, 204, 203, 212, 120-B, 179, 202 r/w 149 of Penal Code, 1860. The filing of the chargesheet led the accused before the High Court in the instant petition.
Contentions: Counsels for the accused contended that he is no doubt guilty of offences that would become punishable under Section 354A, B, C and D and/or other offences. However, the accused vehemently contended there is no evidence, even prima facie, to include offences under Sections 376, 376(2)(f), 376(2)(k), 376-C(a) and 511 of IPC.
The accused restricted his challenge to the offences punishable under Sections 376(2)(f), 376(2)(k), 376-C(a) and 511 of IPC and sought quashment of the order of cognizance insofar as it pertains to offences punishable under Sections 376, 376(2)(f), 376(2)(k), 376-C(a) and 511 of IPC.
Per contra, the complainant argued that the accused did not deny occurrence of the incident, but in fact admitted the incident. Once he admitted the incident, it would not become a case for quashment under Section 482 of CrPC for any offences alleged.
The complainant further submitted that there is a very thin line between preparation and attempt, and both preparation and attempt would become a disputed question of fact and therefore, interference is not warranted.
Court’s Assessment: Perusing the facts and contentions of the case, the Court noted that the complaint narrates the story from the date the complainant comes in contact with the accused and till registration of the complaint and that there are minute details of activities of the accused upon the complainant.
The Court took note of Sections 376(2)(f), 376(2)(k) and 376-C(a) of IPC which fixes the liability of guardians, persons, teachers, persons in fiduciary relationships or persons in position of authority vis-à-vis commission of rape and provides punishments accordingly.
The Court pointed out that if the ingredients of the complaint are seen, the accused fits in all the positions as enumerated under the afore-stated provisions. He is in the position of a teacher or in a position of trust over a complainant. In terms of Section 376(2)(k) of IPC, he is in position of control or dominance and in terms of Section 376-C(a) of IPC, he is in position of authority, as the complainant was an intern working under the accused.
The Court also took note of Section 511 of IPC which deals with punishment for attempt to commit offences punishable with imprisonment for life or other imprisonment. the soul of the provision is ‘attempt’ to commit an offence. The accused admits occurrence of the incident; but, contended that it is only a preparation or attempt and not commission.
Taking into account several Supreme Court precedents considering the interplay of Sections 376 and 511, the Court pointed out that the incident narrated in the complaint has several hues. The Court also pointed out that the narration of incident did not remain only in the complaint and the complainant’s statement under Section 164 CrPC is a vindication of the narration in the complaint. The Court thus stated that whether this would be preparation and attempt (which is a thin line of difference), would require evidence as to what was the subsequent action, after preparation and attempt. This would undoubtedly be in the realm of disputed question of fact.
The Court pointed out that the narration or what has happened would again be in the realm of disputed questions of fact. The CCTV footage and the voice sample, inter alia which are all the chargesheet material would be a matter of evidence regarding preparation and attempt. Therefore, these matters would be in the territory of seriously disputed questions of fact, as the incident has three ingredients – intention, preparation, an attempt and whether commission has happened or not is the 4th stage, which would be a matter of evidence.
Vis-à-vis the quashment, the Court stated that under Section 482 CrPC, it cannot delve deep into at this stage, as to what transpired after the intention, preparation, and attempt, to allow the petition and set aside the order of taking of cognizance. Outraging the modesty or all other acts performed by the accused would undoubtedly mean intention, preparation, and attempt.
The Court was of the view that interference under Section 482, CrPC at the stage when the chargesheet has been filed. The Magistrate has taken cognizance and peculiarity of the case, would run contrary to Supreme Court precedents which direct High Courts to not interfere if the issue is shrouded with seriously disputed questions of fact. Consequently, the petition for quashment was dismissed.
[Rajesh KSN v. State, 2023 SCC OnLine Kar 38, decided on 11-07-2023]
*Order by Justice M. Nagaprasanna
Advocates who appeared in this case :
For the petitioner- Parameshwar N. Hegde, Advocate;
For respondents- K.P. Yashoda, HCGP for R1 and Sophia, Advocate for R2.
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