Chattisgarh High Court
Wakeel Ahmed vs State Of Chhattisgarh on 23 February, 2023
HIGH COURT OF CHHATTISGARH, BILASPUR
Order Sheet
Cr.M.P. No.243 of 2023
Wakeel Ahmed Versus State Of Chhattisgarh & Anr
23.02.2023 Shri Ravindra Keshavrao Adsure along with Shri Chethan Singh Chouhan,
counsel for the Petitioner.
Heard on admission.
Admit.
Shri Devesh Verma, G.A appears, accepts notice for the Stat/Respondent
No.1 and prays time to file reply.
Issue notice to Respondent No.2 only on payment of PF as per rules.
Learned State Counsel shall inform Respondent No.2 through concerned
police station regarding this Petition and learned Counsel for the Petitioner is
directed to supply an additional set of copy of the Petition to the State Counsel,
for the said purpose.
Also heard on IA No.01/2023, an application for grant of interim relief/stay.
Issue notice to the said Respondent on this application also, as above.
Learned Counsel for the Petitioner submits that the
Complainant/prosecutrix is a 37 year old matured lady, who has lodged a
complaint on 03.08.2022 at PS Supela, Bhilai, District Durg against the Petitioner
alleging that the Petitioner had sexually exploited her under the pretext of
marriage firstly on 21.12.2014 at Hotel Grand Dhillon, Bhilai and from 14.09.2021
to 16.09.2021, they both have stayed at Hotel Sheraton, Pune. He further
submits that it is alleged in the FIR that from 20.09.2021 to 22.09.2021, they
stayed at the farm house of Khalid Ahmad at Malegaon, thereafter, the Petitioner
has ousted her from the job and refused to marry her. Based on the said
allegations, offence under Sections 376 and 376(2)(n) IPC was registered vide
FIR No.0720 dated 03.08.2022 at P.S Supela, Bhilai District Durg. He further
submits that the prosecutrix has firstly lodged a complaint before the Additional
S.P, Malegaon on 04.03.2022 and a legal notice was also sent to him on
09.03.2022. He submits that copies of several whatsapp chats are annexed
herewith to demonstrate that there is no whisper of any physical relationship on
the part of the Petitioner with the prosecutrix. He further submits that the specific
incident alleged to have taken place at Hotel Grand Dhillon, Bhilai as averred in
the FIR, has never took place and only with a mala fide intention, the prosecutrix,
in connivance with the local police in order to get the jurisdiction, made a mention
regarding such incident in the said FIR though on 21.12.2014, the Petitioner was
at abroad, which is duly recorded in the passport entry, which is also annexed
herewith and the Petitioner returned from abroad on 01.01.2015 and stayed till
12.01.2015 during which period i.e. on 03.01.2015, he went to visit one of his
partners and friends namely Arif, who is the maternal uncle of the prosecutrix,
where the prosecutrix and her divorced mother were staying with the family of
Arif. He further submits that due to the said relation, the prosecutrix got a job in
the Company where the Petitioner and Arif both are Directors and partners. He
contends that the prosecutrix is well aware that the Petitioner is a married person
having 3 children when she started blackmailing him and a complaint has been
lodged by the father of the Petitioner at PS Malegaon on 28.03.2022 and as no
action has taken place, therefore, an application under Section 156(3) Cr.P.C
was filed before the JMFC, Malegaon on 19.05.2022 to save herself and the
instant FIR was lodged on 03.08.2022. He further contends that there is
inordinate delay in lodging the FIR, further from a bare reading and the face
value of the said FIR, no offence has been made out against him. In this regard,
learned Counsel for the Petitioner placed reliance on the judgment rendered in
the matter of Naim Ahamed vs. State (NCT of Delhi) reported in 2023 SCC
OnLine SC 89 wherein, at para-11, it was materially observed as under:-
"11. It cannot be gainsaid that a consent given
by a person would not be a consent as intended
by any Section of the Penal Code, 1860, if such
consent was given by the person under the fear
of injury, or under a misconception of fact as
contemplated in Section 90 IPC. Further,
Section 375 also describes certain acts which if
committed by the accused under the
circumstances mentioned therein, as the
commission of 'Rape', even though committed
with the consent of the prosecutrix. In our
opinion, the expression "misconception of fact"
contained in Section 90 IPC is also required to
be appreciated in the light of the Clauses -
contained in Section 375 IPC, more particularly
the Clauses - Thirdly, Fourthly and Fifthly
thereof, when the accused is charged for the
offence of 'rape'. The circumstances described
in the said three Clauses are wider that the
expression "misconception of fact", as
contemplated in Section 90 of IPC. Section 375
describes seven circumstances under which the
'rape' could be said to have been committed, as
per the Clause - Thirdly, a rape could be said to
have been committed, even with her consent,
when the consent of the prosecutrix is obtained
by putting her or any person in whom she is
interested in fear of death or of hurt. As per the
Clause - Fourthly, with her consent, when the
man knows that he is not her husband and that
her consent is given because she believes that
he is another man to whom she is or believes
herself to be lawfully married; and as per the
Clause - Fifthly, with her consent when at the
time of giving the consent, the prosecutrix by
reason of unsoundness of mind or intoxication
or the administration of stupefying or
unwholesome substance by the accused or
through another, she is unable to understand
the nature and consequences of that to which
she gives consent. Thus, apart from the
prosecutrix being under the misconception of
fact as contemplated in Section 90, her consent
would be treated as 'no consent, if she had
given her consent under any of the
circumstances mentioned in Section 375 of
IPC."
He further submits that as no such circumstances are available in the case,
therefore, considering the view taken in the matters of A.P. Mahesh Cooperative
Urban Bank Shareholders Welfare Association vs. Ramesh Kumar Bung and
Others and Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and
Others reported in (2021) 9 SCC 152 and 2021 SCC OnLine SC 315
respectively, interim relief may be granted quashing the FIR impugned.
Learned State Counsel opposed the prayer.
Considering the submissions made by learned Counsel for the parties and
the material available on record, purely as an interim measure, it is ordered that
the effect and operation of further proceedings in R.C.C. No.12215/2022 pending
before the CJM, Durg arising out of FIR No.720/2022 dated 03.08.2022
registered at PS Supela, Bhilai, District Durg for the offence under Sections 376
and 376(2)(n) IPC and all other further proceedings arsing of the said FIR, shall
remain stayed till the next date of hearing.
Post the matter after service is complete and reply is filed.
C.C today.
Sd/-
(Deepak Kumar Tiwari)
Judge
Priya
