Bombay High Court
Akshay S/O Kailashrao Gaikwad And ... vs State Of Mah. Thr. Pso City Kotwali ... on 28 September, 2021
Bench: V.M. Deshpande, Amit B. Borkar
APL.285.21.J.
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
CRIMINAL APPLICATION (APL) NO.285/2021
1) Akshay s/o Kailashrao Gaikwad
Aged about 25 years, occu: Junior Engineer
2) Kailash Ashruji Gaikwad
Aged about 51 years, occu: Teacher
3) Surekha Kailashrao Gaikwad
Aged about 49 years, occu: Household
All R/o Lonar, Tq. Lonar
Dist. Buldana) ..APPLICANTS
versus
1) State of Maharashtra
Through Police Station Officer,
City Kotwali, Akola
Tq. & Dist. Akola.
2) Chaitali Gajanan Lodam
Aged about 29 years
occu: Household
R/o Near Gajanan Mandir
Gudadhi, Akola Tq. & Dist. Akola. .. RESPONDENTS
..................................................................................................................
Mr Anil Mardikar, Senior Counsel with
Mr. Ved R.Deshpande, Adv.for applicants
Mr. T.A. Mirza, APP for respondent no.1
Mr. S.V. Sirpurkar, Adv.for respondent no.2
...................................................................................................................
CORAM: V. M. DESHPANDE &
AMIT B. BORKAR, JJ
DATED : 28th September, 2021.
::: Uploaded on - 01/10/2021 ::: Downloaded on - 15/10/2021 03:58:26 :::
APL.285.21.J.
2
ORAL JUDGMENT: (PER AMIT B BORKAR, J.)
1. Rule. Rule is made returnable forthwith. Heard finally with
the consent of respective parties.
2. This Application under Section 482 of the Code of Criminal
Procedure is filed challenging the registration of First Information
Report bearing No.529/2020 registered with non-applicant no.1-Police
Station for offence punishable under Section 376 (2)(n), 328, 406, 420,
506 of the Indian Penal Code and Section 66(B) of the Information
Technology Act.
3. The First Information Report came to be registered a
against the applicants with the accusation that relationship between the
applicant no.1 and non-applicant no.2 started in view of messages in
social media app some time in September, 2019 and thereafter the
applicant no.1 and non-applicant no.2 has sexual intercourse on promise
of marriage. Thereafter from time to time the applicant no.1 promised
to perform marriage with non-applicant no.2 and had sexual
intercourse with non-applicant no.2. It is also alleged that the non-
applicant no.2 had handed over mangalsutra weighing 22 to 25 grams
to the applicants. It is alleged that the applicant no.1 had recorded a
video clip of non-applicant no.2 and threatened her that in case of
::: Uploaded on - 01/10/2021 ::: Downloaded on - 15/10/2021 03:58:26 :::
APL.285.21.J.
3
refusal on the part of the non-applicant no.2, the blue film would be
made viral. The applicants have therefore challenged the registration of
FIR by filing the present Application.
4. This Court had on 17th February, 2021 issued notice to non-
applicants. The non-applicant no.1-Investigating agency have filed reply
stating that it has recorded statements of the witnesses and have
sufficient material available against the applicants.
5. The non-applicant no.2 has also filed her reply stating
that the applicant no.1 has promised to marry her, but thereafter the
applicant no.1 has refused to marry. It is alleged that the applicant nos.
2 and 3 did not return the golden chain, ring and mangalsutra of
non-applicant no.2.
6. We have carefully considered the allegations in the FIR.
Mr. Mardikar, learned senior counsel on behalf of the applicants made
a statement that during pendency of the Application, the applicants
have deposited laptop and mobile as per the condition imposed by
learned single Judge of this Court in Criminal Application (ABA) No.
788/2020.
7. We have carefully scrutinized the allegations made
against the applicants. The crux of the allegations against the
applicant no.1 is to the effect that the applicant no.1 has sexual
::: Uploaded on - 01/10/2021 ::: Downloaded on - 15/10/2021 03:58:26 :::
APL.285.21.J.
4
intercourse with non-applicant no.2 on promise of marriage. The
allegations against the applicant nos.2 and 3 are to the effect that
they have not returned golden chain,mangalsutra and ring to the non-
applicant no.2.
8. 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.
::: Uploaded on - 01/10/2021 ::: Downloaded on - 15/10/2021 03:58:26 :::
APL.285.21.J.
5
9. Insofar as the allegations against the applicant nos.2 and 3
are concerned, we are satisfied that there is no material available with
the investigating agency in support of the said allegations. We are,
therefore, satisfied that the prosecution against the applicants would
amount to abuse of the process of the court. We, therefore, pass the
following order:
ORDER
i) The First Information Report bearing No.529/2020 registered
with non-applicant no.1-Police Station, for offence punishable u/ss.
376(2)(n), 328, 406, 420, 506 of the IPC and Section 66(B) of the
Information Technology Act, is quashed and set aside.
ii) Rule is made absolute in the aforesaid terms.
JUDGE JUDGE
sahare
