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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C.No.48480/2018
(Udaypal Singh Vs. State of M.P. and another)
Shri Ashish Gupta, learned counsel for the
applicant.
Shri Ankit Khaare, learend Public Prosecutor for
the respondent/State No.1.
Shri Abhishek Verma, learend counsel for the
complainant/Objector.
ORDER
( 07/03/2019)
The applicant/accused has preferred this petition
under Section 482 of CR.P.C. for quashing the FIR
bearing crime No. 163/2017 registered at Police Station-
Mahila Thana, Indore, District Indore for the offence
punishable under Section 376(2)(n) and 506 of I.P.C.
and consequential proceedings relating to aforesaid FIR.
(2). The facts of the case are that prosecutrix made a
written complainant at police Station- Mahila Thana,
Indore alleging that in the year 2011 she and applicant
was working together in the insurance company.
Thereafter, they got acquainted, developed intimacy and
started roaming together here and there. At one point
of time, the applicant shifted to Delhi, however, during
his stay at Delhi, applicant kept in touch with the
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prosecutrix telephonically. Sometimes in the year 2015,
applicant came back to Indore and proposed to marry
the prosecutrix. Initially, she declined but on the
persuasion of the applicant, she ultimately agreed.
Thereafter on 02.08.2017, the applicant had physical
relationship with the prosecutrix in a hotel at Indore and
thereafter, when he came to Indore, then he made
physical relationship with the prosecutrix regularly.
However, in the year 2017 he declined to marry with
her. On the basis of aforesaid complaint, F.I.R. bearing
Crime No.163/2017 was registered at Police Station-
Mahila Thana for the offence punishable under Section
376(2)(n) and 506 of I.P.C.
(3). Learned counsel for the applicant has submitted
that prosecutrix herself stated in the complaint that she
was acquainted with the applicant from the year 2011
and they were friends and had also grown intimate.
Nowhere it is claimed by the complainant that the
applicant imposed him upon her nor persuaded her to
be romantically involved on the pretext of marriage
since the beginning. The complainant details an account
of incident to be 02.08.2017 and the date of complaint
viz-a-viz F.I.R. is 29.11.2017. The complainant nowhere
disclosed any cogent reason regarding delay in lodging
the F.I.R. The prosecutrix is major lady, she throughout
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knew very well about the consequences of her conduct
and that she willingly agreed for all sorts of relationship
and that at no point of time, the applicant made any
promise to marry and that in this regard, the
complainant made against the applicant is false and
baseless. The prosecutrix is consenting party to the acts
committed between herself and the accused., therefore,
no offence is made out against the applicant for the
offence under Section 376(2)(n) and 506 of I.P.C. and
prays that FIR bearing Crime No.163 registered at Police
Station- Mahila Thana, Indore, District Indore for the
offence punishable under Section 376(2)(n) and 506 of
I.P.C. and all consequential proceedings relating to the
aforesaid FIR may be quashed.
(4). I have heard learned counsel for the parties and
perused the record.
(5). It is well settled that exercise of powers under
Section 482 of the Cr.P.C is the exception and not the
rule. Under this section, the High Court has inherent
powers to make such orders as may be necessary go
give effect to any order under the Code or to prevent
the abuse of process of any order under the Code or to
prevent the abuse of process of any court or otherwise
to secure the ends of justice. But the expressions
“abuse of process of law” or “to secure the ends of
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justice” do not confer unlimited jurisdiction on the High
Court and the alleged abuse of process of law or the
ends of justice could only be secured in accordance with
law, including procedural law and not otherwise.
(6). In the case of State of Haryana and Ors.v.
Bhajan Lal and Ors. 1992 Supp (1) SCC 335, has
elaborately considered the scope and ambit of section
482 Cr.P.C. Seven categories of cases have been
enumerated where power can be exercised under
Section 482 of Cr.P.C. Para 102 thus reads;
” 102 . In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of
decisions relating to the exercise of the extraordinary power
under Article 226 or the inherent powers under Section 482 of
the Code which we have extracted and reproduced above,
we give the following categories of cases by way of
illustration wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise to
secure the ends of justice, though it may not be possible to
lay down any precise, clearly defined and suffiiently
channelised and inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are 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.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3 ) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a
5cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudentperson can ever reach a just
conclusion thatthere is sufficient ground for proceeding
against the accused.
(6) Where there is an express legal bar engrafted in any
of the provisions of the Codeor the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended
with malafide and/or where the proceeding is
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.”
(7). In the case of Vineet Kumar and Ors. v. State
of Uttar Pradesh and Anr. (2017) 13 SCC 369, the
Hon’ble Supreme Court has held as under:
“Inherent power given to the High Court under Section 482
CrPC is with the purpose and object of advancement of
justice. In case solemn process of Court is sought to be
abused by a person with some oblique motive, the Court
has to thwart the attempt at the very threshold. Judicial
process is a solemn proceeding which cannot be allowed to
be converted into an instrument of oppression or
harassment. When there are materials to indicate that a
criminal proceeding is manifestly attended with mala fide
and proceeding is maliciously instituted with an ulterior
motive, the High Court will not hesitate in exercise of its
jurisdiction under Section 482 CrPC to quash the
proceeding. The present is a fit case where the High Court
ought to have exercised its jurisdiction under Section 482
CrPC and quashed the criminal proceedings.”
In the context of law laid down by the Hon’ble Apex
Court, it is apparent that for quashing the proceedings,
meticulous analysis of factum of taking cognizance of an
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offence by the Magistrate is not called for. Appreciation
of evidence is also not permissible in exercise of
inherent powers. If the allegations set out in the
complaint do not constitute the offence of which
cognizance has been taken, it is open to the High Court
to quash the same in exercise of the inherent powers.
(8). In the present case FIR was registered against the
applicant for the offence under Section 376 (2) (N) and
506 of I.P.C. Section 375 defines the offence of rape
and enumerates six descriptions of the offence. The first
clause operates where the women is in possession of
her senses and, therefore, capable of consenting but
the act is done against her when if the consent is given
by the complainant under misconception of fact, it is
vitiated.
(9). In the present case, the prosecutrix is a major lady
and she was working with the applicant and after that
both of them made physical relationship, which
disclosed that she was the consenting party.
(10). In the case of Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 , the court has drawn a
distinction between rape and consensual sex. In this
case of a prosecutrix aged 19 years at the time of the
incident. She had an inclination towards the accused.
The accused had been giving her assurances of the fact
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that he would get married to her. The prosecutrix,
therefore, left her home voluntarily and of her own free
will to go with the accused to get married to him. She
called the accused on a phone number given to her by
him, to ask him why he had not met her at the place
that had been pre-decided by them. She also waited for
him for a long time, and when he finally arrived, she
when with him to a place called Karna Lake where they
indulged in sexual intercourse. She did not raise any
objection at that stage and made no complaints to
anyone. Thereafter, she went to Kurukshetra with the
accused, where she lived with his relatives. Here too,
the prosecutrix voluntarily became intimate with the
accused. She then for some reason, went to live in the
hostle at Kurukshetra University illegally, and once again
came into contact with the accused at Birla Mandir
there. Thereafter, she even proceeded with the accused
to the old bus-stand in Kurukshetra, to leave for Ambala
so that the two of them could get married at the court
in Ambala. At the bus station, the accused was arrested
by the police. The Court held that the physical
relationship between the parties had clearly developed
with the consent of the prosecutrix as there was neither
a case of any resistance nor had she raised any
complainant anywhere at any time, despite the fact that
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she had been living with the accused for several days
and had travelled with him from one place to another.
The Court further held that it is not possible to
apprehend the circumstances in which a charge of
deceit/ rape can be leveled against the accused.
(11). In the case of Shivashankar @ Shiva v.
State of Karnataka Anr, in Criminal Appeal
No.504/2018, disposed of on 6th April, 2018, has
observed that it is difficult to hold that sexual
intercourse in the course of a relationship which has
continued for eight years is ‘rape’, especially in the face
of the complainant’s own allegation that they lived
together as man and wife. It was held as under:
” In the facts and circumstances of the present case, it is
difficult to sustain the charges leveled against the
appellant who may have possibly, made a false promise
of marriage to the complainat.
It is, however, difficult to hold sexual intercourse in the
course of a relationship which has continued for eight
years, as ‘rape’ especially in the face of the complainant’s
own allegation that they lived together as man and wife”.
(12). In the recent judgment of the of the Apex Court
in Criminal Appeal No.1443/2018 in the matter of Dr.
Dhruvaram Murlidhar Sonar Vs. State of
Maharashtra others disposed of on 22.11.2018
has held that there is a clear distinction between
rape and consensual sex. The court, in such
cases, must very carefully examine whether the
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complainant had actually wanted to marry the
victim or had malafide motives and had made a
false promise to this effect only to satisfy his lust,
as the later falls within the ambit of cheating or
deception. There is also a distinction between
mere breach of a promise and not fulfilling a false
promise. If the accused has not made the promise
with the sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act would not
amount to rape. There may be a case where the
prosecutrix agrees to have sexual intercourse on
account of her love and passion for the accused
and not solely on account of the misconception
created by accused, or where an accused, on
account of circumstances which he could not have
foreseen or which were beyond his control, was
unable to marry her despite having every intention
to do. Such cases must be treated differently. If
the complainant had any malafide intention and if
he had clandestine motives, it is a clear case of
rape. The acknowledged consensual physical
relationship between the parties would not
constitute an offence under Section 376 of the
IPC.
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(13). In the instant case, it is admitted fact that
applicant and prosecutrix was working in the year 2011
together in insurance company and thereafter they got
acquainted, developed intimacy and started roaming
together here and there. After that applicant shifted at
Delhi, however during his stay at Delhi, he kept in touch
with the prosecutrix telephonically. In the year 2015
when the applicant came to Indore, he proposed to
marry the prosecutrix and applicant also agree,
thereafter applicant had sexual relationship with the
prosecutrix and whenever he came to Indore he made
physical relationship with the prosecutrix. It is also
came on record that when the applicant refused to
marry with the prosecutrix even after that the
prosecutrix continued in physical relationship with the
applicant. It is clear that applicant and prosecutrix were
in a relationship with each other for quite some time
and enjoyed each other’s company. At this period the
prosecutrix has not made any complaint to anybody that
applicant had forcibly raped her. The prosecutrix 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
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was not the result of a misconception created in
her mind. This court is 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 applicant
under Section, hence prima facie no offence under
Section 376 (2) (n) is made out against the
applicant.
(14). Accordingly, this petition filed under Section
482 of Cr.P.C. is allowed and FIR bearing Crime
No.163/2017 registered at Police-Station Mahila
Thana-Indore for the offence under Section 376
(2) (n) and 506 of I.P.C. and all consequential
proceedings relating to aforesaid FIR is hereby
quashed.
Let a copy of judgment be sent to the
concerned court for information and compliance.
(S. K. Awasthi)
Judge
praveen
Santosh Kumar
Digitally signed by Santosh Kumar Tiwari
DN: cIN, oHigh Court of Madhya Pradesh,
ouAdministration, postalCode452010, stMadhya
Pradesh,
Tiwari 2.5.4.200302427ede38493e8c0c43f0be7a802b914f6c4be6
9964f9f552be6e645bacc8, cnSantosh Kumar Tiwari
Date: 2019.03.07 19:22:42 -08’00’
