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Baljeet Kumar vs State Of Haryana And Anr on 23 February, 2018

Crl. Misc. No. M-30534 of 2017 -1-

In the High Court of Punjab and Haryana at Chandigarh

Crl. Misc. No. M-30534 of 2017
Date of Decision: 23.2.2018

Baljeet Kumar Rao …..Petitioner

Versus

State of Haryana and another …..Respondents

CORAM: HON’BLE MRS. JUSTICE ANITA CHAUDHRY

Present: Mr. K.S.Khehar, Advocate
for the petitioner.

Mr. Arun Kumar, AAG, Haryana

Mr. Vivek Suri, Advocate
for respondent No. 2.

****

ANITA CHAUDHRY, J

The instant petition is for quashing of FIR No. 84 dated

19.5.2017 registered under Sections 376, 506 IPC, Police Station Kalka,

District Panchkula (Annexure P-1) and all the consequent proceedings

arising out of the same.

Following facts emerge from the record.

Ritu Kaushal gave a complaint that she was in a 10 year

relationship with the petitioner and he had allured her and had been raping

her since 2006. The allegations were that he took her to different places/

farm houses and was raped. The allegations are that she was given juice on

one occasion which was laced with sedatives. She fell unconscious. The

accused took photographs and had been showing it to her and had

threatened to put them on the internet. It was also alleged that she gave

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birth to a child in 2009 and the child was now six years old and the accused

used to take up quarrels and was threatening to kill her. On 8.10.2016, the

complainant went to the office of the accused where he, his wife and four

women were present who gave her a beating and threatened to kill her.

The police held an enquiry. Both the sides were called. Their

statements were recorded. The investigating officer made its

recommendation for filing the complaint.

Another complaint was given to Chief Minister’s office which

was enquired into. It was found that both the complainant and the accused

were married and had children and earlier they were on good terms with

each other and they used to work together in the same office. It was reported

that no cognizable offence was found to have been committed. The report

was submitted to the Commissioner of Police. The complaint was filed.

Not satisfied, the complainant approached the CM Window and gave

another complaint on 8.12.2016 which was enquired into by the DCP,

Panchkula and it was reported that no cognizable offence was made out.

Subsequently, the police filed challan (Annexure P-5) in June 2017. It was

also mentioned that an application had been moved in the Court for

conducting DNA test, that application was pending.

The petitioner seeks quashing of the FIR on the plea that false

allegations have been levelled and the complainant was habitual in filing

false complaints and a similar complaint had been made by her against one

Narinder Puri and the FIR was cancelled. It was pleaded that various

enquiries were held and the police officials had found that no cognizable

offence was made out but still challan has been filed.

Reply has been filed by the State counsel as well as by the

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complaint.

I have bestowed considerable thought to the respective

submissions made on behalf of both the parties.

A perusal of the first information report and the other material

available on record, the following facts are revealed:-

1. The complainant is a married woman separated from her

husband though not divorced.

2. She has accepted her physical relationship with the

petitioner for the last 10 years.

3. During this period of 10 years, there was no complaint.

4. The first episode took place in 2006. The FIR has been

lodged in 2017.

5. The allegations are that the accused had taken some

obscene photographs and was blackmailing her and had

allured her into marriage. The allegations were made that

she had conceived a child in 2009 and the promise of

marriage continued.

6. The accused started quarreling with her and gave threats to

kill her.

A bare perusal of the facts in the FIR reflects that the marriage

of the complainant was subsisting when she entered into a relationship with

the petitioner. She was not divorced. There are no allegations that she was

kept as a wife by the petitioner. She has admitted to the relationship which

was consensual. The FIR had been lodged 11 years after the first

misadventure. Both the complainant and the petitioner are major. There are

no allegations that physical relation was induced on account of extraneous

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consideration and the allegations per se do not attract the provisions of

Section 376 IPC.

In Deepa Bajwa versus State, 115 (2004) DLT 202, it was

observed that a complaint, on the basis of which the complainant seeks

registration of an F.I.R., must disclose essential ingredients of the offence

and in case a complaint lacks or is wanting in any of the essential

ingredients, the lacuna or deficiency cannot be filled up by obtaining

additional complaint or supplementary statement and thereafter proceed to

register the F.I.R. If such a course is permitted, it would give undue latitude

as well as opportunity to unscrupulous complainants to nail others by hook

or by crook in spite of the fact that their initial complaint does not make out

the offence complained of. Such a course would be utter abuse of the

process of law. First version as disclosed in a complaint is always important

for adjudicating as to whether an accused has committed an offence or not.

In the first version disclosed in the complaint, the complainant

did not mention that she was married or separated or that she had taken a

divorce. The complainant had taken a plea that some objectional

photographs were taken and he was misusing the same and had promised

marriage. Obviously, an inducement for marriage is understandable if the

same is made to an unmarried person. Admittedly, the complainant was

already married and she has two children who are teenagers. The petitioner

is also married and has children. All the essential facts were not disclosed

by the complainant. She was clearly aware of the fact that during the

subsistence of a valid marriage, she was entering into another relationship.

That being so, there was no question of anyone being in a position to induce

her into a physical relationship under the assurance of marriage.

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In Prashant Bharti versus State of NCT of Delhi reported in

(2013) 9 SCC 293, substantially similar facts were involved where plea

taken by the complainant was that she was induced into a physical

relationship by the accused on the assurance that he would marry her. In that

case also, the facts revealed that the complainant/prosecutrix was married to

one “X” when she had physical relation with the accused on the basis of

false promise to marry her. It was held that in such a fact situation, the

assertion made by the complainant/prosecutrix that the Appellant-accused

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 “X”.

Accordingly, there was no question of anyone being in a position to induce

her into a physical relationship under an assurance of marriage. The facts

clearly emerge that the complainant was in a relationship of adultery with

the Appellant-accused, while she was validly married to her previous

husband “X”. In the aforesaid view of the matter, the assertion made by the

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

“X”, the Appellant-accused, on the basis of a promise to marry her, stands

irrefutably falsified.

In Alok Kumar versus State, 2010(4) JCC 2385 also the plea

of inducement to have physical relation on the assurance of marriage was

taken and the FIR was quashed and it was observed as under:-

” 6. From the allegations made by the complainant, it is
apparent that when the complainant started ‘live-in-
relationship’ with the petitioner, the petitioner had not even
divorced his previous wife though it seems was living separate
from her. The complainant was having a child while the
petitioner was also having a child. ‘Live-in-relationship is a
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walk-in and walk-out relationship. There are no strings
attached to this relationship, neither this relationship creates
any legal bond between the parties. It is a contract of living
together which is renewed every day by the parties and can be
terminated by either of the parties without consent of the other
party and one party can walk out at will at any time. Those,
who do not want to enter into this kind of relationship of walk-
in and walk-out, they enter into a relationship of marriage,
where the bond between the parties has legal implications and
obligations and cannot be broken by either party at will. Thus,
people who chose to have ‘live-in-relationship’ cannot
complain of infidelity or immorality as live-in-relationships
are also known to have been between married man and
unmarried woman or between a married woman and an
unmarried man.”

In Harish Kumar versus State, Crl. M.C. 3877/2009 also

substantially similar facts were involved and the FIR u/s 376/593 IPC was

registered which was quashed by observing that the relationship between

the two was consensual.

In Deelip Singh @ Dilip Kumar versus State of Bihar, (2005)

1 SCC 88, it was held that consent given by a woman believing the man’s

promise to marry her would fall within the expression “without her consent”

only if it is established that from the very inception, the man never really

intended to marry her and the promise was a mere hoax. Since it is a case of

obvious consent of the prosecutrix, who was aware that no marriage had

taken place, no case u/s 376 IPC is made out.

In Rajiv Thapar and others versus Madan Lal Kapoor 2013

(3) SCC (Crl) 158, the Hon’ble Supreme Court was dealing with the

proposition of law pertaining to quashing of criminal proceedings initiated

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against the accused in a petition filed under Section 482 Cr.P.C., inter alia it

was held as under:-

“22. 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 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

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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.”

Counsel for respondent No. 2 had relied upon State of

Telangana versus Habib Abdullah Jeelani and others 2017(2) SCC 779

and Rajiv Thapar and others versus Madan Lal Kapoor (supra) and the

submission was that since challan had been filed and it is for the trial Court

to examine and the correctness of allegations cannot be gone into in a

petition filed under Section 482 Cr.P.C.

The complainant alleges that she came in contact with the

petitioner over 11 years ago and was in a relationship since 2006. They had

physical relations as well. The complainant is already married and has two

children. The relationship started during the subsistence of the marriage.

Even the accused is married. None of the parties had approached the Court

for divorce. Their marriage has not been dissolved. The allegations of the

complainant that her objectionable photographs were taken could not be

substantiated as during investigation, no such photographs were recovered.

Keeping in view the fact that both the complainant and the petitioner were

married and their marriage was still subsisting, therefore, the complainant

could not have been induced into any physical relationship based on

assurance of marriage. Their relationship if, was consensual, the allegation

that she was induced with the promise of marriage stands falsified. The

acknowledged consensual physical relationship does not constitute the

offence under Section 376 IPC because both the parties were married.

In view of the facts and circumstances summarized above, it is

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a fit case where the powers under Section 482 Cr.P.C. should be exercised

and the FIR should be quashed to prevent the misuse of criminal justice for

personal vengeance.

Accordingly, the petition is allowed and FIR No. 84 dated

19.5.2017 registered under Sections 376, 506 IPC, Police Station Kalka,

District Panchkula (Annexure P-1) and the consequential proceedings

emanating therefrom are quashed.

(ANITA CHAUDHRY)
JUDGE
February 23, 2018
Gurpreet

Whether speaking/reasoned : Yes
Whether reportable : Yes

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