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Vivek Chaukar vs The State & Anr on 18 November, 2019

IN THE HIGH COURT OF DELHI AT NEW DELHI

% Judgment delivered on: 18.11.2019

+ W.P.(CRL) 1577/2019 CRL. M.A. 11505/2019 CRL. M.A.
31102/2019

VIVEK CHAUKAR ….. Petitioner
versus

THE STATE ANR ….. Respondents

Advocates who appeared in this case:
For the Petitioner : Mr. Inderbir Singh Alag, Senior Advocate
: with Mr. Nikhil Bhalla, Mr. Sumit Bhadana
: and Mr. J. Singh, Advocates.

For the Respondents : Ms. Kusum Dhalla, APP for Ms. Kamna
: Vohra, ASC for State.
: SI Manish Kumar, P.S. Jagat Puri.
: Mr. L.K. Giri and Mr. Atul Trivedi,
: Advocates for R-2 along with R-2 in person.

CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU

JUDGMENT

VIBHU BAKHRU, J

1. The petitioner has filed the present petition, inter alia, praying
that FIR No. 0095/2019 under Section 376 of the Indian Penal Code,
1860 (SectionIPC), registered with PS Jagat Puri and all proceedings emanating
therefrom, be quashed.

2. The said FIR was filed at the instance of respondent no.2 (the
complainant). The petitioner contends that the FIR in question was filed

W.P. (CRL.) 1577/2019 Page 1 of 14
with a view to harass the petitioner. He alleges that the complainant and
her husband have been blackmailing him for money for a long time.
Further, it is contended that the FIR in question is a counterblast to a
complaint filed by the petitioner with the Crime Branch, Meerut.

3. Briefly, the facts contained in the FIR in question are as follows:

3.1 The complainant filed the FIR in question stating that her first
marriage was solemnized with Devender, however, they are separated.
She stated that she met the petitioner herein in the year 2015, when she
was working as a school teacher and despite informing the petitioner
that she is married, he continued to get close to her. According to the
complainant, he told her he would stay with her for her whole life and
would marry her.

3.2 According to the complainant, the petitioner started visiting her
house and established a physical relationship with her without her
consent would make her consume tablets. She stated that he would
return the next day leaving her feeling half dead. Further, she stated
that the petitioner would force her to get abortions by giving her
medicines. He would also take money from the complainant on the
pretext of being in debt.

3.3 On 07.05.2019, she came to know that the petitioner had
solemnized marriage with another girl on 06.05.2019.

4. The petitioner, however, submits to the contrary. He submits that
he is engaged in the business of supplying school uniforms. The

W.P. (CRL.) 1577/2019 Page 2 of 14
complainant used to work as a receptionist at a school in Vishwas
Nagar, Shahdara, Delhi and he met the petitioner during the course of
his business. Thereafter, the interaction between the two increased and
the petitioner submits that she informed him that her parents had expired
and that her husband treats her with cruelty. The petitioner helped the
complainant financially on many occasions in view of the foregoing
facts.

5. However, on coming to know that the parents of the petitioner
were alive and that she was happily married with two children, he cut-
off all ties with the complainant and stopped giving her any financial
help. The petitioner submits that soon thereafter, the complainant and
her husband started to blackmail the petitioner for money, failing which,
they threatened him that they would initiate false criminal cases against
him. According to the petitioner, these demands increased when the
complainant came to know about the marriage of the petitioner
scheduled to be held on 06.05.2019.

6. The petitioner, thereafter, lodged a complaint with the Crime
Branch, Meerut on 08.05.2019 and the FIR in question (FIR No.
0095/2019 under Section 376 of the Indian Penal Code, 1860, registered
with PS Jagat Puri) was lodged at the instance of the complainant on
the next day, that is, on 09.05.2019.

Reasons and Conclusion

7. The present petition was listed on 29.05.2019 and on that date,
this Court had issued notice, which was accepted by the learned counsel

W.P. (CRL.) 1577/2019 Page 3 of 14
who appeared for respondent no. 2 (the complainant) and six weeks’
time was granted to the respondents to file a counter affidavit. This
Court had also passed an interim order staying the proceedings in
connection with FIR in question (FIR bearing no. 95/2019) under
Section 376 of the Indian Penal Code, 1860 (SectionIPC) registered with P.S.
Jagat Puri. Despite sufficient opportunity, respondent no. 2 did not file
any counter affidavit and therefore, the averments made in this petition
remained uncontroverted.

8. However, respondent no.2 filed an application (CRL. M.A.
31102/2019), inter alia, praying that the interim order staying
proceedings in relation to the FIR in question be vacated. It is alleged
in the said application that the Investigating Officer (Ms. Anupam) had
not made any serious efforts to arrest the petitioner and had advised the
complainant (respondent no.2) to compromise the matter after
accepting some money, which would also be beneficial to her. She has
also made allegations against the SHO, P.S. Jagat Puri. She alleges that
the SHO had evinced interest in her and had asked her to make him
happy.

9. The learned counsel appearing for respondent no.2 contends that
the SHO had demanded certain sexual favours from her. He submitted
that respondent no.2 had also filed a complaint with the Delhi
Commission for Women in this regard.

10. In addition to the above, respondent no.2 also alleged that on
08.06.2019, she had been beaten by three unknown girls and one
unknown boy and a complaint in this regard had been made to the SHO,
P.S. Jagat Puri. There does appear to be some error in this regard, since

W.P. (CRL.) 1577/2019 Page 4 of 14
respondent no.2 states in her application that the said incident had taken
place on 08.06.2019. However, the complaint annexed to the said
application is dated 04.06.2019. A perusal of the said complaint
indicates that she had also alleged that her purse had been snatched and
that one of the girls had placed a knife on her abdomen. She stated that
after the incident, she had called her friend and narrated the incident to
her.

11. Respondent no.2 filed yet another complaint on 07.06.2019
alleging that she was attacked for the second time on 05.06.2019 by a
group of three persons, which included one girl and two boys. She
alleged that the said assailants had demanded that she withdraw the FIR
in question. She stated that she saved herself and went to her friend’s
house and narrated the incident to her friend and also called the police
at 100. She stated that she reached the police station at 02:30 a.m. after
getting medically examined but the police refused to file any complaint.
On the basis of the aforesaid allegations, respondent no.2 had prayed
that interim order dated 29.05.2019 staying further proceedings
regarding the FIR in question, be recalled.

12. It is seen that the allegations made in the application pertain to
incidents that are alleged to have occurred after the stay order was
granted by this court. There are hardly any averments, which effectively
traverse the averments made in the petition.

13. Having stated the above, it is also necessary to observe that it is
not necessary to examine the allegations made by the petitioner in this
petition. The scope of the present petition is limited to examining
whether the FIR in question requires to be quashed. It is contended on

W.P. (CRL.) 1577/2019 Page 5 of 14
behalf of the petitioner that the said FIR, registered under Section 376
of the IPC requires to be quashed as, ex facie, it does not disclose
commission of the offence punishable under Section 376 of the IPC.

14. A plain reading of the FIR indicates that respondent no.2 had
disclosed that her first marriage which was solemnized with Devender.
However, she was separated from her husband. She stated that she
became acquainted with the petitioner in the year 2015 and he had
wanted to get close to her. She stated that she informed him that she
was married but despite the same, he was not discouraged and stated
that he had no objections on the count that she was married. She
claimed that the petitioner also stated that he would accompany her
throughout the life and would marry her. She stated that he started
visiting her at her house and had established physical relationships with
her. She stated that he had also taken money from her by pleading that
he was in debt. She complained that the petitioner had got married on
06.05.2019 with another girl and he had spoiled her life and had left her
alone without any support. She had stated that he had established
physical relationships with her by falsely holding out that he would get
marry to her.

15. The plain reading of the FIR in question indicates that according
to respondent no.2, a close relationship had developed between the
petitioner and her since the year 2015. Although she had stated that the
petitioner had established physical relationships with her despite her
objections, she had also indicated that he had established physical
relationships with her on a false promise of marriage by leading her to
believe that he would get married to her. She had also stated that the

W.P. (CRL.) 1577/2019 Page 6 of 14
petitioner had represented that he would accompany her throughout her
life and would also marry to her. It is at once apparent from the plain
reading of the said FIR that respondent no.2 is aggrieved on account of
the petitioner breaking up the relationship between them and getting
married to another person. She had also stated that he had left her alone
and without support clearly indicating that her grievance is with the
petitioner is not regarding his establishing physical relationships with
her but on parting with her company.

16. Thus, there is little doubt that even according to respondent no.2,
the relationship between her and the petitioner was consensual.
Although she claims that her consent was no consent as it was induced
by a false promise of marriage.

17. In view of the above, the principal issue to be addressed is
whether in the given facts, respondent no.2’s version that she was
induced to establish a relationship with the petitioner on the promise of
marriage is unsustainable. Admittedly, respondent no.2 has already
married. Although she claimed that she was separated from her
husband, it is not her case that they are divorced. In the circumstances,
there would be no question of marriage between the petitioner and
respondent no.2 and her version that her consent for engaging in a
sexual act was vitiated on account of such inducement, cannot be
accepted.

18. It is also important to note that according to respondent no.2 and
the petitioner, their relationship had spanned over almost about four
years. This is fairly a lengthy period of time and it cannot be accepted
that respondent no.2 continued to be allured into establishing a physical

W.P. (CRL.) 1577/2019 Page 7 of 14
relationship with the petitioner on the promise of marriage which, in
any case, could not be solemnized as respondent no.2 was already
married.

19. Section 376 IPC prescribes a punishment for an offence of rape.
The said offence is described under Section 375 IPC. Section 375 IPC
is set out below:-

“375. Rape. — A man is said to commit “rape” if he —

xxxx

under the circumstances falling under any of the following
seven descriptions —

First. — Against her will.

Secondly. — Without her consent
xxxx
Explanation 2. — Consent means an unequivocal
voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:

Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.

xxxx”

20. A plain reading of the FIR in question indicates that there is no
allegation that the petitioner had forcefully established a physical
relationship with the complainant. It is clear that their physical
relationship, if any, was established with respondent no.2’s consent.

W.P. (CRL.) 1577/2019 Page 8 of 14

Respondent no.2 claims that her consent was not unequivocal or
voluntary but had been induced under the promise of marriage.

21. In terms of Section 90 of the IPC, a consent which is given under
fear or mis-conception is not a consent, as is intended by this Court.
Section 90 IPC is set out below:-

“90. Consent known to be given under fear or
misconception. — A consent is not such a consent as is
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was given
in consequence of such fear or misconception; or
Consent of insane person. — if the consent is given by a
person who, from unsoundness of mind, or intoxication,
is unable to understand the nature and consequence of that
to which he gives his consent; or
Consent of child. — unless the contrary appears from the
context, if the consent is given by a person who is under
twelve years of age.”

22. In this context, the Supreme Court had in SectionPramod Suryabhan
Pawar v. State of Maharashtra and Another: (2019) SCC online SC
1073, observed as under:-

“14. This Court has repeatedly held that consent with
respect to Section 375 of the IPC involves an active
understanding of the circumstances, actions and
consequences of the proposed act. An individual who
makes a reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the various
possible consequences flowing from such action or
inaction, consents to such action…

xxxx

W.P. (CRL.) 1577/2019 Page 9 of 14
xxxx

20. Where the promise to marry is false and the intention
of the maker at the time of making the promise itself was
not to abide by it but to deceive the woman to convince
her to engage in sexual relations, there is a “misconception
of fact” that vitiates the woman’s “consent”. On the other
hand, a breach of a promise cannot be said to be a false
promise. To establish a false promise, the maker of the
promise should have had no intention of upholding his
word at the time of giving it. The “consent” of a woman
under Section 375 is vitiated on the ground of a
“misconception of fact” where such misconception was
the basis for her choosing to engage in the said act…”

23. The Supreme Court in Pramod Suryabhan Pawar (supra) had
also referred to various other decisions and summarized the legal
position in the following words:-

“”22. To summarise the legal position that emerges
from the above cases, the “consent” of a woman with
respect to Section 375 must involve an active and
reasoned deliberation towards the proposed act. To
establish whether the “consent” was vitiated by a
“misconception of fact” arising out of a promise to
marry, two propositions must be established. The
promise of marriage must have been a false promise,
given in bad faith and with no intention of being
adhered to at the time it was given. The false promise
itself must be of immediate relevance, or bear a direct
nexus to the woman’s decision to engage in the sexual
act.”

24. It is clear that in this case, there was no possibility of the
petitioner and respondent no.2 getting married at the time when

W.P. (CRL.) 1577/2019 Page 10 of 14
respondent no.2 alleges that they had established physical relationships.
Thus, respondent no.2’s contention that her consent was involuntary
and not a consent as contemplated under Section 375 of IPC cannot be
accepted.

25. SectionIn Prashant Bharti v. State (NCT of Delhi):(2013) 9 SCC 293,
the Supreme Court had considered a case where a woman who was
married had alleged that she was induced into a physical relationship
with the accused on the promise of marriage. The Supreme Court had
repelled the said allegation as false in view of the fact that the
complainant was married at the material time. The relevant extract of
the said decision is set out below:-

“17. It is relevant to notice, that she had alleged, that she
was induced into a physical relationship by Prashant
Bharti, on the assurance that he would marry her.
Obviously, an inducement for marriage is understandable
if the same is made to an unmarried person. The judgment
and decree dated 23-9-2008 reveals that the
complainant/prosecutrix was married to Lalji Porwal on
14-6-2003. It also reveals that the aforesaid marriage
subsisted till 23-9-2008, when the two divorced one
another by mutual consent under Section 13-B of the
Hindu Marriage Act. In her supplementary statement
dated 21-2-2007, the complainant/prosecutrix accused
Prashant Bharti of having had physical relations with her
on 23-12-2006, 25-12-2006 and 1-1-2007 at his residence,
on the basis of a false promise to marry her. It is apparent
from irrefutable evidence, that during the dates under
reference and for a period of more than one year and eight
months thereafter, she had remained married to Lalji
Porwal. In such a fact situation, the assertion made by the
complainant/prosecutrix, that the appellant-accused had

W.P. (CRL.) 1577/2019 Page 11 of 14
physical relations with her, on the assurance that he would
marry her, is per se false and as such, unacceptable. She,
more than anybody else, was clearly aware of the fact that
she had a subsisting valid marriage with Lalji Porwal.
Accordingly, there was no question of anyone being in a
position to induce her into a physical relationship under an
assurance of marriage. If the judgment and decree dated
23-9-2008 produced before us by the
complainant/prosecutrix herself is taken into
consideration along with the factual position depicted in
the supplementary statement dated 21-2-2007, it would
clearly emerge that the complainant/prosecutrix was in a
relationship of adultery on 23-12-2006, 25-12-2006 and 1-
1-2007 with the appellant-accused, while she was validly
married to her previous husband Lalji Porwal. In the
aforesaid view of the matter, we are satisfied that the
assertion made by the complainant/prosecutrix, that she
was induced to a physical relationship by Prashant Bharti,
the appellant-accused, on the basis of a promise to marry
her, stands irrefutably falsified.”

26. The said reasoning is equally applicable on the facts of this case
and the allegations made by the respondent that she was induced into a
physical relationship on a false promise to marry is, ex-facie,
unsustainable.

27. The complainant had alleged that she had disclosed to the
petitioner that she was married, yet he was not discouraged and had
stated that he had no objection. This also indicates that that the parties
had established their relationship fully aware that the same could not
fructify in their marriage at the material time.

28. Insofar as the allegations made by respondent no.2 in her
application (CRL. M.A. 31102/2019) is concerned, this Court had

W.P. (CRL.) 1577/2019 Page 12 of 14
directed respondent no.1 to file a status report. The status report has
since been filed indicating the actions taken on various complaints filed
by her on or after 29.05.2019. The relevant extract of the said status
report is set out below:-

“After the stay proceeding, complainant made several
complaints on various date at P.S jagatpuri. The action on
that complaints are under as:-

l. On 29/05/19, complainant made a complaint
before the Delhi Commission for women related to not
conducting fair investigation by the IO or misbehaviour
by SHO which is pending in DCW.

2. On 04/06/19, complainant made a complaint in P.S
Jagatpuri related to snatching and threatening by three
girls and one boy and in her complaint she mentioned that
she informed her one friend about the incident. In this
regard it is submitted that the CDR detail of
complainant’s mobile number was obtained, as per the
details, she did not talk with her friend on 04/06/19. On
local enquiry, no eye witnesses were found and the
complainant did not make any PCR call regarding the
incident. Hence the complaint has been filed.

3. On 05/6/19, complainant made PCR call related to
quarrel and the same has been filed by the IO because the
caller said that her case is pending in Karkardooma court.

4. On 07/06/16, complainant made PCR call related
to misbehaviour by unknown person and the same has
been filed by I.O. because there was no cognizable
offence made out.

5. On 27/06/19, complainant again made a complaint
in P.S Jagatpuri related to threats received by her from
four mobile numbers. On enquiry it is found that the
alleged numbers never called on her mobile number
during the period from 29.5.19 to 01/7/19 since CDR’s of
the mobile numbers were examined. Hence the complaint
has been filed.

W.P. (CRL.) 1577/2019 Page 13 of 14

All the complaints have been enquired into and thereafter
filed.”

29. In view of the fact that the complaints made by respondent no.2
of being assaulted on two occasions after the present petition was filed
have been inquired into, this Court does not consider it necessary to pass
any orders in this regard. Needless to state that respondent no.2 is not
precluded from taking all remedies in relation thereto as available in
law.

30. In view of the above, the FIR in question does not disclose any
offence punishable under Section 376 of the IPC. The petition is merited
and is thus, allowed. Accordingly, FIR bearing no. 0095/2019 under
Section 376 of the Indian Penal Code, 1860, registered with PS Jagat
Puri and all proceedings emanating therefrom, are quashed.

31. The pending applications are also disposed of.

VIBHU BAKHRU, J

NOVEMBER 18, 2019
RK/pkv

W.P. (CRL.) 1577/2019 Page 14 of 14

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