Nitesh S/O Sharadrao Bharadwaj vs State Of Mah. Thr. Pso Wardha And ...
2021 Latest Caselaw 9334 Bom

                                            1                               36-apl-251-2021j.odt

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH : NAGPUR

               CRIMINAL APPLICATION (APL) NO. 251 OF 2021


  Nitesh S/o. Sharadrao Bharadwaj,
  Aged 31 years, Occ. Nil,
  R/o. Hind Nagar, Near Ghangare Lawn,
  Sahu Layout, Sindi (Meghe),
  Wardha.                                                                  . . . APPLICANT

                         ...V E R S U S..

  1. The State of Maharashtra through
     Police Station Officer, Wardha,
     Wardha.

  2. Durga Biharisingh Chavhan,
     Aged 33 years, Occ. Police Constable,
     R/o. Police Quarter, Yamuna WC, T/2,
     Police Head Quarter, Civil Lines,
     Wardha.                                                       . . NON-APPLICANTS

 ------------------------------------------------------------------------------------------------
 Shri R. M. Daga, Advocate for applicant.
 Shri T. A. Mirza, A.P. P. for non-applicant no. 1/State.
 Shri Neeraj B. Jawade, Advocate for non-applicant no. 2.
 -----------------------------------------------------------------------------------------------

                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 16.07.2021

JUDGMENT (PER : AMIT B. BORKAR, J.) :-

1. Hearing was conducted through Video Conferencing and

learned counsel agreed that the audio and visual quality were proper.

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2. Rule. Rule is made returnable forthwith. Heard finally by

consent of the parties.

3. This is an application under Section 482 of the Code of

Criminal Procedure filed by the applicant challenging the First

Information Report (FIR) No. 40/2021 registered with the non-

applicant no. 1-Police Station for the offence punishable under

Sections 376(2)(n) and 506 of the Indian Penal Code.

4. The FIR came to be registered against the applicant with

accusations that the non-applicant no. 2 was appointed with Police

force of Wardha district in the year 2013. The non-applicant no. 2 got

acquainted with the applicant in the year 2014 and thereafter

developed love relationship with the applicant. It is alleged that the

non-applicant no. 2 disclosed to the applicant that she had been

previously married since 2013 but, the applicant allegedly told the

non-applicant no. 2 that he has no concern with the past of the non-

applicant no. 2. It is alleged that the applicant had forcible sexual

intercourse with the non-applicant no. 2. It is alleged that the

applicant made repeated sexual intercourse with the non-applicant

no. 2 on the promise of marriage. It is alleged that in the year 2020,

the applicant tried to avoid the non-applicant no. 2 but, had forcible

sexual intercourse with the non-applicant no. 2 and thereafter refused

to perform marriage with the non-applicant no. 2.

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5. The applicant has therefore challenged the FIR by way of

the present application. This Court on 11.02.2021 issued notices to

the non-applicants and by way of interim order, it was directed that the

charge-sheet shall not be filed against the applicant without leave of

the Court. The non-applicant no. 1- Investigating Agency has filed

reply stating that the applicant, on the pretext of marriage, had sexual

intercourse with the non-applicant no. 2 inspite of being aware that

the non-applicant no. 2 was already married and thereafter the

applicant reused to marry with the non-applicant no. 2. It is stated

that the investigation is in progress and there is prima facie material

against the applicant.

6. The non-applicant no. 2 has also filed her reply stating

that the applicant had forcible sexual intercourse with her on false

promise of marriage and had also used force while committing forcible

sexual intercourse. It is stated that though the relationship between

the applicant and the non-applicant was of 7 years but, her consent

cannot be presumed as the applicant had forcible sexual intercourse

with the non-applicant no. 2.

7. We have carefully considered the allegations in the FIR.

From the averments made in the FIR, it is clear that the applicant and

the non-applicant no. 2 were in love relationship from year 2014 till

2021. It is not the allegation of non-applicant no. 2 that promise of

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marriage at the inception of relationship was false. The allegations in

the FIR do not on the face value indicate that promise of the applicant

was false. There is no allegation in the FIR that promise of marriage

given by the applicant was in bad faith with intention to deceive her.

The applicant's failure in the year 2021 to fulfill his promise of

marriage made in the year 2014 cannot be construed to mean that

promise itself was false. The allegations in the FIR indicate that the

non-applicant no. 2 was aware in the year 2014 that there were

obstacles in marrying the applicant as the non-applicant no. 2 was

already married but, still the non-applicant no. 2 continued to engage

with repeated sexual intercourse with the applicant.

8. The allegations in the FIR belies the case of the non-

applicant no. 2 that she was deceived by the applicant on promise of

marriage. Even on consideration of the facts stated in the report of

the non-applicant no. 2 in totality no offence under Section 375 is

attracted. We are therefore satisfied that continuance of the present

proceeding against the applicant would amount to abuse of process of

Court.

9. We, therefore, pass the following order:-

First Information Report No. 40/2021 registered against

the applicant with the non-applicant- Police Station for the offence

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punishable under Sections 376(2)(n) and 506 of the Indian Penal Code

is hereby quashed and set aside.

Rule is made absolute in the above term.

                               JUDGE                                  JUDGE


RR Jaiswal