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Raj Kumar vs State Of Himachal Pradesh And … on 11 September, 2019

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IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA

.

Cr.MMO No.33/2017
Reserved on : 10.09.2019
Date of decision : 11.09.2019

Raj Kumar
… Petitioner.

Versus

State of Himachal Pradesh and another
…Respondents
Coram:

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1 No

For the Petitioner : Mr. Ajay Chandel, Advocate
For the Respondent : Mr. Nand Lal Thakur Additional Advocate No.
No. 1 General, for the State.

For Respondent No.2 : Mr. Naveen K. Bhardwaj, Advocate

Anoop Chitkara, Judge

Challenging the registration of FIR No. 204 of 2015

dated 26.10.2015, registered in the file of Police Station

Manali, District Kullu, HP, under Section 376 of IPC, as well as

the Police report filed under Section 173 of CrPC and

summoning order dated 16.06.2016, the petitioner has come

1
Whether reporters of Local Papers may be allowed to see the judgment?

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up before this Court under Section 482 of Code of Criminal

.

Procedure, for quashing of all these proceedings.

2. I have heard Mr. Ajay Chandel, ld. counsel for the

petitioner, Mr. Nand Lal Thakur, ld. Additional Advocate

General for respondent No.1 and Mr. Naveen K. Bhardwaj,

Advocate for respondent No.2 and I have also waded through

the complete case file.

3. On 26th April, 2014, the petitioner and the victim,

who is the second respondent, entered into an agreement

inter-se. At that time age of the petitioner was 46 years and

that of victim was 30 years. The affidavit forms part of the

petition as Annexure P-3.

4. The victim was a widow having three children and

her husband had expired in the year 2007. It was agreed

between the first party (The Petitioner) and the second party

(Victim/Second respondent), that the first party shall maintain

the second respondent and her three children and in return

she will live in the house of the petitioner and do all house hold

works. The first party agreed to provide a future maintenance

to second party and her children and would also bear all

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expenses of their studies and shall not create any dispute with

.

her. It was further agreed that second party and her children

will be entitled to live in the house of the first party till their

death and will be provided all types of maintenance

throughout their life. It was further agreed that in case of

failure of the first party to maintain the second party and her

children, the second party would be entitled to claim

maintenance and in lieu thereof the first party would pay a

sum of Rs. 3 lacs to her.

5. That on 26th March, 2015, the second respondent

(victim) filed a complaint in the Court of Judicial Magistrate

First Class, Manali, Kullu, H.P. under Section 9(b) and Section37(2)(c)

of the Protection of Women from SectionDomestic Violence Act, 2005,

against the petitioner Raj Kumar. The copy of the said

complaint forms part of the petition vide Annexure P-1. The

allegations levelled in the complaint are that the victim was

married in the year 1999 and from the said marriage three

children were born and thereafter she lost her husband. She

further stated that she had married Raj Kumar in the year

2014. At the time of marriage Raj Kumar had assured her that

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he had left his first wife, from whom he also had two children.

.

Initially, his behavior was cordial and was also providing

maintenance to her children but for the last one month he was

troubling her. Everyday, he would consume liquor and under

intoxication he would abuse and beat her. Now, he he neither

gives maintenance amount nor gives any lump sum amount to

her and as such he is causing physical and mental harassment

to her. She further alleged that the petitioner Shri Raj Kumar

is stating that since his first wife has returned, as such he no

more needs her. Even mother-in-law has stopped talking to

her, Resultantly, she sought maintenance under Section 20

and Section22 of the Domestic Violence Act.

6. The accused filed a reply to the said application and

denied that he had any domestic relationship with the

respondent. He further denied that he lived with her at any

time or shared house hold with her. In nutshell, he denied all

the allegations. In the rejoinder the victim reiterated all the

allegations and further added that it was after one and half

year of the marriage that she came to know about the first

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marriage and he had grown two children out of that wedlock.

.

The said rejoinder was filed on 14th September, 2015.

7. On 26th October, 2015, the victim filed a report

under Section 154 CrPC in Police Station, Manali, District Kullu,

H.P., which led to the registration of FIR No. 204 of 2015 dated

26.10.2015, in the file of the police station Manali, against the

petitioner for the commission of offence punishable under

Section 376 IPC. The allegations in the said FIR were that she

was a permanent resident of Tehsil Bhal District Mandi and

running a shop in Manali. She lost her husband on 18 th August,

2007 and thereafter Shri Raj Kumar accused saw her and gave

a proposal to her that he would like to marry her. On this she

consulted her relatives and after that consented to the said

marriage. Subsequently he got prepared some documents in

Mandi and told her that these documents are the documents of

their marriage and asked her to put her signature on the same.

Those documents were made in English script. She further

stated that she has not well read and as such could not

understand the contents thereof and without reading the same

she put her signature on those. Thereafter they came to

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Manali where he started living with the victim like her husband

.

and indulged in physical relationships. She further stated that

she has three children from her earlier marriage the said

children also lived with her in Manali. She stated that the

accused lived with her and her children. For the last one and

half years, he is regularly visiting her and establishing sexual

relationship with her. Just 15 days before, he visited her

maternal home and even there, he again established sexual

relationship with her. Now he started abusing her and has

started proclaiming that she is neither his wife nor does he

know her. He has asked her not to call him and proclaims that

he is free and she can do whatever she wants to. She

complained that he befooled her for one and half years under

the pretext of marriage. She further stated that she was poor

widow and there was no reason for commit fraud upon her and

action be taken.

8. On 2nd November, 2015, the police got statement of

victim under Section 164 Cr.PC., in which she reiterated the

allegations and further clarified that on some occasions Shri

Raj Kumar, accused claimed her to be his wife and on other

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occasions he refused to accept her as his wife. He should

.

accept either of the things and he does not accept her as his

wife, then he should not establish relationship with her.

9. After this, on 18th March, 2016, the statement of the

victim was recorded by the Judicial Magistrate, First Class, in

the case of domestic violence and she was assigned as CW-1

and the copy of the said statement is part of this petition.

Reiterating both the allegations, she further stated that the

accused told her that his first wife is no more. On this she

inquired from his relatives and consulted her relatives, then

the accused also visited her home. Because of the reason that

both the victim and the accused were widow and widower as

such the proposal to accept each other was matured. She

further alleged that accused claims himself to be a Crorepati

(Multimillionaire) and called her as a beggar and abuse her.

10. After conclusion of the investigation in the FIR, the

police filed a report under Section 173 (2) SectionCr.PC. Vide report

dated 26.10.2015 which forms part of the petition as Annexure

P-3.

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REASONING:-

.

11. The victim, who is the second respondent was a

married lady. She very well knew how does a person marry,

what are the rituals and the process of marriage. Even before

she started living with the accused, she had consulted her

relatives. There can be no marriage only by way of an

agreement. Her relatives would not have let her go ahead

only with the agreement of marriage and in the absence of any

rituals and performance of marriage as per Hindu rites. She

has not mentioned in the FIR or in her complaint under

SectionDomestic Violence Act about the place or date of marriage

with the accused. Her precise allegations in FIR are that the

accused made her believe that the agreement she signed were

the documents of their marriage. This might have sound well

if she was previously not married or was a dumb lady. She

runs her own shop in the tourist place of Manali and must be

street smart. So, there is a substance in the submissions of

the counsel for the Petitioner that she has abused the process

of law by improving upon her story of live-in relationship to

that of her belief of having married the accused.

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12. Section 494 of IPC penalizes marrying again

.

during the subsistence of existing marriage. Section 198 of

Code of Criminal Procedure states that no Court shall take

cognizance of an offence punishable under Chapter XX of the

SectionIPC, except upon a complaint made by some person aggrieved

by the offence. Chapter XX of SectionIPC contains offence relating to

marriage and incorporates Sectionsection 493 and Section498 of IPC, as well.

Therefore, if the victim was aggrieved because of the fact that

her marriage was solemnized during subsistence of the first

marriage, then the proper course available to her may be by

filing a complaint under Section 493/Section495 IPC., if she chooses to

do so. Because the sentence under Section 493/Section495 IPC

extends up to ten years therefore, the bar of taking cognizance

after period of limitation as contained in Section 468 Cr.PC

does not apply. It is for the victim to take recourse to such

relief, if she had actually married the accused.

13. As far as her allegations are concerned that she had

signed the agreement under the belief that it is a marriage

agreement and because same was in English script as such

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she could not understand the same hence understood the

.

nature of the agreement so signed by her. As per the said

agreement she would be entering into live in relationship with

the accused and not marrying him. The law is well settled that

marriages do not take place by way of any agreement. In our

country, marriages can only take place under the provisions of

the SectionSpecial Marriage Act and SectionHindu Marriage Act.

14. The conduct of the victim who established

relationship with the petitioner, prima facie falls under live in

relationship and the changing ethos of the society have

started sanctioning such relationships. Be that as it may, that

is not to be adjudicated in the present petition, which is only to

prevent the miscarriage of justice by way of abuse of process

of law by the second respondent, claiming herself to be a

victim of sexual offence.

15. Even as per the victim she consented to all

the acts coitus and voluntarily cohabited with him. Even after

the minutest scrutiny of her allegations, the element of the

misconception of fact is totally absent.

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16. Section 482 of Cr.PC comes to the rescue of

.

the accused, in the present proceedings commenced for

commission of offence punishable under Sectionsection 376 IPC, who

claims that the registration of FIR and consequent proceedings

are the abuse of process of court law and as such to secure

ends of justice they are entitled to invoke the inherent powers

of the High Court.

17. In Dr. Dhruvaram Murlidhar Sonar versus State

of Maharashtra others, 2019 AIR (SC) 327, Hon’ble Supreme

Court quashed the FIR under Sections 376 (2)(b), 420 readwith

Section 34 IPC and Section 3(1)(x) of the SC/SectionST Act, holding in

paras 21 and 22 of the judgment as follows:-

21. In the instant case, it is an admitted position that
the appellant was serving as a Medical Officer in the

Primary Health Centre and the complainant was working
as an Assistant Nurse in the same health centre and that
the is a widow. It was alleged by her that the appellant
informed her that he is a married man and that he has

differences with his wife. Admittedly, they belong to
different communities. It is also alleged that the
accused/appellant needed a month’s time to get their
marriage registered. The complainant further states that
she had fallen in love with the appellant and that she
needed a companion as she was a widow. She has
specifically stated that “as I was also a widow and I was
also in need of a companion, I agreed to his proposal
and since then we were having love affair and
accordingly we started residing together. We used to
reside sometimes at my home whereas some time at his
home.” Thus, they were living together, sometimes at

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her house and sometimes at the residence of the
appellant. They were in a relationship with each other
for quite some time and enjoyed each other’s company.

.

It is also clear that they had been living as such for

quite some time together. When she came to know that
the appellant had married some other woman, she
lodged the complaint. It is not her case that the
complainant has forcibly raped her. She had taken a

conscious decision after active application of mind to
the things that had happened. It is not a case of a
passive submission in the face of any psychological
pressure exerted and there was a tacit consent and the
tacit consent given by her was not the result of a
misconception created in her mind. We are of the view

that, even if the allegations made in the complaint are
taken at their face value and accepted in their entirety,
they do not make out a case against the appellant. We
are also of the view that since complainant has failed to
prima facie show the commission of rape, the complaint

registered under Section 376(2)(b) cannot be sustained.

22. Further, the FIR nowhere spells out any wrong
committed by the appellant under Sectionsection 420 of the IPC
or under section 3(1)(x) of the SC/SectionST Act. Therefore,
the High Court was not justified in rejecting the petition
filed by the appellant under Sectionsection 482 of the Cr.P.C.,

1973.

18. In Parmod Suryabhan Pawar versus The State of

Maharashtra and another, in Criminal Appeal No. 1165 of

2019, Hon’ble Supreme Court quashed the FIR under Sections

376, Section417, Section504 and Section506(2) of the Indian Penal Code and

Sections 3(1) (u), (w) and 3(2) (vii) of the Scheduled Castes

and Scheduled Tribes (Prevention of Attrocities Act, 1989,

holding in paras 18, 19, 20 and 21 of the judgment as follows:-

“18. To summarise the legal position that emerges from the
above cases, the “consent” of a woman with respect to Section
375 must involve an active and reasoned deliberation towards

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the proposed act. To establish whether the “consent” was
vitiated by a “misconception of fact” arising out of a promise
to marry, two propositions must be established. The promise

.

of marriage must have been a false promise, given in bad faith

and with no intention of being adhered to at the time it was
given. The false promise itself must be of immediate relevance,
or bear a direct nexus to the woman’s decision to engage in the

sexual act.

19. The allegations in the FIR indicate that in November 2009
the complainant initially refused to engage in sexual relations
with the accused, but on the promise of marriage, he
established sexual relations. However, the FIR includes a

reference to several other allegations that are relevant for the
present purpose. They are as follows:

(i) The complainant and the appellant knew each other since
1998 and were intimate since 2004;

(ii) The complainant and the appellant met regularly, travelled

great distances to meet each other, resided in each other’s
houses on multiple occasions, engaged in sexual intercourse

regularly over a course of five years and on multiple occasions
visited the hospital jointly to check whether the complainant
was pregnant; and

(iii) The appellant expressed his reservations about marrying

the complainant on 31 January 2014. This led to arguments
between them. Despite this, the appellant and the complainant
continued to engage in sexual intercourse until March 2015.
The appellant is a Deputy Commandant in the CRPF while

the complainant is an Assistant Commissioner of Sales Tax.

20. The allegations in the FIR do not on their face indicate

that the promise by the appellant was false, or that the
complainant engaged in sexual relations on the basis of this
promise. There is no allegation in the FIR that when the
appellant promised to marry the complainant, it was done in

bad faith or with the intention to deceive her. The appellant’s
failure in 2016 to fulfil his promise made in 2008 cannot be
construed to mean the promise itself was false. The allegations
in the FIR indicate that the complainant was aware that there
existed obstacles to marrying the appellant since 2008, and
that she and the appellant continued to engage in sexual
relations long after their getting married had become a
disputed matter. Even thereafter, the complainant travelled to
visit and reside with the appellant at his postings and allowed
him to spend his weekends at her residence. The allegations in

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the FIR belie the case that she was deceived by the appellant’s
promise of marriage. Therefore, even if the facts set out in the
complainant’s statements are accepted in totality, no offence

.

under Section 375 of the IPC has occurred.

21. With respect to the offences under the SC/SectionST Act, the
WhatsApp messages were alleged to have been sent by the
appellant to the complainant on 27 and 28 August 2015 and 22

October 2015. At this time, Sections 3(1) (u), (w) and 3(2) (vii)
of the SC/SectionST Act as it stands today had not been enacted into
the statute. These provisions were inserted by the (Prevention
of Atrocities) Amendment Act 201513 which came into force
on 26 January 2016. Prior to the SectionAmending Act, the relevant

provisions of the statute (as it stood then) were as follows:
“3. (1) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe. – “SectionAmending Act” …

(x) intentionally insults or intimidates with intent to humiliate
a member of a Schedule Caste or a Scheduled Tribe in any

place within public view;

(xi) assaults or uses force to any woman belonging to a

Schedule Caste or a Scheduled Tribe with intent to dishonour
or outrage her modesty;

(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and uses

that position to exploit her sexually to which she would not
have otherwise agreed; …”

19. In view of the analysis of the entire evidence and

the application of law, it is fit case where the FIR, charge sheet

and all consequential proceedings are required to be quashed.

Therefore, the petition is allowed and FIR No. 204 of 2015

dated 26.10.2015, registered in Police Station Manali, District

Kullu, H.P. for the commission of offence under Section 376 IPC

as well as consequential proceedings pending before the

Sessions Judge Kullu, District Kullu, in Sessions Trial No. 25 of

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2016 titled as State of H.P. versus Raj Kumar are hereby

.

quashed.

20. The First Respondent, i.e. the State of H.P., shall

supply a certified copy of this judgment to the second

respondent/victim, through a lady police official, above the

rank of ASI, without waste of time.

All pending application(s), if any, also stand

disposed of.

(Anoop Chitkara)

Judge.

11th September, 2019
(Subhash)

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