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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Crl. Misc. No. M-30534 of 2017 -6-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 a7 of 9
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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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