Rizwan Usman Sheikh And Another vs The State Of Mah. Thr. Police ...
2021 Latest Caselaw 12467 Bom

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

                CRIMINAL APPLICATION (APL) NO. 868 OF 2021

  1. Rizwan Usman Sheikh,
     Aged 29 years, Occ. Public Servant,
     R/o. G-2, Building No. 1,
     PCMT 50 Qtrs, Police Line Takli,
     Katol Chowk, Nagpur.

  2. Anamika Girish Bapkar,
     Aged 27 years, Occ. Interior Designer,
     R/o. Plot No. 81, Jhanjhad Layout,
     Manewada Ring Road,
     Nagpur.                                                               . . . APPLICANTS

                         ...V E R S U S..

  State of Maharashtra through
  the Police Station Officer,
  Gittikhadan Police Station, Nagpur.                                . . . NON-APPLICANT

 ------------------------------------------------------------------------------------------------
 Shri Md. Naved Opai, Advocate for applicants.
 Shri S. S. Doifode, A.P. P. for non-applicant/State.
 -----------------------------------------------------------------------------------------------
                  CORAM :- V. M. DESHPANDE AND
                           AMIT B. BORKAR, JJ.

DATED :- 02.09.2021

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

1. Heard.

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

consent of the parties.

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3. This joint application is filed by the applicants for

quashing the First Information Report (FIR) lodged against the

applicant no. 1 by the applicant no. 2 for the offence punishable under

Sections 376(2)(n), 406, 323, 504 and 506 of the Indian Penal Code

vide Crime No. 703/2020 with the non-applicant- Police Station.

4. The FIR came to be registered against the applicant no. 1

with the accusations that the applicant no. 1 had forcible sexual

intercourse with the applicant no. 2 on promise of marriage and

thereafter, the applicant nos. 1 and 2 where in relationship from 2014

till November-2020. It is alleged that since the applicant no. 1

assaulted the applicant no. 2, she lodged report with the non-

applicant-Police Station.

5. During the pendency of the investigation, the applicants

have mutually resolved their dispute. The applicant no. 2 has filed

additional affidavit stating that the applicant nos. 1 and 2 have decided

to part their ways and live peacefully and therefore, the applicant no. 2

has no objection for quashing the FIR against the applicant no. 1.

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

On careful consideration of the allegations in the FIR, we are satisfied

that the essential ingredients for the offence under Section 376(2)(n)

are not fulfilled, even if the allegations in the FIR are taken at its face

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value, as the FIR shows that the applicant nos. 1 and 2 were in

relationship from 2014 till November-2020.

7. The Hon'ble Apex Court in the case of Pramod Suryabhan

Pawar Vs. State of Maharashtra reported in (2019) 9 SCC 608, in a

similar situation had quashed the First Information Report against the

applicant therein. The Hon'ble Apex Court in the said case has held

that, where the promise to marry is false and 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 "misconception of fact" that vitiates the woman's consent. It is

further held that mere breach of promise cannot be said to be false

promise. The Hon'ble Apex Court observed that 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. In the facts of the present

case, we are satisfied that there is no material on record to show that

at the time of inception of relationship, the applicant no. 1 had no

intention to perform marriage with the applicant No.2. We are

therefore, satisfied that the continuation of the proceedings against the

applicant no. 1 would amount to abuse of process of Court.

8. Insofar as rest of the offences are concerned, we have

carefully considered the allegations in the FIR and we are satisfied that

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the allegations made against the applicant no. 1 are not sufficient for

constituting the offence alleged against the applicant no. 1. We are

therefore satisfied that the applicants have made out case for quashing

of the FIR lodged against the applicant no. 1.

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

First Information Report No. 703/2020 registered against

the applicant no. 1 with the non-applicant- Police Station for the

offence under Sections 376(2)(2), 406, 323, 504 and 506 of the Indian

Penal Code is quashed and set aside.

Rule is made absolute in the above term.

                               JUDGE                                   JUDGE




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