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Dr. Deepak Sharma vs State Of U.P. And Another on 16 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

RESERVED

Court No. – 20

Case :- APPLICATION U/S 482 No. – 32243 of 2017

Applicant :- Dr. Deepak Sharma

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Dr. Akhilesh Kumar

Counsel for Opposite Party :- G.A.,Ashutosh Yadav,B.K.Singh,Bhanu Deo Pandey

Hon’ble Amar Singh Chauhan,J.

Heard Dr. Akhilesh Kumar, learned counsel for the applicant, learned AGA for the State and Sri Ashutosh Yadav, learned counsel appearing for the opposite party no. 2.

The applicant, Dr. Deepak Sharma, through this application moved under Section 482 Cr.P.C., has invoked the inherent jurisdiction of this Court with a prayer to quash the impugned order dated 31.7.2017 passed by Additional Session Judge/Fast Track Court No. 1, Agra alongwith Criminal Proceedings of Session Trial No. 176 of 2017, (State vs. Deepak Sharma), arising out of Case Crime No. 27 of 2016, under sections 313, 376, 420, 452, 504, 506 IPC, Police Station Madan Mohan Gate, Agra by which the discharge moved by the applicant was rejected and case was fixed for framing charges. It is further prayed to stay the proceedings in the aforesaid case crime.

Brief facts which give rise to the adjudication of the application are that the First Information Report was lodged on 4.3.2016 of the incident dated 01.01.2010 to 02.03.2016 with the allegation that the applicant has passed the MBBS Examination in the year 2003 and was residing in the neighbourhood of the house of the informant and indulged in sexual intercourse after developing love affair since 2003. The applicant has developed intimacy on the assurance of marriage to be solemnized with the informant. In the year 2010, the informant was occasioned to be conceived and got aborted by the applicant. In the year 2016, when the informant came to know that applicant was going to marry with Ritika Bhat she raised objection before the family members but they hurled abuses and threatened to kill her. The Investigating Officer after concluding the investigation, submitted the charge-sheet. The applicant moved discharge application which was rejected and the case was fixed for framing charges.

Feeling aggrieved, the applicant moved this application before this Court.

It is submitted by learned counsel for the applicant that the informant is major aged about 31 years old and as per allegation having illicit relation since 2003 and also got aborted in the year 2010 but the FIR was lodged on 04.03.2016 after a considerable delay and no explanation was given. It is further submitted that she is consenting party and is well conversant with the complication of so long relation as she is major and is Government employee. She did not raise any grievance at any stage during this period. It is also submitted that the statement recorded under section 161 Cr.P.C are not corroborated by medical evidence as in the medical report, no sign of sexual assault was found and no opinion about rape can be given. It is also submitted that in the hostel females are not allowed and no female can enter into the hostel premises except the staff. The informant did not mention any date and month to visit in the hostel whereat the applicant established the sexual intercourse. She has stated in the statement that she was called on by the applicant at P.G. Hostel where applicant was residing and on this call, the informant knew the intention of the applicant and why she reached there as she was major and also knows the consequences thereof. Therefore, if the prosecution version accepted even not correct then she is consenting party and no offence is made out against the applicant. The Trial Court, without applying the judicial mind, rejected the discharge application and fixed for framing the charges.

Per contra learned counsel for the informant contends that the Investigating Officer, after concluding the credible evidence, submitted the charge sheet. The consent of the victim was obtained by the applicant by giving repeated false assurances to the prosecutrix that he would marry her. He never intended to marry her and her consent was obtained only for the purpose of having sexual relations with her. Therefore, the alleged consent was not voluntary and was given under misconception and has no values in the eye of law as provided under section 90 of Indian Penal Code. The charges have already been framed and, therefore, the application has become infructuous. Learned counsel for the opposite party no. 2 relied upon a case law in Ratilal Bhanji Mithani vs. State of Maharashtra and others (1979) 2 SCC 179 in which the Hon’ble Supreme Court has held that after framing of the charges there cannot be discharge. Again relied on in case of State of U.P. vs. Naushad, AIR 2014 SC 384 wherein the Apex Court has held that “the accused had sexual intercourse with the prosecution by giving false assurance to the prosecutrix that he would marry her. After she got pregnant, he refused to do so. That he never intended to marry her and procured her consent only for the reason of having sexual relation with her which act of the accused falls squarely under the definition of rape as he had sexual intercourse with her consent which was consent obtained under a misconception of fact as defined under Section 90 of the IPC. Thus, the alleged consent said to have been obtained by the accused was not voluntary consent and that the accused indulged in sexual intercourse with the prosecutrix by miscontruing to her his true intentions.”

The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon’ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:

“The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontraverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection”.

Before adverting to the claim of the parties, it is necessary to reproduce the section 375 IPC and section 90 IPC, which reads as follows:

“375. Rape. – A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions :-

First. – Against her will.

Secondly. Without her consent.

Thirdly. With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly.- With or without her consent, when she is under sixteen years of age.

Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception. – Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.

90. Consent known to be given under fear or misconception. A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear of misconception ; or Consent of insane person. if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent ; or Consent of child.- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.”

Thirdly, fourthly and fifthly description of Section 375 I.P.C. exhaustible enumerated circumstances in which the consent given by the prosecutrix is vitiated and does not amount to consent in law. Secondly, under section 90 of the IPC consent is vitiated only if it is given under misconception.

Relative scope of sections 227 and 228 of the Code was noticed and considered by the Hon’ble Supreme Court in Amit Kapoor vs. Ramesh Chander and another, (2012) 9 SCC 460. The Hon’ble Supreme Court held as under:

“17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the code, unless the accused is discharged under section 227 of the Code. Under both these provisions, the Court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgement of the court while section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.”

“19. At the initial stage of framing of a charge, the court is concerned not with proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.”

The Hon’ble Apex Court in case of Tilak Raj vs. State of Himachal Pradesh, (2016) 4 SCC 140 has held that “the prosecutrix was an adult and mature lady of around 40 years at the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable. The evidence as a whole including FIR, testimony of prosecutrix and MLC report prepared by medical practitioner clearly indicate that the story of prosecutrix regarding sexual intercourse on false pretext of marrying her is concocted and not believable. In fact, the said act of the Appellant seems to be consensual.”

The Hon’ble Supreme Court in case of Deepak Gulati vs. State of Haryana, [2013 (82) SCC 345] observed that “the prosecutrix had intelligence and maturity to understand the act she was consenting conscious of the fact that her marriage may not take place. She did not raise any objection and made no complaint to anyone. These circumstances fully established that there is no basis to raise plea of false promise of marriage.”

In the instant case, as per allegation the applicant developed intimacy with the informant, a Government employee and matured lady of around 32 years old and also indulged sexual intercourse since 2003 on the pretext of marriage. In the year 2010, she became pregnant and got aborted but medical evidence is not in corroboration to support the statement and first information report was lodged on 4.3.2016 after considerable delay of which no explanation was given. The failure to keep the promise on a future uncertain date due to reason not very clear on the evidence does not always amount to misconception of a fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance but in the instant case the intimacy was developed for a period of more than 13 years ago but the promise neither could be effected nor the informant raised any grievance before anyone for a long period. In such circumstances, the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the applicant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. Therefore, it cannot hunt prudent mind that she has consented in consequence of misconception of fact arising from his promise. The Trial Court, by passing the impugned order, tried to appreciate the evidence instead of considering the prima facie case at the stage of framing the charges. The Court has undoubted power to sift and weigh evidence but that sifting and weighing of evidence would not entitle the court to appreciate the evidence. At this stage, the court cannot examine the pros and cons of the prosecution and recorded a finding about the probabilities of the prosecution case without the prosecution being given an opportunity of examining its witnesses. The accused can be discharged only when there is no sufficient ground for proceeding against him. The words “not sufficient ground for proceeding against the accused” appearing in the section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. The court has to see that whether material brought on record would reasonably connect the accused with the crime no more is required to be inquired into only prima facie case is to be seen. The question whether charges have been proved or not, can be determined only after the evidence is recorded in the case. Only sufficiency of material has to be looked into and no other independent corroboration or any other extraneous material should be gone into by the Trial Court. The probative value of the material on record cannot be gone into. An order of discharge, would be warranted only in those cases where the court is satisfied that there are no chance of conviction of an accused and the trial would be an exercise in futility.

In view of what has been submitted and discussed above, I find that order is unjustified and, as such, application is allowed and impugned order dated 31.7.2017 is hereby quashed with a direction to the Trial Court to decide afresh the matter after applying judicial mind in accordance with law.

No order as to costs.

Order Date :- 16.3.2018

Puspendra

 

 

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