Bijendra Kumar vs State Of U.P. And Another
2023 Latest Caselaw 7604 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 71
 

 
Case :- APPLICATION U/S 482 No. - 8676 of 2023
 

 
Applicant :- Bijendra Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pawnesh Tiwari,Shatrughan Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.

1. List revised.

2. Heard Sri D.K. Tiwari, Advocate holding brief of Sri Shatrughan Yadav, learned counsel for the applicant and Sri Ankit Srivastava, learned counsel for the State and perused the record.

3. This application under Section 482 Cr.P.C. has been filed by the applicant Bijendra Kumar with the prayer to allow this application and quash the criminal proceeding and the charge sheet in case crime no. 104/2022 under Sections 376, 313, 506 IPC, Police Station Malawan, District Fatehpur in Case No. 6799/2023 (State Vs. Bijendra Kumar and others), pending before Judicial Magistrate II, Fatehpur and also quash the cognizance order/summoning order dated 09.02.2023 and with a further prayer to stay the criminal proceedings of the aforesaid case be stayed against the applicant, during the pendency of the present application.

4. The prosecution case per the First Information Report lodged on 19.05.2022 by the victim/prosecutrix against the applicant, Renu, Deepu and Maya Devi are that in the marriage of the cousin sister of the informant she met the applicant who was her distant relative. Both of them started talking on phone. The applicant once visited her house and forcibly established physical relationship with her. She then told him of making a complaint of it on which he made a false promise to marry after which on several occasions both of them meet each other and then was physical relationship between them. She even conceived twice which was got aborted. The applicant regularly established physical relationship with her. When she asked him to marry her he refused to do so. She made a complaint to his family members on which the other accused persons abused her and threatened her with life. The present First Information Report has thus been lodged under Sections 376, 313, 504, 506 IPC.

5. The investigation in the matter was conducted in which the statements of the first informant/prosecutrix were recorded under Section 161 Cr.P.C. and even 164 Cr.P.C. apart from the statements of the other witnesses. The investigation concluded by submission of a charge sheet under Sections 376, 313, 504, 506 IPC against the applicant, under Sections 504, 506 IPC against Udaibhan @ Deepu and Maya Devi and under Section 506 IPC against Madhulika Sharad @ Reeta. The trial court took cognizance upon the same and summoned the accused persons vide order dated 09.02.2023 to face trial. In so far as the applicant is concerned, he has been summoned under Sections 376, 313, 506 IPC.

6. Learned counsel for the applicant while placing para 14 of the affidavit at the first instance argued that the first informant is a major girl aged about 24 years. The relationship between the applicant and the first informant was a consensual relationship and thus no offence under Section 376 IPC is made out. It is further argued that there are improvements and contradictions in the statements of the victim under Section 161 and 164 Cr.P.C. It is further argued that even during investigation after recording of the statement under Section 164 Cr.P.C. of the victim/prosecutrix/first informant, the case was converted into under Section 376-D IPC. The Investigating Officer found the said allegation to be false and hence did not submit charge sheet under Section 376D IPC. Para 12 of the affidavit has been placed before the Court to buttress the same.

7. Learned counsel has further argued while placing the order dated 07.07.2022 passed by a Division Bench of this Court in Crl. Misc. Writ Petition No. 8597 of 2022 (Bijendra Kumar and 3 others Vs. State of U.P. and 4 others) that in an effort to challenge the First Information Report and with the prayer to stay the arrest of the petitioners, the Division Bench of this Court considering the judgment passed in the case Pramod Suryabhan Pawar Vs. State of Maharashtra and another : (2019) 9 SCC 608 observed that the consensual relationship between two adults does not attract the offence under Section 376 IPC and thus stayed the arrest of the petitioners therein by the said order. Copy of the said order has been placed before the Court which is annexure 1 to the affidavit in support of application under Section 482 Cr.P.C.

8. Further, learned counsel to buttress his argument that the offence under Section 376 IPC will not be made in a case in consensual relationship has relied upon the judgments of the Apex Court in the case of Uday Vs. State of Karnataka : 2003 (4) SCC 46, Naim Ahamed Vs. State (NCT of Delhi) : Crl. Appeal No. 257 of 2023 (SLP Criminal No. 8586 of 2017) decided on 30.01.2023 and Pramod Suryabhan Pawar (supra). It is argued that looking to the judgments of the Apex Court and the fact that the relationship was a consensual relationship, no offence under Section 376 IPC would be made out and as such the proceedings against the applicant are abuse of process of Court and deserve to be quashed.

9. Per contra, learned counsel for the State opposed the prayer for quashing.

10. After having heard learned counsel for the parties and perusing the records, it is evident that in so far as the allegations against the applicant are concerned, the same are to the effect that he is a distant relative of the victim/first informant who met her in a marriage of a relative. He then went to the house of the first informant/victim and forcibly committed rape upon her. The victim/first informant then while opposing it told him of making a complaint regarding the said incident after which he made a promise to marry which was a false promise and in the grab of that promise, regular physical relationship between the two carried on for about 4 years. The marriage was later on refused and the First Information Report was lodged.

11. In so far as the question of an offence under Section 376 IPC in a matter of consensual relationship arising out of the promise to marry is concerned, although the allegations in the present case are that on one point time, the applicant made a promise to marry the victim/first informant and later on did not marry her and in between physical relationship was established between them and the victim/prosecutrix became pregnant twice which was got aborted but there is even one more allegation that prior to the applicant making a promise to marry, he had come to the house of the victim/first informant and had committed rape upon her, and on resentment and on saying that the same would be complained of made a promise to marry her. The situation thus becomes different and the case becomes distinguishable from the cases of the Apex Court which have been relied upon by the learned counsel for the applicant as in the said cases, promise to marry was from the right at the inception on the pretext of which the parties had indulged in physical relationship but in the present case, the offence of rape was once committed after which on being said that it would be complained of, a promise to marry was extended. The situation thus becomes distinguishable and as such the applicant cannot in any manner be extended the benefit of the same.

12. In so far as the improvements, contradictions and the statement of the victim under Section 161 and 164 Cr.P.C. are concerned and as such has been argued, cannot be seen looked into at the stage of quashing in a petition under Section 482 Cr.P.C. At this stage, only prima facie is to be seen. There is no illegality or irregularity in the order impugned passed by the trial court.

13. In view of the same, the application stands rejected.

14. Any observation by this Court in this order is only for deciding the present petition for quashing and should not be construed to be an opinion on merits of the matter.

Order Date :- 16.3.2023

M. ARIF

(Samit Gopal, J.)