Vinay S/O Pradeep Chawhare vs State Of Maharashtra, Thr. Police ...
2021 Latest Caselaw 13231 Bom

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


                         CRIMINAL APPLICATION (APL) NO. 143/2021


                   Vinay S/o Pradeep Chawhare,
                   Aged about 26 years, Occ. Service
                   R/o. Defence Quarter 08/87/01, Wadi
                   Nagpur
                                                                      .... APPLICANT

                                           // VERSUS //

          1]       State of Maharashtra,
                   Through Police Station Wadi,
                   Tah. & Dist. Nagpur

          2]       Ku. Sukeshini D/o Shalid Duryodhan,
                   Aged about 25 years, Occ. Service,
                   R/o. Warvat Post Durgapur,
                   Tq. Chandrapur & Dist. Chandrapur
                                                          .... NON-APPLICANT(S)

           *******************************************************************
                        Shri V.S. Mishra, Advocate for the applicant
                      Shri T.A. Mirza, APP for the non-applicant/State
                   Shri A.B. Moon, Advocate for the non-applicant no. 2
           *******************************************************************

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

SEPTEMBER 16, 2021

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

1] Heard.

          2]               RULE. Rule made returnable forthwith.
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          3]               By this application under Section 482 of the Code of

Criminal Procedure, the applicant is challenging filing of Charge-Sheet

No. 20/2020 dated 06/03/2020 registered by the non-applicant no. 1 -

Police Station in relation to Crime No. 268/2019 for the offences

punishable under Sections 376(2)(k)(n) & 417 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 was working

as apprentice in the defence factory; she was residing in her native village

from March, 2017; she got acquainted with the applicant in the month of

August, 2016 and thereafter they became friends. It is alleged that in the

month of September, 2016 when they had been at Tulani Chowk to

watch Garba dance, the applicant came in the room of the non-applicant

no. 2 and had forcible sexual intercourse with the non-applicant no. 2. It

is alleged that due to the forcible sexual intercourse, there was severe

bleeding and the applicant left her in that condition. On the next day, the

applicant came to her room along with some medicine and asked her to

have that medicine and promised to marry the non-applicant no. 2.

Thereafter, again the applicant had sexual intercourse with the non-

applicant no. 2 from September, 2016 till August, 2018. It is alleged that

when the non-applicant no. 2 asked the applicant about the marriage, he

avoided to marry and assured the non-applicant no. 2 that he will ANSARI

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perform marriage with her in the month of June, 2019. On 04/06/2019,

when the father of the non-applicant no. 2 called the cousin of the

applicant, it was told that the applicant is not ready to marry with the

non-applicant no. 2. When the father of the non-applicant no. 2 along

with the non-applicant no. 2 came to the house of the applicant, it was

revealed that all have gone out of station for the marriage ceremony and

the cellphone of the applicant was switched off. Since the non-applicant

no. 2 realized that she has been cheated, she filed the first information

report against the applicant. The Investigating Agency carried out the

investigation and filed charge-sheet against the applicant. The applicant

has therefore challenged filing of the charge-sheet against the applicant.

5] This Court on 28/01/2021 issued notices to the non-

applicants and granted stay to R.C.C. No. 2443/2020. The non-

applicant no. 1, in pursuance of the notice issued by this Court, has filed

reply stating that there is prima-facie material available against the

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

applicant was not ready to marry with the non-applicant no. 2 from the

inception of relationship and carried ill intention to sexually exploit the

non-applicant no. 2. It is stated that initially the sexual assault was with

force and without consent of the non-applicant no. 2, but subsequent

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sexual exploitation was on the basis of false and fraudulent promise to

marry with the non-applicant no. 2.

6] We have carefully considered the material produced in the

form of replies filed by the non-applicants. On careful consideration of

the material produced by the prosecution, prima-facie we are of the

opinion that the first sexual intercourse with the non-applicant no. 2 was

without her consent, but the subsequent instances of sexual intercourse

were on the basis of promise to perform marriage with the non-applicant

no. 2. From the statement of the non-applicant no. 2, it prima-facie

appears that the consent of the non-applicant no. 2 was obtained on

misconception of fact as per Section 90 of the Indian Penal Code. Prima-

facie, it appears that right from inception, the applicant never intended

to marry with the non-applicant no. 2. This Court while rejecting the

pre-arrest bail application of the applicant in Criminal Application

(ABA) No. 437/2019 recorded the statement of the Advocate for the

applicant that the applicant could not marry with the victim as she was

not found suitable to him. From the said statement, it appears that

whether the applicant had intention to marry with the non-applicant

no. 2 at the inception of their relationship is the question which needs to

be decided in full-fledged trial. At this stage, we cannot enter into the

truth or otherwise of the material in the form of charge-sheet.

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          7]                The Hon'ble Apex Court has time and again observed that

extraordinary power under Section 482 of the Code of Criminal

Procedure should be exercised sparingly and with get care and caution.

The inherent power should not be exercised to stifle a legitimate

prosecution. It is not necessary to scrutinize the allegations or material in

the charge-sheet for the purpose of deciding whether such allegations are

likely to be accepted in the trial. We are therefore of the opinion that this

is not a fit case where extraordinary jurisdiction of this Court under

Section 482 of the Code of Criminal Procedure can be exercised.

8] There is no merit in the application and the same is

dismissed. Rule is discharged. Pending application(s), if any, stand(s)

disposed of.

                            (JUDGE)                              (JUDGE)




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