Allahabad High Court
Alok Kumar Yadav vs State Of U.P. Thru. Prin. Secy. ... on 9 August, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?
Neutral Citation No. - 2023:AHC-LKO:52717-DB
Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 6231 of 2023
Petitioner :- Alok Kumar Yadav
Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lko. And 3 Others
Counsel for Petitioner :- Arvind Kumar Tripathi
Counsel for Respondent :- G.A.
Hon'ble Mrs. Sangeeta Chandra,J.
Hon'ble Narendra Kumar Johari,J.
1. Heard learned counsel for the petitioner and learned A.G.A. for the State-respondents.
2. This petition has been filed praying the following reliefs:-
(a) Issue a writ, order or direction in the nature of certiorari thereby quashing the impugned first information report lodged on 2.6.2023 against the petitioner, vide case crime no. 152 of 2023 under Section 376, 323, 504 and 506 IP.C. and Section 3 (2) V of the S.C./S.T. Act (added during course of investigation), lodged at Police Station- Sareni, District- Raebareli as contained in Annexure-1 to this writ petition.
(b) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties not to harass, detain or prosecute the petitioner in pursuance of the aforesaid impugned first information report.
3. It has been submitted by the learned counsel for the petitioner that the complainant has a long standing physical relationship with the petitioner and she is major and it is case of consensual sex and not rape.
4. A supplementary affidavit has been filed to show photographs of intimate relationship between the parties.
5. The counsel for the petitioner placed reliance upon the judgment rendered by the High Court of Delhi by a Single Judge in State Vs. Sandeep where the Single Judge was considering the question of quashing of F.I.R. under Section 376 I.P.C.
6. This Court is of the opinion that the judgment rendered by the Single Judge of Delhi High Court can only have persuasive value for a Division Bench of Allahabad High Court. We are not convinced with the question of law having been rightly considered by the Single Judge of Delhi High Court, therefore, the judgment report in 2019 SCC OnLine Del 10332 is liable to be ignored.
7. The counsel for the petitioner has also placed before this Court a judgment rendered by the Hon'bl Supreme Court in Deepk Gulati Vs. State of Haryana (2013) 7 SCC 675 where the Hon'ble Supreme Court was considering a judgment of Haryana High Court, which had affirmed the judgment rendered by the Sessions Court at Karnal in a criminal appeal sentencing the appellant to undergo rigorous imprisonment of 7 years along with fine under Section 376 I.P.C. Clearly the case is distinguishable, as it relates considering of evidence and conclusion of trial and thereafter, dismissal of appeal by the High Court.
8. The counsel for the petitioner has placed reliance upon a judgment of Hon'ble Supreme Court rendered in Criminal Appeal No. 442 of 2022 (Mandar Deepak Pawar Vs. The State of Maharashtra and Another) decided on 27.7.2022. The judgment rendered in the case of Mandar Deepak Pawar was in the facts and circumstances of the case, and the Court has observed that " in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations". The Hon'ble Supreme had Court quashed the F.I.R. The Court had made a distinction between a "false promise to marry which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled".
9. In case of the petitioner it has been argued by the counsel for the petitioner before this Court that there was initial understanding between the petitioner and the complainant and they will get marry. Some preliminary talks were also held but his family did not agree to marry of the petitioner without dowry.
10. This cannot be a ground to breakup a long running relationship, if in actuality it is a love relation.
11. This Court has perused the impugned F.I.R. and also the statement of the witnesses recorded by the Investigating Officer, copies of which has been annexed as Annexure-5 to the petition. This Court is of the considered opinion that the question whether the relationship was consensual or not can be considered only at the time of trial and after leading of evidence by both the parties. In so far as the question of quashing of F.I.R. is concerned, the admission of physical relationship has been made by the petitioner himself.
12. The alleged consent of the complainant may have been due to misconception of fact and it may not amount to 'consent' at the time of trial therefore at the initial stage. This Court, therefore, finds no good ground has been made out to quash the impugned F.I.R.
13. The Court, therefore, finds no ground to show interference.
14. The writ petition is, accordingly, dismissed.
Order Date :- 9.8.2023
Anuj Singh
