Vikash Kumar @ Sonu vs The State & Anr. on 1 August, 2017

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Judgment Reserved on: July 27, 2017
% Judgment Delivered on: August 01,2017

+ CRL.M.C. No.2763/2017

VIKASH KUMAR @ SONU ….. Appellant
Through: Ms.Meenakshi Arora, Senior
Advocate instructed by
Ms.Sheeba Khan, Advocate.

versus

THE STATE ANR. ….. Respondents
Through: Ms.Kusum Dhalla, APP for the
State/R-1.
R-2/complainant in person.

CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. By filing this petition under Section 482 Cr.P.C., the petitioner
Vikash Kumar @ Sonu has invoked the inherent jurisdiction of this
Court with a prayer for quashing of FIR No.516/2016 under Sections
376(2)(N)/323/506 IPC registered at PS Timar Pur and the
consequential proceedings emanating therefrom including the charge-
sheet filed.

2. While praying for quashing of FIR and the criminal proceedings
emanating therefrom, the petitioner has pleaded that the physical
relationship between him and the complainant was consensual since
beginning. They have also got married on 26th May, 2017 at Arya

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Samaj Mandir, 53, Choti Bazariya Railway Road, Ghaziabad, Uttar
Pradesh and the marriage has also been registered. The grounds on
which the prayer has been made for quashing of FIR and the criminal
proceedings are as under:-

(i) A false and frivolous FIR has been lodged by respondent
No.2/complainant against the petitioner which is pending trial before
the learned ASJ of Tis Hazari Court. The petitioner and respondent
No.2 fell in love in the year 2005 and since then they were in contact
with each other through mobile, e-mail, letters etc.

(ii) The petitioner got a job in Merchant Navy and whenever he
visited Delhi they used to meet. They had physical relationship with
mutual consent in July, 2012. However, as both of them are from
different caste, the inter-caste marriage was not approved by the
family of the petitioner and he had to marry a girl of the choice of his
family. The marriage could not work and in the year 2015 ended by a
decree of divorce by mutual consent.

(iii) After the divorce the petitioner and respondent No.2 again came
close and the petitioner was serious about this relationship but his
parents did not agree whereas respondent No.2 was compelling him to
marry her but he wanted to talk to his parents again and requested for
more time to make his parents agreeable. This happened on 6 th
November, 2016 when respondent No.2 visited Kolkata where he was
staying to appear in his departmental examination. Under some wrong
impression that petitioner was cheating her, immediately on her return
to Delhi she got registered FIR No.516/2016 under Sections
376(2)(N)/323/506 IPC.

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(iv) After coming to know about the registration of FIR the
petitioner surrendered on 3rd December, 2016 and was granted interim
bail by the learned ASJ on 20th May, 2017 to enable him to marry the
respondent No.2/complainant. The marriage was solemnized on 26 th
May, 2017 at Arya Samaj Mandir and also registered at Ghaziabad
(two photographs of the marriage have been filed along with the
petition).

(v) The FIR has been got registered by the complainant due to
misunderstanding of facts, in a confused state of mind that the
petitioner would not marry her whereas he was trying to obtain
consent of his parents.

(vi) The petitioner is a respectable person having status in the
society and due to his incarceration, despite marrying the complainant,
is causing loss and injury to his reputation as well as too his family.

(vii) Respondent No.2/complainant has decided to live with the
petitioner peacefully hence there is minimal chance of the complainant
coming forward to support the prosecution’s case.

(viii) Consensual physical relationship between the parties does not
constitute an offence under Section 376 IPC. Both of them were major
and the complainant was a consenting party to the physical
relationship between them.

(ix) Continuation of the criminal proceedings would amount to an
abuse of the process of the Court and will also have an adverse effect
on their life.

3. Ms.Meenakshi Arora, learned senior counsel for the petitioner
has requested for quashing of the FIR and the criminal proceedings

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pending against the petitioner mainly on the ground that parties to the
relationship were major and consenting, hence no offence under
Section 376 PC is made out. Further if the case of respondent
No.2/complainant was that her consent was obtained on the
representation that the petitioner promised to marry her, that promise
has been fulfilled now. The petitioner and the complainant are
husband and wife which fact is established from the two photographs
and marriage certificate placed on record. Learned senior counsel for
the petitioner also submitted that the petitioner was always serious in
this relationship but could not marry the complainant earlier because
the parties belong to different castes and the inter-caste marriage was
not approved by the parents of the petitioner. On behalf of the
petitioner it has been further submitted that once the promise has been
fulfilled by the petitioner by marrying the complainant, nothing
survives for adjudication and the entire trial would be an exercise in
futility.

4. It has also been urged before the Court that the
complainant/respondent No.2 has been appearing before the Court to
confirm the factum of marriage and support the petitioner in his prayer
to quash the FIR and the criminal proceedings pending against him.

5. In the brief written synopsis filed on behalf of the petitioner,
although not pleaded in the petition or mentioned in the lists of dates
and events, in para No.1 while responding to the allegations in para
No.12 of the FIR about the parties entering into physical relationship
in July, 2012, it has been submitted that on 8 th July, 2012 both the
parties exchanged garland in the temple in presence of their friends

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without the knowledge of their parents/family members and entered
into physical relationship with mutual consent as both were major at
that time. Each time the parties cohabitated, it was with mutual
consent. They also lived as husband and wife in the month of
September, 2012 and later shifted to Gurgaon under the fear that their
family will not accept their relations as the parties were belonging to
different castes.

6. In support of her contentions, learned Senior Advocate for the
petitioner has placed reliance on the following decisions:-

(i) Rajiv Thapar Ors.Vs. Madan Lal Kapoor, (2013) 3 SCC 330

(ii) Narinder Singh Ors. Vs. State of Punjab Anr., Criminal
Appeal No.686/2014 arising out of SLP(Criminal) No.9547/2013

(iii) Mohit Nagar Vs. State Another, Crl.M.C. No.2454/2016
Crl.M.A.10521/2016 decided on 24th March, 2017.

(iv) Mr.Manteshwar Hanumantrao Kattimani Vs. State of
Maharashtra and Anr., Crl. Application No.1419 of 2016 decided on
2nd December, 2016.

(v) Jaya D.Ovhal Vs. State of Maharashtra, 2015 SCC Online Bom
3482 decided on 11th June, 2015.

(vi) Deepak Gulati vs. State of Haryana AIR (SC) 2071.

7. I have considered the oral as well as written submissions
advanced by learned Senior Advocate for the petitioner and also gone
through the record.

8. The case FIR No.516/2016 under Sections 376(2)(N)/323/506
IPC was registered at PS Timar Pur on 9th November, 2016 on the
basis of statement made by complainant/respondent No.2 ‘P’ (name

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withheld to conceal her identity) wherein she mentioned about her
consent to have physical relationship being obtained on promise to
marry but the petitioner getting married to some other lady on 16th
December, 2012. In the year 2015 after obtaining divorce from his
first wife, he again entered into physical relationship on promise to
marry her but again backed out.

9. In order to understand the nature and gravity of the offence as
alleged in the FIR, it is necessary to refer to the statement under
Section 164 CrPC of the complainant/respondent No.2 which was
recorded on 10th November, 2016 i.e. on the next day of registration of
the FIR.

10. As per the statement under Section 164 CrPC, the version of the
complainant/respondent No.2 is that the petitioner was residing near
her house and love relationship between the two started on 23rd May,
2005. The petitioner left for Mumbai to join T.S.Chanakya Nautical
Science to study for Merchant Navy. The petitioner insisted for sexual
relations but she insisted for the same only after the marriage, as a
result of which he started ignoring her. In March/April, 2012, he
mailed from the ship that his parents had finalized a girl for him and it
was not possible for him to marry her (complainant). However, when
he came to Delhi, he insisted that only if she is willing to have sex
with him that he would marry her. She agreed for having sex as it was
a long relationship and she did not want to lose the petitioner. The
parties continued to have physical relationship till October, 2012 when
again the petitioner started boycotting and neglecting her. In
November, 2012, the petitioner informed that his family was not

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agreeing for the marriage, hence he was going to marry the girl of his
family’s choice and all efforts by the complainant to make him
agreeable to the marriage with her and her efforts to take her parents
to his house were rejected. In the meantime, her father fell ill and
expired on 25th November, 2012 and on the same day, she came to
know that petitioner got engaged and married on 16th December, 2012
to another girl. Again on 25th December, 2012 she received a call
from the petitioner that he was feeling sorry and missing her. At that
time, she was under treatment for depression. The wife of the
petitioner also started abusing her and her family by calling them and
threatening her. She changed her mobile number and finished all her
contacts with the petitioner and started making preparations of UPSC
Exams. She did not reply to his mails also. In July, 2015 the
petitioner called her mother and insisted her (complainant) to meet
him. The petitioner informed her that he had taken divorce and wanted
her to return in his life and promised to marry her. After lot of
persuasions by the petitioner, she met the petitioner in July, 2015. The
petitioner felt sorry and assured to marry her this time. She forgave
him in the hope that this time he would definitely marry her.
Whenever the petitioner came to Delhi, he used to have physical
relations with her on promise to marry and also one day filled
‘sindoor’ in her ‘maang’ and said that he has got entered her name in
his company and bank account as his wife which was enough proof
and again left for his ship. In July, 2016, when he returned, again he
continued insisting for sex very frequently and she had no option but
to agree. She was cautioned by some of his friend that the petitioner

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would not marry her and rather he was just using her. In October,
2016, he again started ignoring her like it happened in 2012 and on
coming to know that the petitioner had to appear in some examination
in Kolkatta on 8th November, 2016, she went to Kolkatta to meet him
but there she was informed by the petitioner that he has been engaged
to another girl and he did not consider it necessary to inform her. On
7th November, 2016 he again insisted for sex and despite the fact that
she was having periods, he forcibly had sex with her. When she said
that she would report the matter to the police, she was threatened by
the petitioner saying that he will prove that she was a prostitute and
was extorting money from him. On that night, not only he had given
beatings to her but also did jabardasti with her telling her that if she
make a complaint, she would be defamed and he started abusing her
and her family. She requested him to delete her photographs and
though he deleted some of the photographs, other photographs
wherein she was in innerwear, were not deleted. The petitioner also
allegedly said that if she report to the police or to Vakil, he would
purchase all of them and she should go back as nothing can be done.

11. After coming to Delhi, she went to the police station but police
did not register her report. Then on the advice of some of her friend,
she called PCR and thereafter visited the office of DCP and met
Ms.Isha Pandey, IPS. At the behest of DCP, the FIR No.516/2016
under Sections 376(2)(N)/323/506 IPC was registered at PS Timar
Pur. After quoting the indecent language in which she was abused by
the petitioner, she concluded her statement under Section 164 CrPC

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praying that ‘Mujhe justice chahiye. Main aur kuch nahi kehna
chahti’.

12. The trial in the instant case is at the stage of prosecution
evidence. The submission made by Ms.Meenakshi Arora, learned
Senior Advocate for the petitioner is that since the parties have
married and marriage photographs and marriage certificate are place
on record and the complainant is present before the Court, no useful
purpose will be served by making the petitioner to face trial when the
complainant is not likely to support the prosecution’s case and that in
such type of cases, pendency of the trial will have adverse effect on
the matrimonial life of the parties and will be an exercise in futility.

13. The question that arises for consideration is whether the mere
fact that the parties have allegedly got married should be a reason
good enough to quash the FIR registered under Sections
376(2)(N)/323/506 IPC and consequential proceedings emanating
therefrom.

14. The decision reported as Rajiv Thapar Ors.Vs. Madan Lal
Kapoor (Supra) relied upon by learned Senior Advocate for the
petitioner lays down the guidelines for quashing of FIR and the
proceedings pursuant thereto.

15. In the decision reported as Narinder Singh Ors. Vs. State of
Punjab Anr. (Supra) relied upon by learned Senior Advocate for the
petitioner, the FIR No.121/2014 was registered under Section
307/324/323/34 IPC and the case was at the stage of recording of
evidence. At that juncture, after entering into a compromise, a petition
under Section 482 CrPC was filed by the petitioners/accused persons

Crl.M.C.No.2763/2017 Page 9 of 18
for quashing of the criminal proceedings. While noting that in view of
the compromise between the parties, there is a minimal chance of the
witnesses coming forward in support of the prosecution case and the
chance of conviction, therefore, appeared to be remote and in view of
the compromise between the parties, the proceedings were quashed.

16. Learned Senior Advocate for the petitioner cannot draw much
support by relying upon the decision in Narinder Singh Ors. Vs.
State of Punjab Anr., (Supra), as in the subsequent decision
reported as State of Madhya Pradesh vs. Deepak AIR 2014 SC 3747
authored by the same pen, in a case under Section 307 IPC, prayer for
quashing of the criminal proceedings was declined. While extracting
para 29 of the decision in Narinder Singh Ors. Vs. State of Punjab
Anr. (Supra), it was held in paras 13 and 14 of the report as under:-

’13. It is clear from the reading of the passages
extracted above, that offence Under Section 307 is not
treated as a private dispute between the parties inter se
but is held to be a crime against the society. Further,
guidelines are laid down for the Courts to deal with
such matters when application for quashing of
proceedings is filed, after the parties have settled the
issues between themselves.

14. When we apply the ratio/principle laid down in the
said case to the facts of the present case, we find that the
injuries inflicted on the complainant were very serious in
nature. The accused was armed with sword and had
inflicted blows on the forehead, ear, back side of the
head as well as on the left arm of the complainant. The
complainant was attacked five times with the sword by
the accused person out of which two blows were struck

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on his head. But for the timely arrival of brother of the
complainant and another lady named Preeti, who
rescued the complainant, the attacks could have
continued. In a case like this, the High Court should not
have accepted the petition of the accused Under Section
482 of the Code.’

17. In the decision reported as State of M.P. vs. Manish Ors.
(2015) 8 SCC 307, again the scope and power of the High Court under
Section 482 CrPC to quash the criminal proceedings on the basis of
settlement in a heinous/serious offence has been dealt with at length in
the light of the decision of the Supreme Court by a Bench of three
Judges in Gian Singh vs. State of Punjab (2012) 10 SCC 303. In the
case State of M.P. Vs. Manish Ors. (Supra) the State preferred an
appeal against the decision of High Court of Madhya Pradesh in Misc.
Criminal Case No.4013/2013 whereby the High Court in exercise of
its power under Section 482 CrPC quashed the FIR No.512/2012
under Sections 307/294/34 IPC on the plea that the dispute has been
amicably settled. The scope of the power under Section 482 CrPC to
quash the proceedings in a heinous and serious offences has been dealt
with in paras 4 to 9 of the report as under:-

‘4. Therefore, the moot question that arises for
consideration is whether based on out of Court
settlement alleged to have been reached between the
private parties, the offences of this nature falling Under
Sections 307, 294 and 34 Indian Penal Code which are
not covered by Section 320 Code of Criminal Procedure
can be taken note of and such orders of quashing of the
proceedings can be passed in exercise of powers Under
Section 482 Code of Criminal Procedure.

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5. The question is no longer res integra, inasmuch as the
Three-Judge Bench of this Court in Gian Singh v. State of
Punjab and Anr. reported in MANU/SC/0781/2012 :
(2012) 10 SCC 303 which has been subsequently
followed in a number of other decisions including the
recent decision in State of M.P. v. Deepak and Ors.
reported in MANU/SC/0797/2014 : (2014) 10 SCC 285,
clearly sets out as to in what circumstances and in what
type of cases such exercise of inherent powers Under
Section 482 Code of Criminal Procedure can be invoked
de hors Section 320 Code of Criminal Procedure for
recognizing such out of Court settlement for the purpose
of quashing of criminal proceedings.

6. The Three-Judge Bench decision in Gian Singh (supra)
is an illuminating judgment on this issue. In paragraph
61 ultimately the position has been set out in clear terms
as under:

61. The position that emerges from the above
discussion can be summarised thus: the power of
the High Court in quashing a criminal proceeding
or FIR or complaint in exercise of its inherent
jurisdiction is distinct and different from the power
given to a criminal court for compounding the
offences Under Section 320 of the Code. Inherent
power is of wide plenitude with no statutory
limitation but it has to be exercised in accord with
the guideline engrafted in such power viz.; (i) to
secure the ends of justice or, (ii) to prevent abuse
of the process of any Court. In what cases power
to quash the criminal proceeding or complaint or
F.I.R. may be exercised where the offender and the
victim have settled their dispute would depend on
the facts and circumstances of each case and no
category can be prescribed. However, before
exercise of such power, the High Court must have
due regard to the nature and gravity of the crime.
Heinous and serious offences of mental depravity

Crl.M.C.No.2763/2017 Page 12 of 18
or offences like murder, rape, dacoity, etc. cannot
be fittingly quashed even though the victim or
victim’s family and the offender have settled the
dispute. Such offences are not private in nature
and have a serious impact on society. Similarly,
any compromise between the victim and the
offender in relation to the offences under special
statutes like the Prevention of Corruption Act or
the offences committed by public servants while
working in that capacity, etc; cannot provide for
any basis for quashing criminal proceedings
involving such offences. But the criminal cases
having overwhelmingly and pre-dominatingly civil
flavour stand on a different footing for the
purposes of quashing, particularly the offences
arising from commercial, financial, mercantile,
civil, partnership or such like transactions or the
offences arising out of matrimony relating to
dowry, etc. or the family disputes where the wrong
is basically private or personal in nature and the
parties have resolved their entire dispute. In this
category of cases, the High Court may quash the
criminal proceedings if in its view, because of the
compromise between the offender and the victim,
the possibility of conviction is remote and bleak
and continuation of the criminal case would put
accused to great oppression and prejudice and
extreme injustice would be caused to him by not
quashing the criminal case despite full and
complete settlement and compromise with the
victim. In other words, the High Court must
consider whether it would be unfair or contrary to
the interest of justice to continue with the criminal
proceeding or continuation of the criminal
proceeding would tantamount to abuse of process
of law despite settlement and compromise between
the victim and the wrongdoer and whether to
secure the ends of justice, it is appropriate that the

Crl.M.C.No.2763/2017 Page 13 of 18
criminal case is put to an end and if the answer to
the above question(s) is in the affirmative, the
High Court shall be well within its jurisdiction to
quash the criminal proceeding.

(Emphasis added)

7. When we apply the principles set down therein, it can
be stated that when it comes to the question of
compounding an offence Under Sections 307, 294 and 34
Indian Penal Code along with Sections 25 and 27 of the
Arms Act, by no stretch of imagination, it can be held to
be an offence as between the private parties simpliciter.
Inasmuch as such offences will have a serious impact on
the society at large, it runs beyond our comprehension to
state that after the commission of such offence the parties
involved have reached a settlement and, therefore, such
settlement can be given a seal of approval by the Judicial
Forum.

8. In the circumstances, the High Court unfortunately
having failed to appreciate the said legal position, the
impugned order cannot be sustained. We are, therefore,
convinced that in a situation where the private
Respondents herein are facing trial for offences Under
Sections 307, 294 read with 34 Indian Penal Code as
well as Sections 25 and 27 of the Arms Act, the cases
pending trial before the Court in Criminal Case No. 2602
of 2013, as the offences are definitely as against the
society, the private Respondents will have to necessarily
face trial and come out unscathed by demonstrating their
innocence. The impugned order is, therefore, set aside
and the Trial Court is directed to proceed with the trial
in accordance with law.

9. With the above observations and directions, the appeal
stands allowed.’

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18. Thus, in view of the decision of the Supreme Court in Gian
Singh vs. State of Punjab (Supra), on the basis of amicable settlement
in cases where nature of offence is heinous/serious as laid down
specified by the Supreme Court in Gian Singh’s case, criminal
proceedings cannot be quashed by invoking the jurisdiction of High
Court under Section 482 CrPC.

19. In the case Mohit Nagar vs. State Anr. in Crl.M.C.
No.2454/2016 decided on 24th March, 2017 relied upon by learned
Senior Advocate for the petitioner, the proceedings in case FIR
No.135/2016 under Sections 376/506 IPC, PS Greater Kailash-I have
been quashed by the Co-ordinate Bench of this Court mainly on the
ground that complainant was already married and had not obtained
divorce from her husband. Thus, there was no question of
misconception of fact or giving her consent to have physical relations
on the promise of the petitioner to marry her. It was held that on the
basis of undisputed facts and material collected during investigation,
no case is made out against the petitioner to proceed further.
Applying the guidelines laid down by the Supreme Court in Rajiv
Thapar’s case (Supra), the FIR and proceedings pursuant thereto were
ordered to be quashed to prevent the misuse of the criminal justice
system and also to prevent the abuse of the process of the Court.

20. The two decisions relied upon by learned Senior Advocate for
the petitioner in Mr.Manteshwar Hanumantrao Kattimani Vs. State of
Maharashtra and Anr. (Supra) and Jaya D.Ovhal Vs. State of
Maharashtra (Supra) are not binding precedents. Otherwise also,
while considering prayer of the petitioner for quashing the FIR and

Crl.M.C.No.2763/2017 Page 15 of 18
consequential proceedings emanating therefrom, guiding principles
are laid down in Gian Singh’s case (Supra).

21. The petitioner could not seek any assistance by placing reliance
on Deeapk Gulati vs. State of Haryana (Supra) as it was an appeal
against conviction for committing the offence punishable under
Section 365/366/376 IPC wherein by giving benefit of doubt, the
appellant/accused was acquitted.

22. It would also be apposite to mention here that in a decision
dated 3rd August, 2015 by Co-ordinate Bench of this Court in Crl.M.C.
No.1824/2015, the petition under Section 482 CrPC filed by the
petitioner for quashing of FIR registered under Section 376 IPC on the
ground that complainant has got married to the petitioner, has been
dismissed by passing the following order:-

“This is a petition seeking quashing of the FIR
No.163/2015 registered under Section 376 of the IPC at
the behest of respondent No.2. Respondent No.2 is
present. She is an adult stated to be 27 years of age. Her
presence has been identified by the Investigating Officer.
She states that she in fact wishes to marry the petitioner
and the FIR has been got registered under a
misunderstanding. She does not wish that any action
should be taken against the petitioner. The petitioner is
stated to be a Government servant.

In view of this factual matrix, the petitioner be not
arrested till the time when the statement of the
prosecutrix is recorded before the Sessions Judge.

Learned Public Prosecutor for the State under
instructions from the Investigating Officer states that

Crl.M.C.No.2763/2017 Page 16 of 18
challan is almost ready and shall be filed positively
within two weeks. The trial Judge will endeavour to
record the statement of the prosecutrix as early as
possible.

This Court is otherwise not inclined to entertain a
quashing petition under Section 376 of IPC in view of the
judgment of the Apex Court reported as 10 SCC 303 Gian
Singh Vs. State of Punjab and Anr.,

With these directions, petition disposed of.

Order dasti under the signatures of the Court
Master.”

23. The above order passed in Crl.M.C. No.1824/2015 declining the
prayer for quashing of the criminal proceedings despite the fact that
the parties got married, was challenged by filing a Special Leave to
Appeal No………./2016 (Crl.M.P. No.1865/2016) before the Supreme
Court. The SLP also stands dismissed vide order dated 8th February,
2016.

24. It may not be out of place to record here that in the two
marriage certificates placed on record, in one photograph only the
bride and bridegroom are seen sitting in front of ‘Hawan Kund’ and in
second photograph, bride is touching the feet of bridegroom and what
to talk of friends/relatives, even the priest solemnising the marriage is
not visible. The marriage certificate records the marital status of the
bridegroom (petitioner) as ‘unmarried’ though admittedly he is
divorcee.

Crl.M.C.No.2763/2017 Page 17 of 18

25. In view of settled legal position enumerated in Gian Singh’s
case, (Supra), the criminal proceedings emanating from an FIR
registered with allegations of rape, which is an offence against society,
despite the alleged marriage of the petitioner with the
complainant/respondent No.2, cannot be quashed in exercise of
powers vested in this Court under Section 482 Cr.P.C.

26. The petition is hereby dismissed.

27. As prayed, copy of the order be given dasti to learned counsel
for the parties.

PRATIBHA RANI
(JUDGE)
AUGUST 01, 2017
‘pg/st’

Crl.M.C.No.2763/2017 Page 18 of 18

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