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Sachin S/O. Vishwnathrao Gawai vs State Of Maharashtra Thr. P.S.O. … on 1 August, 2018

1 jg.apl 699.17.odt

THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.

CRIMINAL APPLICATION (APL) NO. 699 OF 2017

Sachin S/o Vishwnathrao Gawai
Aged about 30 years, Occ. Pvt. Service,
R/o B- 145, Part II, Tejendra Prakash
Society, Khodiyar Nagar,
Ahemadabad (Gujrat). … Applicant

VERSUS

(1) State of Maharashtra
Through Its P.S.O. P.S. Mankapur,
Nagpur, Tq. and Dist. – Nagpur.

(2) Miss. Samiksha D/o Mukundrao Tayde,
Age 25 years, Occ. Household,
R/o Zingabai Takli, Nagpur,
Tq. and Dist. Nagpur. … Non-Applicants
————————————————————————————————-
Shri N. S. Warulkar, Advocate for the applicant
Ms. H. N. Jaipurkar, Additional Public Prosecutor for non-applicant no. 1
Ms. Deepali V. Sapkal, Advocate for the non-applicant no. 2 (appointed)
———————————————————————————————————————–

CORAM : P. N. DESHMUKH AND
M. G. GIRATKAR, JJ.

Date of reserving the judgment : 26/07/2018.

Date of pronouncing the judgment : 01/08/2018.

Judgment (Per : M.G. Giratkar, J.)

Rule. Rule made returnable forthwith. Heard learned

counsel appearing for the parties.

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2. Applicant prayed to quash and set aside FIR vide Crime

No. 173/2017 registered with Police Station, Mankapur on the

complaint of non-applicant no. 2 for the offences punishable under

Sections 376 and 417 of the Indian Penal Code. It is submitted that

Police Station Officer, Mankapur registered the offences punishable

under Section 376 and 417 of the Indian Penal Code against the

applicant on the false report of the non-applicant no. 2. It is falsely

alleged in the report that the applicant promised to marry her and on

that pretext, he established sexual relations with non-applicant no. 2

and committed rape on her. The applicant is doing his job as Business

Officer in Ratna Sagar Private Limited, Branch at Gujrat. He is falsely

involved in the crime and, therefore, prayed to quash the FIR.

3. Heard learned counsel Shri N. S. Warulkar for the applicant.

He has submitted that allegations made in the FIR, if taken as it is, then

also, it is not an offence punishable under Section 376 of the Indian

Penal Code. In support of his submissions, he pointed out decision in

Criminal Application (APL) No. 434/2017. At last, learned counsel

submitted that FIR registered against the applicant be quashed and set

aside.

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4. Heard learned Additional Public Prosecutor Ms. Jaipurkar

for the non-applicant no. 1 with Ms. Sapkal, learned counsel for non-

applicant no. 2. Learned counsel for non-applicants submitted that the

applicant did sexual intercourse with non-applicant no. 2 under the

promise of marriage. She is nearest relative of the applicant. Believing

the promise of applicant, she allowed him to do sexual intercourse.

Documents of marriage were prepared. When date was fixed for

marriage in the Court, applicant remained absent, therefore, non-

applicant no. 2 lodged the report.

5. Learned Additional Public Prosecutor has submitted that the

consent given by non-applicant no. 2 for sexual intercourse was under

the promise of marriage by the applicant. The consent obtained was not

consent at all as defined under Section 90 of the Indian Penal Code.

Learned Additional Public Prosecutor has pointed out decision in the

case of Nitin Vs. State of Maharashtra [2014 ALL MR(Cri) 2383] and

decision of Hon’ble Apex Court in the case of State of U.P. Vs. Naushad

[(2013) 16 SCC 651].

6. We have gone through the report lodged by the non-

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applicant no. 2. From the perusal of report, it is clear that the applicant

is brother-in-law of maternal uncle of non-applicant no. 2. On

11-1-2011, there was marriage of the sister of non-applicant no. 2 at the

house of her maternal uncle Rajesh Wardhe. That time applicant was

also present in the marriage.

7. The applicant started contacting her on the mobile phone of

her father. Her father purchased mobile for non-applicant no. 2. The

applicant was always visiting to Nagpur for office work. He used to call

the non-applicant no. 2 to Eternity Mall. Thereafter in the year 2012, he

promised to marry her. She also accepted the offer. The applicant was

always calling her and taking her to lonely places. Applicant insisted her

for sexual intercourse saying that he would definitely marry with her

and did sexual intercourse near Saint Marry School.

8. Applicant had taken her to Chikhaldara. Applicant did

sexual intercourse for 4-5 times in the hotel at Chikhaldara. He called

her in the Hotel Legend In. The applicant did sexual intercourse with

her. The non-applicant no. 2 always allowed him for sexual intercourse

because he is the nearest relative and promised to marry her. During

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that period, applicant and the non-applicant no. 2 contacted one

Advocate and filled marriage forms. They went to Office of Registrar of

Marriage on 4-3-2017. Witnesses signed on the forms. Applicant told

their counsel to get the date for marriage but thereafter he was avoiding

to come to Nagpur. The non-applicant no. 2 enquired to their Advocate,

then he replied that the applicant himself is avoiding to get the date for

marriage. When the non-applicant no. 2 came to know that she was

cheated by the applicant, her consent was obtained under the false

promise of marriage, then she lodged the report in Police Station,

Mankapur on 10-8-2017. On her report, crime for the offences

punishable under Sections 376 and 417 of the Indian Penal Code came

to be registered.

9. Learned counsel for the applicant has submitted that in the

same case, the Division Bench of this Court quashed the FIR in Criminal

Application (APL) No. 434/2017. We have gone through the said

judgment. The Division Bench was not pointed out judgment of Hon’ble

Apex Court in the case of State of U.P. Vs. Naushad (cited supra).

Hon’ble Apex Court observed as under :

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“Taking advantage of close relationship between families of
accused and prosecutrix, accused often used to stay at
prosecutrix’s home and by procuring her consent on false promise
of marrying her, indulged in sexual acts with her and when she
became pregnant, refused to marry her. Accused committed
breach of trust of prosecutrix based on relationship and brazen
fraud just to appease his lust. Maximum sentence of life
imprisonment appropriate.”

10. The Division Bench of this Court in the case of Nitin Vs.

State of Maharashtra (cited supra) has held as under :

“On overall consideration of the facts and circumstances
and the submissions made, we are of the view that at this stage, it
would not be possible nor appropriate to decide whether there
was a promise of marriage, which was false even from the
inception or there was a subsequent refusal by the applicant as
claimed by respondent no. 2 or for the matter of that, there was
no such relationship and the complaint is actuated by some
ulterior motive. These are essentially questions of fact which
cannot be gone into or decided in an application of the present
nature. The case would not fall under any of the categories, as set
out above, in which this Court would be required to exercise
inherent powers to quash complaint and the FIR. For these
reasons, we are of the view that the application deserves to be

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dismissed. Needless to mention that, we may not be understood to
have expressed any opinion on the merits of the controversy as the
observations are essentially of a prima facie nature looking to the
stage at which the matter stands. Accordingly, the criminal
application is dismissed. Rule is discharged. No order as to costs.”

11. Learned counsel for the applicant has submitted that the

non-applicant no. 2 consented for sexual intercourse and, therefore, it is

not an offence punishable under Section 376 of the Indian Penal Code.

At this stage, it was a voluntary consent or it was obtained by the

applicant under the misrepresentation of facts saying that he would

marry her is a question of fact which cannot be gone into or decided in

an application of the present nature. The case would not fall under any

of the categories as set out in the case of State of Haryana Vs. Bhajan

Lal [1992 Supp.(1) SCC 335]. Therefore, we are inclined to dismiss

the application. In the result, the application is dismissed.

JUDGE JUDGE

On pronouncement of judgment, Shri Warulkar, learned

counsel for applicant, seeks stay to effect and operation of this judgment

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contending that by interim order of this Court, State was directed not to

file charge-sheet pending the criminal application.

In view of order of dismissal of present criminal application,

we do not find any reason to continue the interim relief. The prayer of

learned Counsel for applicant for stay is thus rejected.

Fees payable to learned counsel appointed for non-applicant

no. 2 is quantified as Rupees Three Thousand.

JUDGE JUDGE

wasnik/ksj

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