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Sunil Kumar vs State And Another on 14 December, 2018

HIGH COURT OF JAMMU AND KASHMIR

AT JAMMU

CRMC No. 512/2017, IA Nos. 01/2018, 02/2018, 01/2017
Date of order: 14.12.2018
Sunil Kumar vs State of JK and anr.
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:

For Petitioner(s) : M/s Sanjay Sharma and G. S. Thakur Advocates.
For respondent (s) : Mr. Vishal Bharti, Dy.AG for respondent No.1.

Ms Monika Kohli, Advocate for respondent No.2.

i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.

1. Petitioner invokes the inherent jurisdiction of this Court under section
561-A Cr.P.C. to seek quashing of FIR No.50/2017 registered with the
Police Station, Ghagwal for commission of offences under Sections
376/506 RPC on the complaint of respondent No.2 who got the FIR
registered in terms of Section 156(3) Cr.P.C on the directions of Learned
Chief Judicial Magistrate, Samba by alleging that she was subjected to
sexual assault on the marriage promise which the petitioner deny though
there was marriage proposal, but the petitioner after coming to know
about the antecedent of the respondent No.2 refused the marriage
proposal and there was no relation between the petitioner and respondent
No. 2.

2. The case of the petitioner is that he who belongs to respectable family
and is serving in the Indian Army recruited in the year 2012 in 5 JAKLI,
after recruitment the petitioner underwent initial training for a period of
two years without any break. Thus, in the year 2016, there was marriage
proposal from the parents of the respondent No.2 which the parents of

CRMC No.512/2017 Page 1 of 15
the petitioner agreed and marriage was to be solemnized in the month of
June, 2017. During this period, the petitioner came to know from the
respondent No. 2 herself who while making telephonic conversation
admitted to have a love affair with somebody else and narrated her
physical relation with that person. On knowing this fact, the petitioner
refused the marriage proposal upon which the
respondent No.2 and her parents started insisting for marriage and
threatened the petitioner to implicate him for the commission of offence.
It is stated that petitioner is having the telephonic recording in order to
substantiate this plea. Thus, there was no physical relationship between
the petitioner and respondent No.2 as alleged in the complaint.

3. Learned counsel for the petitioner states that respondent No.2 filed a
complaint before the Chief Judicial Magistrate, Samba. The learned
Magistrate on the basis of the said complaint directed SHO Police
Station, Ghagwal to register an FIR for commission of offence under
Sections 376/506 RPC. The petitioner challenges the said FIR
No.50/2017 registered with the Police Station, Ghagwal for commission
of offences under Sections 376/506 RPC on the following grounds:-

i) That the FIR is misuse of process of law. The petitioner
alleged in the complaint that she was subjected to sexual
assault and was in love affair withthe petitioner since 2010
having friendly relation and love affair constantly for seven
years and have the physical relationship and subsequently
agreed tosolemnize the marriage. All the ceremonies were
completed. However, subsequently the petitioner allegedly
refused to marry with the respondent. It is submitted that
respondent No.2 who is elder than the petitioner and is a
mature lady developed the relationship with the petitioner
and also alleged in the complaint that she used to stay with
the petitioner and visited at various places of Himachal
Pradesh, Katra and Patnitop. In such circumstances, no
offence under Section 376 RPC is made out. Even if it is
assumed without admitting this fact that there was friendly
relationship between petitioner and respondent No.2 even

CRMC No.512/2017 Page 2 of 15
then from the allegations leveled in the complaint be taken
as it, no offence under Section 376 RPC is made out. The
Hon’ble Supreme Court in case titled Tilak Raj Vs. State of
Himachal Pradesh reported in 2016 (4) SCC 140 has held
that the evidence as a whole including the FIR and
testimony of the prosecutrix clearly indicates that the story
of prosecutrix regarding sexual intercourse on false pretext
of marrying her concocted and not believable. It is the
admitted case that she was in relationship with the
petitioner for the last seven years and the petitioner used to
stay overnight at her residence, under these circumstances
the offence cannot be said to have been made out because
of the reason that from the bare perusal of the
complaint it transpires that she was the consenting party,
elder than the petitioner. Therefore, the FIR is liable to be
quashed.

ii) That the FIR is otherwise liable to be quashed on the
ground that there is no allegations against the petitioner
that there was forcible act on the part of the petitioner
which constitute an offence within the meaning of Section
37/ 506 RPC. “It has been time and again held by the
Hon’ble Supreme Court in number of cases that the
allegations of sexual the accused persons and in fact
discloses the commission of offence which prima facie
discloses that a case under Section 376/506 RPC is being
established” Therefore the proceeding are unwarranted
and liable to be quashed.

iii) iii) That the FIR is otherwise liable to be quashed on the
ground that the present complaint has been filed as a
counter blast against the petitioner in order to pressurize to
solemnize the marriage. As already submitted the
respondent No.2 have the physical relation with somebody
else which confessed during the telephonic conversation
which made the petitioner to refuse the marriage even after
Ring ceremony. The respondent in order to pressurize the
petitioner to marry with her filed the complaint. Therefore,
no offence can be said to have been committed by the
petitioner. As such the impugned FIR is liable to be
quashed.

iv) That the present FIR is otherwise liable to be quashed

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in view of the fact that it does not constitute an
offence within the meaning of Section 376/506 RPC.

4. The respondent No. 2 has filed objections. In the objections, it is stated
that in filing the instant petition, the petitioner has proceeded on false and
baseless assumptions, both in law and on facts. It is further averred that
the petitioner and respondent No. 2 came to know each other way back in
the year 2010 and they were in courtship since then, which was
subsequently followed by engagement (Shagun Ceremony), solemnized
at Chichi Mata Mandir, Nandni Hils Samba on 10.02.2017 and date of
marriage had also come to be fixed for 11.11.2017. It is further averred
that during the course of such courtship, and even after the engagement,
exploiting the venerability of weaker sex on assurance of marriage the
petitioner acting fraudulently and dishonestly by way of inducement
subjected the respondent No. 2 to sexual exploitation and intermittently
took her to out stations like Mc Lodgunj, Dharamshala, Patnitop, Katra
and to Jammu city also to satisfy his sexual lust. Respondent No.2 has
also furnished cell Phone Numbers of the petitioner and of her to the
Investigating Officer to ascertain the factum of their being in continuous
touch and chatting with each other. The further stand in the objections is
that the very fact of petitioner’s disowning to know the respondent No.2
and instead propounding a story that it is going to be an arranged
marriage, in the wake of all the aforesaid, falsifies the very edifice of the
petition of the petitioner.

5. In support of his contention, learned counsel for the petitioner has relied
upon 2013 AIR (SC) 2753, Prashant Bharti vs. State of NCT of Delhi;
and 2017 (6) JKL HC 223, titled Roshan Sharma vs. State of JK
and ors.

CRMC No.512/2017 Page 4 of 15

6. On the other hand, learned counsel for respondent no.2 has relied upon a
decision of the Hon’ble Supreme Court reported in 2013 AIR (SC) 384,
State of U.P. vs. Naushad, wherein it is held that sexual intercourse
committed by accused with victim and if consent given by her on false
assurance of marriage and after that she became pregnant- it will amount
to rape.

7. I have considered the rival contentions and law on the subject.

8. Before dealing with the facts of the present case, it would be appropriate
to note the law laid down by the Supreme Court in the decision reported
as (2013) 3 SCC 330 Rajiv Thapar Ors. Vs. Madan Lal Kapoor
wherein while laying down the guidelines for quashing of a FIR and the
proceedings pursuant thereto in exercise of its power under Section 482
Cr.P.C. by the High Court, the Supreme Court delineated the steps to be
taken to determine the veracity of prayer as under:

“29. The issue being examined in the instant case is the jurisdiction
of the High Court under Section 482 CrPC, if it chooses to quash
the initiation of the prosecution against an accused at the stage of
issuing process, or at the stage of committal, or even at the stage of
framing of charges. These are all stages before the commencement
of the actual trial. The same parameters would naturally be
available for later stages as well. The power vested in the High
Court under Section 482 CrPC, at the stages referred to
hereinabove, would have far- reaching consequences inasmuch as it
would negate the prosecution’s/complainant’s case without
allowing the prosecution/complainant to lead evidence. Such a
determination must always be rendered with caution, care and
circumspection. To invoke its inherent jurisdiction under Section
482 CrPC the High Court has to be fully satisfied that the material
produced by the accused is such that would lead to the conclusion
that his/their defence is based on sound, reasonable, and
indubitable facts; the material produced is such as would rule out
and displace the assertions contained in the charges levelled against
the accused; and the material produced is such as would clearly
reject and overrule the veracity of the allegations contained in the
accusations levelled by the prosecution/complainant. It should be
sufficient to rule out, reject and discard the accusations levelled by
the prosecution/complainant, without the necessity of recording
any evidence. For this the material relied upon by the defence
should not have been refuted, or alternatively, cannot be justifiably

CRMC No.512/2017 Page 5 of 15
refuted, being material of sterling and impeccable quality. The
material relied upon by the accused should be such as would
persuade a reasonable person to dismiss and condemn the actual
basis of the accusations as false. In such a situation, the judicial
conscience of the High Court would persuade it to exercise its
power under Section 482 CrPC to quash such criminal
proceedings, for that would prevent abuse of process of the court,
and secure the ends of justice. 30. Based on the factors canvassed in
the foregoing paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashment raised by an
accused by invoking the power vested in the High Court under
Section 482 CrPC: 30.1. Step one: whether the material relied upon
by the accused is sound, reasonable, and indubitable i.e. the
material is of sterling and impeccable quality? 30.2. Step two:
whether the material relied upon by the accused would rule out the
assertions contained in the charges levelled against the accused i.e.
the material is sufficient to reject and overrule the factual
assertions contained in the complaint i.e. the material is such as
would persuade a reasonable person to dismiss and condemn the
factual basis of the accusations as false? 30.3. Step three: whether
the material relied upon by the accused has not been refuted by the
prosecution/complainant; and/or the material is such that it cannot
be justifiably refuted by the prosecution/complainant? 30.4. Step
four: whether proceeding with the trial would result in an abuse of
process of the court, and would not serve the ends of justice? 30.5.
If the answer to all the steps is in the affirmative, the judicial
conscience of the High Court should persuade it to quash such
criminal proceedings in exercise of power vested in it under Section
482 CrPC. Such exercise of power, besides doing justice to the
accused, would save precious court time, which would otherwise be
wasted in holding such a trial (as well as proceedings arising
therefrom) specially when it is clear that the same would not
conclude in the conviction of the accused.”

9. Following the decision in Rajiv Thapar’s case (supra), Supreme Court
in the decision reported as (2013) 9 SCC 293 Prashant Bharti Vs.
State (NCT of Delhi) dealing with a similar fact situation noting the
facts of the complaint therein, material collected in investigation and
placed by the accused therein, quashed the FIR, held as under:

“23. The details in respect of each aspect of the matter, arising out
of the complaints made by Priya on 16-2-2007 and 21-2- 2007 have
been examined in extensive detail in the foregoing paragraphs. We
shall now determine whether the steps noticed by this Court in the
judgment extracted hereinabove can be stated to have been
satisfied. Insofar as the instant aspect of the matter is concerned,
the factual details referred to in the foregoing paragraphs are
being summarized hereafter: 23.1. Firstly, the appellant-accused
was in Sector 37, Noida in the State of Uttar Pradesh on 15-2-2007.

CRMC No.512/2017 Page 6 of 15

He was at Noida before 7.55 p.m. He, thereafter, remained at
different places within Noida and then at Shakarpur, Ghaziabad,
Patparganj, Jorbagh, etc. From 9.15 p.m. to 11.30 p.m. on 15-2-
2007, he remained present at a marriage anniversary function
celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An
affidavit to the aforesaid effect filed by the appellant-accused was
found to be correct by the investigating officer on the basis of his
mobile phone call details. The accused was therefore not at the
place of occurrence, as alleged in the complaint dated 16-2-2007.
23.2. Secondly, verification of the mobile phone call details of the
complainant/prosecutrix Priya revealed, that on 15-2-2007, no calls
were made by the appellant-accused to the
complainant/prosecutrix, and that, it was the
complainant/prosecutrix who had made calls to him. 23.3. Thirdly,
the complainant/prosecutrix, on and around the time referred to in
the complaint dated 16-2-2007, was at different places of New Delhi
i.e. in Defence Colony, Greater Kailash, Andrews Ganj and finally
at Tughlaqabad Extension, as per the verification of the
investigating officer on the basis of her mobile phone call details.
The complainant was also not at the place of occurrence, as she
herself alleged in the complaint dated 16-2-2007. 23.4. Fourthly, at
the time when the complainant/prosecutrix alleged that the
appellant-accused had misbehaved with her and had outraged her
modesty on 15-2-2007 (as per her complaint dated 16-2-2007), she
was actually in conversation with her friends (as per the
verification made by the investigating officer on the basis of her
mobile phone call details). 23.5. Fifthly, even though the
complainant/prosecutrix had merely alleged in her complaint dated
16-2-2007 that the accused had outraged her modesty by touching
her breasts, she had subsequently through a supplementary
statement (made on 21-2-2007), levelled allegations against the
accused for the offence of rape. 23.6. Sixthly, even though the
complainant/prosecutrix was married to one Manoj Kumar Soni,
s/o Seeta Ram Soni (as indicated in an affidavit appended to the
Delhi Police format for information of tenants and duly verified by
the investigating officer, wherein she had described herself as
married), in the complaint made to the police (on 16-2-2007 and
21-2-2007), she had suggested that she was unmarried. 23.7.
Seventhly, as per the judgment and decree of the Civil Judge
(Senior Division), Kanpur (Rural) dated 23-9-2008, the
complainant was married to Lalji Porwal on 14-6-2003. The
aforesaid marriage subsisted till 23-9-2008. The allegations made
by the complainant dated 16-2-2007 and 21-2-2007 pertain to
occurrences of 23-12-2006, 25-12-2006, 1-1-2007 and 15-2-2007 i.e.
positively during the subsistence of her marriage with Lalji
Porwal. Thereafter, the complainant Priya married another man
Manoj on 30-9-2008. This is evidenced by a “certificate of
marriage” dated 30-9-2008. In view of the 561-A Cr.P.C. No.41 of
2015 Page 8 of 15 aforesaid, it is apparent that the complainant
could not have been induced into a physical relationship based on
an assurance of marriage. 23.8. Eighthly, the physical relationship
between the complainant and the accused was admittedly

CRMC No.512/2017 Page 7 of 15
consensual. In her complaints Priya had however asserted, that her
consent was based on a false assurance of marriage by the accused.
Since the aspect of assurance stands falsified, the acknowledged
consensual physical relationship between the parties would not
constitute an offence under Section 376 IPC. Especially because the
complainant was a major on the date of occurrences, which fact
emerges from the “certificate of marriage” dated 30-9- 2008,
indicating her date of birth as 17- 7-1986. 23.9. Ninthly, as per the
medical report recorded by AIIMS dated 16-2-2007, the
examination of the complainant did not evidence her having been
poisoned. The instant allegation made by the complainant cannot
now be established because even in the medical report dated 16-2-
2007 it was observed that blood samples could not be sent for
examination because of the intervening delay. For the same reason
even the allegations levelled by the accused of having been
administered some intoxicant in a cold drink (Pepsi) cannot now be
established by cogent evidence. 23.10. Tenthly, the factual position
indicated in the charge sheet dated 28-6-2007, that despite best
efforts made by the investigating officer, the police could not
recover the container of the cold drink (Pepsi) or the glass from
which the complainant had consumed the same. The allegations
made by the complainant could not be verified even by the police
from any direct or scientific evidence, is apparent from a perusal of
the charge-sheet dated 28-6-2007. 23.11. Eleventhly, as per the
medical report recorded by AIIMS dated 21-2-2007 the assertions
made by the complainant that the accused had physical relations
with her on 23-12-2006, 25-12-2006 and 1-1-2007, cannot likewise
be verified as opined in the medical report, on account of delay
between the dates of occurrences and her eventual medical 561-A
Cr.P.C. No.41 of 2015 Page 9 of 15 examination on 21-2-2007. It
was for this reason, that neither the vaginal smear was taken, nor
her clothes were sent for forensic examination. 24. Most
importantly, as against the aforesaid allegations, no pleadings
whatsoever have been filed by the complainant. Even during the
course of hearing, the material relied upon by the accused was not
refuted. As a matter of fact, the complainant/prosecutrix had
herself approached the High Court, with the prayer that the first
information lodged by her, be quashed. It would therefore be
legitimate to conclude, in the facts and circumstances of this case,
that the material relied upon by the accused has not been refuted
by the complainant/prosecutrix. Even in the charge-sheet dated 28-
6- 2007, (extracted above) the investigating officer has
acknowledged, that he could not find any proof to substantiate the
charges. The charge-sheet had been filed only on the basis of the
statement of the complainant/prosecutrix under Section 164 CrPC.

25. Based on the holistic consideration of the facts and
circumstances summarized in the foregoing two paragraphs; we
are satisfied, that all the steps delineated by this Court in Rajiv
Thapar case [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC
330 : (2013) 3 SCC (Cri) 158] stand satisfied. All the steps can only
be answered in the affirmative. We therefore have no hesitation
whatsoever in concluding, that judicial conscience of the High

CRMC No.512/2017 Page 8 of 15
Court ought to have persuaded it, on the basis of the material
available before it, while passing the impugned order, to quash the
criminal proceedings initiated against the appellant-accused, in
exercise of the inherent powers vested with it under Section 482
CrPC. Accordingly, based on the conclusions drawn hereinabove,
we are satisfied that the first information report registered under
Sections 328, 354 and 376 of the Penal Code against the appellant-
accused, and the consequential charge-sheet dated 28-6-2007, as
also the framing of charges by the Additional Sessions Judge, New
Delhi on 1-12-2008, deserves to be quashed. The same are
accordingly quashed.”

10. In present case, complainant/prosecutrix, who is major as her date of
birth is 25.3.1991, filed a criminal complaint before CJM Samba against
petitioner herein for commission of offences 376/506 RPC. The relevant
contents of complaint reads as under:-

“2. That the accused person came to know way back in 2010 and
developed friendship in the same year which further leads to love
affairs. Accused then used to meet the applicant/complainant as and
when the applicant went to her School. The applicant then left her
studies after completing the 12 Class, owing to her financial
condition but despite this the accused used to meet talk and chat with
the applicant/complainant.

3. That the accused person in 2012, selected as Constable in
Indian Army and then insisted the applicant for marriage but she
declined owing to her age. The accused then insisted the applicant for
the further studies as he wants to marry her at any cost. The
applicant/complainant started her studies at the instance of accused
person and presently doing her graduation 3″ year at Degree College,
Samba. The accused has shown all his loyalty, love and affection
towards the applicant/complainant during all this period.

4. That in 2013 when the mother of applicant/complainant
expired the parent of the accused person agreed to marriage despite
the applicant/complainant having a different caste. The
applicant/complainant then fully assured that he will enter into
marital tie with the accused person. The accused person in 2014 took
the applicant/complainant to Mc. Lodganj (HP), again assured for
marriage and on account of this developed physical relations with
her. The accused person had again fully assured the applicant/
complainant that he will marry her. The applicant/complainant then
gets pregnant and was duly treated by the accused. The
applicant/complainant then person again in 2015-16 took the
applicant/complainant to Dharamshalla and Mc. Lodganj, where
they again developed physical relations. She was again taken to
Patnitop and Katra by the accused person and developed the physical
relations. The accused persons even took the applicant/complainant
to his house on occasion when his family was out of station. It is

CRMC No.512/2017 Page 9 of 15
pertinent to mention here that as and when accused person came on
leave he used to meet the applicant/complainant here and there and
developed physical relations on assurance that he will marry her.

5. That in September 2016 the applicant/ complainant see a
change in the behavior of the accused when he told the complainant
that he is delaying his marriage owing to his posting but the
applicant/complainant did not accede and demanded marriage
without any unnecessary delay. The accused despite this shows
reluctance for the same however she is able to convince him and
thereafter the accused agreed and accordingly shagun ceremony was
organized on10.2.2017 at Chichi Mata Mandirnadni Hills samba and
marriage was fixed for 11.11.2017.

6. That a week after the shagun ceremony the applicant
complainant again see change in the behavior of the accused person
and started avoiding the applicant, the accused avoid chatting and
calls of the applicant complaint and to utter surprise the applicant
complainant stunned when father of the accused person decline to
marry. The applicant in hurry again called the accused and the
applicant was slapped with only decision of refusal. The applicant
complainant made request and tried her level best to convince him
and even reminds of his relation with applicant complainant. The
accused person did not listen and paid any heed to request of the
applicant-complainant and flatly refused to marry. The applicant
complainant then reminds him of legal action and on this he threats
for dire consequences.

7. That, accused person enticed and elude the applicant-
complainant for marriage and developed physical relations and
physically exploited for more than seven years. The accused person
had fraudulently taken consent of the applicant complainant and has
time and again committed rape of the applicant-complainant. It is
pertinent to mention here that applicant complainant has consented
her physical relation with the accused person only on account that
the accused will marry her. The accused has sexually abused
applicant complainant.”

11. This complaint was sent to police of police station P/S Gagwal for
investigation u/s 156(3) Cr.P.C. and accordingly FIR No.50/2017 u/s
376/506 RPC was registered on 02.05.2017.

12. From bare perusal of contents of complaint, it is apparent that there is no
specific mention of date, time and place of alleged rape. General
allegations have been leveled that accused has committed sexual
intercourse with the complainant in 2014 when he took her to Mc.
Lodganj (HP), where he assured for marriage and on account of this

CRMC No.512/2017 Page 10 of 15
developed physical relations with her; that complainant then got pregnant
and was duly treated by the accused; that again in 2015-16 accused took
her to Dharamshalla and Mc. Lodganj, where they again developed
physical relations; that she was again taken to Patnitop and Katra by the
accused person and developed the physical relations; that whenever
accused person had come on leave he used to meet the
applicant/complainant here and there and developed physical relations on
assurance that he will marry her.

13. All allegations of sexual relationship have been leveled on the ground
that accused promised to marry with the complainant. If one carefully
examines the contents of complaint it is evident that complainant has
admitted the fact of her relationship with accused since 2010 and there
was a love affair between them; Complainant has admitted that she
started her studies at the instance of accused person and presently doing
her graduation 3″ year at Degree College, Samba. The accused has
shown all his loyalty, love and affection towards the
applicant/complainant during all this period. She has also admitted her
shagun ceremony took place on10.2.2017 at Chichi Mata Mandirnadni
Hills Samba; she has also stated that marriage was fixed for 11.11.2017;
as per complainant accused has refused to solemnize marriage now.

14. Under Ranbir Penal Code, Section 375(4) states that a man is said to
have committed rape if he has sexual intercourse with a woman “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. Now-a-days there are cases
where boy and girl having love affair, indulging into sexual relationship
and ultimately ending into a breakup. Undoubtedly that amounts to
consensual sexual relationship as they were in love with each other. In a
case of rape, the act of sexual intercourse is forcible and without consent

CRMC No.512/2017 Page 11 of 15
of the woman. However, the consent obtained by fraud amounts to no
consent and therefore, if there is sexual intercourse with consent but
obtained by fraud, it amounts to rape. When a woman is major and
educated, she is supposed to be fully aware of the consequences of
having sexual intercourse with a man before marriage. In the event of
consent obtained by fraud, inducement is a necessary ingredient. There
should be some material on record to believe prima facie that the girl was
induced by the accused to such an extent that she was ready to have
sexual intercourse with him. Promise to marry cannot be said to be an
inducement in all cases, it differ from facts of case. Thus, promise to
marry in all cases cannot be a condition precedent to have sex. Had the
petitioner fraudulent intention not to solemnize marriage right from the
day he met victim in 2010, then he would have not asked the prosecutrix
to study further and bore her education expense. Where there is mere
breach of promise of marriage, and before breach they have sexual
relationship, that sexual indulgent may amount to consensual one and not
rape as defined in section 376 RPC.

15. So even if the allegations made in complaint are taken as it is , no case of
rape is made out, as the prosecutrix is major and she has known the
petitioner since 2010; she would be aware of the result of sexual
relationship; she had herself gone with accused at various places as per
complaint and indulged into sexual relationship. I am conscious that
statement of prosecutrix cannot be brushed aside especially in rape case;
but her statement has to be read along with other attending
circumstances. Except bald version of prosecutrix, there is nothing on
record from which it can prima facie be proved that intention of accused
was fraudulent right from the beginning. The Complaint has been lodged
after petitioner refused to solemnize marriage with her, petitioner has
categorically stated that complainant is more in age than him; this fact is

CRMC No.512/2017 Page 12 of 15
incorrect, because as per certificate D.O.B of petitioner is 22.11.1992 and
that of complainant is 25.03.1991.

16. In AIR 2017SC 1884 in case titled Vineet Kumar v State of UP,
Hon’ble Apex Court relying upon the judgment in Prashant Bharti’s
case (supra ) and Rajiv Thaper ( supra) has quashed a charge sheet under
section 376 IPC holding as under: –

Apart from bald assertions by the complainant that all accused
have raped, there was nothing which could have led the Courts to
form an opinion that present case is fit a case of prosecution which
ought to be launched. We are conscious that statement given by the
prosecutrix/complainant under Section 164 Cr.P.C. is not to be
lightly brushed away but the statement was required to be
considered along with antecedents, facts and circumstances as
noted above. Reference to the judgment of this Court in Prashant
Bharti vs. State(NCT of Delhi), 2013 (9) SCC 293, is relevant for
the present case. In the above case the complainant lady aged 21
years lodged an FIR under Section 328 and 354 IPC with regard to
the incident dated 15.02.2007. She sent telephonic information on
16.02.2007 and on her statement FIR under Sections 328 and 354
IPC was registered against the appellant. After a lapse of five days
on 21.02.2007 she gave a supplementary statement alleging rape by
the appellant on 23.12.2006, 25.12.2006 and 01.01.2007. Statement
under Section 164 Cr.P.C. of the prosecutrix was recorded. Police
filed charge-sheet under Section 328, 324 and 376 IPC. Charge-
sheet although mentioned that no proof in support of crime under
Section 328/354 could be found. However, on the ground of
statement made under Section 164 Cr.P.C. chargesheet was
submitted. 37. The appeal was filed against the aforesaid judgment
of the High Court by the accused contending that there was
sufficient material collected in the investigation which proved that
allegations were unfounded and the prosecution of the appellant
was an abuse of process of the Court. In paragraph 23 this Court
noted several circumstances on the basis of which this Court held
that judicial conscience of the High Court ought to have persuaded
it to quash the criminal proceedings. This Court further noticed
that Investigating Officer has acknowledged that he could not find
any proof to substantiate the charges. The charge-sheet had been
filed only on the basis of the statement of the
complainant/prosecutrix under Section 164 Cr.P.C. In paragraphs
24 and 25 of the judgment following was stated: “24. Most
importantly, as against the aforesaid allegations, no pleadings
whatsoever have been filed by the complainant. Even during the
course of hearing, the material relied upon by the accused was not
refuted. As a matter of fact, the complainant/prosecutrix had
herself approached the High Court, with the prayer that the first
information lodged by her, be quashed. It would therefore be

CRMC No.512/2017 Page 13 of 15
legitimate to conclude, in the facts and circumstances of this case,
that the material relied upon by the accused has not been refuted
by the complainant/prosecutrix. Even in the charge sheet dated
28.6.2007, (extracted above) the investigating officer has
acknowledged, that he could not find any proof to substantiate the
charges. The chargesheet had been filed only on the basis of the
statement of the complainant/prosecutrix under Section 164 of the
Cr.P.C. 25. Based on the holistic consideration of the facts and
circumstances summarized in the foregoing two paragraphs; we
are satisfied, that all the steps delineated by this Court in Rajiv
Thapar’s case (supra) stand – satisfied. All the steps can only be
answered in the affirmative. We therefore have no hesitation
whatsoever in concluding, that judicial conscience of the High
Court ought to have persuaded it, on the basis of the material
available before it, while passing the impugned order, to quash the
criminal proceedings initiated against the accused-appellant, in
exercise of the inherent powers vested with it under Section 482 of
the Cr.P.C. Accordingly, based on the conclusions drawn
hereinabove, we are satisfied, that the first information report
registered under Sections 328, 354 and 376 of the Indian Penal
Code against the appellant-accused, and the consequential
chargesheet dated 28.6.2007, as also the framing of charges by the
Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be
quashed. The same are accordingly quashed.” 38. Thus, above was
the case where despite statement under Section 164 Cr.P.C. by
prosecutrix the Court referring to material collected during
investigation had held that the case was fit where the High Court
ought to have quashed the criminal proceedings.”

17. Further offence u/s 506 RPC has also been registered. Section 506 of
RPC prescribes punishment for the offence of criminal intimidation as
defined under Section 503 of R PC. Section 503 of IPC reads thus:

“503. Criminal intimidation.–Whoever threatens another with
any injury to his person, reputation or property, or to the person
or reputation of any one in whom that person is interested, with
intent to cause alarm to that person, or to cause that person to do
any act which he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of avoiding
the execution of such threat, commits criminal intimidation.”

18. From bare perusal of contents of complaint, it is evident that there is no
iota of allegation in this regard.

19. In view of above, I am of considered opinion that the allegations made in
the first information report on the basis of complaint, even if they are

CRMC No.512/2017 Page 14 of 15
taken at their face value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the accused. The
allegations made in the FIR are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the accused. This FIR is
manifestly attended with mala fide intention and has been maliciously
instituted with an ulterior motive for wreaking vengeance on the accused
and with a view to spite him due to private and personal grudge. This
petition is allowed and impugned FIR No.50/2017 registered with the
Police Station, Ghagwal for commission of offences under Sections
376/506 RPC, is quashed.

(Sanjay Kumar Gupta)
Judge
Jammu
14.12.2018
Bir

CRMC No.512/2017 Page 15 of 15

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