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Ajeet Singh vs State (Nct) Of Delhi & Anr on 20 November, 2019

* IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.M.C. 1474/2018 CRL. REV. 785/2016
Reserved on : 08.11.2019
Date of Decision : 20.11.2019

IN THE MATTER OF:

CRL.M.C. 1474/2018 CRL. M.A. 5356/2018
AJEET SINGH … Petitioner
Through: Mr. Hrishikesh Baruah, Mr. Hemant
Phalpher and Mr. Siddhant Kaushik, Advocates

Versus

STATE ANR … Respondents
Through: Dr. M.P. Singh, APP for State.

AND

CRL. REV. 785/2016
AJEET SINGH … Petitioner
Through: Mr. Hrishikesh Baruah, Mr. Hemant,
Phalpher and Mr. Siddhant Kaushik, Advocates

Versus

STATE (NCT) OF DELHI ANR … Respondents
Through: Dr. M.P. Singh, APP for State.

CORAM:
HON’BLE MR. JUSTICE MANOJ KUMAR OHRI

1. The present criminal miscellaneous petition has been filed under
Section 482 Cr.P.C. seeking quashing of the charge-sheet and consequent
proceedings arising out of FIR No.865/2015 registered under Section 376
IPC at P.S. Hari Nagar. The petitioner has also filed the aforementioned
CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 1 of 9
Crl. Rev. Petition under Section 397/Section401 Cr.P.C. against the impugned
order dated 08.09.2016 whereby the charge under Section 376 IPC was
framed against the petitioner.

2. In the present case, the complainant was impleaded as respondent
No.2 in both the petitions. The notice of the present petitions was served
on her and her counsel duly appeared and even filed the Vakalatnama on
her behalf. The counsel appeared on subsequent dates as well however,
thereafter neither the complainant nor her counsel appeared. The matter
was taken up on 07.11.2019 on which date, the counsel for the
complainant was telephonically informed about the pendency of the
present case however, neither the complainant nor her counsel appeared
on that date. Learned APP, on instructions from the I.O., submitted that
the complainant was informed by the Investigating Officer about the
order dated 07.11.2019 passed by this Court. The arguments were heard
on behalf of the petitioner as well as learned APP for the State. The trial
court record, which had been requisitioned, was also perused.

3. Learned counsel for the petitioner contended that the present FIR
is a gross abuse and misuse of the process of law inasmuch as the
complaint has been filed with malafide intentions. It was submitted that
ingredients of the offence punishable under Section 376 IPC are not
made out as the complainant at the time of the registration of the FIR was
already married to one Arvind Sharma which marriage according to the
learned counsel for the petitioner is still subsisting.

4. Learned counsel for the petitioner has referred to various
documents filed along with the petitions, in support of his aforesaid
submission, that the complainant was already married and that she has

CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 2 of 9
filed a criminal case for rape and other offences against her husband
namely, Arvind Sharma. He has also referred to the court orders to show
that the complainant was also previously married to one Nishant Mishra.

5. Based on the aforementioned materials and statement of the
complainant recorded during investigation, it is submitted that the
complainant was already married twice and had two daughters out of the
said marriage. It was urged that since complainant was already married
and the said marriage was still subsisting, no case is made out against the
petitioner. In support of his submission, he has placed reliance on the
decision rendered by Supreme Court in Prashant Bharti Vs. State (NCT
of Delhi) reported as (2013) 9 SCC 293 and decisions of the Coordinate
Bench of this Court in Mohit Nagar Vs. State and Anr. reported as 2017
SCC OnLine Del 7616, Rahul Mishra Vs. State (Govt. of NCT of Delhi)
reported as 2018 SCC OnLine Del 7231.

6. Learned counsel for the petitioner also contended that even
otherwise it is a fit case of quashing of the FIR as it has been admitted by
the complainant that she was in a live-in relationship with the petitioner
for quite some time. It was stated that the complainant had taken a
conscious decision to continue to live with the petitioner. In support of
his submission, learned counsel for the petitioner has placed reliance on
the decision rendered in Dr. Dhruvaram Murlidhar Sonar Vs. State of
Maharashtra and Ors. reported as 2018 SCC Online SC 3100, in support
of his submissions that if physical relations continued then it does not
amount to rape under false promise to marry.

7. The scope of Section 482 Cr.P.C. and the parameters to exercise
the power under Section 482 Cr.P.C. by the High Court to quash the

CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 3 of 9
prosecution at the stage of issuing process or at the stage of framing of
charge have been enunciated time and again. In Rajiv Thapar and Ors.
Vs. Manda Lal Kapoor reported as (2013) 3 SCC 330, the following
guidelines were laid down for quashing of the FIR and the consequent
proceedings :-

“29. The issue being examined in the instant case is the
jurisdiction of the High Court under Section 482 of the Code
of Criminal Procedure, 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 Code of
Criminal Procedure, 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 Code of Criminal Code 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 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
CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 4 of 9
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 Code of Criminal Code 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 Code of Criminal Code:-

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.
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?

30.5 If the answer to all the steps is in the
affirmative, judicial conscience of the High Court
should persuade it to quash such criminal
proceedings, in exercise of power vested in it under
Section 482 of the Code of Criminal Code. Such
exercise of power, besides doing justice to the

CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 5 of 9
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.”

8. In the present case, as per allegations in the FIR, the complainant
stated that she was a resident of Lucknow and used to work and live
there along with her daughter due to divorce from her first husband. She
met the present petitioner through a matrimonial site. The petitioner
telephoned and proposed to marry her. He also stated that he was a
divorcee and was residing with his mother in Delhi. With their consent,
the marriage was fixed in November, 2014. During this time, whenever
the complainant used to visit Delhi, she used to stay at petitioner’s house.

Due to some personal difficulty of the petitioner, the petitioner proposed
to postpone the marriage, to which the complainant agreed. On one day,
the petitioner asked the complainant to seek her transfer from U.P. and
come with her belongings to his house in Delhi. The complainant
accepted the proposal and came to Delhi along with her daughter and her
belongings. She started residing with the petitioner from 01.03.2015.
After few days, the petitioner started manhandling the complainant and
broke the household articles brought by her. One day after returning, she
found the petitioner at home with one girl, whom she came to know later,
was the second wife of the petitioner. The said girl also told the
complainant that she was the wife of the petitioner. It was also told that
the marriage of the petitioner with the said girl was subsisting and he also
had a son from her. The girl also told the complainant that the petitioner
was facing trial under Section 498A/Section406 IPC in Rampur district. When
the said girl told the petitioner that she had disclosed the factum of their

CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 6 of 9
marriage to the complainant, the petitioner had beaten up the
complainant. The petitioner continued to make forcible relations with the
complainant. She made a complaint to P.S. Hari Nagar however, on
account of threat from the petitioner and his brother to harm her
daughter, she withdrew the said complaint. She returned to the home of
the petitioner where again physical relations were made forcibly without
her consent and the petitioner also extorted money from her. On
04.06.2015, she was again thrown out of the petitioner’s home after
which, she made the present complaint on 18.06.2015.

9. In her statement recorded under Section 164 Cr.P.C., the
complainant made similar allegations against the petitioner although
learned counsel for the petitioner submitted that there are variations.

10. From a combined reading of the statement of the complainant and
the Status Report, the following facts emerge:-

10.1. The complainant came in touch with the petitioner through a
matrimonial site and accepted the petitioner’s proposal to marry her.
Although their marriage was fixed in November, 2014 but the same got
postponed on account of the ill health of the petitioner’s mother.

10.2. During this time, whenever the complainant used to come to Delhi,
she used to live at the house of the petitioner. The physical relation
between them was established despite complainant’s refusal but on the
assurance of marriage by the petitioner.

10.3. Even as per the Status Report, the unverified death of Arvind
Sharma had taken place in the year 2016 whereas the allegations in the
present case relates to the year 2014 and 2015, which are prior in time.

CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 7 of 9

10.4. Though the initial physical relations were made on promise to
marry, however, subsequently after the complainant met the other girl
who stated herself to be wife of the petitioner, it has been specifically
alleged that the complainant was beaten and the physical relations were
made forcibly. It was further stated that after she withdrew the police
complaint from Hari Nagar Police Station on account of threat of her
daughter being harmed by the petitioner and his brother. After returning
to the home of the petitioner, he again made forcible physical relations
without her consent and extorted money from her.

11. Both the contentions of the learned counsel for the petitioner are
premised on the fact that the relationship between the parties are
consensual albeit, based on the promise to marry. In this regard, as
already noted above, the initial physical relations between the parties
were consensual, on the petitioner’s promise of marriage. However, later
the physical relations were not consensual and were rather made forcibly.
In Dr. Dhruvaram Murlidhar Sonar (supra), Supreme Court held that
there is a clear distinction between rape and consensual sex. It was held
that acknowledged consensual physical relationship between the parties
would not constitute an offence under Section 376 of the IPC. The same,
however, is not the case in the present matter. The complainant has
specifically alleged that the petitioner had beaten her and made forcible
physical relations without her consent. The said subsequent forcible
physical relations were not based on any promise of marriage. The
reliance placed by the learned counsel for the petitioner on the aforesaid
decisions is completely misplaced as the same pertains to cases of
consensual sex based on the promise of marriage. In the present case, the

CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 8 of 9
complainant had unequivocally stated that the petitioner had forcibly
raped her.

12. In view of the above discussions, both the petitions are dismissed
along with the pending application. The view expressed hereinabove are
only for the purpose of disposal of present petitions and the same shall
not have any effect on the trial of the case.

(MANOJ KUMAR OHRI)
JUDGE

NOVEMBER 20, 2019
na

CRL.M.C. 1474/2018 CRL. REV. 785/2016 Page 9 of 9

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