Allahabad High Court
Awadhraj Singh vs State Of U.P And Another on 20 October, 2022
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 84
Case :- APPLICATION U/S 482 No. - 28523 of 2022
Applicant :- Awadhraj Singh
Opposite Party :- State Of U.P And Another
Counsel for Applicant :- Munna Tiwari
Counsel for Opposite Party :- G.A.,Dharmendra Pratap Singh
Hon'ble Saurabh Shyam Shamshery,J.
1. Ms. Preeti Singh, Advocate holding brief of Shri Munna Tiwari, learned counsel for the applicant vehemently argued that the case of the applicant is squarely covered by the judgments passed by the Supreme Court in the cases of Sonu @ Subhash Kumar v. State of U.P. reported in AIR 2021 SC 1405, Shambhu Kharwar v. State of Uttar Padesh reported in 2022 SCC OnLine SC 1032 and judgment passed by this Court in the case of Anuj Chaudhary Alias Neeraj v. State of U.P. and Another, judgment dated 18.10.2022 passed in Application U/S 482 No. 17190 of 2020.
2. Learned counsel submits that it is a case of the victim that she was acquainted with the applicant for as many as last seven years and she was in consensual relationship with him since May, 2019 as there was promise of marriage by the applicant and they had physical relationship 6-7 times, as and when the applicant, who is Constable in B.S.F., came during his leave. Further, the applicant made a statement on a stamp paper of 10/- rupees that he shall marry within 5 to 6 months, however, later on applicant vehemently refused to marry her and thereafter on 10.11.2020 FIR was lodged.
3. Learned counsel further submits that in the cases of Sonu @ Subhash Kumar (supra), the Supreme Court has interpreted the word "consent" and held that the consent of a woman under Section 375 must be vitiated on the ground of "misconception of facts" and 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.
4. In the present case, the FIR was lodged within a short span of their first physical relationship i.e. within less than one and half year as well as on repeated assurance given by the applicant as and when he was on leave from his official duty physical relation ship was made on 6-7 times. Even he has made a solemn statement on a stamp paper, still not only he kept on to made false promise, but later on refused to marry her. In these circumstances, it cannot be said that the consent given by the victim was given in a good faith and was with the intention of being adhered at the time it was given rather the promise was only for the purpose of immediate physical relationship. The act to deceive perpetuated every time when the physical relationship occurred whenever he came on leave as well as it further perpetuated when a false affidavit was given. Family members of victim were also treated badly when they went to place of applicant to solemnize their marriage.
5. Victim/complainant has made a categorical statement under Section 161 Cr.P.C. as well as 164 Cr.P.C. that her consent was taken in a misconception and ingredient of misrepresentation was present when the consent was obtained, accordingly, a prima facie case is made out against the applicant.
6. So far as Sonu @ Subhash Kumar (supra) and Shambhu Kharwar (supra) is concerned, facts of present case are distinguishable so much as in present case applicant has made repeated promises of marriage and has given undertaking on a notarized affidavit as well as their parents have refused to solemnize marriage.
7. Therefore, I do not find any merits in this application to exercise the inherent jurisdiction of this Court. Accordingly, the application is rejected.
Order Date :- 20.10.2022
Shafique
(Sl. No. 56 out of 212 fresh cases)
