Ankush S/O Sudhakar Somankar vs The State Of Maharashtra, Thr. ...
2022 Latest Caselaw 7446 Bom

                                                                  APL 815.2021.odt




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

             CRIMINAL APPLICATION (APL) NO. 815 OF 2021

      Ankush s/o Sudhakar Somankar
      Aged 32 years, Occupation : Private Job,
      R/o Kachipura, behind Chamdiya High                .. Applicant
      School, Dist. Nagpur


                        Versus
 1. State of Maharashtra, through PSO MIDC,
    District Nagpur
 2. Mamta Gunvantrao Jhodape
                                                        .. Respondents

Aged 32 years, R/o C/o Nimraskar, Jal Vihar Colony, Priyadarshini Girls Hostel, Near Water Tank, Hingna T-Point, District Nagpur

Mr. P. V. Navlani, Advocate for applicant.

Mr. S. M. Ghodeswar, APP for respondent No.1 State. Mr. Amit Balpande, Advocate for respondent No.2 (appointed).

                             CORAM :             MANISH PITALE, AND
                                                 G.A.SANAP JJ.
                             DATED       :       01/08/2022

ORAL JUDGMENT (Per : Manish Pitale J.)


                       Heard. Admit.


(2)                    Heard finally with the consent of the learned

counsel appearing for the rival parties.




                                                                    PAGE 1 OF 11
                                                                  APL 815.2021.odt




(3)                By this application, the applicant is seeking to

invoke inherent powers of this Court under Section 482 of the Cr.P.C.

for quashing of First Information Report (FIR) No.491/2021 registered

at Police Station, MIDC, District - Nagpur, for offences punishable

under Section 376 and 506 of the India Penal Code (IPC). The FIR was

registered on an oral report submitted by respondent No.2, before the

said police station.

(4) A perusal of the oral, report leading to registration

of the FIR, would show that the respondent No.2 has narrated the

manner in which she and the applicant were allegedly in a relationship

and as to the incidents that occurred specifically on 23/08/2019, when

the applicant allegedly demanded physical intimacy and on

02/09/2019, when the applicant allegedly forcibly established physical

relations with the respondent No.2. It is then alleged that the

applicant threatened the respondent No.2, not to raise any grievance

in respect of the said incident and that on 28/09/2019, the applicant

met her at his residence where after she was called to a garden and the

applicant told her to forget about the relationship. Such narration of

incidentS has led to registration of the FIR.

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(5) On 23/08/2021, this Court issued notice in the

present application, directing that the investigation may go on, but the

charge-sheet shall not be filed without leave of this Court.

(6) Mr. Ghodeswar, learned APP appeared on behalf of

respondent No.1 State. The respondent No.2 was personally present

in Court to instruct Mr.Amit Balpande, learned counsel appointed to

appear on her behalf.

(7) Mr. Navlani, learned counsel appearing for the

applicant at the outset, invited attention of this Court to a report dated

31/10/2019, submitted by the respondent No.2 orally before the

aforesaid Police Station leading to registration of an N.C. against the

applicant on the same date for offence under Section 417 of the I.P.C.

By referring to the said contents of the said report, the learned counsel

submitted that the respondent No.2 herself specifically stated that

although the applicant was her boyfriend and he did demand physical

relationship, there was no actual physical relationship between

applicant and respondent No.2. It was only alleged that the applicant

was avoiding to marry respondent No.2. In pursuance of the said

report and registration of N.C., the police had summoned the

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applicant, who did appear before the police and on 31/10/2019 and

his statement was also recorded.

(8) The learned counsel for the applicant submitted that

the applicant had stated that the parties knew each other for some

period of time and that the respondent No.2 was insisting on marriage

before physical relations could established and that the applicant had

clearly stated that he could not marry her.

(9) In this backdrop, it is submitted on behalf of the

applicant that after the applicant got married on 10/01/2021, the

respondent No.2, appears to have approached the police in

July/August 2021 to raise grievance, on the basis of events pertaining

to the period prior to 31/10/2019, after a delay of almost two years of

the alleged incident. Yet, the police had registered the FIR. According

to the learned counsel for the applicant, the grievance of respondent

No.2 as regards alleged forcible physical relationship established by

the applicant ought to have been reflected in the complaint dated

30/10/2019 and therefore, it was clear that the subsequent oral report

leading to registration of FIR was only an afterthought and a step

taken by respondent No.2 after the applicant got married in January,

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2021. On this basis, it was submitted that the application deserved to

be allowed in the interest of justice.

(10) Mr.Ghodeswar, leaned APP appeared on behalf of

respondent No.1 State and made available the case diary for our

perusal. He submitted that the contents of the oral report would

indicate that there were clear allegations of forcible physical

relationship established by the applicant and that therefore,

registration of FIR for the aforesaid offences could not be said to be

anomalous or unwarranted. It was further submitted that since this

Court had granted interim order on 23/08/2021, the charge-sheet

could not be filed in the present case.

(11) Mr. Amit Balpande, learned counsel appointed to

appear on behalf of respondent No.2 submitted that even if the

statement given by the applicant on 31/10/2019, before the police was

to be perused, which was given in the context of the N.C. registered

against him on the same date, it would be clear that he himself was

demanding physical relationship with respondent No.2, thereby

supporting the case sought to be made out by the respondent No.2 in

the oral report, which led to registration of the FIR. It is submitted

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that in fact, the police had not registered a proper FIR in terms of the

grievance raised by the respondent No.2 and in that regard copy of the

alleged original complaint submitted by the respondent No.2 in

August, 2021 was sought to be relied upon. It was submitted that the

FIR did not deserve to be quashed in the facts and circumstances of the

present case.

(12) Heard learned counsel for the rival parties and

perused the material on record. If the oral report leading to

registration of the FIR is to be perused, there can be no doubt about

the fact that there are clear statements on behalf of respondent No.2

about the alleged forcible physical relationship established by the

applicant on 02/09/2019. The backdrop of the said incident is also

stated in the oral report. But, we cannot be oblivious about the entire

material brought to our notice, particularly the aforementioned earlier

oral report dated 30/10/2019, submitted by the respondent No.2

before the very same police station. The same led to registration of

N.C. against the applicant.

(13) The contents of the said report are significant

because the respondent No.2 herself has narrated as to the manner in

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which the applicant and the respondent No.2 were in relationship and

crucially that no physical relationship was ever established in between

two. It is significant that in this oral report also, the respondent No.2

had referred to incidents that had occurred in September and October

2019 and yet the only grievance raised on behalf of respondent No.2

was that the applicant was avoiding to marry the respondent No.2. In

fact, the respondent No.2 specifically gave in writing that if the

applicant was ready to marry her, she would not want any further

action in the matter. The statement given by the applicant on

31/10/2019, upon being summoned by the police is also significant. It

shows that according to the applicant the respondent No.2 and the

applicant did know each other for quite some time. That they were

indeed in a relationship with each other and when he demanded

physical relationship, the respondent No.2 insisted for marriage and

further that the applicant was not ready for marriage with respondent

No.2. This is where the matter rested till in July/August 2021, when

the respondent No.2 approached the police, leading to registration of

the aforesaid FIR.

(14) As noted above, oral report leading to registration of

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the FIR dated 02/08/2021, narrates incidents of August and

September, 2019. There is no reference to any incident after

31/10/2019 i.e. the date on which the earlier report had been

submitted by the respondent No.2, before very same Police Station. It

is not as if the applicant had contacted the respondent No.2 after

registration of the N.C. on 31/10/2019 or that he had in any manner

pursued the matter or threatened her with any consequences. The

entire grievance raised in the oral report, leading to registration of the

aforesaid FIR pertains to incidents of August and September, 2019. It

is a matter of record that the FIR is registered almost after two years.

There is no remark in the column pertaining to reasons for delay in

reporting the incident. It is not even stated in the FIR as to for what

reason there was considerable delay in registration of FIR.

(15) In this backdrop, we find that at the first available

opportunity when the respondent No.2 had raised grievance against

the applicant i.e. on 30/10/2019, she could very well have stated

incidents that allegedly occurred on 23/08/2019 and 02/09/2019.

But, a positive statement was made in the oral report dated

30/10/2019, that there was never any physical relationship

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established between the respondent No.2 and the applicant. This gives

credence to the contention raised on behalf of the applicant that after

the relationship was over and the applicant got married on

10/01/2021, perhaps the respondent No.2 felt aggrieved and

approached the police after about two years with grievance pertaining

to alleged incidents of August and September, 2019. It is crucial, as

noted above, that none of these incidents find mention in the oral

report submitted by the respondent No.2 on 30/10/2019.

(16) This Court is of the opinion that in matters such as

these, where there is a relationship between two adults and promise of

marriage is the backdrop in which allegations are made pertaining to

the offence of rape, the Hon'ble Supreme Court and this Court have

repeatedly opined that the intention of the accused at the start of the

relationship is to be gauged from the material that has come on record,

when a prayer is made for quashing of FIR/charge-sheet.

(17) In the case of Pramod Suryabhan Pawar vs. State

of Maharashtra and another (2019) 9 SCC 608, the Hon'ble Supreme

Court has deliberated upon the said issue and commented upon the

concept of consent under misconception. In such cases also, the

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Supreme Court has laid down that the Court would have to appreciate

as to whether the promise to marry could be said to be falsely given

with the intention of luring the victim into physical relationship.

(18) We are of the opinion that in the present case, we

do not have to go to even the said position of settled law, because on

facts, we find that the allegation is not about the applicant having

given a false promise of marriage and lured the respondent No.2 into

physical relationship. On the contrary, the allegation appears to be

that the applicant despite resistance from the respondent No.2

indulged in such activity on a particular date. But, since the alleged

incident was prior to the respondent No.2 herself approaching the

police on 30/10/2019 and not having raised any grievance regarding

the same, it does not appeal to reason that such an incident could be

said to have occurred between the applicant and respondent No.2.

The positive statement made in the oral report dated 30/10/2019 that

there was no physical relationship established between the applicant

and respondent No.2 completely gives away the case of the respondent

No.2, sought to be made out in July/August 2021, i.e. almost two

years after the alleged incident about the applicant having forcible

PAGE 10 OF 11 APL 815.2021.odt

sexual intercourse with respondent No.2.

(19) The material on record gives an impression that the

relationship between the applicant and respondent No.2 having gone

sour, after about two years the respondent No.2 gave the oral report to

the police, leading to registration of FIR. It is also noteworthy that the

respondent No.2 refused to undergo medical examination after

registration of FIR. In the facts and circumstances of the present case,

we are convinced that even if the material available on record,

including the case diary that was brought to our notice is to be

accepted as it is, no case is made out for the matter to travel further to

the stage of filing of charge-sheet and the applicant facing the rigour of

trial.

(20) In view of the above, the application is allowed.

Consequently, FIR No.491/2021 dated 02/08/2021, registered at

Police Station MIDC, Nagpur City, is quashed.

                          [ G. A. SANAP J. ]                    [ MANISH PITALE J. ]


                KOLHE
Digitally signed byRAVIKANT
     CHANDRAKANT KOLHE
      Signing Date:03.08.2022
                        16:53
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