Ashique Ahmed vs State Of U.P. And Another
2019 Latest Caselaw 6255 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD

Case :- APPLICATION U/S 482 No. - 29130 of 2019

Applicant :- Ashique Ahmed

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Mohammad Waseem

Counsel for Opposite Party :- G.A.,Ranvijay Chaubey

Hon'ble Dinesh Kumar Singh-I,J

Supplementary affidavit filed today is taken on record.

Heard Sri Mohammad Waseem, learned counsel for the applicant, Sri Amit Kumar Singh, learned A.G.A. appearing for the State and perused the record.

This application under Section 482 Cr.P.C has been moved with a prayer to quash the charge-sheet no. 1 of 2019 dated 27.01.2019 as well as cognizance order dated 01.05.2019 passed by Additional Chief Judicial Magistrate Court No. 4, Varanasi as well as entire criminal proceedings of Case No. 672 of 2019 (State vs. Ashique Ahmed and others) arising out of Case Crime No. 385 of 2018 under section 376, 313, 354(C), 323, 504, 506, 120 IPC, Police Station Jaitpur, District Varanasi pending in the Court of Additional Chief Judicial Magistrate, Court No. IV, Varanasi and also a prayer is made to stay the proceedings in this case till the disposal of this application.

It is argued by the learned counsel for the applicant that the accused-applicant has been falsely implicated by opposite party no. 2. She was having sexual relationship with the accused-applicant of her own free will. The applicant wanted to marry her but it was the opposite party no. 2 and her family members who have refused the said marriage and regarding this he has drawn attention to the statement of the witness Smt. Mustari Begum, mother of the victim, who has stated in her statement recorded under section 161 Cr.P.C. that 4-5 persons had come for the marriage of her daughter and two other witnesses namely, Anwar, Bablu @ Aftab have also stated that someone had come for marriage of the victim. He has also drawn the attention to the victim's statement recorded under section 161 Cr.P.C., which is at page-51, in which she has stated that she could not mention the exact date when she had visited the hotel where she was raped by the accused-applicant. Moreover, in the entry register of hotel there was no entry found of the accused-applicant and opposite party no. 2 to have gone there. He has also drawn the attention to the compromise which has been filed through supplementary affidavit, which was arrived at between the parties. He has also relied upon the case law of Supreme Court rendered in Dr. Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and others, Criminal Appeal No.1443 of 2018, paragraph no. 20 of the said judgment is quoted herein below:-

"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide 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 mala fide 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."

He has further argued that the Court has to adjudicate as to whether there was any malafide intention on part of the accused or any clandestine motive not to marry and whether it is a clear cut case of rape or not because if the prosecutrix was having sexual intercourse of her own free will, the same would not amount to rape. He prayed that the present proceedings are malicious prosecution against the accused-applicant which needs to be quashed.

Learned A.G.A. as well as learned counsel for the opposite party no. 2 have vehemently opposed the prayer for quashing of the charge sheet. Learned counsel for opposite party no 2 has drawn attention to paragraph no. 16 of the affidavit filed in support of the application in which it has been clearly stated that the victim had full knowledge of the fact that since she and the accused-applicant belonged to different caste, marriage could not be performed between them and yet continued to indulge in having sexual activity with the accused. Drawing attention to this averment, he has stated that this makes clear that he had no intention to marry the opposite party no. 2 right from beginning and continued to indulge in sexual activity with her therefore it amounts rape .

I have gone through FIR It is stated therein that the accused-applicant had enmeshed the opposite party no. 2 in his love trap and started exploiting her physically, economically and mentally. He had taken her to his mother, sister and maternal uncle who assured her that he would marry the applicant and thereafter he took her to Priya Hotel in Varanasi where he forcibly established physical relationship against her and also had made video clipping of the same. She also became pregnant. Thereafter, the other co-accused had called her in their house and had given some medicine for termination of the pregnancy assuring that the accused-applicant would marry her. FIR further contains that she was taken to hotel on various occasions and the accused continuously indulged in sexual activity with the opposite party no. 2 under pretext that he would marry her and ultimately he did not marry. The Investigating Officer, after investigating the matter, submitted charge sheet. The statement of the witnesses recorded by the Investigating Officer cannot be disbelieved in proceedings u/s 482 Cr.P.C.

From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604 and State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.

The prayer for quashing the proceedings of the aforesaid case is refused.

However, the applicant may approach the trial court to seek discharge, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here. If such application is made, the same shall be decided by the trial court in accordance with. The committal court shall commit the case within 15 days subject to compliance of provision of section 209 Cr.P/C. to facilitate the trial court to hear and dispose of discharge application.

The applicant may appear before committal court within 30 days to get his case committed to the Court of Sessions so that the accused may move discharge application before it. For a period of 30 days from the date of order, no coercive action shall be taken. But if the accused does not appear before the Committal court, the said court shall take coercive steps to procure his attendance.

With aforesaid direction, this application is finally disposed of.

Order Date :- 1.8.2019

AU