Dushyant Kumar vs State Of Himachal Pradesh & Anr on 20 December, 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MMO No. 153 of 2016.

.

Date of decision: December 20, 2016.

Dushyant Kumar. ……Petitioner.

Versus

State of Himachal Pradesh anr. …..Respondents.

Coram r to
The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge.

Whether approved for reporting?1 Yes.

For the petitioner : Mr. Nimish Gupta, Advocate.

For the respondents : Mr. Pramod Thakur, Addl. AG, for

respondent No. 1.

Ms. Bhawana Dutta, Advocate, for
respondent No. 2.

Dharam Chand Chaudhary, J. (Oral)

Petitioner is an accused in a case registered by the

police of Police Station, Chintpurni District Una under Section 376

of the Indian Penal Code vide FIR No. 48 of 2015. The second

respondent is the complainant. She was married to one Shri Nitu

in the year 1993 and three children born to her out of this

wedlock. On account of certain differences with her husband she

started living separately from her husband said Shri Nitu. She

1
Whether the reporters of the local papers may be allowed to see the Judgment? yes.

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had been selling cloth bags at Chintpurni. She came in contact

of accused-petitioner who also used to supply cloth bags in

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Himachal Pradesh. She told him that her marriage with said Shri

Nitu stands dissolved by a decree of divorce. It is in the year

2011 he proposed to solemnize marriage with her and

represented that he will look after her children also. He thereby

succeeded in making physical relation with her. They both

started living with each other under the same roof at Chintpurni.

He had also been going and meeting to her parents and other

relations. The accused-petitioner allegedly assaulted her

sexually for a period over four years. As and when she insisted

for solemnization of marriage he used to pacify her that the

marriage will be solemnized soon as and when the dispute qua

land and water at his native place is settled. He also deferred

her visit to his native place and to his parents on lame excuses.

It is somewhere in the year 2012, she became pregnant. He

made her to have some tablets forcibly. On account of that she

developed problems including pain in stomach. She was taken

by him to Sonia Clinic, Mubarakpur, Nangloi (Delhi) and got

pregnancy terminated there. Later on, he refused to solemnize

marriage with her and she was also threatened with dire

consequences in case tried to contact him even over telephone

also.

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2. It is in this backdrop, FIR came to be registered

against the accused-petitioner. The investigation has been

.

conducted by the police and now report under Section 173

Cr.P.C. has been filed in the Court.

3. The FIR has been sought to be quashed on several

grounds, however, mainly that in view of the complainant legally

wedded wife of Shri Nitu she could have not been allured to

solemnize marriage by the accused-petitioner nor subjected to

sexual intercourse at that pretext. It is also canvassed that the

evidence collected by the investigating agency even if taken as

it is, no finding of conviction could have been recorded against

the accused-petitioner. Also that allowing the criminal

proceedings to continue against the accused-petitioner would

amount to abuse of the process of law.

4. Learned Additional Advocate General has contended

that the offence the accused-petitioner has committed is not only

heinous but serious in nature which according to him not only

affect an individual i.e. the complainant but has wide

repercussion in the society at large also.

5. Mrs. Bhawana Dutta, Advocate, learned Counsel

representing the respondent No. 2-complainant while arguing

that the accused-petitioner has taken undue benefit of the

poverty and separation of the prosecutrix from her husband has

subjected her to sexual intercourse at the pretext of

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solemnization of marriage with her and as such there is no

question of quashing the FIR or the pending criminal proceedings

.

against him.

6. The law on the subject is no more res-integra as the

Apex Court in Prashant Bharti Vs. State (NCT of Delhi), (2013) 9

Supreme Court Cases 293 in a similar set of facts and

circumstances has quashed criminal proceedings initiated

against the accused. This judgment reads as follows:

“17. It is relevant to notice, that she had

alleged, that she was induced into a physical
relationship by Prashant Bharti, on the assurance
that he would marry her. Obviously, an inducement

for marriage is understandable if the same is made
to an unmarried person. The judgment and decree
dated 23.9.2008 reveals, that the

complainant/prosecutrix was married to Lalji Porwal

on 14.6.2003. It also reveals, that the aforesaid
marriage subsisted till 23.9.2008, when the two
divorced one another by mutual consent

under Section 13B of the Hindu Marriage Act. In her
supplementary statement dated 21.2.2007, the
complainant/prosecutrix accused Prashant Bhati of
having had physical relations with her on
23.12.2006, 25.12.2006 and 1.1.2007 at his
residence, on the basis of a false promise to marry
her. It is apparent from irrefutable evidence, that
during the dates under reference and for a period of
more than one year and eight months thereafter, she
had remained married to Lalji Porwal. In such a fact

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situation, the assertion made by the
complainant/prosecutrix, that the appellant-accused

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had physical relations with her, on the assurance

that he would marry her, is per se false and as such,
unacceptable. She, more than anybody else, was

clearly aware of the fact that she had a subsisting
valid marriage with Lalji Porwal. Accordingly, there
was no question of anyone being in a position to

induce her into a physical relationship under an
assurance of marriage. If the judgment and decree
dated 23.9.2008 produced before us by the
complainant/prosecutrix herself is taken into

consideration alongwith the factual position depicted

in the supplementary statement dated 21.2.2007, it
would clearly emerge, that the
complainant/prosecutrix was in a relationship of

adultery on 23.12.2006, 25.12.2006 and 1.1.2007
with the appellant-accused, while she was validly

married to her previous husband Lalji Porwal. In the
aforesaid view of the matter, we are satisfied that

the assertion made by the complainant/prosecutrix,
that she was induced to a physical relationship by

Prashant Bharti, the appellant-accused, on the basis
of a promise to marry her, stands irrefutably falsified.

22. The proposition of law, pertaining to quashing
of criminal proceedings, initiated against an accused
by a High Court under
Section 482 of the Code of
Criminal Procedure (hereinafter referred to as
“the
Cr.P.C.”) has been dealt with by this Court in
Rajiv Thapar Ors. vs. Madan Lal Kapoor wherein
this Court inter alia held as under:

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“29. The issue being examined in the instant case is
the jurisdiction of the High Court under Section

.

482 of the Cr.P.C., if it chooses to quash the initiation

of the prosecution against an accused, at the stage
of issuing process, or at the stage of committal, or

even at the stage of framing of charges. These are all
stages before the commencement of the actual trial.
The same parameters would naturally be available

for later stages as well. The power vested in the High
Court under
Section 482 of the Cr.P.C., at the stages
referred to hereinabove, would have far reaching
consequences, inasmuch as, it would negate the

prosecution’s/complainant’s case without allowing

the prosecution/complainant to lead evidence. Such
a determination must always be rendered with
caution, care and circumspection. To invoke its

inherent jurisdiction under Section -482 of the Cr.P.C.
the High Court has to be fully satisfied, that the

material produced by the accused is such, that would
lead to the conclusion, that his/their defence is based

on sound, reasonable, and indubitable facts; the
material produced is such, as would rule out and

displace the assertions contained in the charges
levelled against the accused; and the material
produced is such, as would clearly reject and
overrule the veracity of the allegations contained in
the accusations levelled by the
prosecution/complainant. It should be sufficient to
rule out, reject and discard the accusations levelled
by the prosecution/complainant, without the
necessity of recording any evidence. For this the
material relied upon by the defence should not have

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been refuted, or alternatively, cannot be justifiably
refuted, being material of sterling and impeccable

.

quality. The material relied upon by the accused

should be such, as would persuade a reasonable
person to dismiss and condemn the actual basis of

the accusations as false. In such a situation, the
judicial conscience of the High Court would persuade
it to exercise its power under
Section 482 of the

Cr.P.C. to quash such criminal proceedings, for that
would prevent abuse of process of the court, and
secure the ends of justice.

30. Based on the factors canvassed in the foregoing

paragraphs, we would delineate the following steps
to determine the veracity of a prayer for quashing,
raised by an accused by invoking the power vested

in the High Court under Section 482 of the Cr.P.C.:-

30.1. Step one, whether the material relied upon by

the accused is sound, reasonable, and indubitable,

i.e., the material is of sterling and impeccable
quality?

30.2 Step two, whether the material relied upon by
the accused, would rule out the assertions contained
in the charges levelled against the accused, i.e., the
material is sufficient to reject and overrule the
factual assertions contained in the complaint, i.e.,
the material is such, as would persuade a reasonable
person to dismiss and condemn the factual basis of
the accusations as false.

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30.3 Step three, whether the material relied upon by
the accused, has not been refuted by the

.

prosecution/complainant; and/or the material is such,

that it cannot be justifiably refuted by the
prosecution/complainant?

30.4 Step four, whether proceeding with the trial
would result in an abuse of process of the court, and
would not serve the ends of justice?

persuade

30.5 If the answer to all the steps is in the
affirmative, judicial conscience of the High Court
should
r it to quash such criminal

proceedings, in exercise of power vested in it
under
Section 482 of the Cr.P.C. Such exercise of
power, besides doing justice to the accused, would

save precious court time, which would otherwise be
wasted in holding such a trial (as well as,
proceedings arising therefrom) specially when, it is

clear that the same would not conclude in the

conviction of the accused.”

7. Similar is the ratio of the judgment of the High Court

of Delhi dated 21.5.2015 title Manoj Bajpai v. State of Delhi, W.P.

(CRL) 771/2014 and Crl. M.A. 5999/2014. This judgment also

reads as follows:

“34. The factual details referred in the
foregoing paras reflect that:-

(i) The complainant came in contact with the
petitioner and started living in his house for 18

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months and during this period, they had physical
relationship.

.

(ii) The complainant was already married to Mukesh
Jassal and had two children. The marriage was
subsisting during this period. Even the petition for

divorce by mutual consent u/s 13B Hindu Marriage
Act was filed only on 3 rd December, 2012 and the
marriage was dissolved by decree of divorce dated

4th July, 2013, i.e., much after the registration of this
FIR.

(iii) The allegations of the complainant that her

objectionable photographs were taken by applying

narcotic on her is not substantiated as her
allegations of use of narcotic could not be
substantiated during the investigation of the case or

through medical examination.

(iv) Keeping in view the fact that both, the petitioner

as well as the complainant, were married which
marriage was still subsisting, therefore, the

complainant could not have been induced into
physical relationship based on assurance of

marriage.

(v) The physical relationship between the
complainant and the accused was admittedly
consensual.

(vi) In her statement u/s 164 Cr.P.C., the complainant
asserted that her consent was based on inducement
of marriage, however, this aspect of assurance
stands falsified.

(vii) The acknowledged consensual physical
relationship between the parties would not constitute

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an offence u/s 376 IPC, especially, because both the
complainant as well as petitioner were major on the

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date of occurrence.

(viii) As per the FSL report, there was no evidence of
any blood or semen and, therefore, DNA analysis was

not conducted.

(ix) After the filing of this FIR, another complaint was
filed by the complainant against the petitioner on the

allegations of threatening her to withdraw this case
which resulted in registration of FIR 295/13 dated
2nd June, 2013 u/s 195A/323/506
IPC, with PS New

Ashok Kumar. As per the status report dated 9th

March, 2015 filed by the State, allegations were not
substantiated and as such, the case was cancelled on
2nd September, 2013.

(x) The petitioner had alleged that due to his ill
health he closed his clinic at Mayur Vihar, Delhi in the

month of May, 2012. On the request of the
complainant to provide her accommodation for 2-3

days, petitioner allowed her to reside in Delhi Clinic
for a few days, however, in the month of August,

2012, he came to know that the complainant had
changed the locks of the premises and started
misusing the clinic premises without his knowledge,
therefore, he asked her to vacate the said premises.
The complainant failed to accede to his request
rather threaten to implicate him in false and baseless
cases, as such, the petitioner approached different
authorities vide his letter dated 1st September, 2012
to CDMO, East Delhi, SHO Police Station, New Ashok
Nagar and through newspaper dated 2nd September,

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2012 in Rashtriya Sahara. Against these allegations,
no pleadings whatsoever have been filed by the

.

complainant. Even during the course of hearing, the

material relied upon by the accused was not refuted.

(xi) The petitioner filed a civil suit bearing Suit

No.26/2013 for mandatory
injunction/possession/mesne profits/damages against
the complainant.

(xii) A settlement deed dated 7th October, 2013 was
arrived at between the parties whereby it was agreed
that the petitioner shall withdraw his suit pending
before
rthe Additional District Judge and the

complainant would cooperate with the petitioner in
quashing the FIR. As per the copies of the
proceedings placed on record pursuant to the

statement made by both the parties, the petitioner
withdrew the suit.

(xiii)The factum of entering into a compromise deed
between the parties has been verified by the State

and in fact the prosecutrix herself furnished the copy
of the MOU executed in October, 2013, whereby the

petitioner agreed to execute a gift deed in respect of
half portion of LIG Flat No. 97A, Ground Floor, Pocket
A-III, Mayur Vihar, Phase-III, Delhi-96 in favour of the
complainant after getting conversion from lease hold
to free hold by DDA and the petitioner shall pay a
sum of Rs.11,000/- per month to the complainant
and both the parties would withdraw the cases filed
against each other. It is the case of the petitioner
that pursuant to this compromise, he withdrew the
suit filed by him but the complainant resiled from the

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settlement and further put the condition that the
petitioner should deposit sufficient amount in fixed

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deposit in bank in her name”.

8. Now adverting to the facts of this case. The

complainant admittedly is the legally wedded wife of Shri Nitu.

In the report under Section 173 Cr.P.C. though there is a

reference of dissolution of her marriage with said Shri Nitu in the

year 2014, however, in view of the statement of her mother

recorded on 3.8.2015 under Section 161 Cr.P.C. and placed on

record along with the copy of police report the marriage of the

prosecutrix with said Shri Nitu was not dissolved by a decree of

divorce even by that date also. Being so, how she could have

fallen prey to the allurement of solemnization of marriage

allegedly given to her by the accused-petitioner knowing fully

well that she was legally wedded wife of Shri Nitu aforesaid.

Even if it is believed to be true that her marriage with said Shri

Nitu was dissolved in the year 2014 how she could have allowed

the accused to subject her to sexual intercourse in the year 2011

and started living with him under the same roof as her first

marriage was subsisting at that time.

9. Admittedly, there were physical relations between

the accused-petitioner and the complainant. Such relations on

the face of the record available at this stage cannot be said to be

forcible or against her will and without her consent and rather

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consensual as she was a consenting party to such relation with

the accused-petitioner. A married woman having her husband

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alive and three children maintaining physical relation with a third

person that too during the currency of her marriage, cannot be

said to be heard of any complaint that she has been subjected to

sexual intercourse without her consent and against her will.

10. Scientific investigation is not there because the

prosecutrix did not opt for undergoing the medical examination.

In such a situation, allowing the criminal proceedings to

continue would amount to abuse of process of the court as is

held by the Apex Court in Prashant Bharti’s case cited supra. As

a matter of fact in that case also the complaint was that the

accused allured the prosecutrix, a married woman, to solemnize

marriage with her and at that pretext subjected her to sexual

intercourse. The Apex Court has held that in the case of an

unmarried woman one can understand that she fell prey to the

allurement so given to her by the accused. However, there is no

question of a married woman to fall prey to any such allurement

given to her knowing fully well that she was married and could

have not solemnized the second marriage till subsistence of her

first marriage. Similar were the facts of Manoj Bajpai’s case

supra.

11. In view of legal as well as factual aspect of the

matter discussed hereinabove in the light of the arguments

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addressed on both sides, this court is satisfied that the evidence

available at this stage even if taken as it is no findings of

.

conviction under Section 376 of the Indian Penal Code can be

recorded against the accused-petitioner. Allowing the criminal

proceedings to continue would rather amount to abuse of the

process of law, besides wastage of the precious court time

which can be utilized to decide the genuine cases pending in

large number in the Court.

12. The petition is accordingly allowed. Consequently,

FIR No. 48 of 2015 registered against the accused-petitioner in

Police Station, Chintpurni District Una is quashed and further

proceedings pending in the Court of learned Additional Sessions

Judge-II, Una shall also stand quashed. The petition is

accordingly disposed of.

(Dharam Chand Chaudhary),
Judge.

December 20, 2016,
(vs)

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