HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Revision No. 54 / 2017
Salman S/o Shri Abdul Rehman, Resident of Maderna Colony,
Krishi Mandi, Jodhpur
—-Petitioner
Versus
1. State of Rajasthan Through Public Prosecutor.
2. Jameela D/o Mohammed Salim, Resident of Samshan Road, Gal
Basti, Maderna Colony, Jodhpur
—-Respondents
__
For Petitioner(s) : Mr. Firoz Khan.
For Respondent(s) : Mr. R.K. Bohra, PP.
__
HON’BLE MR. JUSTICE SANDEEP MEHTA
Order
Date of Judgment:- 05/09/2017
Heard learned counsel for the petitioner and learned Public
Prosecutor. Perused the impugned order as well as the material
available on record.
By way of this revision, the petitioner Salman craves to
assail the legality and validity of the order dated 03.10.2016
passed by the learned Additional Sessions Judge (Women
Atrocities) Cases, Jodhpur in Sessions Case No.31/2016 whereby,
charges were ordered to be framed against him for the offence
under Section 376(2)(N) IPC.
Facts in brief are that the respondent No.2 Smt. ‘J’ lodged a
typed report with the Commissioner of Police, Jodhpur on
31.05.2016 alleging inter alia that the petitioner herein was
harassing and stalking her for the last 5-6 years. The petitioner
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[CRLR-54/2017]
allegedly used to call the complainant on her mobile phone and
frequently pressurised her to establish friendship with him. She
told the petitioner that she was already married to one Mohd.
Naseer and thus, she could not foray into this kind of relationship.
Mohd. Naseer divorced the complainant on 27.10.2014 whereafter,
the petitioner managed to establish friendship with the
complainant by offering her a false assurance that he would marry
her. Six months before lodging of the report, the petitioner
allegedly called her at the house of Shabbo, friend of the
prosecutrix and there, after giving her an assurance of marriage,
the petitioner allegedly established forcible sexual relations with
her. The same act was repeated four months later at the house of
Roshni, sister of the petitioner. About a month before lodging of
the report, she was again subjected to intercourse at the house of
Shabbo. Before establishing physical relations with the
prosecutrix, the accused repeatedly assured her that they would
marry. On 28.05.2016, the petitioner bluntly refused to marry the
prosecutrix. She alleged that the accused had sexually exploited
her under a false promise of marriage and thus sought action
against him. The said report was forwarded to the Police Station
Mahamandir for investigation where FIR No.195/2016 was
registered and investigation commenced. The investigation officer,
after concluding investigation, proceeded to file a charge-sheet
against the petitioner for the offence under Section 376(2)(N) IPC.
The petitioner contested the charge before the learned Trial Judge
who, by order dated 03.10.2016, turned down the prayer of
discharge made on behalf of the petitioner and directed framing of
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[CRLR-54/2017]
charge against him in the above terms. Being aggrieved of the
said order, the petitioner has approached this Court by way of
instant revision petition.
Shri Firoz Khan, learned counsel representing the petitioner,
relied upon the Hon’ble Apex Court’s judgments in the case of
Pradeep Kumar Verma vs. State of Bihar Anr., reported in
AIR 2007 SC 3059, Udaipur vs. State of Karnataka,
reported in AIR 2003 SC 1639 and Deepak Gulati vs. State
of Haryana, reported in 2013 Cr.L.R. (SC) 607, and urged
that ex-facie, the allegation of the complainant that she was
fraudulently induced by the accused to establish sexual relations
under a fictitious promise of marriage is absolutely untenable. He
urged that as per the statement of the prosecutrix recorded under
Section 161 Cr.P.C., it is clear that she was in touch with the
petitioner from 6-7 months after her marriage with Mohd. Naseer
resident of Pali. Owing to this relationship, Mohd. Naseer divorced
the prosecutrix. The prosecutrix left behind her two children with
her ex-husband Mohd. Naseer and started living with her father.
She alleged that she established friendship and relations with the
petitioner because of the assurance given by him that he would
marry her and it is she who retracted by contracting Nikaah with
one Javed resident of near New Kohinoor Cinema Hall. She lived
with Javed for 10-12 days as his wife and then came back and
continued her friendship with the petitioner. She again approached
her ex-husband Mohd. Naseer with a request to take her back but
he refused to accept her back. Thereafter, on numerous occasions,
she and the petitioner had sexual relations at various places.
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[CRLR-54/2017]
Similar allegations were levelled by the prosecutrix in her
statement recorded under Section 164 Cr.P.C. The witness
Shabana @ Shabbo, friend of the complainant in whose house the
complainant and the accused had established sexual relations on
more than one occasion, stated that the prosecutrix came to her
house about six months ago in the afternoon. A little later, the
petitioner also came there. The prosecutrix told her that she and
Salman were desirous of marrying each other and wanted to talk
in confidentially. She offered a room of her house to both of them
who went there and stayed there. Upon inquiry as to what they
had done in a room for a such a long time, the prosecutrix
laughed and told her that they had slept together in the room
because they were to marry each other.
From the version set up by the prosecutrix in her
investigational statement, it is apparent that she was having an
intimate relationship with the accused for last 5-6 years. She was
in touch with the petitioner apparently against the desire of her
husband Mohd. Naseer who finally became fed-up and divorced
the lady. She left her two children with Naseer and started living
with her parents apparently for continuing her affair with the
petitioner. A very significant fact emerges from the statement of
the prosecutrix recorded under Section 161 Cr.P.C. wherein, she
categorically stated that about 8 months ago, she contracted
Nikaah with one Javed, son of Babu Chhipa resident of New
Kohinoor at Jaipur. Thus apparently, after having been divorced by
Mohd. Naseer and before establishing physical relations with the
present petitioner, the prosecutrix had already married another
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[CRLR-54/2017]
person named Javed son of Babu Chhipa. Consequently, there was
no possibility of her marriage with the petitioner because she was
already continuing in a subsisting marital relationship with another
person. It is an admitted position that physical relations between
the prosecutrix and the petitioner were purely by consent though
of course she claimed that such relations were established under a
false promise of marriage. However, as has been observed above,
the possibility of marriage between the prosecutrix and the
accused was virtually non-existent as she was already married to
Javed. The situation at hand is clearly covered by the ratio of the
judgment rendered by the Hon’ble Supreme Court in the case of
Udai vs. State of Karnataka (supra) and hence, I am of the
firm opinion that the order framing charge against the petitioner is
grossly illegal and cannot be sustained.
As a consequence, the revision petition deserves to be and is
hereby allowed. The impugned order dated 03.10.2016 passed by
the learned Additional Sessions Judge (Women Atrocities) Cases,
Jodhpur in Sessions Case No.31/2016 whereby, charges were
framed against the petitioner for the offence under Section 376(2)
(N) is hereby quashed and set aside.
(SANDEEP MEHTA)J.
tikam daiya/