Anurag Bhordia vs State Of U.P. And Another
2021 Latest Caselaw 1917 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 75
 

 
Case :- APPLICATION U/S 482 No. - 2641 of 2021
 

 
Applicant :- Anurag Bhordia
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Arvind Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajiv Gupta,J.

Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record.

This application under Section 482 CrPC has been filed by the applicant with the prayer to quash the impugned order dated 19.12.2020 and entire proceedings of Sessions Trial No. 393 of 2020, arising out of Case Crime No. 293 of 2019, under Sections 376, 504, 506 IPC, Police Station Prem Nagar, District Jhansi, pending in the court of Additional District and Sessions Judge (POCSO Act), Court No.9, Jhansi.

As per the allegations made in the FIR, it is alleged that the applicant proposed the victim for marriage and since, the applicant and victim belonged to the same caste and both were employed in the Police Department, as such, she and her family members agreed to the said proposal of marriage. Thereafter, applicant used to speak to her on mobile phone and applicant as well as her mother assured her to solemnize their marriage after completion of training in June.

On 08.02.2019, the applicant came and stayed with her on 09.02.2019 and 10.02.2019 at her residence at Prem Nagar and on false promise of marriage and against her wishes, made physical relations with her. On objection being raised by her that such act before marriage is not proper, the applicant reiterated his promise to marry her and asked her to fulfill her wishes. However, on his return back, he started avoiding the victim on phone.

On suspicion being raised, she sent her family members to his house, where his mother, sister, uncle and aunt started making demand of dowry in the form of Fortuner Car, Rs.10 Lakh cash and entire household articles in marriage and they stated that if the said demand of dowry is not fulfilled, then they would not solemnize their marriage as number of offers for the marriage of his son are coming and thereafter, on refusal to fulfill their illegal demand of dowry, humiliated and turned them out from their house.

When the aforesaid facts were disclosed to the victim, then she contacted the applicant on phone and insisted for marriage, however, the applicant using filthy language refused to marry her and threatened to defame her to the extent that she will not be able to show her face to anyone and threatened her and her nephew for life and that their dead body would also not be traceable.

On the basis of the said allegations, an FIR was lodged by the victim against the applicant at Police Station Prem Nagar, District Jhansi, under Sections 376, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act.

On the basis of the aforesaid FIR, the police conducted the investigation and after recording the statements of the witnesses under Section 161 and 164 CrPC, concluded the investigation and submitted the charge-sheet against the applicant under Section 376, 504, 506 IPC. On the basis of said charge-sheet, court below summoned the applicant to face trial.

Being aggrieved by the said order, the applicant challenged the summoning order, charge-sheet and entire proceedings of Sessions Trial No. 393 of 2020, arising out of Case Crime No. 239 of 2019, under Sections 376, 504, 506 IPC, Police Station Prem Nagar, District Jhansi by invoking the jurisdiction of this Court under Section 482 CrPC being Criminal Misc. Application No. 16733 of 2020.

The said application was disposed of wherein prayer for quashing the charge-sheet was refused and the applicant was directed to file a discharge application claiming discharge, which was directed to be decided on merits.

Consequent to the said order, the applicant moved an application for discharge before the trial court, which has been rejected vide its order dated 19.12.2020.

Being aggrieved by the said order dated 19.12.2020, present application has been filed to quash the said order passed by Additional and Sessions Judge (POCSO Act), Court No.9, Jhansi in Sessions Trial No. 393 of 2020, under Sections 376, 504, 506 IPC, Police Station Prem Nagar, District Jhansi and to direct the court below to re-consider the discharge application and discharge the applicant from all the charges levelled against him.

Learned counsel for the applicant has submitted that the applicant is wholly innocent and has been falsely implicated in the present case due to ulterior motive.

Learned counsel for the applicant has next submitted that the victim is in consensual physical relations with the applicant and the allegations made in the FIR as well as in the statements of the victim recorded under Sections 161 and 164 CrPC, are false, cooked up and concocted and entire proceedings based on the charge-sheet is therefore bad in the eye of law. Learned court below while passing the impugned order dated 19.12.2020 on the discharge application has not considered relevant evidence and material available on record and has passed the impugned order in a most mechanical and routine manner.

Learned counsel for the applicant has next submitted that there is inordinate delay in lodging of the FIR and in recording of the statement of the victim under Section 164 CrPC.

Learned counsel for the applicant has next submitted that from the allegations made in the FIR and the statements of the witnesses recorded under Sections 161 and 164 CrPC, no offence whatsoever is disclosed against the applicant, yet the trial court illegally rejected his discharge application, as such, impugned order and entire proceedings be quashed.

In support of his arguments, learned counsel for the applicant has placed reliance upon three decisions i.e. (1) (2002) 13 Law Suit (SC) 442, Deepak Gulati Vs. State of Haryana. (2) (2019) AIR SC 4010, Pramod Suryabhan Pawar Vs. State of Maharshtra and reported judgment of Criminal Appeal No. 635 of 2020, arising out of SLP (Cri.) No. 393 of 2020, Maheshwar Tigga Vs. State of Jharkhand.

Per contra, learned AGA has vehemently opposed the said prayer and has submitted that physical relations has been made between the applicant and the victim on false promise of marriage, applicant has committed rape upon the victim and the marriage could not be solemnized for demand of dowry and this fact has also been reiterated in the FIR as well as in the statement of the victim recorded under Sections 161 and 164 CrPC. The consent of the victim has been obtained under the misconception of the fact. In fact, from the very beginning, the applicant had no intention to marry the victim and just to satisfy his lust, he made physical relations with the victim.

Learned AGA has further submitted that earlier, an Application under Section 482 CrPC No. 16733 of 2020 was filed by the applicant before this Court, challenging the charge-sheet and entire proceedings, which has already been disposed of by co-ordinate Bench of this Court vide order dated 18.11.2020.

He has next submitted that from the perusal of the allegations made in the FIR and the statements of the victim recorded under Sections 161 and 164 CrPC, prima facie it cannot be said that no offence is made out against the applicant, as such, impugned order and entire proceedings cannot be quashed. The impugned order passed by the court below is just, proper and legal and do not call for any interference by this Court at this stage.

Having considered the rival submissions made by learned counsel for the parties and taking into consideration the specific allegation of rape upon the victim on false promise of marriage by the applicant and extending threats to her life and refusing to marry the victim for the non-fulfillment of demand of dowry made in the FIR and in the statements of the victim recorded under Sections 161 and 164 CrPC, at this stage, when the evidence is yet to come, it cannot be said that no offence is made out against the applicant.

Perusal of the record shows that the applicant on false promise of marriage made physical relations with the victim and when she and her family members insisted for the marriage, then the applicant's family members started making demand of dowry and on non-fulfillment of the said demand of dowry, the applicant refused to marry the complainant and started threatening her of life. The court below while passing the impugned order has considered each and every aspect of the matter and has passed a well reasoned order and do not call for any interference by this Court at this stage.

It is also to be noted that at the stage of discharge, the court has to consider the material only with a view to find out if there is a ground for 'presuming' that the accused had committed the offence :

"It is trite that at the stage of framing of charge, the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclose the existence of all the ingredients constituting the alleged offence or offences. For this limited purpose, the court may sift the evidence as it cannot be expected even at the initial stage to accept as gospel truth all that the prosecution states. At this stage, the court has to consider the material only with a view to find out if there is ground for presuming that the accused has committed an offence and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction."

In Stree Atyachar Virodhi Parishad Vs. Dilip Nathumal Chordia, the Court while examining the scope under Section 227 held as under :-

"Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The ground in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record. If generally accepted, would reasonably connect the accused with the crime."

The two case law cited by counsel for the applicant i.e. (1) (2002) 13 Law Suit (SC) 442 Deepak Gulati Vs. State of Haryana and (2) reported judgment of Criminal Appeal No. 635 of 2020, arising out of SLP (Cri.) No. 393 of 2020 Maheshwar Tigga Vs. State of Jharkhand, are in fact the cases, wherein the judgments have been passed after taking into consideration the entire depositions of the witnesses recorded during the course of trial, whereas in the present case, the entire evidence is yet to come, in the absence of which, in the facts and circumstances of the case and material available on record, it would not be very apt to hold that from the very inception, the applicant had intention to marry the victim and that her consent was not taken under misconception of the fact, particularly when in view of the circumstance that the applicant first made physical relations with the complainant and thereafter, started making demand of dowry and for the non-fulfillment of which, refused to marry the victim.

Looking to the allegations made in the statements of the witnesses and material collected during the course of investigation, it cannot be said that no offence is made out against the applicant. So far as the third case i.e. (2019) AIR SC 4010, Pramod Suryabhan Pawar Vs. State of Maharshtra is concerned, the facts of the aforesaid case with that of the case in hand are quite distinguishable. In the cited decision reported in (2019) AIR SC 4010, Pramod Suryabhan Pawar Vs. State of Maharshtra.

"(i) The complainant and the appellant knew each other since 1998 and were intimate since 2004; (ii) The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over of course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant; and (iii) The appellant expressed his reservations about marrying the complainant on 31 January 2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015."

Furthermore, in the case cited above, the refusal to marry was on account of caste barriers, however, in the present case, from the material collected during the course of investigation, it is evident that the applicant on false promise of marriage made physical relations with the victim and on objection being raised by her, reiterated that he will marry only her and none else. However, subsequently when the family members of the victim insisted for the marriage, then applicant's family members started making illegal demand of dowry in the form of Fortuner Car, Rs. 10 Lakh cash and entire household articles in the marriage and for the non-fulfillment of demand of dowry, refused to marry the complainant and when this fact was disclosed to the applicant, he started using filthy language and threatened to defame her and kill her and her nephew.

In the backdrop of the aforesaid facts and circumstances of the case and material available on record, it cannot be said that no offence is made out against the applicant and in the absence of which, he be discharged from all the offences, particularly in the circumstance, when the evidence in respect of the said fact is yet to come and the entire proceedings cannot be nipped in the bud at this stage itself.

In view of the aforesaid facts and circumstances of the case, the prayer for quashing the impugned order dated 19.12.2020 and entire proceedings is rejected. This application under Section 482 CrPC is devoid of merit and it is accordingly dismissed.

Order Date :- 3.2.2021

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