SABYASACHI BHATTACHARYYA, J.

1. The present revisional application has been preferred against an order dismissing the plea of the petitioner for discharge from Sessions Case No.14 of 2023, dismissal of his prayer for further relevant documents and investigating materials, as well as rejection of the petitioner’s application under Section 340 of the Code of Criminal Procedure at the present stage. Further, the petitioner has sought for quashing of the entire proceedings pending against him.

2. The genesis of the instant case is the application under Section 156 (3) of the Code of Criminal Procedure filed by the victim girl. In the said application, she alleged that upon being sexually assaulted by the petitioner and other co-accused persons, she lodged complaints first before the Station House Officer, Aberdeen Police Station and Pahargaon Police Station and then before the Superintendent of Police, South Andaman and Director General of Police, Andaman and Nicobar Police, both on August 22, 2022, as well as before some other higher officials including the National Commission for Women, but no FIR was registered.

3. By an order dated September 30, 2022, the Chief Judicial Magistrate, Port Blair allowed such application and directed an FIR to be registered against the accused persons. Subsequently, the matter was entrusted to a Special Investigation Team (SIT) keeping in view of the huge power and influence wielded by the petitioner, since until quite recently and during the relevant period he had been functioning as the Chief Secretary (CS) in Port Blair.

4. Learned counsel for the petitioner seeks to assail the entire proceedings on several grounds. It is argued that the entire case sought to be made out against the petitioner is concocted and not credible. In the initial complaint, which found reflection in the victim’s application under section 156 (3) as well as at all points of time before different forums, the victim was assaulted first on April 14, 2022; she went back to the residence of the petitioner again and on May 01, 2022, the same offence was repeated. It is argued that on each occasion, as per the victim, she was picked up by her boyfriend, one Vishal, after the incident. However, the said Vishal, surprisingly, married her soon thereafter, which is somewhat absurd. More importantly, it is argued, Vishal’s father is one Markanday, who was suspended from service by the petitioner while the latter was the Chief Secretary. The said Markanday subsequently gave several interviews in social media castigating the petitioner.

5. One Manoj Paul, having apparently no connection with the case, was also vociferous on the issue on several social media. Learned counsel appearing for the petitioner seeks to impress upon the Court, by placing transcripts of interviews given by the said Manoj, that the exact mistakes committed by the petitioner in her application under Section 156 (3) were also repeated in Manoj’s version. As for example, in the application under Section 156 (3), the petitioner cited Vishaka’s case in a completely erroneous context, as did Manoj in his social media bytes.

6. In the interviews given by Markandey as well as others, it was highlighted that the petitioner was allegedly having a high-handed attitude and had acted in mala fide manner against several businessmen, officials, including police officials, and others. The above fact, it is argued, clearly shows that there was a pogrom of malicious propaganda against the petitioner. The entire cock-and-bull story was machinated to malign the petitioner at the behest of the businessmen, officials, and Markanday against whom the petitioner, in his official capacity, had taken legitimate steps at different points of time. Thus, the entire proceeding is vitiated by mala fides and ought to be set aside.

7. The next limb of argument of the petitioner is that the victim all along stuck to her case that the alleged incidents took place on April 14, and May 01, 2022. Subsequently, the petitioner committed the mistake of disclosing that he was not present in the Islands on April 14, 2022 and was in town but with relatives and was engaged in other work on May 01, 2022.

8. Immediately thereafter, the prosecution changed its version and in the Charge Sheet it was spelt out that the incidents took place not on the dates as alleged by the victim but on March 27 and April 27, 2022. Hence, the entire paradigm of the case was altered beyond recognition, upon it being discovered that the petitioner had solid alibis on the alleged dates. Such alteration itself justifies quashing of the FIR as well as all subsequent steps taken thereafter, since the version of the victim and the prosecution are mutually exclusive and contradictory to each other.

9. Thirdly, learned counsel for the petitioner contends that the driver of the petitioner during the relevant period has been given the status of a Protected Witness whereas as per the Charge Sheet and the version of the victim, it is he who administered spiked soft drink to the victim. Thus, instead of arraying the driver as an accused, for some inexplicable reason, he was made a Protected Witness which itself casts doubts on the case against the petitioner.

10. Fourthly, it is argued that the Hard Disk Drive (HDD) of the CCTV footage, which was one of the plinths of the victim’s allegations, was allegedly removed by the petitioner, for which the petitioner has also been charged with Section 120B of the Indian Penal Code. However, the alleged date when the CCTV footage was removed was July 20, 2022, more than three months after the alleged incident as per both versions of the prosecution. It is an admitted position that the footage is stored in the system for a maximum period of 1½ - 2 months. Thus, there was no reason for the petitioner to remove the HDD of the CCTV footage much thereafter. That apart, there being no complaint at the relevant stage, the ingredients of Section 120 B would not arise at all. Also, it is mentioned in the Charge Sheet itself that the mode of CCTV recording at the place of occurrence was NVR, which is stored on the network, and not DVR. Thus, there could not be any reason for the petitioner to have the the HDD removed physically.

11. It is next argued that the Charge Sheet has been premised also on a food bill which allegedly indicated that the petitioner had procured certain particular items of food which had been stated by the witnesses to have been offered to the victim on the relevant date. From the said bill itself, it is seen that the same was for a particular table in the restaurant from which it was procured i.e. Table No.21 and had been issued during lunch hours and not in the evening, whereas the alleged incident took place on both the dates from 9.00 pm to 11.00 pm. Moreover, the printouts of the accounts maintained by the personal assistant of the petitioner were also obtained by the investigating team from which it was evident that the petitioner was a regular customer of the said restaurant. Thus, nothing hinged on such food bill, although it has been made a component of the allegations.

12. Learned counsel appearing for the petitioner further submits that from the details of the movements of the vehicle of the petitioner for the relevant period, it was found that the car was not used on the relevant dates at all, thus exculpating the petitioner from the allegation that his car was used to bring the victim to the petitioner’s residence.

13. Certain call detail records are also a part of the Charge Sheet, along with tentative maps which have been drawn on the basis of the call records to indicate the movement of the concerned parties during the relevant period. However, the call details merely locate the victim and the other accused person in a general area and do not prove anything regarding the specifics, as to whether those calls came or went to or from the petitioner’s residence or any other particular place. The towers concerned cover radii of about 5 km; hence, the said call records and movement maps have no importance whatsoever.

14. It is also submitted that the mala fide approach of the police officials and the investigating team, against whose members the petitioner had, during his tenure as Chief Secretary, taken stringent steps in his official capacity, is evident from the entire developments in the case, including the fact that when the petitioner subsequently came to the Islands for official work, allegations were made against the petitioner and immediate action was taken by the police authorities, prompted by some unknown reasons.

15. Thus, it is argued that the petitioner ought to be absolved from the entire proceedings, in view of the FIR and the subsequent proceedings being vitiated by mala fides and ex facie containing no ingredient of any of the alleged offences against the petitioner.

16. Learned counsel for the petitioner also adds that the ingredients of Sections 376C, 376D of the Indian Penal Code are not attracted at all even as per the FIR and the Charge Sheet filed against the petitioner.

17. Learned counsel cites several judgments, particularly Dhruvaram Murlidhar Sonar vs. The State of Maharashtra reported at AIR 2019 SC 327 and Pramod Suryabhan Pawar vs. The State of Maharashtra reported at AIR 2019 SC 4010, to argue that consensual sex does not amount to rape and in such cases, FIRs containing allegations of rape can be quashed.

18. In support of his arguments on the ingredients of Section 376C, learned counsel cites Omkar Prasad Verma vs. The State of Madhya Pradesh reported at AIR 2007 SC 1381.

19. In respect of false allegations of rape, Radhu vs. State of Madhya Pradesh reported at (2007) 12 SCC 57 is relied on. Particular stress is laid on Salib vs. State of UP reported at 2023/INSC/687 for the proposition that where allegations of malicious complaint are made, the Court has to scrutinize the matter with extreme caution.

20. It is argued that the Court below shirked its duty in not looking into relevant material to reject the petitioner’s petition for discharge as well as the application under Section 340 of the Code of Criminal Procedure, despite rampant false allegations having been made against the petitioner in pleadings before the Court.

21. Lastly, it is argued that Section 482 of the Code of Criminal Procedure has an overarching effect and can be resorted to for quashing proceedings at any stage of the investigation and/or trial.

22. Learned counsel for the prosecution and the victim contend that the allegations and counter allegations made between the petitioner and the prosecution are to be tested at the proper stage of trial, upon assessment of evidence. At this juncture, it is argued, sufficient materials have been collected in the investigation by the SIT to proceed with framing of charges. It is contended that the FIR is not an encyclopaedia of the offences and the Charge Sheet is sufficient to justify a trial.

23. Moreover, the evidentiary value of materials collected in investigation cannot be assessed on merits even before the framing of charges.

24. The findings of the court at the stage of bail, it is contended, are not conclusive insofar as the trial is concerned.

25. Learned counsel for the victim highlights that the victim is a young girl of around 22 years of age, being deprived of the company of her parents, one of whom is dead. She was lured into the trap set up by the accused persons with the assurance of giving her a government job. It is contended that even if the victim went to the residence of the petitioner of her own volition, that does not justify the brutal assault inflicted on her.

26. The allegation of mala fides is categorically controverted, submitting that in view of the heavy clout of the petitioner during his regime as CS, the petitioner committed several high-handed actions. However, the interviews in social media channels have nothing to do with the investigation against the petitioner. The SIT had to be constituted due the clout of the petitioner. In fact, if the Administration was all along against the petitioner with a malicious agenda, there would be no occasion for the victim to be compelled to file an application under Section 156 (3) of the Code of Criminal Procedure seeking the registration of an FIR.

27. Heard learned counsel for all the parties. For a proper adjudication of the instant matter, it is to be scrutinized as to whether the ingredients of the alleged offences against the petitioner can be completely ruled out, absolving the petitioner of further involvement in the criminal proceedings. It is well-settled that the tests for quashing an FIR and/or a criminal proceeding, particularly after the investigation is complete and Charge Sheet has been filed and charges are about to be framed, are stringent; all the more so because the accused/petitioner will in any event have a chance to participate in the trial and take all points in the trial itself.

28. Seen from such perspective, the allegations made by the petitioner are to be looked into in the context of the materials on record.

29. The first and foremost contention of the petitioner is the discrepancy between the dates initially alleged by the victim and the dates of the alleged offences which find place in the Charge Sheet. The petitioner alleges that such alteration was made only after the investigating agency became aware from the petitioner’s disclosure that he was not present in the Islands on one of the dates initially alleged i.e. on April 14, 2022, and that he was otherwise busy on May 01, 2022.

30. While deciding such issue, it is seen from the records that the initial set of dates as alleged by the victim were April 14 and May 01, 2022 whereas the second set of dates which are enumerated in the Charge Sheet are March 27 and April 27, 2022. The FIR which was registered at the inception mentioned the period of commission of the crime as April 14, 2022 to August 31, 2022. Thus, we find that both the sets of dates broadly fall within the vicinity of the time span as alleged initially. Although there is discrepancy in the dates between the victim’s first statement and the dates which have come out in investigation, the difference between the dates is at the most within the zone of one month.

31. The first date according to the victim was initially April 14, 2022 whereas subsequently the Charge Sheet mentioned the same to be March 27, 2022, the difference between the two being about eighteen days.

32. The second date as initially claimed was May 01, 2022 whereas as per the Charge Sheet it is April 27, 2022. Thus, the difference between the two dates is merely four days.

33. Hence, the discrepancy between the two dates cannot be said to be so crucial so as to invalidate the entire premise of the allegations against the petitioner or the other co-accused persons. In fact, minor discrepancies in dates of occurrence are often an indication that the victim is telling the truth and has not concocted a story. A pre-planned concocted story, that too in collusion with the law enforcement agencies as alleged by the petitioner, would be foolproof and devoid of any such obvious discrepancy.

34. Insofar as the CCTV footage is concerned, there are certain factors which are to be considered. The petitioner alleges that the footage was removed after three months whereas it is stored for a maximum period of two months. Such fact, however, by itself does not mean anything in the context. First, the petitioner is not supposed to be a technical person, knowing exactly how long a CCTV footage is stored. That apart, it might very well have been that the petitioner did not take a chance, since even if the outer limit of storage is two months, the footage might, by chance, have been stored for a month more. The possibility of the petitioner not taking any risk cannot thus be ruled out. Also, the petitioner being a layman, might not have been aware that removal of HDD in a network-oriented storage is futile. In fact, before the trial begins and evidence commences, there is nothing concrete before the court, which is not an expert, to show that even in NVR systems the data is stored in the network. Even if data was stored on the network, there is no reason to believe at this stage that it was also stored simultaneously in the HDD and that steps were not taken by the accused persons to remove such data from the network as well.

35. The other plinth of the argument of the petitioner is that there was no complaint at the juncture when the hard disk was allegedly removed by the petitioner, to attract Section 120B of the IPC. However, it is the commission of an offence, and not the lodging of a complaint, which is germane and is required to be intended to be covered up within the contemplation of Section 120B. Even if no complaint had been lodged at the juncture when the Hard Disk Drive (HDD) was removed, if the offence had actually been committed by the petitioner, it would be within his knowledge that he had already committed such offence, justifying the attempt to remove traces of proof. No explanation comes forth from the petitioner as to why he had the entire HDD containing the CCTV footage removed at the time of leaving the Islands on transfer, irrespective of whether the system was DVR or NVR. The probability of the petitioner not taking any chance in that regard cannot be ruled out, at least at this stage, particularly since there is sufficient material on record, including statements of several technical persons and emails, to indicate that the footage was indeed removed on the specific instructions of the petitioner.

36. The next question which comes up for consideration is the conspiracy theory sought to be advanced by the petitioner. It is to be noted that even if it were to be assumed that there was a concerted effort to malign the petitioner, the said effort commenced after the date of the offence. There is nothing on record to show that when the victim girl allegedly went to the house of the petitioner or the developments leading up to the alleged offence took place, there was any intervention from any quarter to plant the victim to conjure up her story. It is but natural that if a high official is indicted, there would a public uproar and outcry. It may very well be that Markanday, the father-in-law of the victim girl, had an axe to grind against the petitioner and as such, took up the cudgel against the petitioner when he came to know of the allegations against the petitioner. The social media interviews given by Markanday and one Manoj Paul are not germane to assail the veracity of the case made out against the petitioner. By itself, nothing hinges on such efforts to build up a movement against the petitioner on the basis of the complaint of the victim girl. Even if it was to be accepted that Markanday and Manoj have been organizing a public movement against the petitioner, the same ipso facto does not vitiate the prosecution case at this stage.

37. That apart, we cannot lose sight of the fact that if the Administration was so active against the petitioner, an FIR would be lodged immediately upon the complaint of the petitioner before the SHO, Aberdeen Police Station and the concerned SP, South Andaman and other public bodies and the victim would not have to move the Magistrate’s Court under Section 156(3) of the Code of Criminal Procedure to have an FIR registered.

38. The formation of the SIT has also been insinuated by learned counsel for the petitioner to be designed to victimize the petitioner. However, it may very well be exactly the other way round. In view of the position of power held by the petitioner during the relevant period, until pretty recently, there would be every possibility that a normal police investigation would not yield any fruitful result. Hence, the constitution of a Special Investigation Team (SIT) was the only justified course which could be taken to conduct the investigation against the petitioner. There was every possibility that the petitioner would influence witnesses in view of his high office and the power associated with it till recent times and as such, the formation of a SIT cannot operate against the prosecution case at all.

39. Certain other inconsequential points have been taken by the petitioner. For example, the fact that the driver of the petitioner was taken on board as a Protected Witness and not an accused cannot be the concern of the petitioner. Moreover, the driver was a mere employee of the petitioner and even as per the Charge Sheet, did not have any active role to play or any direct complicity which has been established in the present case. Even if the driver had brought the food or the drink, there is nothing to connect the driver directly with the administering of any intoxicant in the drink. The petitioner’s initial complaint is also vague as to who administered such intoxicant and does not incriminate the driver as such.

40. In any event, if subsequently during trial it comes up that the driver had any active role to play, there is nothing to prevent the Court from taking appropriate action to initiate proceeding against the driver as well and to embroil him also as an accused person.

41. The petitioner also seems to be aggrieved by the fact that the learned Sessions Judge directed the framing of charges immediately after rejection of the petitioner’s prayer for discharge. Nothing wrong can be read into the same; rather, the learned Sessions Judge did the right thing, as nothing remained after rejection of the discharge prayer but to direct framing of charges immediately thereafter. Moreover, the direction of the Supreme Court, while taking up the challenge against the bail order of the petitioner, to expedite the trial was also staring at the face of the learned Sessions Judge, which justifies the fixation of a date for framing of charges.

42. We often criticize our Judicial Officers for delay in proceedings. In the same breath, we cannot also castigate them for attempting to expeditiously decide matters, which is precisely the case here.

43. In fact, while still on the order of the learned Sessions Judge, this Court would fail in its duty if the effort put in by the learned Sessions Judge in the impugned order goes unappreciated. The learned Sessions Judge painstakingly dealt with each and every contention of the petitioner in the context of the materials of the case. A plausible view was taken by the learned Sessions Judge and merely because a different view may be possible on the materials, this Court ought not to interfere under Section 482 of Code of Criminal Procedure.

44. To sum up, even taking the best case of the petitioner at this stage, certain aspects of the case still remain to justify the continuance of proceedings against the petitioner.

45. First, in spite of minor discrepancies in the dates, the plinth of the allegation remains that on the relevant two dates, between 9.00 PM and 11.00 PM, the victim was sexually assaulted by the petitioner brutally. As per the allegation of the victim, she was also intoxicated, thereby diluting the question of consent. Regarding consent, we must also take into account the gross inequality in the social status of the petitioner as against the victim. Whereas the victim is an ordinary girl of about 22 years, seeking to get a government job by meeting a high official, the petitioner wielded huge powers as the Chief Secretary of the Islands. Thus, even if the victim went to the residence of the petitioner on the fateful days, it furnishes no justification for the petitioner to force himself upon the victim against her will. At no point of time has the victim stated that she consensually engaged in sexual intercourse with the petitioner. Rather, as per her allegations, the petitioner forcibly and brutally assaulted her (“like an animal” in her words) and unleashed himself upon her against her will. In such situations, even a “yes” may very well be, in reality, a big “no” on the part of the victim.

46. Her previous conduct or amorous relationship with any of the other co-accused persons, be it Rinku and/or Rishi, cannot have any bearing whatsoever or justify the alleged offences, if committed by the petitioner against the victim.

47. As to the movement of the petitioner’s vehicle (or the lack of it) on the concerned dates, the records of the same could very well have been effaced or doctored by the petitioner, for all that one knows, by using his high office and the influence which goes therewith. A word of caution here. It is not the intention of this court to imply anything against the petitioner. The above is just one of the multiple possibilities in the present case at this inchoate stage. All that is indicated is that even the charges have not been framed as yet and the impending criminal proceeding is pregnant with possibilities. It is, thus, too early to arrive at a conclusion beyond doubt that the FIR or the Charge Sheet do not carry any ingredient of the offence or that the allegations are so absurd or improbable so as to merit quashing of the proceeding after the Charge Sheet is filed.

48. The other part of the allegation also holds ground, that Rinku and Rishi were instrumental in colluding in the offence allegedly committed by the petitioner. It need not be that all three co-accused had to simultaneously remain present at the place of occurrence at the relevant point of time. The chronology of events strung in the Charge Sheet sufficiently furnish ingredients for the involvement of the petitioner, Rinku and Rishi in the sexual assault allegedly committed on the victim which attract fully the provisions of Section 376D of the Indian Penal Code.

49. At the present stage, it is the version of the victim and the Charge Sheet which have to be taken as gospel truth as, in order to quash the FIR or the proceeding, the petitioner has to meet the high ground that even if the prosecution case is taken to be true, the offences are not borne out. Seen from such perspective, the allegation still sticks that as per the version of the Charge Sheet, the victim was promised by the petitioner, even on the fateful days, that too, in the residence of the petitioner, of being given a government job.

50. That apart, from the build-up to the offence, as borne out by the materials annexed to the Charge Sheet and collected by the Investigating Agency, the petitioner might have used his influence on several occasions to commit the offences. In the Charge Sheet, even apart from the involvement of Rinku and Rishi, it is found that the Protected Witness, the driver of the petitioner who was in a position to know the facts, has alleged that at different points of time different girls were dropped by the petitioner’s official vehicle at his bungalow and whenever the girls were coming, the petitioner used to lock up the servants of the house in the kitchen, guard duties staff were told to go behind the bungalow and the staff at the entry gate were given specific instructions to open the gates and not to permit entry of other vehicles to the bungalow.

51. The Charge Sheet further states that during examination of the staff deployed at the C.S. bungalow, information was elicited that the petitioner used to inform the staff at the gates of his guests’ arrival and directed them to open the gates and not to give entry to any guests’ vehicles. The case of the petitioner locking up his staff in kitchen and removing the remaining staff of the bungalow to the electric room side behind the bungalow has been consistently corroborated by the other witnesses, being staffers of the petitioner’s bungalow, who gave statements during the investigation.

52. During examination of two witnesses who were apparently close friends of the victim, the consistent case of the victim has been corroborated in respect of her being offered a government job, which synchronizes with the underlying refrain of the statements of the bungalow staff that the petitioner was in the habit of “procuring girls” at different points of time and his modus operandi while doing so has been reflected from the statements collected by the investigating team during the investigation. Although such facts may not be directly relevant in the context, those may acquire relevance during trial since such facts, in turn, prove other directly relevant facts, which also come within the ambit of ‘relevancy’ as envisaged in the Evidence Act, in particular under Sections 9, 11 and 16 thereof. Such consistent conduct of the petitioner, if proved to be true, justifies the allegations against him made by the victim girl as well, in whose case a similar mode of operation was adopted by the petitioner as per allegations of the Charge Sheet and the victim and the attending circumstances.

53. The disclosures of the co-accused persons Rinku and Rishi, despite being statements of co-accused persons, cannot be ruled out entirely if those ultimately corroborate the materials independently gathered in the investigation. In fact, the investigating team also had a confrontation between the co-accused person Rishi and the petitioner, who is the principal accused. During such episode, the co-accused Rishi squarely confronted the petitioner and stuck to his statement made otherwise in his disclosure statement.

54. The other facet of the matter is the call records and maps which have found place in the Charge Sheet. The petitioner argues that those vaguely identify the areas from which the calls were made or received. In the jurisprudence regarding evidence in India, as borne out by the Evidence Act, there is a distinction between a fact being ‘proved’, ‘disproved’ and ‘not proved’. Although the stage of trial has not yet come, even lending the highest credence to the arguments of the petitioner, that call records, although those may arguably not prove beyond doubt the exact locations of the dramatis personae in the present matter, does not also disprove the case of the prosecution. Rather, the general vicinity elicited from such materials corroborate the case made out in the Charge Sheet.

55. In any event, the petitioner will have full opportunity to try and demolish the prosecution case by assailing the documents produced in support of the prosecution case, by leading independent evidence and also duly cross-examining the prosecution witnesses.

56. It would be premature at this stage to conduct a full-fledged trial (which would be necessary in order to assess all the components raised by the petitioner). On the materials at present on record, it cannot be said that no ingredients as to the alleged offences against the petitioner have been made out at all from the FIR or the Charge Sheet, along with accompanying materials.

57. The other aspect of the instant lis is the rejection of the petitioner’s application under Section 340 of the Code Criminal Procedure.

58. The learned Trial Judge did not shut out the petitioner from making such allegations but merely observed that it would be premature at this stage, before the documents come on record as evidence, to pass any order thereon. Such stand is perfectly justified in law and ought not to be set aside even if an alternative view could be possible.

59. In view of the above discussions, the refusal of the discharge plea of the petitioner by the learned Sessions Judge was also justified. In fact, by the same logic, there is no occasion at all for this Court, sitting in criminal revision, to quash the FIR, the Charge Sheet and/or the entire proceedings which are pending against the petitioner.

60. Accordingly, the present challenge fails.

61. CRR/36/2024 & CRR/38/2024 are dismissed on contest.

62. The learned Trial Judge is requested to frame charges at the earliest and thereafter to expedite the trial as far as possible, in consonance with the directions given by the Hon’ble Supreme Court.

63. The Trial Court records be sent down forthwith along with a copy of the judgment and order of this Court.

64. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities.

Later

After passing of the above order, learned counsel for the petitioner seeks an order restraining the Trial Court from proceeding with the matter for a period of two weeks in view of the Supreme Court being closed at this point of time. However, upon consideration of such prayer in the facts of the case, such prayer is refused.