Pankaj @ Jagdeesh vs State Of U.P. And 4 Others
2022 Latest Caselaw 4018 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

							Reserved on: 7.4.2022
 
							Delivered on: 25.5.2022
 
Court No. - 88
 

 
Case :- APPLICATION U/S 482 No. - 21646 of 2021
 
Applicant :- Pankaj @ Jagdeesh
 
Opposite Party :- State Of U.P. And 4 Others
 
Counsel for Applicant :- Qazi Vakil Ahmad
 
Counsel for Opposite Party :- G.A., Arvind Kumar Verma, Siya Ram Verma
 

 
with 
 

 
Case :- APPLICATION U/S 482 No. - 22855 of 2021
 
Applicant :- Ravi Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Qazi Vakil Ahmad
 
Counsel for Opposite Party :- G.A.,Arvind Kumar Verma,Siya Ram Verma
 

 
Hon'ble Mohd. Aslam,J.

1. Since both the applications arise out of the same case crime number, they are being decided by this common order/judgment.

2. Heard Sri Qazi Vakil Ahmad, learned counsel for the applicants, Sri S.N. Mishra, learned A.G.A. for the State and Sri S.R. Verma, learned counsel for the complainant and perused the record.

3. The instant application under Section 482 Cr.P.C. No.21646 of 2021 has been filed on behalf of applicant Pankaj @ Jagdeesh for quashing the entire proceeding of Criminal Case No.6774 of 2021 (State Vs. Pankaj @ Jagdeesh) as well as Charge-Sheet No.45 of 2021 dated 16.1.2021, arising out of Case Crime No.0756 of 2019, under Sections 376, 313 I.P.C., Police Station Highway, District Mathura, pending in the court of learned Judicial Magistrate, Mathura and the connected application under Section 482 Cr.P.C. No.22855 of 2021 has been moved on behalf of applicant Ravi Kumar for quashing the entire proceeding of Sessions Case No.542 of 2021 (State Vs. Ravi Kumar) as well as Charge-Sheet No.190 of 2020 dated 9.6.2020, arising out of Case Crime No.0756 of 2019, under Sections 313, 120-B I.P.C., Police Station Highway, District Mathura, pending in the court of Additional District & Sessions Judge, Court No.5, Mathura.

4. The brief facts necessary for disposal of these cases are that the opposite party no.5 Sangita Hope Fernader moved a written application (complaint) on 29.8.2019 to Senior Superintendent of Police, Mathura with the allegation that she lived and grown up in an orphanage at Delhi and now she is residing in Maholi Road, Mathura. She came in contact with accused-applicant Pankaj @ Jagdeesh son of Chandrapal resident of Pancheki Nagariya, Mauza Talfara, P.S. Kumher, District Bharatpur (Rajasthan) through facebook and they started conversation on mobile phone for about 3-4 months and became friends. During conversation, the applicant Pankaj @ Jagdeesh told her that he was from Mathura and wanted to marry her and called her at Mathura, where he took a room on rent behind A.T.V. Colony and they lived there for about one and half year. She used to ask him to marry her and the applicant Pankaj @ Jagdeesh assured her used to make physical relations with her. The applicant Pankaj @ Jagdeesh used to go somewhere from the room during the day and whenever she asked about it he used to tell her that he was going to take coaching. In the meantime, she became pregnant and told this to applicant Pankaj @ Jagdeesh, then he replied that at the time he was not ready for child. Thereupon, by giving her the medicine for abortion, he had gone somewhere and after some time he stopped contacting with her. She again became pregnant and somehow she got the contact number of the applicant Pankaj @ Jagdeesh and told him about her pregnancy, thereafter, he came back and gave her medicine for abortion fraudulently and beaten her. Thereafter, she talked to the father of the applicant Pankaj @ Jagdeesh on phone, who had also abused her. Further, when she talked to the applicant Pankaj @ Jagdeesh on phone, he told her that he would upload her photos and videos on the internet. On the same day, the Senior Superintendent of Police, Mathura directed to register the first information report, which was lodged at Police Station Highway on 29.8.2019 at 17:01 p.m. as Case Crime No.0756 of 2019, under Sections 376 and 213 (to be read as 313) I.P.C. The investigation of the case was undertaken by Sub-Inspector Umesh Chand. The statement of victim under Section 161 Cr.P.C. was recorded by L/Ct. Reeta on 25.9.2019. Investigating Officer visited the place of occurrence and prepared the site plan on 25.9.2021. She was sent for medical examination on 5.10.2019, where she had refused for her medical examination. Investigating Officer has also obtained the CDR for the period from 7.10.2019 to 23.10.2019 and from 1.9.2019 to 20.02.2020. The statement of the victim under Section 164 Cr.P.C. was recorded by learned Additional Chief Judicial Magistrate, Court No.1, Mathura on 5.10.2019, wherein she has supported the prosecution case. Investigating Officer has also recorded the statement of Dr. Shobit Gupta, who has stated that the ultrasound of the victim was conducted on 5.3.2019. She has stated that the ultrasound report available on the case diary was prepared by her and at the time of ultrasound a foetus of nine weeks was found. The applicant Ravi Kumar brother of accused-applicant Pankaj @ Jagdeesh was arrested on the information from Sulabh Shauchalaya Near Syndicate Bank at about 14:05 p.m. After completion of the investigation, the charge-sheet under Sections 313 read with 120B I.P.C. was submitted against the accused Ravi Kumar on 9.6.2020 on the ground that accused Ravi Kumar had permitted the accused-applicant Pankaj @ Jagdeesh to use SIM Card which was issued on his name and had co-operated with the accused Pankaj @ Jagdeesh in administering the medicine for abortion to the victim. After taking cognizance on the charge-sheet, the case was committed to the court of sessions for trial. Later on a separate charge-sheet was filed against the accused-applicant Pankaj @ Jagdeesh for offence punishable under Sections 376, 313 I.P.C. on 16.1.2021, on which the cognizance was taken on 29.6.2021.

5. It has been contended by learned counsel for the applicants that the first information report has been lodged belatedly and the statement of the victim under Section 161 Cr.P.C. has been recorded after 27 days of lodging of the first information report. It has been further contended that the victim has categorically refused for her medical examination and the Investigating Officer has prepared the site plan of the place of occurrence showing the house of applicant Pankaj @ Jagdeesh, but he has not mentioned the name of owner of the house and the persons living in the vicinity of the place of occurrence as well. It has been further contended that the victim was produced before the concerned Magistrate on 5.10.2019 and her statement under Section 164 Cr.P.C. was recorded on 16.10.2019 after 11 days from her production before the Magistrate, in which she has stated that she came in contact with the applicant Pankaj @ Jagdeesh through facebook about one and half years ago and he brought her from Haryana to Mathura with the assurance of marriage and made physical relations and she became pregnant twice and he forcibly aborted and fled away leaving her at Mathura. It has been further contended that the calls were made by the victim for demanding money from the applicant Pankaj @ Jagdeesh and on account of its non-fulfilment threat was given for dire consequences. It has been further contended that the name of brother of the applicant namely Ravi Kumar came into light when the Investigating Officer came to know that the applicant Pankaj @ Jagdeesh was running the SIM Card in the name of Ravi Kumar and he was arrested on 29.3.2021. It has been further contended that the wife of Ravi Kumar namely Pooja made an application dated 19.3.2020 to the DGP, Uttar Pradesh Government, President National Woman Commission with the prayer that her husband has been falsely implicated in the case and Investigating Officer was not conducting the proper investigation. It has been further contended that the father of the applicant also moved an application on 21.3.2020 before the SSP, Mathura stating therein that his son has been falsely implicated in the present case and Investigating Officer in collusion with the first informant was not conducting proper and fair investigation and also demanding money. It has been further contended that under such conspiracy, some police personnels in collusion with Advocates are involved in implicating persons in false cases in order to extract money, in this respect, the news on Brij Dham Newspaper was also published. It has been further contended that in pursuant to such complaint an enquiry was made by Circle Officer and report was sent to the SSP, Mathura. It has been further contended that the applicant Ravi Kumar has made an application dated 8.7.2020 before the President, U.P. Human Right Commission stating therein that he and his brother Pankaj @ Jagdeesh have been falsely implicated in the present case and the Investigating Officer in collusion with the first informant is not conducting proper and fair investigation and further prayed to register an FIR against Investigating Officer Prem Kumar and transfer the investigation to any independent agency. It has been furrther contended that the applicant Ravi Kumar has filed an application for anticipatory bail before the court in pursuant to the FIR dated 29.8.2019 and the same was allowed by a coordinate Bench of this Court vide order dated 17.9.2020. It has been further contended that thereafter the brother of the applicant made an application under Section 156(3) Cr.P.C. dated 24.9.2020 before the concerned Magistrate for registration of the first information report against the respondent no.3/Investigating Officer, but the counsel for the applicant had not put his appearance at the time of taking up of the matter and learned Magistrate has dismissed the aforesaid application in absence of the counsel for the parties. It has been further contended that thereafter another application under Section 156(3) Cr.P.C. has been moved before the learned Magistrate and the date was fixed for 13.10.2021. It has been further contended that the Investigating Officer Prem Kumar without conducting the proper investigation and in collusion with the first informant with malicious intention has submitted the Charge-Sheet No.45 of 2021 dated 16.1.2021 against the applicant Pankaj @ Jagdeesh under Sections 376, 313 I.P.C. and the Charge-Sheet No.190 of 2000 dated 9.6.2020, arising out of Case Crime No.0756 of 2019, under Sections 313, 120-B I.P.C. against the applicant Ravi Kumar and the learned Magistrate has taken the cognizance of offence on the basis of charge-sheet in a routine and mechanical manner against the applicants Pankaj @ Jagdeesh and Ravi Kumar respectively without properly and fairly evaluating the evidence collected by the Investigating Officer, therefore, the charge-sheets and the proceedings of Criminal Case No.6774 of 2021 (State Vs. Pankaj @ Jagdeesh) and the entire proceeding of Sessions Case No.542 of 2021 (State Vs. Ravi Kumar) are liable to be quashed. It has been further contended that the victim has not supported the prosecution version in her statements recorded under Sections 161 & 164 Cr.P.C. as well as in her additional statement, therefore, no offence punishable under Sections 376, 313 I.P.C. is made out against the applicant Pankaj @ Jagdeesh and no offence under Section 313 I.P.C. read with Section 120-B I.P.C. is made out against the applicant Ravi Kumar. It has been further contended that the first information report was registered on 29.8.2019 and the statement of victim under Section 161 Cr.P.C. was recorded on 25.9.2019 after delay of 27 days and the statement under Section 164 Cr.P.C. was recorded on 5.10.2019 for which no plausible explanation was given by prosecution and the present case is nothing but a chain of concocted facts which have been made just to harass the applicants and also to get financial profit from the applicants. It has been further contended that the informant has stated in the first information report that she became pregnant twice and both the times she got aborted, but at the time of medical examination, she had categorically refused to be medically examined, therefore, it gives benefit of doubt to the applicants. It has been further contended that the applicant never resided at ATV Colony, Mathura instead he lived at his home and also passed the competitive examination of MP Police SI and Rajasthan Police SI as well as qualified the exam of loco pilot. It has been further contended that the first informant/opposite party no.4 and the Investigating Officer/opposite party no.3 just to get financial gain falsely implicated the applicants and mentally torturing and harassing him to ruin his career. It has been further contended that the Investigating Officer has not recorded the statement of even a single independent witness of alleged prosecution not even the statement of witnesses residing at ATV Colony and even had not recorded the statement of the owner of the house and other persons living there, which shows that the prosecution case is concocted and afterthought. It has been further contended that there is too much contradictions in the first information report and the statement of the informant recorded under Sections 161 & 164 Cr.P.C. as well as in her additional statement. It has been further contended that the victim, Investigating Officer and certain lawyers have conspired to falsely implicate the applicants in the false case just to gain financial benefit from him the present prosecution has been initiated under the malicious and ulterior motive. It has been further contended that in pursuant to the F.I.R. the investigation has been initiated and during the course of the investigation no credible evidence has been collected by the Investigating Officer and the charge-sheet has been submitted against the applicants only on the basis of the false and frivolous allegations. It has been further contended that the charge-sheet submitted by the Investigating Officer is illegal, arbitrary and mala-fide and against the evidence available on record. It has been further contended that the allegations made against the applicants are absurd and inherently improbable that on the basis of which no prudent person can ever reach at just conclusion that there is no sufficient ground for proceeding against the applicants, therefore, the charge-sheet submitted by the Investigating Officer against all norms of criminal and if the applicants are compelled to appear before the court below and face trial it would be gross injustice with them. It has been further contended that the wife of Ravi Kumar and father of applicant Chandrapal have moved application for fair investigation and for initiation of criminal proceeding against the Investigating Officer, but that was not investigated. It has been further contended that where the family members of the applicants moved application for fair investigation regarding falsely implicating the accused-applicants, it ought to be investigated by the police and had relied on the law laid down by this Court in Misc. Bench No.1306 of 2005 (Sub-Inspector Parshuram Dohre and others Vs. State of UP) decided on September 30, 2019, where the F.I.R. was lodged against the accused regarding enticing away the daughter of the informant and in that case the police had falsely planted the contraband Charas against the accused regarding which the application was given by the family member of the accused, which was investigated and the charge-sheet was submitted against the police personnels who have falsely planted the Charas and the aforesaid charge-sheet regarding falsely planting the Charas was challenged by police personnels in aforementioned case, which was dismissed. It has been further contended that the Government ought to have ordered for lodging the first information report regarding falsely implicating the applicants, but that is not done in this case and in the circumstances the benefit will go in favour of the applicants and it will be presumed that the applicants were falsely implicated. It has been further contended that the applicant Pankaj alias Jagdeesh and the victim was not known to them and there is nothing on record to show that the consent was given by the victim under a misconception of the fact and also there is no evidence on record to show that the person who obtained the consent knew the reason to believe that the consent was given in consequence of such misconception and there is serious doubt that promise to marry induces the prosecutrix to consent having sexual intercourse with the applicant and relied on the law laid down by Hon'ble Apex Court in Criminal Appeal No.336 of 1996 (Uday Vs. State of Karnataka) decided on 19.2.2003. It has been further contended that there is difference between rape and consensual sex. It has been further contended that the allegation on the face of first information report indicates that the physical relation between applicant and victim existed over one and half year as evidence by multiple period of cohabitation, visits and lack of resistance or complaint by complainant. It has been further contended that the detailed analysis of the contents of first information report, statements of victim under Sections 161 & 164 Cr.P.C. and additional statement recorded during investigation, it is apparent that none of the offence is set out against that accused persons and the allegation on the face of it do not establish the commission of the offence alleged and the charge-sheet and cognizance order and proceedings of the lower court are liable to be quashed and he has relied on the law laid down by Hon'ble Supreme Court in Criminal Appeal No.1165 of 2019/(SLP (CRI) No.2712 of 2019) (Pramod Surya Bhan Pawar Vs. State of Maharashtra).

6. Per contra, learned A.G.A. for the State has refuted the arguments advanced by learned counsel for the applicants and has contended that the victim and applicant Pankaj alias Jagdeesh were not known to each other previously, they came in contact through facebook and started conversation on mobile phone for 3 to 4 months. It has been further contended that the victim was raised in orphanage at Haryana and after conversation on phone, the applicant Pankaj alias Jagdeesh told her that he is resident of Mathura and he wants to marry her and called her to Mathura and thereafter on his false promise to marry she came at Mathura where applicant Pankaj alias Jagdeesh arranged a room at ATV Colony, Mathura and started living together and she always asked him whether he will marry her and on every occasion he replied that he will marry her and on that false promise to marry, she allowed her for sexual intercourse. It has been further contended that whenever she asked her to marry, he always kept on encouraging her that he will marry her and continued to have physical relations with her. It has been further contended that the applicant Pankaj @ Jagdeesh used to go somewhere during the day and when she asked him he used to say that he goes to coaching. In the meantime, she became pregnant then he told her that he was not ready for a child yet and gave her a medicine by swearing and then continued living with her and after sometime applicant Pankaj alias Jagdeesh suddenly disappeared without informing her and stopped talking to her and blocked her phone number. After sometime, she became pregnant again, then she somehow took the contact number of applicant Pankaj @ Jagdeesh and told that she become pregnant then he came to her and tricked her to take medicine and also abused and harassed her and when she tried to call the applicant Pankaj @ Jagdeesh on phone, he used to threat her that he will upload her photos and videos on internet and also threatened her not to make complaint in this regard. It has been further contended that the applicant's father has admitted in his application given to the Superintendent of Police that anyhow victim got the contact number of his son Pankaj alias Jagdeesh. It has been further contended that it prima facie established that the victim was known to the son of Chandrapal who is applicant Pankaj alias Jagdeesh. It has been further contended that the victim had given her consent to the applicant Pankaj alias Jagdeesh for sexual intercourse on false promise of marriage and she repeatedly asked him whether he will marry her or not, upon that applicant on every occasion encouraged her that he will marry with her. It has been further contended that even the applicant has managed to talk her with his father. It has been further contended the victim was called by applicant Pankaj alias Jagdeesh to come to Mathura from Haryana with the assurance of marriage. It has been further contended that where a human does not give 'consent' to sexual act described in the main body of Section 375 I.P.C. offence of rape has occurred, while Section 19 does not define term 'consent', a 'consent to take a misconception of the facts' is not concerned in the eye of law and it has been contended by learned A.G.A. that the applicant was engaged in sexual relations with the victim on false promise of marriage, therefore, her 'consent' being promised on 'misconception of the fact' (the promise to marry) stands vitiated. It has been further contended that ''misconception of the facts' as alleged by the victim is that the applicant Pankaj alias Jagdeesh had promised to marry her. Specifically in the context of a promise to marry there is distinction between false promise given on the understanding by maker that it will be broken and the breach of promise which is made in good faith, but subsequently could not be fulfilled.

7. In this case, from the record, it is prima facie established that the applicant Pankaj @ Jagdeesh promised to marry with victim, did not have any intention to marry with her, gave the consent for sexual intercourse, on such an assurance by the accused that he would marry, such consent can be said to be a consent obtained on misconception of the facts as per Section 90 of I.P.C. and in such a case, such consent cannot excuse the offender and such offender can be said to have committed rape as defined in Section 375 of Cr.P.C. It has been further contended that it is prima facie proved from the first information report, the statement under Sections 161 & 164 Cr.P.C. and additional statement recorded during investigation that even the applicant Pankaj @ Jagdeesh has arranged a talk between his father and victim and when she became pregnant, he gave her medicine on swearing that he was not ready for child. It has been further contended that there is no evidence on record to shows that father of the accused Pankaj @ Jagdeesh has not disapproved their relations. It has been further contended that from the evidence on record, it is prima facie proved that the applicant Pankaj @ Jagdeesh was using SIM Card and ID of the applicant Ravi Kumar. It has been further contended that in the statement recorded under Section 164 Cr.P.C., it is mentioned that the applicant Pankaj @ Jagdeesh has forcibly aborted her foetus twice. It has been further contended that before six months, applicant Pankaj @ Jagdeesh left her and it is also stated in her additional statement recorded under Section 161 Cr.P.C. that she told to Pankaj @ Jagdeesh about her pregnancy, thereafter, he called his brother Ravi Kumar and they took her to Shobit Hospital, where she was subjected to ultrasound and foetus of seven months was found in her womb and applicant Ravi Kumar on seeing the ultrasound report has stated that still her marriage was not taken place with Pankaj @ Jagdeesh and if the child is born it will cause bad name of her and Pankaj @ Jagdeesh in the society and stated her to get abortion and the applicant has further stated that after marriage, she will think about child. Thereafter, applicants Ravi Kumar and Pankaj @ Jagdeesh administered her the medicine for abortion. It has been further contended that from the evidence on record, the prima facie case against the accused applicant Pankaj alias Jagdeesh for offence punishable under Sections 376, 313 I.P.C. and against accused-applicant Ravi Kumar for offence punishable under Section 313 read with Section 120-B I.P.C. is made out. It has been further contended that the instant both applications filed under Sections 482 Cr.P.C. are liable to be dismissed.

8. I have given thoughtful consideration to the contentions raised by learned counsel for the parties and gone through the record. From perusal of record, it is prima facie proved that the victim was raising on orphanage at Haryana. It is also admitted by father of the applicant in the application given to the Superintendent of Police, Mathura that somehow victim get the contact number of his son Pankaj @ Jagdeesh, meaning thereby the victim had phone number of applicant Pankaj @ Jagdeesh. From perusal of first information report and statements recorded under Sections 161 & 164 Cr.P.C., it is clear that they came in contact through facebook chat and later on they talked on phone for about 3-4 months and after that Pankaj alias Jagdeesh proposed her to marry and took her from Haryana to Mathura on false promise to marry and due to misconception of fact that he will marry her, she believed it and permitted him for sexual intercourse.

9. Section 90 of I.P.C. defines consent known to be given under fear or misconception:-

"90. Consent known to be given under fear or misconception.- A consent is not such a consent as 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 of the 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 12 years of age."

10. From the reading of Section 90 of I.P.C., it is abundantly clear that a consent is not such a consent as it intended by any section of this Code and if the consent is given by a person under 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 misconception.

11. In Section 375 I.P.C. where the rape has been defined, the relevant portion is as follows:-

"Secondly. Without her consent.- When Section 90 of I.P.C. and phrase used in Section 375 I.P.C. 'Without her Consent' is read together, it is abundantly clear that where consent is given under misconception of the fact and if a person knows or has reason to believe it, that the consent was given in consequence of such a misconception, it will be no consent at all and under such circumstances if the sexual act is committed it will be deemed to be without her consent."

12. Hon'ble Apex Court in the case of "Kaini Rajan Vs. State of Kerala" reported in (2013) 9 SCC 113 has observed as:-

"12......Consent", for the purpose of Section 375 of I.P.C., requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."

13. Hon'ble Apex Court in the case of "Anurag Sony Vs. State of Chhattisgarh (2019) SCC online SC 509" has held as under:-

"The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of I.P.C. and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of I.P.C. and can be convicted for the offence under Section 376 of IPC."

14. Hon'ble Apex Court in the case of "Deepak Gulati Vs. State of Haryana (2013) 7 SCC 675" has observed as under:-

"......There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused;..."

15. From the application made by the father of accused Pankaj alias Jagdeesh to the SSP, Mathura which is annexed as Annexure-10, it find mention that the victim was not known to them and how she got phone number of his son and family members is not known to him. She further admitted that after registering the case several phone calls were made by victim to blackmail his son Pankaj alias Jagdeesh. It prima facie establishes that the phone number of accused Pankaj alias Jagdeesh and his family members was with the victim. The enquiry by Circle Officer was conducted on the application of his father and found the charges imputed on Investigating Officer and victim and others are false and baseless.

16. From the evidence on record, it is also prima facie established that Dr. Shobit has examined her and advised her for ultrasound and prepared the report and find that there was a foetus of nine weeks. From the statement of victim recorded under Sections 161 & 164 Cr.P.C. and additional statement recorded under Section 161 Cr.P.C., it is prima facie established that the accused Pankaj alias Jagdeesh and she were known to each other through facebook and later on they started talking on phone and the accused had promised to marry her and visited Haryana and took her to Mathura and started residing after taking room in Mathura on rent and had encouraged her for sexual intercourse by confirming regularly that he will marry the victim. From the statement of the victim, it is also prima facie established that when she intimated Pankaj alias Jagdeesh regarding first pregnancy he had stated that he was not ready for child at the time and by swearing administered medicine to her for abortion and in this way first pregnancy was aborted. Before six months of lodging of first information report he left her alone and gone somewhere after blocking her phone number. In the meantime, she came to know that she is pregnant and she somehow got the phone number of Pankaj alias Jagdeesh and conversion was made with him, thereafter, the accused along with his brother Ravi Kumar administered her medicine for abortion by playing fraud on her and she started bleeding, thereafter, she become unconscious and when she regained consciousness she found herself in the hospital. She has further stated that the applicant with his brother Ravi Kumar has conspired in aborting the foetus.

17. From the evidence on record, prima facie it is established in present case that "misconception of fact" by the applicant Pankaj alias Jagdeesh promised to marry her, there is no evidence on record that his family member has opposed their relations and applicant Pankaj alias Jagdeesh went to Haryana after giving her false promise of marriage and took her at Mathura. It is neither pleaded by the accused nor there is any evidence on record which prima facie established that the promise for marriage was made in good faith but subsequently not fulfilled.

18. Keeping in view the law laid down by Hon'ble Supreme Court in Anurag Sony Vs. State of Chhattisgarh (supra), this Court is of opinion that prima facie it is established that from the inception the accused promised the victim to marry her and did not have any intention to marry and the the victim has given the consent for sexual intercourse on such an assurance made by the applicant Pankaj @ Jagdeesh that he would marry her, such a consent can be said to be a consent obtained on a misconception of the fact as per Section 90 of I.P.C. In such a case, such a consent would not excuse the offender and such offender can be said to have prima facie committed rape as defined under Section 375 of I.P.C.

19. So for as the ruling of High Court passed in Misc. Bench No.1306 of 2005 (Sub-Inspector Parshuram Doharey and others Vs. State of UP) decided on 30.9.2019 is concerned, it is not applicable in the present case because the application moved by father of accused was enquired by the Circle Officer and found the allegation levelled against Investigating Officer victim and others as baseless. So for as ruling of the Hon'ble Apex Court in Criminal Appeal No.1165 of 2019 (Pramod Surya Bhan Pawar Vs. State of Maharashtra) decided on August 21st, 2019 is concerned, in that case the parties belong to two different castes and the Hon'ble Apex Court after analysing the facts and circumstances of that case has held the breach of a promise which is made in good faith, but subsequently not fulfilled, will not come within the definition of "misconception of fact".

20. In such circumstances, the aforesaid ruling of Hon'ble Apex Court is of no help to the applicant. Likewise the ruling of Hon'ble Apex Court relied by learned counsel for the applicant in Criminal Appeal No.336 of 1996 (Uday Vs. State of Karnataka) decided on 19.2.2003 is concerned, it is also related to the promise to marry which was given in good faith, but could not be fulfilled later on, therefore, the facts and circumstances of the aforesaid ruling is different from the case in hand, which is not applicable in this case.

21. In above circumstances, this Court is of opinion that from the reading of first information report and evidence collected during investigation prima facie discloses and establishes non-cognizable offence, therefore, in view of law laid down by Hon'ble Supreme Court in State of Haryana Vs. Bhajan Lal 1990 2 SUPP (1) SCC 325 the power of quashing should be exercised sparingly and with circumspection that too in the rarest of rare case. While examining a complaint, the question of which is sought, the court cannot embark upon an enquiry as to the reliability of the genuineness or otherwise allegations made in first information report or in complaint. Hon'ble Supreme Court in Niharika Infrastructure Private Limited Vs. State of Maharashtra MANU/SC/2021 has laid down the parameters in exercising the jurisdiction of quashing of the criminal proceeding/complaint/FIR in exercise of power under Section 482 of Cr.P.C. and/or under Article 226 of the Constitution of India in para 23 of the judgement as follows:-

"i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence.

ii) Courts would not thwart any investigation into the cognizable offences;

iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases (not to be confused with the formation in the context of death penalty).

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage;

vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.

xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied. "

22. From above proposition of law as laid down by Hon'ble Supreme Court, it is abundantly clear that in exceptional cases where non-interference would result in the interest of justice, the Court and judicial process should not be interfered. In the case in hand by refusal of victim to undergo medical examination is not itself a ground for quashing the proceedings.

23. From perusal of first information report, statements under Sections 161 & 164 Cr.P.C. and additional statement under Section 161 Cr.P.C. and from the admission of father of the accused Pankaj @ Jagdeesh that the victim knew the mobile number of the applicant and his family members and from the statement of Dr. Shobit, prime facie case under Sections 376, 313 I.P.C. is made out against the accused Pankaj alias Jagdeesh and prima facie case under Section 313 read with 120-B I.P.C. is made out against accused Ravi Kumar.

24. In view of above facts and circumstances of the case, I do not find any force in the instant applications under Section 482 Cr.P.C. and are liable to be dismissed.

25. The instant both applications are, accordingly, dismissed.

Order Date :- 25.5.2022

Anil K. Sharma

(Hon'ble Mohd. Aslam, J.)