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Mohammad Bilal vs State Of U.P. And Another on 17 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 65

Case :- APPLICATION U/S 482 No. – 33694 of 2019

Applicant :- Mohammad Bilal

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

Counsel for Applicant :- Meraj Ahmad Khan

Counsel for Opposite Party :- G.A.

Hon’ble Dinesh Kumar Singh-I,J.

Heard Sri Meraj Ahmad Khan, learned counsel for the applicant, Sri G.P. Singh, learned A.G.A. appearing for the State and perused the record.

This application under Section 482 Cr.P.C has been moved with a prayer to quash the entire Charge Sheet No.194 of 2017 dated 14.08.2017 as well as proceeding of Criminal Case No.3484 of 2019 (State of U.P. vs. Mohammad Bilal (arising out of Case Crime No.398 of 2017), under Section 376 I.P.C., Police Station Mainather, District Moradabad, pending in the Court of Additional Chief Judicial Magistrate, Court No.3, and also a prayer is made to stay the proceedings in this case till the disposal of this application.

It is argued by the learned counsel for the applicant that the accused-applicant has been falsely implicated by the opposite party no. 2 because she was a consenting party to have sexual intercourse with the accused-applicant. A talk of Nikah between the families was going on, subsequently when the pressure was built up by the family members of opposite party No.2, the marriage was refused by the accused-applicant and it is further submitted that the accused-applicant had not given false promise of marriage with opposite party No.2, which he later on retracted. Hence, the ingredients of offence under Section 376 IPC would not be made out. The charge sheet has been erroneously submitted by the Investigating Officer in a routine manner, which needs to be quashed being a malicious prosecution.

Learned counsel for the applicant has placed reliance on the judgment of Hon’ble Supreme Court in the case of Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra Ors. reported in 2019 (1) JIC 784 (SC). The relevant part of the judgment is quoted below:-

“16. In Uday v. State of Karnataka (2003) 4 SCC 46, this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused-with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus:-

“21. It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.”

Learned counsel for the applicant has also placed reliance on the judgment of Hon’ble Supreme Court in the case of Shivashankar @ Shiva vs. State of Karnataka Anr. reported in 2018 LawSuit (SC) 1298. The relevant part of the judgment is quoted below:-

“(5) Though we are not here concerned with the question whether the appellant and the complainant-respondent no.1 were, in fact, married, we have no doubt that they lived together like a married couple even according to the complainant.

(6) In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the appellant who may have possibly, made a false promise of marriage to the complainant.

(7) It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as ‘rape’ especially in the face of the complainant’s own allegation that they lived together as man and wife.”

Learned A.G.A. has opposed the prayer for quashing the charge sheet and submitted that the opposite party No.2 clearly stated in her statement recorded under Section 164 Cr.P.C. that the accused-applicant often used to come to the house of opposite party No.2 and used to take her out with the consent of her family members because the marriage between the two had been fixed by both the family members. Since the classes of B.Sc of the accused-applicant were going on and the accused-applicant assured him that after the completion of his B.Sc, he would perform the marriage with opposite party No.2. The accused-applicant started having sexual relationship with the opposite party No.2 and on 27.01.2017, the parents of opposite party No.2 told the accused-applicant to marry the opposite party No.2, but he refused to marry and he was establishing sexual relationship with the opposite party No.2 under false promise to marry and he exploited her physically keeping her under the impression that he would marry her, hence this would fall to constitute an offence under Section 376 IPC and the charge sheet has been rightly submitted.

I have gone through the FIR. In the FIR, the opposite party No.2 has stated that she is a Nurse in a Hospital. The accused-applicant used to visit her and had proposed to marry her. Subsequently, she talked to her parents in this regard and the accused-applicant also allowed opposite party No.2 to meet his parents and, thereafter, it was promised by the accused-applicant that he would marry opposite party No.2 after completion of his B.Sc classes, but subsequently he refused to marry her. In the meantime, he established physical relationship with opposite party No.2. The police has submitted the charge sheet in the above mentioned section after investigation and having recorded the statements of seven witnesses. The scrutiny of the said statements cannot be made in the proceedings under Section 482 Cr.P.C. and as the same requirs trial. As regards, the reliance having been placed by the learned counsel for the applicant, it is apparent that in the case of Dhruvaram Murlidhar Sonar (supra), it is held by the Hon’ble Apext Court that there can be no straight jacket formula in each case it has to be seen whether the case was of voluntary or not and whether the consent was given under a misconception of fact. Such finding can be given only after evidence has been recorded by the trial court, which is possible after full trial only and not at this stage. Therefore, I find that at this stage it cannot be denied that the cognizable offence is made out in the present case.

After investigation, charge-sheet has been submitted by the Investigating Officer after recording statements which cannot be disbelieved in proceedings u/s 482 Cr.P.C. From the evidence on record, it cannot be said that cognizable offence is not made out against the accused-applicant.

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 Cr.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 R. 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 and  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.

Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:

“15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.

16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.

17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short “Cr.P.C.”) because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

(Emphasis added)

The prayer for quashing the proceedings of the aforesaid case 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.

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 taken coercive steps to procure his attendance.

With aforesaid direction, this application is finally disposed of.

Order Date :- 17.9.2019

Ravi Kant

 

 

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