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Sachin S/O Shantaram Potude vs The State Of Maharashtra, Through … on 14 June, 2018

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR

CRIMINAL APPLICATION (APL) NO. 191 OF 2014

Sachin s/o Shantaram Potude,
aged about 30 years, Occ. Service,
R/o. Malguzaripura, Wardha …… APPLICANT

…VERSUS…

1. The State of Maharashtra.
Through P.S.O. Wardha City
Police Station.

2. Smt. Rani d/o Anil Tidke,
aged about 26 years, Occ. Service,
R/o. Old MHADA Colony,
Zade Layout, Wardha …… NON-APPLICANTS

——————————————————————————————-
Shri F.T.Mirza, Advocate for applicant.
Ms Trupti Udeshi, APP for Non-applicant no. 1
Shri A.B.Moon, Advocate for Non-applicant No.2
——————————————————————————————-
CORAM: R. K. DESHPANDE, AND

ARUN D. UPADHYE , J J.

DATE : 14 JUNE , 201
th
8 .

ORAL JUDGMENT (P.C.)

1] This application claims quashment of First Information

Report No. 273/2013, dated 21.06.2013, registered for the offence

punishable under Section 376 of the Indian Penal Code at Police Station,

Wardha, against the applicant. The application was amended and

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Charge-sheet bearing No. 83/2014 filed on 26.03.2014 in continuation of

first information report is made the subject matter of challenge in this

application along with the proceedings of Criminal Case No. 204/2014,

pending in the Court of Chief Judicial Magistrate, Wardha.

2] On 13.11.2014, this Court granted Rule and passed an

interim order, which is reproduced below;

“Coram : B.R. Gavai V.M. Deshpande, JJ.

Dated : November 13, 2014

1. Rule.

2. Heard Mr. Firdos Mirza, learned counsel for the applicant and
Mr. A.B.Moon, learned counsel for the non-applicant No.2.

3. Taking into consideration the allegations in the first
information report on its face value, it would reveal that it is the case of
the first informant that she and the applicant were working in the same
office. She had left her husband and was residing with her son. The
applicant knowing this, has developed intimacy with her and induced
her to have sexual relationship with him. The applicant also used to take
her at various places including Bor Dharan and Shegaon for having
sexual contacts with her. The wife of the applicant having knowledge of
the same, came to the house of the first informant and created a scene.
It is the case of the first informant that having done this, the applicant
himself addressed a notice to the first informant and as such being
mentally and physically oppressed, she has lodged the first information
report.

4. It could thus be undisputedly seen from the version of the first
informant herself that when the applicant made false promise to her of
marriage, she was having a subsisting marriage so also the applicant
was having a subsisting marriage.

5. In that view of the matter, we find that the applicant has made
out a case for grant of interim relief. There shall be interim relief in terms
of prayer clause (aii).

6. Mr. R.S. Nayak, learned APP waives notice for non-applicant
No.1 and Mr. A.B. Moon, learned counsel waives notice for non-
applicant No.2.”

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3] Shri Mirza, the learned counsel appearing for the applicant

has relied upon the decision of the Apex Court in the case of Prashant

Bharti vrs. State of NCT of Delhi, reported in 2013 ALL MR (Cri) 1123

(S.C.) and has urged that the Supreme Court has quashed the criminal

proceedings instituted for the offences punishable under Sections 354, 328

and 376 of the Indian Penal Code. He has also relied upon the

observations in paragraph 16 of the said decision, wherein the Apex Court

has taken into consideration the fact that the complainant/prosecutrix was

married and her marriage subsisted on the dates on which she alleged the

physical relations with the accused and in such situation, the Apex Court

has held that the assertion made by the complainant/prosecutrix that she

was induced to a physical relationship by the accused on the basis of a

promise to marry her stands irrefutably falsified.

4] Shri Moon, the learned counsel appearing for the Non-

applicant No.2 – complainant has relied upon the decision of the Apex

Court in the case of Kirthi @ Karthick vrs. State Rep. By Inspector of

Police, Tamul Nadu, reported in 2013 (7) Scale 777 and the Division

Bench of this Court in the case of Nitin Omprakash Agrawal vrs. State of

Maharashtra and another, reported in 2014 ALL MR (Cri) 2383. He has

urged that it is not the stand of the applicant-accused that it was a case of

consent, but the stand is that, the accused was falsely implicated by the

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Non-applicant No.2 and whether the allegations are false or not, is required

to be gone into by the trial Court in the proceedings of trial. He submits

that the Court has to refuse to interfere in exercise of inherent powers

under Section 482 of the Code of Criminal Procedure.

5] There is no dispute that the complainant-respondent No.2

had developed physical relations with the applicant at several places and

at several times. Shri Moon, the learned counsel appearing for the

Non-applicant No.2 admits that the Non-applicant No. 2 was married

woman on the date on which the applicant-accused is said to have

developed physical relationship with her and that her marriage subsisted

as on all those dates. Keeping aside the fact that the complainant was not

knowing that the applicant was married, it was not expected of her to be in

physical relationship with the person other than the husband, particularly

when she herself was a married woman and her marriage subsisted on

such dates. The ratio of the decision of the Apex Court in Prashant

Bharti’s case squarely applies to the facts of the present case to hold that

the assertion made by the Non-applicant no.2/complainant that she was

induced to a physical relationship by the applicant-accused on the basis of

a promise to marry her stands irrefutably falsified.

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6] The two decisions relied upon by Shri Moon would have no

applicability in the present case for the reason that in the decision of the

Apex Court, the accused and the complainant were unmarried, whereas in

the decision of this Court, there was a decree for divorce subsisting on the

date of incident in favour of the prosecutrix.

7] In the result, this application is allowed in terms of prayer

clauses (a) and (ai), which are reproduced below :

(a) quash the impugned FIR No. 273/2013, dated 21.06.2013

registered u/s. 376 of IPC at Police Station Wardha City,

Wardha against the applicant.

(ai) quash and set aside the charge sheet bearing no. 83/14

filed on 26.03.2014 in continuation of FIR No. 273/2013

registered on 21.06.2013.

8] Rule is made absolute in above terms. No orders as to

costs.

JUDGE JUDGE

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Rvjalit

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