Chattisgarh High Court
Akshay Tiwari vs State Of Chhattisgarh on 5 August, 2021
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
WPCR No. 312 of 2021
• Akshay Tiwari S/o Shri Anil Tiwari, Aged About 30 Years R/o Shikshak Nagar,
Behind Sarwpalli Radhakrishanan Garden, Durg, District Durg Chhattisgarh,
---- Petitioner
Versus
1. State of Chhattisgarh Through Its Secretary, Ministry Of Home, Mahanadi
Bhawan, Capital Complex, Naya Raipur, District Raipur Chhattisgarh, District :
Raipur, Chhattisgarh
2. The Station House Officer, Police Station Tiarapara, Raipur, District Raipur
Chhattisgarh., District : Raipur, Chhattisgarh
3. Chhattisgarh State Commission For Women, Gaytri Bhawan, 13, Jalvihar
Colony, Raipur Chhattisgarh, District : Raipur, Chhattisgarh
4. V Nil
---- Respondents
5-8-2021 Mr. B.P. Sharma, counsel for the petitioner.
Mr. Hariom Rai, Panel Lawyer for respondents No.1 to 3.
Mr. Pragalbh Sharma, counsel for respondent No.4.
Heard on I.A. No.1 of 2021 which is an application for grant
of ad-interim relief.
On 23-5-2021 respondent No.4/prosecutrix made a
complaint/report against the petitioner in Police Station Tikarapara,
Raipur, stating therein that the petitioner on the pretext of marriage
committed rape upon her, on the basis of which Police of Police
Station Tikarapara, Raipur registered the FIR 165 of 2021 for
offence punishable under Section 376 of IPC on 3-6-2021.
Learned counsel for the petitioner would submit that on the
basis of a complaint made by the prosecutrix, settlement between
the petitioner and respondent No.4/prosecutrix has been recorded
by the Police wherein it has been agreed that the petitioner will
marry the respondent No.4. He would further submit that the said
settlement/affidavit has been recorded by the Police in the Police
Station just to harass the petitioner. On the basis of complaint,
FIR has been registered by the Police under Section 376 of IPC.
He would further submit that the prosecutrix is a consenting party
and the act done by the petitioner with prosecutrix is consensual
sex, therefore, no offence under Section 376 of IPC is made out
against the petitioner. He would further submit that in pursuance
of FIR, the Police authorities may be restrained from taking any
coercive steps against the petitioner and further proceedings
arising out of FIR in connection with Crime No. 0165 of 2021 be
stayed. In support of his arguments, he would rely upon the
judgment rendered by Hon'ble the Supreme Court in the matter of
Sonu @ Subhash Kumar vs. State of Uttar Pradesh and
another, decided on 1-3-2021 in Criminal Appeal No. 233 of
2021 ( arising out of SLP (Cr) No. 11218 of 2019).
On the other hand, respondents No.1 to 3/State as well as
counsel for complainant/respondent No.4 would oppose the
application for grant of interim relief.
Learned counsel for the complainant/respondent No.4 has
filed reply to the application for grant of interim relief filed by the
petitioner mainly contending that the Police has not registered the
FIR on the basis of complaint made by the prosecutrix upto 2-6-
2021 and after persuasion made by the prosecutrix FIR has been
registered on 3-6-2021. He would further submit that the present
petition has been filed on incorrect grounds and ingenuous
interpretation of the dictum of Hon'ble Supreme Court in the matter
of Sonu @ Subhash Kumar (supra), therefore, the same is not
applicable as it is distinguishable to the facts of the present case. It
is apparent from the complaint that the petitioner has forcefully
compelled the prosecutrix to go for sexual intercourse, therefore,
the act committed by the petitioner falls within the ambit of Section
376 of IPC, therefore, the application for grant of interim relief be
rejected.
From perusal of the complaint as well as perusal of FIR,
prima facie, it reflects that the petitioner has forcefully committed
sexual intercourse with prosecutrix/respondent No.4, therefore, it
cannot be said that it is a consensual intercourse. Whether the
petitioner committed sexual intercourse with prosecutrix with
consent or forcefuly authenticity and correctness of the complaint
as well as FIR that can be examined by the trial court while
recording of evidence. This court while hearing the petition filed
under Section 482 of Cr.P.C., cannot examine the reliability or
genuineness of the settlement or allegation made in the FIR.
The contention of the learned counsel for the petitioner that
settlement/affidavit has been recorded by the Police in the Police
Station for performing marriage between the petitioner on 24-5-
2021, requires a detailed enquiry to investigate whether the
settlement has been recorded with the consent of the petitioner or
forcefully, and same cannot be examined at this juncture. Since
the petitioner has made specific allegation against the respondents
No. 1 to 3 with regard to recording of settlement in the Police
Station, unless and until respondent No.3 is not given an
opportunity to file reply either to accept or to reject, the contention,
at this juncture, cannot be ascertained. The judgment of Supreme
Court cited by learned counsel for the petitioner is clearly
distinguishable from the facts of the present case as in the instant
case, the complainant in her complaint as well as in the FIR has
clearly stated that the petitioner forcefully committed sexual
intercourse with her without her will, therefore, it cannot be termed
as consensual sexual intercourse. Therefore, prima facie, no case
is made out for grant of interim relief.
Accordingly, application for grant of interim relief filed by the
petitioner is rejected.
Also heard on I.A.No. 5 of 2021, which is an application for
amendment in the writ petition (cr).
On due consideration, the application is allowed. Necessary
amendment be incorporated in the writ petition within one week.
State counsel is directed to file their return.
List this case after four weeks.
Sd/-
(Narendra Kumar Vyas)
Judge
Raju
