DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF MAHARASHTRA & Ors.

HELD: 1. It is well settled that exercise of powers under Section 482 of the Cr.P.C. is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions “abuse of process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise. [Para 8][926-B-C] State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259 ; Rajesh Bajaj v. State NCT of Delhi & Ors. (1999) 3 SCC 259 : [1999] 1 SCR 1012 ; State of Karnataka v. M. Devendrappa and Anr. (2002) 3 SCC 89 : [2002] 1 SCR 275 ; Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017) 13 SCC 369 : [2017] 6 SCR 922 – relied on.

#2. For quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers. [Para 12][928-G

#3. Section 376(2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she A B C D E F G H 922 SUPREME COURT REPORTS [2018] 13 S.C.R. is interested, in fear of death or of hurt. The expression ‘against her will’ means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. Section 90 of the IPC though does not define “consent”, but describes what is not “consent”. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by the complainant under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. [Paras 13, 14, 15][928-H; 929-A, D-E; 930-A-B]