Mushtak S/O. Esrail Sheikh vs State Of Maharashtra Thr. ...
2021 Latest Caselaw 14664 Bom

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                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                             NAGPUR BENCH, NAGPUR.


                         CRIMINAL APPLICATION (APL) NO. 283/2019


                   Mushtak S/o Esrail Shaikh,
                   Aged about 30 years, Occ. Private,
                   R/o. Plot No. 41, House No. 1060,
                   Opposite Oriental Bank of Commerce,
                   Bagadganj, Nagpur
                                                                .... APPLICANT(S)

                                        // VERSUS //

          1]       State of Maharashtra,
                   Through Commissioner of Police,
                   Nagpur

          2]       Shabhanam Sattar Shaikh,
                   Aged about 31 years, Occ. Private,
                   R/o. 12, Harpur Nagar, Near Water Tank,
                   Umred Road, Nagpur Police Station
                   Nandanwan, Nagpur
                                                        .... NON-APPLICANT(S)

           *******************************************************************
                       Shri G.B. Hemke, Advocate for the applicant(s)
                      Shri T.A. Mirza, APP for the non-applicant/State
           *******************************************************************

                             CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.

OCTOBER 07, 2021

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

1] Heard.

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          2]               RULE. Rule made returnable forthwith.



          3]               By this application under Section 482 of the Code of

Criminal Procedure, the applicant is challenging F.I.R. No. 914/2018

dated 07/12/2018 registered with the non-applicant no. 1 - Police Station

for the offence punishable under Section 376(2)(n) of the Indian Penal

Code.

4] The first information report came to be registered against the

applicant with the accusations that the non-applicant no. 2 is divorcee

with two children. While working in Tata Docomo Company office in

2014, she came in contact with the applicant and developed love relations

with him. It is alleged that on 29/12/2015, the applicant came to her

house and by taking disadvantage of the fact that no one was present in

the house, the applicant offered her Pepsi cold drink which was spiked.

With the result, the non-applicant no. 2 became unconscious. It is

alleged that when she regained consciousness, she noticed that she was

sitting on her bed without clothes. The applicant assured her that he will

marry with the non-applicant no. 2. The applicant thereafter continued

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sexual intercourse with the applicant, but on refusal to marry with the

non-applicant no. 2, she filed the first information report on 07/12/2018.

The applicant therefore challenged the registration of the first

information report by filing the present application.

5] This Court on 14/03/2019 issued notices to the non-

applicants. The non-applicant no. 1, in pursuance of the notice issued by

this Court, has filed reply stating that the Investigating Officer recorded

the statements of witnesses and there is prima-facie material against the

applicant to show his involvement in the crime.

6] The non-applicant no. 2 has filed affidavit and contested the

application. The non-applicant no. 2 is represented by Advocate. Today,

when the matter is called out, none appeared for the non-applicant no. 2.

7] We have carefully considered the allegations in the first

information report along with reply filed by the non-applicants. The first

information report specifically records that the applicant had continuous

sexual intercourse with the non-applicant no. 2 on promise of marriage

and thereafter he refused to marry with the non-applicant no. 2. The

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reply filed by the non-applicant no. 1 reflects that the non-applicant no. 2

was in love relationship with the applicant from 29/12/2015. The said

relationship continued upto the date of filing of the first information

report i.e. 07/12/2018.

8] The contents of the first information report along with the

reply filed by the non-applicant no. 1 leave no manner of doubt that on

the basis of allegations as they stand, three features emerge :

(i) Relationship between the applicant and the non-applicant no. 2 was of

consensual nature; (ii) The applicant and the non-applicant no. 2 were in

relationship for about a period of 3 years; and (iii) Subsequently, the

applicant expressed disinclination to marry with the non-applicant no. 2

which led to registration of the first information report.

9] The Hon'ble Supreme Court in the case of Pramod

Suryabhan Pawar vs State of Maharashtra and another reported in (2019)

9 SCC 608 observed that 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

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"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] Taking into consideration the law laid down by the Hon'ble

Supreme Court in the case of Pramod Suryabhan Pawar (supra), we are of

the view that assuming the allegations in the first information report

along with the facts stated in the reply filed by the non-applicant no. 1

are correct for the purpose of considering the application for quashing of

the first information report under Section 482 of the Code of Criminal

Procedure, no offence has been established. There is no allegation to the

effect that promise to marry given by the applicant to the non-applicant

no. 2 was false at the inception. On the contrary, it would appear from

the contents of the first information report and the reply filed by the non-

applicant no. 1 that there was subsequent refusal on the part of the

applicant to marry with the non-applicant no. 2 which gave rise to

registration of the first information report. Hence, we are of the opinion

that continuance of the present proceedings against the applicant would

amount to abuse of process of the Court.

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          11]              Hence, the following order:-

F.I.R. No. 914/2018 registered with the non-applicant no. 1

- Police Station against the applicant for the offence

punishable under Section 376(2)(n) of the Indian Penal

Code is quashed and set aside.

Rule is made absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

                            (JUDGE)                                   (JUDGE)




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