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Vajir Singh S/O Shri Gaje Singh B/C … vs State Of Rajasthan on 30 January, 2020

HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Criminal Writ Petition No. 163/2019

Vajir Singh S/o Shri Gaje Singh B/c Hindu, Aged About 32 Years,
R/o Village Putti Semana, Tehsil Hansi, Police Station Hansi
Sadar, Distt. Hisar, Haryana.
—-Petitioner
Versus
1. The State Of Rajasthan, Through P.p.
2. The Commissioner Of Police, Police Commisonarate, Jaipur
Metropolitan, Raj.
3. The Station House Officer, Police Station Sadar, Jaipur
(West), Jaipur Raj.
4. Smt. Geeta Devi W/o Shri Hariram Prajapat D/o Shri
Ramsahai Prajapat B/c Prajapat, Aged About 35 Years,
R/o Near Chothmal House, Khatipura, Hasanpura, Jaipur
At Present R/o C/o Nawal Kishore Verma Plot No. C-38,
Majdoor Nagar, Jaipur Raj.
—-Respondents

For Petitioner(s) : MR. Anoop Pareek, Adv.

For Respondent(s) : Mr. FR Meena, PP
Mr. Anshuman Saxena, Adv. for
Complainant

HON’BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Judgment

Reserved On 22/01/2020
Pronounced on 30/01/2020

1. By way of this criminal writ petition, the petitioner assails the

order dated 19/02/2019, passed by the Additional Chief

Metropolitan Magistrate No.16, Jaipur whereby he has returned the

file for fresh investigation to the SHO, Police Station Sadar, Jaipur

(West), Jaipur after the final report was submitted by the Police.

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2. Learned counsel for the petitioner submits that on the basis

of a written complaint made by the complainant-respondent no.4

under Section 156(3) Cr.P.C., an FIR No.273/2018 was registered

against the petitioner under Section 323, 341,376, 377, 384 IPC at

Police Station Sadar, Jaipur (West) on 07/06/2018. After

investigation, the Police found the entire case to be wholly false

and fabricated and in this regard, a negative final report was

submitted after recording the statement of the prosecutrix under

Section 164 Cr.P.C.. After the negative final report was submitted

in the Competent Court, the respondent no.4-complainant moved

an application for re-opening the case with the sole purpose to

earn money illegally from the petitioner with the collusion of her

husband. It is further submitted that the FIR and proceedings

conducted thereto may accordingly be quashed and set aside. In

support of his submissions, learned counsel for the petitioner

relied on the judgment rendered in Mithabhai Pashabhai Patel

Ors. Vs. State of Gujarat: (2009) 6 SCC 332; Prashant Bharti Vs.

State of NCT of Delhi: (2013) 9 SCC 293; Tilak Raj Vs. The State

of Himachal Pradesh: 2016(1) WLC (SC) Cri. 384; Baldev Gora Vs.

State of Rajasthan: 2018(1) WLC (Raj.) 215; Shivashankar @

Shiva Vs. State of Karnataka anr.: 2018 Cr.L.R. (SC) 502;

Pramod Suryabhan Pawar Vs. State of Maharasthra anr.:

2019(2) WLC (SC) Cri. 638 and Hari Ram Vs. The State of Raj.

anr. (SB Criminal Revision No.7/2017), decided on 05/09/2017.

3. Reply to the instant criminal writ petition has been filed by

the respondents no.1 to 3 wherein it has been stated that from the

evidence which has come on record, the respondent No.4-

complainant (Smt. Geeta Devi) was having a family dispute with

her husband for last 8 to 9 years. She left her matrimonial home

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and came in contact with the petitioner-Vajir Singh who is a

married person having two children. The wife of petitioner-Vajir

Singh used to treat the respondent respondent no.4-Smt. Geeta

Devi as her sister. Vajir Singh was having a live in relationship with

Smt. Geeta Devi for last eight years. Smt. Geeta Devi had filed a

complaint against Vajir Singh under Section 323, 341, 376, 377,

384 IPC which was found to be false after the statement of Smt.

Geeta Devi was recorded under Section 164 Cr.P.C. and the Deputy

Commissioner of Police, Jaipur West, Jaipur directed to final final

report which was chalked out on 30/06/2018 and filed before the

Court of Additional Chief Metropolitan Magistrate No.16, Jaipur

Metro on 09/07/2018. Thus, as per reply of the Police, no case is

made out against the petitioner.

4. A reply has also been filed by the respondent no.4-

complainant wherein she has stated that she was living with the

petitioner for 11 years with the promise that the petitioner would

marry her. However, after 11 years, the petitioner left the rented

house of the respondent no.4 and she, therefore, lodged a

complaint under Section 323, 341, 376, 377, 384 IPC. When the

petitioner came back to the respondent no.4 and promised to live

with her, as husband and wife, the respondent no.4 gave her

statement to the police on the basis of which final report was

submitted. However, as the petitioner again left the respondent

no.4, she submitted an application for fresh investigation. An

agreement was also entered for live in relationship between the

parties with the understanding that the child born out of their live

in relationship would be entitled for inheritance of the properties of

the petitioner.

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5. Learned counsel appearing for the respondent no.4-

complainant submitted that the petitioner is guilty of committing

fraud with the respondent no.4 as he has withdrawn from the live

in relationship wrongfully and therefore, the respondent no.4 has a

right to get the charges pressed again. He further submitted that

the petitioner ought to have been directed to maintain the

respondent no.4 and also give her the status. It has also been

stated that a charge-sheet had been issued in departmental

proceedings against the petitioner.

6. Heard learned counsel for the parties and perused the

material available on record.

7. This criminal writ petition has been filed challenging the FIR

and the proceedings undertaken therein.

8. The main ground raised by learned counsel for the petitioner

is that the criminal proceedings could not have been initiated in

the facts of the present case as admittedly the respondent no.4

has been living with the petitioner for last 11 years and thus, there

is no element of criminality which can be said to have been

committed by the petitioner as defined under Section 376, or 377

or Section 323, 341, 384 IPC. Moreover, in view of the statement

made under Section 164 Cr.P.C., the FIR could not be further

proceeded with and the final report as submitted before the

learned Magistrate ought to have been accepted and there was no

occasion for sending back the file for fresh investigation as there is

no power available with the concerned Magistrate.

9. This Court finds that from the facts as above, it is a case of

live in relationship having turned sour. There are grievances of the

respondent no.4 as against the petitioner for having left and

parted with her.

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10. The live in relationship in India is not recognized in the

society as a pious form of relationship between a man and a

woman. It is considered as an immoral act.

11. In the State of Gujarat, there is a system of “maitraykarars”

which, however, came to be declared illegal by the High Court of

Gujarat in the case of Minaxi Zaver Bhai Jethva Vs. State of

Gujarat, decided on 15/12/1999. The Government of Gujarat later

on passed an Act in 1982 prohibiting this practice.

12. In Rajasthan, there is no law with regard to the live in

relation or prohibition thereto. In absence of any definite law to

define the status of live in relationship, the Courts have taken a

view that where a man and a woman live together as husband wife

for a long term, it would be presumed that they are legally

married unless proved contrary.

13. Section 2(f) of the Protection of Women from Domestic

Violence Act, 2005 provides as under:-

“2(f) “domestic relationship” means a
relationship between two persons who live or have,
at any point of time, lived together in a shared
household, when they are related by consanguinity,
marriage, or through a relationship in the nature of
marriage, adoption or are family members living
together as a joint family;

14. Similar view has been again followed in Tulsa And Others Vs.

Durghatiya And Others: 2008 (4) SCC 520 wherein it has been

observed as under:-

“12. A number of judicial pronouncements have been
made on this aspect of the matter. The Privy Council,
on two occasions, considered the scope of the
presumption that could be drawn as to the
relationship of marriage between two persons living
together. In first of them i.e. A. Dinohamy v. W.L.

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Blahamy AIR 1927 P.C. 185 their Lordships of the
Privy Council laid down the general proposition that:

Where a man and woman are proved to have
lived together as man and wife, the law will
presume, unless, the contrary be clearly
proved that they were living together in
consequence of a valid marriage, and not in a
state of concubinage.

13. In Mohabhat Ali v. Md. Ibrahim Khan AIR 1929
PC 135 their Lordships of the Privy Council once again
laid down that:

The law presumes in favour of marriage and
against concubinage when a man and woman
have cohabited continuously for number of
years.

14. It was held that such a presumption could be
drawn under Section 114 of the Evidence Act.

15. Where the partners lived together for long spell
as husband and wife there would be presumption in
favour of wedlock. The presumption was rebuttable,
but a heavy burden lies on the person who seeks to
deprive the relationship of legal origin to prove that
no marriage took place. Law leans in favour of
legitimacy and frowns upon bastardy.

16. This Court in Gokal Chand v. Parvin Kumari AIR
1952 SC 231 observed that continuous co-habitation
of woman as husband and wife and their treatment as
such for a number of years may raise the presumption
of marriage, but the presumption which maybe drawn
from long co-habitation is rebuttable and if there are
circumstances which weaken and destroy that
presumption, the Court cannot ignore them.”

15. In S. Khushboo Vs. Kanniammal: 2010 (5) SCC 600, the

Supreme Court again observed as under:-

“31.While it is true that the mainstream view in our
society is that sexual contact should take place only
between marital partners, there is no statutory
offence that takes place when adults willingly engage
in sexual relations outside the marital setting, with
the exception of ‘adultery’ as defined under Section
497 IPC. At this juncture, we may refer to the
decision given by this Court in Lata Singh v. State of
U.P. and Anr. AIR 2006 SC 2522 wherein it was
observed that a live-in relationship between two
consenting adults of heterogenic sex does not

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amount to any offence (with the obvious exception
of ‘adultery’), even though it may be perceived as
immoral. A major girl is free to marry anyone she
likes or “live with anyone she likes”. In that case, the
petitioner was a woman who had married a man
belonging to another caste and had begun
cohabitation with him. The petitioner’s brother had
filed a criminal complaint accusing her husband of
offences under Sections 366 and 368 IPC, thereby
leading to the commencement of trial proceedings.
This Court had entertained a writ petition and granted
relief by quashing the criminal trial. Furthermore, the
Court had noted that ‘no offence as committed by any
of the accused and the whole criminal case in question
is an abuse of the process of the Court’.”

16. The Delhi High Court in Alok Kumar Vs. The State (Crl. M.C.

No. 299/2009) has observed that live in relationship is walk in and

walk out relationship and no strings are attached to it.

17. In the aforesaid observations of the Courts, if the facts of the

present case are examined, this Court finds that the petitioner

was already a married person having children and with full

knowledge of his wife, he was having live in relationship with

respondent no.4 for 11 years and even the husband of the

respondent no.4 was having full knowledge about the said aspect.

18. A person, who himself consents to be part of such

relationship, cannot turn around after the same gets ugly to say

that she has been forced to have sexual relation within the

meaning of Section 376 IPC or even within the meaning of Section

377 IPC. There is no case infidelity or immorality interse between

both the members of such relationship as infidelity and immorality

are to be judged by the society in which a person lives and it is for

the society to allege immorality on both such persons. However,

making allegations of rape and other offences with the view to

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force the other partner to continue to have live in relationship,

would amount to abuse of the criminal procedure.

19. The FIR or proceedings cannot be continued in such

circumstances as no one can be forced to enter into live in

relationship and it being not recognized under any Act, no one can

force his/her partner to rejoin and come back into live in

relationship once they separated. As has come on record from

the documents, the complainant-respondent no.4 has also given

such a statement under Section 164 Cr.P.C.. The allegation of

committing fraud is not part of the FIR.

20. Hence, a subsequent application moved before the concerned

Magistrate or before the Police Authorities by the respondent no.4

stating that fraud has been committed by the petitioner, would not

ipso-facto be a ground for returning the case for fresh

investigation by the learned Magistrate. This Court finds that the

order impugned does not even give reasons for directing for fresh

investigation.

21. In the opinion of this Court, a Magistrate although has a

power to direct the Investigating Agency to conduct fresh

investigation but it would only exercise such power after applying

its mind to all the aspects. Such an order cannot be passed in a

mechanical fashion and the discretion has to be exercised

judiciously. In other words, the learned Magistrate is required to

show from his order that he/she has reached to such a decision on

some cogent grounds. Giving reasons is a sine-qua-non of any

judicial order.

22. Keeping in view above principle, the order impugned passed

by the learned Additional Chief Metropolitan Magistrate is found to

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be lacking of above aspects and the same, therefore, is liable to be

set aside.

23. Apart from above, the FIR itself, which has been registered

and mentions about the live in relationship, is found to be

essentially a case of live in relationship between the petitioner and

the respondent no.4 having become unsuccessful after 11 years.

Therefore, the final report given by the Police after having reached

to the said conclusion is accordingly found to be correct and

merely because subsequently, the petitioner resiled from his

compromise to continue with live in relationship, the final report in

negative form does not warrant interference.

24. Accordingly, the present criminal writ petition is allowed. The

order impugned dated 19/02/2019 passed by the learned

Additional Chief Metropolitan Magistrate No.16, Jaipur is set aside.

and entire criminal proceedings initiated on the basis of FIR

No.273/2018, as pressed, are held to be abuse of criminal process

and the same are accordingly quashed set aside. All the pending

applications also stand disposed of.

(SANJEEV PRAKASH SHARMA),J

Raghu/

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