Court: Madhya Pradesh High Court
Bench: JUSTICE S. K. Awasthi
Udaypal Singh vs The State Of Madhya Pradesh on 7 March, 2019
Law Point:
JUDGEMENT
(1). The applicant/accused has preferred this petition under Section 482 of CR.P.C. for quashing the FIR bearing crime No. 163/2017 registered at Police Station- Mahila Thana, Indore, District Indore for the offence punishable under Section 376(2)(n) and 506 of I.P.C. and consequential proceedings relating to aforesaid FIR.
(2). The facts of the case are that prosecutrix made a written complainant at police Station- Mahila Thana, Indore alleging that in the year 2011 she and applicant was working together in the insurance company. Thereafter, they got acquainted, developed intimacy and started roaming together here and there. At one point of time, the applicant shifted to Delhi, however, during his stay at Delhi, applicant kept in touch with the prosecutrix telephonically. Sometimes in the year 2015, applicant came back to Indore and proposed to marry the prosecutrix. Initially, she declined but on the persuasion of the applicant, she ultimately agreed. Thereafter on 02.08.2017, the applicant had physical relationship with the prosecutrix in a hotel at Indore and thereafter, when he came to Indore, then he made physical relationship with the prosecutrix regularly. However, in the year 2017 he declined to marry with her. On the basis of aforesaid complaint, F.I.R. bearing Crime No.163/2017 was registered at Police Station- Mahila Thana for the offence punishable under Section 376(2)(n) and 506 of I.P.C.
(3). Learned counsel for the applicant has submitted that prosecutrix herself stated in the complaint that she was acquainted with the applicant from the year 2011 and they were friends and had also grown intimate. Nowhere it is claimed by the complainant that the applicant imposed him upon her nor persuaded her to be romantically involved on the pretext of marriage since the beginning. The complainant details an account of incident to be 02.08.2017 and the date of complaint viz-a-viz F.I.R. is 29.11.2017. The complainant nowhere disclosed any cogent reason regarding delay in lodging the F.I.R. The prosecutrix is major lady, she throughout knew very well about the consequences of her conduct and that she willingly agreed for all sorts of relationship and that at no point of time, the applicant made any promise to marry and that in this regard, the complainant made against the applicant is false and baseless. The prosecutrix is consenting party to the acts committed between herself and the accused., therefore, no offence is made out against the applicant for the offence under Section 376(2)(n) and 506 of I.P.C. and prays that FIR bearing Crime No.163 registered at Police Station- Mahila Thana, Indore, District Indore for the offence punishable under Section 376(2)(n) and 506 of I.P.C. and all consequential proceedings relating to the aforesaid FIR may be quashed.
(4). I have heard learned counsel for the parties and perused the record.
(5). 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 go give effect to any order under the Code or to prevent the abuse of process of 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. (6). In the case of State of Haryana and Ors.v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of Cr.P.C. Para 102 thus reads;
” 102 . In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and suffiiently 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 Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 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 Section 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 prudentperson can ever reach a just conclusion thatthere is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Codeor 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.
(7) Where a criminal proceeding is manifestly attended with malafide 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.”
(7). In the case of Vineet Kumar and Ors. v. State of Uttar Pradesh and Anr. (2017) 13 SCC 369, the Hon’ble Supreme Court has held as under:
“Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.”
In the context of law laid down by the Hon’ble Apex Court, it is apparent that 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. (8). In the present case FIR was registered against the applicant for the offence under Section 376 (2) (N) and 506 of I.P.C. 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 when if the consent is given by the complainant under misconception of fact, it is vitiated.
(9). In the present case, the prosecutrix is a major lady and she was working with the applicant and after that both of them made physical relationship, which disclosed that she was the consenting party. (10). In the case of Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 , the court has drawn a distinction between rape and consensual sex. In this case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she when with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then for some reason, went to live in the hostle at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complainant anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/ rape can be leveled against the accused. (11). In the case of Shivashankar @ Shiva v. State of Karnataka & Anr, in Criminal Appeal No.504/2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together as man and wife. It was held as under:
” In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainat.
It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as ‘rape’ especially in the face of the complainant’s own allegation that they lived together as man and wife”.
(12). In the recent judgment of the of the Apex Court in Criminal Appeal No.1443/2018 in the matter of Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra & others disposed of on 22.11.2018 has held that there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had malafide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any malafide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.
(13). In the instant case, it is admitted fact that applicant and prosecutrix was working in the year 2011 together in insurance company and thereafter they got acquainted, developed intimacy and started roaming together here and there. After that applicant shifted at Delhi, however during his stay at Delhi, he kept in touch with the prosecutrix telephonically. In the year 2015 when the applicant came to Indore, he proposed to marry the prosecutrix and applicant also agree, thereafter applicant had sexual relationship with the prosecutrix and whenever he came to Indore he made physical relationship with the prosecutrix. It is also came on record that when the applicant refused to marry with the prosecutrix even after that the prosecutrix continued in physical relationship with the applicant. It is clear that applicant and prosecutrix were in a relationship with each other for quite some time and enjoyed each other’s company. At this period the prosecutrix has not made any complaint to anybody that applicant had forcibly raped her. The prosecutrix had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. This court is of the view that even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the applicant under Section, hence prima facie no offence under Section 376 (2) (n) is made out against the applicant.
(14). Accordingly, this petition filed under Section 482 of Cr.P.C. is allowed and FIR bearing Crime No.163/2017 registered at Police-Station Mahila Thana-Indore for the offence under Section 376 (2) (n) and 506 of I.P.C. and all consequential proceedings relating to aforesaid FIR is hereby quashed.
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