Jiyaullah vs State Of U.P. And Another
2023 Latest Caselaw 24898 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:178195
 
Judgment Reserved on 29.08.2023
 
Judgement Delivered on 15.09.2023
 
A.F.R
 
Court No. - 92
 

 
Case :- APPLICATION U/S 482 No. - 5419 of 2021
 

 
Applicant :- Jiyaullah
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Mirza Ali Zulfaqar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Anish Kumar Gupta,J.

1. Heard Sri Mirza Ali Zulfaquar, learned counsel for the applicant and Sri Prashant Saxena, the learned AGA for the State.

2. Vide order dated 03.09.2021, a notice was issued to opposite party no.2. However, despite service of notice, none appeared on behalf of the opposite party no.2.

3. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the charge sheet dated 16.03.2020 and cognizance/summoning order dated 10.12.2020 as well as the entire proceedings of Case No. 21205 of 2020 (State vs. Ziya Ullah), under Sections 419, 420, 376, 504, 506 IPC, arising out of Case Crime No. 20/2019, P.S. Mahila Thana, District Sant Kabir Nagar, pending before the Court of Civil Judge, Junior Division / Judicial Magistrate, Sant Kabir Nagar.

4. The brief facts as emerge from the F.I.R. and the statements under Sections 161 and 164 Cr.P.C., are as under:

i) The date of birth of alleged victim is stated to be 01.06.1994 and she has stated that she passed the VIIIth Class in the year, 2008. Sister of the victim was married in Gorakhpur and the accused/applicant herein met first time to the victim in the marriage of her sister and since then whenever the victim used to visit her sister's house, at Gorakhpur, she used to meet the accused/applicant herein. During these meetings, they fell in love with each other and the accused/applicant herein started visiting the house of the victim.

ii) Out of such relationship, the victim and her parents sent the accused/applicant to Saudi Arabia by arranging the funds by selling the jewellery etc. When the applicant herein came back from Saudi Arabia, the victim and her family members pressurized the applicant herein for marriage with the victim. Even after the marriage of the sister of the applicant herein when the victim and her family members pressurized the applicant herein to marry the victim, the accused applicant herein denied to marry the victim. It is further alleged in the F.I.R. that the applicant herein made physical relations with the victim, between 2008 to 2018, under the promise of marriage against her will.

iii) Ultimately, in the year 2018, the applicant herein denied to marry the victim. Therefore, in her 161 Cr.P.C. statement, the victim categorically states that the applicant used to have physical relations with the victim at her house in the presence of her parents in the house. She further stated that at the time of physical relationship established between them she was 17 years of age. She further states that in the month of June, 2011, first time relationship was established between them, which continued for about 8 years. In her 161 Cr.P.C. statement, the victim has stated that in the year 2013, the applicant had made physical relationship with her 8 years back under the promise of marriage. My parents had no objection on the visits of the applicant at her house and in the year, 2013, when the parents asked the applicant herein to marry the victim, he promised to marry the victim after the marriage of his sister and when he is able to built his own house.

iv) This relationship continued upto February, 2019, when a complaint was filed by the victim, which was settled at the police station with the assurance by the applicant that he would marry the victim within next 10 months and after one month of such promise he again refused to marry and threaten the victim to do whatever she can.

v) During investigation, medical examination of the victim was conducted on 22.06.2019, wherein she stated her age to be 25 years. After medically examining the victim, the doctors opined the age of the victim to be 20 years on 26.06.2019. After completion of the investigation the chargesheet was filed on 16.03.2020 u/S 419, 420, 376, 504, 506 I.P.C.

5. The learned counsel for the applicant submits that the instant prosecution by the opposite party no.2 herein amounts to misuse of process of law. As from the allegations made in the F.I.R. as well as in the Statements under 161 and 164 Cr.P.C., it is apparent that there was a longstanding consensual relationship between the parties, for more than eight years, which was duly approved by the parents of the opposite party no.2. Therefore, from the cumulative reading of the F.I.R. as well as 161 and 164 statements of the victim no offence as alleged against the applicant herein can be said to have been made out.

6. To substantiate his arguments, learned counsel for the applicant has relied upon the judgment of the Apex Court in the case of Shivashankar @ Shiva vs. State of Karnataka (Criminal Appeal No. 504 of 2018), wherein the Hon'ble Apex Court has held that "it is, however, difficult to hold sexual intercourse, which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife."

7. Learned counsel for the applicant has further placed reliance upon the judgment of the Apex Court in the case of Pramod Suryabhan Pawar vs. the State of Maharashtra and another (Criminal Appeal No. 1165 of 2019). He has placed reliance upon paragraphs '18' and '20' of the said judgment, which are as follows:

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. 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.

20 The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the 17 appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 of the IPC has occurred."

8. Learned counsel for the applicant has further placed reliance upon the judgment of the Apex Court in the case of Sonu alias Subhash Kumar vs. State of Uttar Pradesh and another reported in AIR 2021 SC 1405. He has relied upon paragraphs '9', '10', '11' and '12' of the said judgment, which are as follows:

"9 In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:

"Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it..."

10. Further, the Court has observed:

"To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. 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."

11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.

12. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 26 September 2019. In view of the reasons which have been adduced earlier, the charge sheet dated 25 April 2018, which has been filed in pursuance of the investigation which took place, shall stand quashed. The order of the trial Court dated 3 October 2018 taking cognizance shall accordingly stand quashed and set aside."

9. Learned counsel for the applicant has further relied upon the judgment and order dated 12.10.2022 passed by this Court in Criminal Misc. Application under Section 482 Cr.P.C. No. 9700 of 2022 (Ashutosh Kumar vs. State of U.p. and another), relying upon the judgements of Apex Court in Shivashankar (supra), Pramod Suryabhan Pawar (supra), Sonu alias Subhash Kumar (supra).

10. Learned counsel for the State submits that as per the allegations made in the FIR, the date of birth of the opposite party no.2 is stated to be 01.06.1994 and the allegation is that since 2008 till June 2018, the applicant and opposite party no.2 were continued to have physical relationship under the promise to marry the opposite party no.2. As per the medical report as well as the supplementary examination report, which is filed an annexure '7' to the application, the age of the victim as on 06.06.2019 is stated to be 20 years. Therefore, on the first date of co-habitation between the parties, which is stated to be in the FIR as June, 2008, and June, 2011, which is stated as the first date of co-habitation in the statement of the victim under Section 161 Cr.P.C., on both the dates, the opposite party no.2, the victim was a minor, therefore, there was no question of consent by the minor and the act committed by the applicant is treated as a rape within Section 375 IPC.

11. Having heard the arguments made by learned counsels for the parties, this Court has carefully perused the records of the case.

12. In Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra : (2019) 18 SCC 191, the Apex Court has held as under:

"8. It is well settled that exercise of powers under Section 482 CrPC is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.

9. This Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , has elaborately considered the scope and ambit of Section 482 CrPC. Seven categories of cases have been enumerated where power can be exercised under Section 482 CrPC. Para 102 thus reads : (SCC pp. 378-79)

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

11. In State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] , it was held that while exercising powers under Section 482 CrPC, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It was further held as under : (SCC p. 94, para 6)

"6. ... It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

12. Recently, in Vineet Kumar v. State of U.P. [Vineet Kumar v. State of U.P., (2017) 13 SCC 369 : (2017) 4 SCC (Cri) 633] , this Court has observed as under : (SCC p. 387, para 41)

"41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. ... Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding. ... the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."

13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.

24. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that she is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas sometimes at his home". Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since the complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained."

13. Similarly, in Shambhu Kharwar vs. State of U.P. : 2022 SCC Online SC 1032, the Apex Court has held as under:

"8. In Bhajan Lal (supra) this Court formulated the parameters in terms of which the powers in Section 482 of CrPC may be exercised. While it is not necessary to revisit all these parameters again, a few that are relevant to the present case may be set out. The Court held that quashing may be appropriate:

"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2).

[...](7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra,6 a two Judge Bench of this Court while dealing with similar facts as the present case reiterated the parameters laid down in Bhajan Lal (supra) held that:

"13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."

(emphasis supplied)

10. An offence is punishable under Section 376 of the IPC if the offence of rape is established in terms of Section 375 which sets out the ingredients of the offence. In the present case, the second description of Section 375 along with Section 90 of the IPC is relevant which is set out below.

"375. Rape - A man is said to commit "rape" if he - [...] under the circumstances falling under any of the following seven descriptions Firstly ...Secondly. - Without her consent.

[...]Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

xxx

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

11. In Pramod Suryabhan Pawar v. State of Maharashtra,7 a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh,8 observed that:

"12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action...[...]

14. [...] Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled...[...]

16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act...[...]

18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. 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.

(emphasis supplied)

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."

14. From the aforequoted judgments, it is apparent that the powers u/S 482 Cr.P.C. vested in the High Court is with the purpose and objective of advancement of justice. In case, the High Court is of an opinion that the process of the Court is being abused by persons with some oblique motive, the Court has to thwart such an attempt at the very threshold and the judicial process cannot be allowed to be converted into an instrument of oppression and harassment. It is also a settled position of law that if there are materials to indicate that the criminal proceedings is initiated with mala fide intentions and with an ulterior motive, it is the duty of the High Court to quash such proceedings in exercise of powers u/S 482 Cr.P.C.

15. In Section 375 I.P.C., where the offence of rape is constituted when the sexual intercourse is committed against the will of women and without her consent. A women is said to consent only when she freely agrees to submit herself while in free and unconstrained possession of physical and moral power to act in a manner she wanted. Consent implies the exercise of free and untrammelled right to forbid or withhold what is being consented to.

16. In State of HP vs. Mango Ram : (2000) 7 SCC 224, a three Judge Bench of the Apex Court held that consent for the purpose of Section 375 I.P.C. requires voluntary participation not only after the exercise of intelligence based on the knowledge of 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 careful perusal of relevant circumstances.

17. Thus, from the cumulative reading of the judgments passed by the Apex Court in Shivashankar (supra), Pramod Suryabhan Pawar (Supra), Sonu alias Subhash Kumar (supra), Dr. Dhruvaram Murlidhar Sonar (supra) and Mango Ram (supra), it is apparent that when there is a longstanding relationship between the parties under the promise of marriage. It is to be seen that whether such promise of marriage was false at the inception or it is a subsequent breakdown of relationship and refusal to marry amounts to breach of such promise, which was genuinely made at the inception of such relationship.

18. The expression "against her will" would ordinarily mean that the intercourse was done by man with a women despite her resistance and opposition. On the other hand, the expression "without her consent" would comprehend an act of reason accompanied by deliberation.

19. In the instant case, from the F.I.R. as well as from the Statements u/S 161 and 164 Cr.P.C., the following undisputed facts emerged that the relationship between the applicant herein and the opposite party no.2 was of a consensual nature:

(i) Parties were known to each other for more than 15 years;

(ii) They were in active physical relationship with the approval of parents of opposite party no.2, since more than 8 years. Therefore, there was an active and considered consent by the victim, with the approval of her parents and the physical relationship with her was not against her will;

(iii) Subsequently, the applicant herein has broken his promise to marry and refused to marry the opposite party no.2 which resulted in the registration of the F.I.R. against the applicant herein;

(iv) From the allegations made, it is apparent that the promise to marry by the applicant herein was not false from its inception. Due to later developments, the applicant has denied to marry the victim.

20. Thus, from the proposition of law as enunciated in the above cited judgments, this Court is of the view that even assuming that all the allegations made against the applicant herein are true for the purposes of considering the application for quashing u/S 482 Cr.P.C., no offence u/S 376 is established as the relationship between the parties was of consensual nature and which has an approval of the family as well and the initial promise by the applicant herein was not false. It is only after subsequent developments between the parties, the applicant herein has refused to marry the applicant herein. Since, the relationship between the parties was longstanding and the victim as well as her family members knew the consequences of the relationship, therefore, any subsequent breach of such relationship would not amount to the offence of rape u/S 375 I.P.C.

21. For the reasons stated above, the instant application u/S 482 Cr.P.C. is allowed and the chargesheet dated 16.03.2020 as well as the cognizance/summoning order dated 10.12.2020 and the entire proceedings of Case No. 21205 of 2020 (State vs. Ziya Ullah), under Sections 419, 420, 376, 504, 506 IPC, arising out of Case Crime No. 20/2019, P.S. Mahila Thana, District Sant Kabir Nagar, pending before the Court of Civil Judge, Junior Division / Judicial Magistrate, Sant Kabir Nagar, are hereby quashed.

Order Date :- 15.09.2023

Shubham Arya