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Pradeep Kumar Kesarwani vs State Of U.P. And Another on 12 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Reserved on : 20.8.2019

Delivered on : 12.09.2019

Case :- APPLICATION U/S 482 No. – 12607 of 2016

Applicant :- Pradeep Kumar Kesarwani

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

Counsel for Applicant :- Anubhav Chandra,Ashish Kumar Srivastava

Counsel for Opposite Party :- G.A., ,Ashutosh Kumar Tiwari, Firdos Ahmad

Hon’ble Om Prakash-VII,J.

The present application under Section 482 Cr.P.C. has been filed by the applicant with the prayer to quash the entire proceedings of Complaint Case No. 655 of 2014 (Ms. Gunja Versus Pradeep Kumar Kesarwani) under Section 376 IPC, Police Station Shivkuti, District Allahabad pending in the court of Additional Chief Judicial Magistrate, Court No.8, Allahabad. Further prayer has been made to quash the impugned summoning order dated 25.8.2015 passed by the court concerned.

Heard Sri Anubhav Chandra, learned counsel for the applicant and Sri Firdos Ahmad, learned counsel for the opposite party no.2 as well as learned A.G.A. for the State.

It was submitted by the learned counsel appearing for the applicant that the summoning order passed in the matter is illegal. Offence under Sectionsection 376 IPC is not attracted in this matter. Opposite party no.2 / the victim was major at the time of said offence. At this juncture, learned counsel referred to the statement of the opposite party no.2 / victim recorded under Sectionsection 200 Cr.P.C. and submitted that present complaint was filed with malafide intention. The Magistrate concerned while passing the summoning order has not considered the provisions of Section 375 IPC as well as the evidence available on record in proper perspective, which resulted in wrong order. It was further contended that if the entire complaint case is taken into consideration, then also it was a consensual sexual relationship. Initially, offence is said to have been committed in the year 2010 – 11. Present complaint was filed in the year 2014. It was next argued that the opposite party no.2 and the applicant both were studying in the same coaching institute. Opposite party no.2 wanted to marry the applicant and due to this reason, she was exerting pressure on the applicant when he got employment. Since applicant was not willing to marry with her, therefore, present complaint has been filed with malafide intention. It was further argued that similar complaint had been made by the opposite party no.2 to the National Commission for Women and same was investigated by the Circle Officer of the Police Department, but no prima face case was found. Thus, referring to the aforesaid facts and on the strength of above argument, prayer was made to allow the application and to set-aside the impugned summoning order.

On the other hand, learned counsel for the opposite party no.2 as well as learned A.G.A. argued that sexual relations were made in the present matter by the applicant with the opposite party no.2 with intention to blackmail her on the basis of video clipping prepared by the applicant. Consent given by the opposite party no.2 was not a free consent as defined under Section 375 IPC. At this stage, learned counsel for the opposite party no.2 referred to the Explanation 2 of Section 375 IPC and further argued that offence under Section 376 IPC is clearly attracted against the applicant. Consent said to have been given by the opposite party no.2 was not an unequivocal voluntarily agreement. Since applicant was blackmailing the opposite party no.2 on the basis of video clipping, therefore, Proviso of the Explanation 2 of Section 375 IPC is clearly attracted in this matter. Thus, it is argued that a prima facie case is made out against the applicant. There is no illegality, infirmity or perversity in the impugned summoning order.

I have considered the rival contentions raised by learned counsel for the parties.

Before dealing with the submissions raised at Bar, I find it necessary to quote the provisions of Section 375 IPC.

375. Rape.–A man is said to commit “rape” if he –

A man is said to commit “rape” if he–

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

under the circumstances falling under any of the following seven 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.

Seventhly.- When she is unable to communicate consent.

Explanation 1. – For the purposes of this section, “vagina” shall also include labia majora.

Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exceptions 1. – A medical procedure or intervention shall not constitute rape.

Exception 2. – Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

Admittedly, in this matter, as has been disclosed in paragraphs no.20 and 23, physical sexual relations were established by the applicant with the opposite party no.2 initially in the year 2010 – 11, although at that time she was major and was studying in the same coaching institute where the applicant was also studying, but as per complaint, physical sexual relations were established by the applicant on the basis of video clipping said to have been prepared by the applicant. If the contents of paragraphs no. 2 and 3 of the complaint are taken into consideration in consonance with the provision of Explanation (II) of Section 375 IPC, summoning order passed in the matter for the offence under Sectionsection 376 IPC cannot be termed to be illegal. Summoning order can also not be termed to be illegal on the ground that opposite party no.2 – the victim was major on the date of said offence. Subsequent circumstances, as disclosed in the complaint and also by the applicant in the affidavit of the application under Sectionsection 482 Cr.P.C. itself reflect that continuous physical relations were established by the applicant with the opposite party no.2 – the victim on the pretext of video clipping. If such is the position, grounds taken in the application to quash the entire proceedings of the aforesaid complaint case are not sufficient.

In this matter, it is also clear from the evidence available on record that accused-applicant had no intention from the very beginning to keep the promise of marriage, but he was establishing sexual relationship with the opposite party no.2 on the pretext of such false promise of marriage. Intention of the applicant was malafide only to develop physical sexual relations with the opposite party no.2 to satisfy his lust. Thus application, having no force, is not liable to be allowed. There is no illegality, infirmity or perversity in the impugned summoning order.

As a fallout and consequence of the aforesaid discussion, I do not find any merit in the instant petition under Section 482 Cr.P.C., it deserves to be and is accordingly dismissed.

Interim order, if any, stands vacated.

Order date : 12.09.2019.

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