HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 65
Case :- APPLICATION U/S 482 No. – 40644 of 2019
Applicant :- Kirti Prakash @ Gagan
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Jitendra Prasad Mishra,Girish Chandra Maurya
Counsel for Opposite Party :- G.A.
Hon’ble Dinesh Kumar Singh-I,J.
Heard Sri Jitendra Prasad Mishra, learned counsel for the applicant and Sri G. P. Singh, learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge sheet dated 06.06.2019 and cognizance order dated 10.07.2019 as well as entire proceeding of Criminal Case No. 7944 of 2019 (State of Kirti Prakash @ Gagan), arising out of Case Crime No. 0012 of 2019, under Section 376 of I.P.C., Police Station Mahili Thana, District Azamgarh, pending in the court of Chief Judicial Magistrate, Azamgarh with a further prayer to stay entire proceeding of the aforesaid case.
It is argued by the learned counsel for the applicant that the accused applicant has been falsely implicated by the opposite party no. 2 who was a nurse while the accused was a student. He has drawn attention to the statement of the victim under Section 164 Cr.P.C. in which she has stated that the accused applicant had given her false assurance that he would marry her and established physical relation with her and even after the accused applicant got engaged to somewhere else, he continued to establish physical relation with the victim on a false promise that he would marry her. Despite the knowledge that the accused applicant was not going to marry her yet she indulged in physical relationship with the accused of her own free will, which would not constitute the offence of rape. Reliance has been placed by the learned counsel for the applicant law laid down by the Hon’ble Apex Court in SectionDr. Dhruvaram Murlidhar Sonar v. The State of Maharashtra in Criminal Appeal No. 1443 of 2018, relevant para of which is quoted herein below:
“20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.”
Learned A.G.A. has vehemently opposed the prayer of quashing and argued that in statement under Section 164 Cr.P.C.which had been relied upon by the learned counsel for the applicant, it is absolutely made clear by the victim that victim was being exploited by the applicant giving her the false assurance that he will marry her and subsequently he refused to marry. Therefore, it cannot be denied that offence under Section 376 I.P.C. is not made out. The consent given by the victim would not treated to be free consent.
I have gone through the F.I.R.. It is recorded in it by the opposite party no. 2 that since 2015, the accused applicant was talking of marrying opposite party no. 2. About 6 months ago when he got employed as teacher he continued to meet the opposite party no. 2 and continued to establish physical relationship on a false promise that he would marry her and on 06.04.2019, when she reached at his room, he started avoiding to marry her. During the period between 06.04.2019 to 08.04.2019, he continued to establish physical relationship with her and whatever proofs of having physical relation between them were there, were deleted by the accused applicant. When she disclosed about these facts to her family members, the family members had gone to the house of the accused applicant and then they were straightway refused that their marriage would be held. Subsequently, the charge-sheet has been submitted by the investigating officer after having recorded as many as 5 witnesses. The veracity of the statements of these witnesses cannot be adjudged in proceedings under Section 482 Cr.P.C. as the same would require trial.
As regards the reliance placed by the learned counsel for the applicant on Dr. Dhruvaram Murlidhar Sonar’s case (Supra), it is evident from the said quoted passage that it would have to be seen whether there was free consent of the opposite party no. 2 to indulge in physical relationship with the accused applicant or not as the same is a subject matter of evidence, and the finding of the same cannot be given in proceedings under Section 482 Cr.P.C.
The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 SectionCr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon’ble Supreme Court in cases of SectionR. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings is refused.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such an application is moved, the same shall be disposed of without being influenced by the observation made by this Court .
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With the aforesaid direction, this application under Section 482 Cr.P.C. is finally disposed of.
Order Date :- 14.11.2019