Allahabad High Court
Ram Shanker Upadhyay vs State Of U.P. Thru. Prin. Secy. ... on 10 August, 2023
Bench: Sangeeta Chandra, Narendra Kumar Johari
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2023:AHC-LKO:53133-DB
Court No. - 10
Case :- CRIMINAL MISC. WRIT PETITION No. - 6253 of 2023
Petitioner :- Ram Shanker Upadhyay
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Others
Counsel for Petitioner :- Amrendra Nath Tripathi,Madhavendra Nath Misra
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.
2. This petition has been filed with the following main prayer:-
"Issue writ, order or direction in the nature of Certiorari quashing the impugned First Information Report of FIR/ Case Crime No.0353 of 2023, under section 376 and 506 of the I.P.C., Police Station- Kotwali Nagar, District- Ayodhya, dated 12.06.2023, (Annexure No.1)."
3. It has been submitted by learned counsel for the petitioner that the petitioner is completely innocent and has been falsely implicated. The victim is a married lady and she has mentioned her age incorrectly at various places. She has also stated that she lives alone with her children.
4. Learned counsel for the petitioner says that she runs an extortion racket and blackmailed the petitioner by making video clippings of consensual sexual relationship.
5. Learned counsel for the petitioner has placed reliance upon the judgement rendered by Hon'ble Supreme Court in the case of Naim Ahamed Vs. State (NCT of Delhi), reported in 2023 SCC OnLine SC 89.
6. This Court has gone through the judgement rendered by the Hon'ble Supreme Court as aforecited and finds that the Supreme Court was dealing with a Criminal Appeal where the judgment dated 30.09.2016 passed by the High Court in Criminal Appeal No.46 of 2016 was challenged, which in turn had disposed of the Appeal against the order passed by the Additional Sessions Judge, Special Fast Track Court, Dwarka Courts, New Delhi in Sessions Case No.67 of 2015.
7. The judgement rendered by the Supreme Court in the case of Naim Ahamed (supra) is related to a Trial being held in which Trial evidence was considered initially by the Trial Court, thereafter the evidence was re-considered and re-appreciated by the High Court in Criminal Appeal.
8. This Court while sitting in extraordinary writ jurisdiction is not competent to hold Trial at the initial stage when statement of the victim has already been recorded under Section 164 of the Cr.P.C. by the Court concerned, which supports the prosecution story.
9. This Court in view of the law settled in the case of Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra, reported in 2021 SCC OnLine SC 315, can only look into the contents of the F.I.R. and other supporting material to find out as to whether, prima facie, an offence has been made out or not. This Court is not conducting any Trial, therefore, the judgement rendered in the case of Naim Ahamed (supra) cannot be relied upon and is clearly distinguishable, as each judgement is rendered in the facts and circumstances of the case concerned and one additional fact may change the entire precedential value of an otherwise binding precedent.
10. Learned counsel for the petitioner has also placed reliance upon the judgement rendered by Hon'ble Supreme Court in the case of Shambhu Kharwar Vs. State of Uttar Pradesh and Another, 2022 SCC OnLine SC 1032, wherein he has placed reliance upon paragraphs-12 & 13. The Supreme Court considering the dismissal of the petition under Section 482 Cr.P.C. by the Allahabad High Court, arising out of Case Crime No.11 of 2018, where the charge-sheet and further proceedings in Criminal Case No.785 of 2018 was challenged. The Hon'ble Supreme Court in paragraph-4 of the judgement has reproduced the complaint made by the alleged victim in Case Crime No.11 of 2018, which is quoted hereinbelow:-
"4. Case Crime No 11 of 2018 was registered on 18 January 2018 at Police Station Rasra, District Ballia on the basis of information furnished by the second respondent. In her complaint, the second respondent stated as follows:
"I was having affair with Shambhu Kharwar as his wife, who is also the resident of Village-Sarai Bharti, Post-Rasada, District-Ballia. I hereby give my statement that there was love affair between us since a period of about 3 years and Shambhu Kharwar gave an assurance to me regarding solemnization of marriage and as a result of the same started living with me under the same roof and also used to have sexual relationship with me and also used to make a demand of certain amount time to time. But I always followed him and till date I am unmarried and whenever I asked him regarding the solemnization of marriage, he used to make false and frivolous averments and at last without informing me solemnized marriage with someone else on 10.12.2017 and after the same, returned to me and told nothing regarding the solemnization of marriage, but on being pressurized by me again and again he had admitted that he has entered into a ring ceremony with someone else, this information has been received by me from him only. I am very sad and whenever I asked him to solemnize marriage with me, he kept on making lame excuses and gave false assurances by saying that he will leave her by sexually assaulting her and thereafter, will solemnize marriage with me. After hearing the same, I have decided to initiate criminal proceedings against him. Therefore, it is prayed that suitable action may kindly be taken against him. Shambhu Kharwar son of Lallan Kharwar, resident of Sarai Bharti Rasada, Ballia Date 18.01.2018."
11. It is in the context of the aforesaid facts that the observations were made by Hon'ble Supreme Court in paragraphs-12 & 13, which are also being quoted hereinbelow:-
"12. In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.
13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent."
12. However, this Court finds from the F.I.R. that has been lodged by the private respondent as also the statement given by her under Section 164 Cr.P.C. that there is no allegation of having an affair. It has been alleged by the complainant that she had gone to take medicine from the petitioner, who is a pharmacist, and he gave some medicine as a result of which the complainant lost her senses and she was raped. A video clip of the entire activity had been made and she was being fooled by the petitioner.
13. This Court having gone through the contents of the F.I.R. as also the statement of the victim recorded under Section 164 Cr.P.C., does not find any good ground to show interference in the impugned F.I.R.
14. The writ petition stands dismissed.
Order Date :- 10.8.2023
Rahul
