Bombay High Court
Abhay S/O Chandnlal Nagpure vs State Of Mah. Thr. Pso Gondia City Tah. ... on 6 February, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:1932-DB
12- apl 49-21.odt
1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 49 OF 2021
1. Abhay Chandnlal Nagpure,Aged about 29
years, Occupation Service, R/o Tumkheda,
Tahsil and District Gondia.
2. Hemlata Narendra Shivankar, Aged about
32 years, Occup.Household, R/o. Gandhi
Ward Civil Lines, Gondia, Dist.Gondia.
(transposed as non-applicant No.2 as per
order dated 18.08.2022) Applicants
-Versus-
1. State of Maharashtra, Through PSO
Gondia City, Tah. And District, Gondia
2. Hemlata Narendra Shivankar Aged about
about 32 years, Occup.Household, R/o
Gandhi Ward, Civil Lines, Gondia,
District:Gondia. Respondents
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Mr.Virat S.Mishra, counsel for the applicants.
Mr.M.K.Pathan, APP for non-applicant No.1
Mr.J.K.Matale, counsel non applicant No.2
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CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : 6th February, 2024
ORAL JUDGMENT (Per : Vrushali V.Joshi, J.)
Heard.
2. Admit.
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3. The application is heard finally with the consent of the
learned counsel for the parties.
4. The registration of the First Information Report in Crime
No. 525 of 2020 with the Police Station Gondia for the offences
punishable under Sections 376,417 and 506 r/w 34 of the Indian
Penal Code gave rise to the applicant seeking to quash concerned
First Information Report and related charge-sheet.
5. This is a unique case where initially, the victim along
with applicant has filed an application to quash the criminal
prosecution for the offence punishable under Section 376 of the
Indian Penal Code and thereafter she has filed an application to
transpose her as non-applicant and objected the application. It is
contended that the First Information Report along with the
investigation paper discloses that it is a case of consensual
relationship in between two adults which cannot be termed as an
offence of rape. Moreover, it is submitted that the essential
ingredients constitute the offence under Section 376 are not made
out. The facts leading to the filing of the criminal prosecution are
stated in brief as under:-
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6. The applicant and the non applicant no.2 were known to
each other. They were in contact with each other since many years.
It is alleged that the victim, who was staying separately from her
husband after the divorce, the applicant used to come to her house.
They used to talk on mobile and they were having friendly
relations. On 23.07.2020 the applicant no.1 came to her house in
the afternoon and he had forcible sexual relations with her under
the assurance of marriage. He was at her house till 6.00 p.m and
when he left the house, he refused to marry with her and therefore,
she has lodged the complaint and the crime is registered.
7. The counsel for the applicant has stated that the relations
were since long period. The reason for divorce was the illicit
relations of the non applicant No.2, the victim with this applicant.
The victim is a married lady having two children. Both of them
were having consensual relationship. Though the victim has lodged
the complaint about keeping forcible relations on a specific date by
giving assurance of marriage, on perusal of record, it reveals that the
victim was in contact with the accused since many years. They were
having consensual relations. The divorce was obtained on
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09.09.2020, on perusal of the order of divorce, it appears that they
were staying separately since 2017, and since then, the applicant
and the victim were having relationship. The victim has filed the
joint application for quashing of the First Information Report and
thereafter she has filed the application to transpose her as
respondent-non applicant. She has filed the complaint against the
applicant in Duggipar police station and withdraw it. Again she has
filed the complaint against the applicant and his family members
that they did not allow her to stay with them. She has filed the
undertaking given by the father of the applicant No.1 that he will
perform the marriage of his son with the victim. As he has not
performed the marriage of his son with the victim she has filed the
application objecting the application for quashing of First
Information Report.
8. During the course of investigation, the statement of
witnesses have been recorded. It is the applicant's contention that
the victim is a married grownup lady having love relations for years
together with the applicant. She was in deep love with the
applicant, therefore, out of intimacy, by consent, they had
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maintained relations for years together. The applicant has
specifically denied that under promise to marry, he had enjoyed
sexual relations. On the other hand, the non applicant i.e. the State
has stated that though the victim has filed the joint application,
however, the offence is serious and antisocial, therefore, on the
basis of settlement it cannot be quashed. The victim has withdrawn
her consent to quash the First Information Report.
9. It is argued by the counsel for non-applicant no.1 that no
offence is made out as it is the case of consensual relations. From
the First Information Report, itself it reveals that victim who is the
married lady having two children, she was having love affair with
the applicant. Whats-app chats are filed on record which proves
their love relations and intimacy. The charge-sheet does not
discloses that only because the accused assured for marriage, she
surrendered herself, though she has mentioned the sole incident of
23rd February, from the record itself it shows that they were having
relations since years together. It cannot be said that under the false
pretext of marriage, the consent was obtained.
10. The learned APP in resistance would submit that the First
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Information Report relating to serious offence i.e. rape cannot be
quashed. The offence is antisocial and heinous one. Quashing of
First Information Report in serious offences, is not permissible. The
court shall not permit the settlement in such serious offence which
is against the society. We are conscious about the said legal
position that on the sole ground of compromise a proceeding
relating to serious offence cannot be quashed. However, in the case
in hand the victim is not seeking to quash the First Information
Report but exhaustively submission have been made on merits.
11. The First Information Report discloses that the victim is
married lady having two children. She had acquaintance with the
accused since many years. They were in long standing relationship.
Though the victim has stated that on 27.06.2021, first time
accused committed forcible sexual intercourse with her. Still she has
maintained relations for next few years. There is no specific
contention that the relations were established by giving the promise
of marriage. The victim has stated that the accused has given the
rented room to the non-applicant and they were staying there
together. It is not a case of false promise of marriage but the facts
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are indicative of consensual sex on account of love relations. This
Court in case of Shubham Ravindra Kalbende and Ors.Vs.State of
Maharashtra, 2022 ALL MR (Cri.)3552, wherein this court has
quashed the prosecution for the offence of rape on account of
settlement as well as merits. It is expressed that though the offence
was registered under Section 376 of the Indian Penal Code, the
court has to examine the facts to find out whether the ingredients
to constitute the offence are made out.
12. Relevant observation made in paragraph No.7 reads as
below:
"7. Insofar as the offence under Section 376 of the Indian
Penal Code is concerned, though it is a serious offence, but at
this stage it would be profitable to refer to the judgment of
the Hon'ble Apex Court in the case of Narinder Singh &
others Vs. State of Punjab & another reported in AIR 2014
SCW 2065. The decision of the Hon'ble Apex Court makes
it clear that the Court cannot declare to quash the first
information report merely because the first information
report incorporates a particular provision which is a serious
offence or an offence against the society. The Court has to
make an endeavor to find out whether the first information
report indeed discloses the ingredients of such offence and
the Court can accept the statement and quash the first
information report/charge-sheet after the Court is of the
opinion that such an offence is unnecessarily incorporated in
the first information report/charge-sheet. In the facts of the
present case, though Section 376 of the Indian Penal Code is
incorporated in the first information report, the essential
ingredients of Section 376 of the Indian Penal Code are
missing."
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13. In order to impress submission that one has to see the facts
of the case without getting influence by the section invoked reliance
is placed on the decision of Hon'ble Supreme Court in case of
Narinder Singh and others Vs. State of Punjab and another AIR
2014 SCW 2065. In the said case, the facts relating to the offence
punishable under Section 307 of the Indian Penal Code it is
expressed that despite invoking the particular section, the High
Court has to examine, whether, prima facie offence is made out
under said section.
14. In this regard it is useful to make reference of decision
of this Court in case of Amit Kumar Arun Kumar Singh Vs. State
of Maharashtra and anr. 2016 ALL MR (Crim) 1553, wherein this
Court on facts held that though the offence is about rape, however,
it was in between two adults having the age of understanding. In
the situation, this Court has quashed the FIR on account of
settlement. The emerging facts of the case are clear enough to
convey that it is a case of consensual relations. In this regard,
reliance is placed on the decision of Supreme Court in the case of
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Pramod Suryabhan Pawar Vs. State of Maharashtra and anr. (2019) 9
SCC 608. In the said decision, the Supreme Court took review of
earlier decision and summarized the legal position in para 18 which
reads as below:-
"18. To summarise the legal position that emerges
from the above cases, the "consent" of a woman with
respect to Section 375 must involve an active and
reasoned deliberation towards the proposed act. To
establish whether the "consent" was vitiated by a
"misconception of fact" arising out of a promise to
marry, two propositions must be established. The
promise of marriage must have been a false promise,
given in bad faith and with no intention of being
adhered to at the time it was given. The false promise
itself must be of immediate relevance or bear a direct
nexus to the woman's decision to engage in the sexual
act."
15. On the similar line, reliance is placed on the decision of the
Supreme Court in case of Shambhu Kharwar Vs. State of Uttar Pradesh
and anr. 2022 SCC Online SC 1032 and Dr. Dhruvaram Murlidhar
Sonar Vs. State of Maharashtra & ors, 2019 AIR (SC) 327. In the said
case, the Supreme Court has once again highlighted the distinction in
between mere breach of promise and false promise. The relevant ob-
servation made in para 23 are as follows:-
"23. Thus, there is a clear distinction between rape
and consensual sex. The court, in such cases, must
very carefully examine whether the complainant had
actually wanted to marry the victim or had mala fide
motives and had made a false promise to this effect
only to satisfy his lust, as the later falls within the
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ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not
fulfilling a false promise. If the accused has not made
the promise with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such an act
would not amount to rape. There may be a case
where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the
accused and not solely on account of the
misconception created by accused, or where an
accused, on account of circumstances which he could
not have foreseen or which were beyond his control,
was unable to marry her despite having every
intention to do. Such cases must be treated
differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual
physical relationship between the parties would not
constitute an offence under section 376 of the IPC."
16. In the said case, both victim and accused were well grown
up fell in love and reside together for a specific period. The
relationship was quite some time and enjoyed each others company.
When the victim came to know that the accused had married with
some other woman, she lodged the report . The facts in hand are
similar one as the victim was married she took divorce from her
husband and maintained relations with accused for years together.
They had enjoyed physical pleasure on various occasions. They
stayed together in rented room.
17. From perusal of the police paper and the material
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produced in the form of charge-sheet we are satisfied that the
ingredients of the offence alleged are not fulfilled. Considering the
earlier joint application filed by the non applicant for quashing of
First Information Report, the statement is made in judgment of
divorce that she was staying separately since three years, before the
date of judgment, in view of peculiar facts, of this case, the
continuation of prosecution is exercised in futility, therefore, to
secure the ends of justice we deem it appropriate to invoke our
inherent powers to quash the proceedings. We, hereby allow the
application. Hence the following order.:
ORDER
The First Information Report bearing crime No.525 of
2020 registered with the Police Station Gondia for the offences
punishable under Sections 376,417 and 506 r/w 34 of the Indian
Penal Code is hereby quashed and related charge-sheet is hereby
quashed and set aside.
(VRUSHALI V. JOSHI, J) (VINAY JOSHI, J)
Signed by: Kavita P Tayade
Designation: PA To Honourable Judge
Date: 16/02/2024 11:31:34 Kavita.
