Alok Kumar vs State & Anr.
2010 Latest Caselaw 3669 Del

                 * IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                          Date of Reserve: July 12, 2010
                                                           Date of Order: 9th August, 2010
+ Crl.M.C.No. 299/2009
%                                                                       09.08.2010

         Alok Kumar                                              ... Petitioner
                                 Through: Mr. Ajay Burman, Mr. Anwesh Madhukar,
                                 and Mr. Rajesh Samanotra, Advocate

                  Versus


         State & Anr.                                      ... Respondents
                                 Through: Mr. Sunil Sharma, APP for the State
                                 Mr. Sandeep Sethi, Sr. Advocate with
                                 Mr. Jayant K. Sud & Mr. Atul Sahi, Advocates


JUSTICE SHIV NARAYAN DHINGRA

1. Whether reporters of local papers may be allowed to see the judgment?       Yes.

2. To be referred to the reporter or not?                                      Yes.

3. Whether judgment should be reported in Digest?                              Yes.

JUDGMENT

The present petition has been filed for quashing of FIR No.

426/2007 PS IGI Airport registered against the petitioner under Section

354/506 IPC.

2. The complainant (respondent no.2 herein) got this FIR

registered stating therein that she was in 'live-in relationship' with the

petitioner for more than 05 years and was involved with him physically,

emotionally and mentally. The petitioner had promised to marry her as soon

as possible. Few days back (from date of registration of FIR) she learnt that

petitioner was getting married to someone else, so she came to IGI airport to

remind him of his promises and refresh memories (as he was leaving India).

The petitioner told her to solve the matter and took her to visitors' lounge

where she started arguing with her. In the meantime he went to washroom

and gave his passport to the complainant to keep in safe custody. While

coming from toilet he was bit angry and pushed her at visitors' lounge of IGI

airport outside the toilet, started abusing her and saying that he would kill her.

She (complainant) was trying to make him calm but he suddenly became

violent and started hitting her. He pulled her with her breast and punched her

at her head, face and neck. Many people came to her rescue but he punched

her on her breast. He got a cab and went out of scene but while running he

forgot his passport with her. The time of occurrence of incident is shown as

1.00 pm on 18th October, 2007 and the time of registration of FIR is shown as

4.00 pm.

3. The complainant had also lodged another FIR against the

petitioner under Section 376 IPC wherein she made following allegations:

6. In the month of September, 2004 he invited me to visit him in London. During that stay in London in his house 16, Narine Grove, Dulwich Village, London SP 24, 9PU we became intimate with each other and also had physical relations, but only after he promised and assured that he will marry me after his divorce has taken place with his first wife, from whom he had a son.

7. In this way we kept on meeting in Delhi in London and had physical relations and every time he kept on promising and assured me that we will get married as soon as his divorce will be through.

x x x x x

15. I got suspicious and went to IGI International Airport at around 11.00-11.30 am on 18th October and found Mr. Alok Kumar holding hands of a lady, whose name I came to know later as Ms. Amrita Das R/o Sector 41, Noida and Mr. Alok Kumar was having his arm around her waist.

16. On my confronting him, he sent away that lady and reacted violently with me and also misbehaved and physically assaulted me, all the facts of the incident have been reported by me in my complaint in Police Station IGI Airport on the very same day, on the basis of my complaint a case under Section 354/506 IPC was registered against Mr. Alok Kumar (a copy of the FIR is enclosed herewith for ready reference).

4. The petitioner's contention is that on 18th October, 2007 he had

come to IGI Airport as he was a solicitor in London and was returning back to

London. He had not denied about live-in relationship with the complainant but

had stated that his parents did not agree to this marriage because of certain

reasons. He was to catch flight of Virgin Atlantic Airlines to London and he

reached airport around 12.05 pm with his fiancée and was about to enter

departure building when complainant called him from behind and asked him to

talk for about five minutes. He agreed to talk and while talking she snatched

his passport from his shirt pocket and told that she would not return the

passport unless he accompanied her and solemnized marriage with her in a

temple forthwith. He told her that he had to report at check-in counter latest

by 12.35 pm. The complainant after taking her passport went to ladies toilet

and did not come out till 12.45 pm, he missed his flight. After coming out from

toilet she told him that she had torn away his passport and flushed it.

Complainant also started screaming and shouting at him that she would not

allow him to marry another woman. Many people were looking at them. She

left the place in a scooter and told him to come to her sister's house. He went

to her sister's house kept waiting there but she did not come there. Thereafter

he learnt about lodging of this FIR.

5. It is submitted by the petitioner that the allegations made by the

complainant about molesting her were preposterous and the FIR was lodged

with mala fide intention to prevent the petitioner from going to London where

petitioner was practicing. The complainant subsequently lodged another FIR

under Section 376 IPC against the petitioner with the same motive.

6. From the allegations made by the complainant, it is apparent

that when the complainant started 'live-in relationship' with the petitioner, the

petitioner had not even divorced his previous wife though it seems was living

separate from her. The complainant was having a child while the petitioner

was also having a child. 'Live-in relationship' is a walk-in and walk-out

relationship. There are no strings attached to this relationship, neither this

relationship creates any legal bond between the parties. It is a contract of

living together which is renewed every day by the parties and can be

terminated by either of the parties without consent of the other party and one

party can walk out at will at any time. Those, who do not want to enter into

this kind of relationship of walk-in and walk-out, they enter into a relationship

of marriage, where the bond between the parties has legal implications and

obligations and cannot be broken by either party at will. Thus, people who

chose to have 'live-in relationship' cannot complain of infidelity or immorality

as live-in relationships are also known to have been between married man

and unmarried woman or between a married woman and an unmarried man.

7. It is admitted case of the complainant that she herself came to

IGI International Airport when she learnt that the petitioner was going back to

London and was about to marry someone else and it is complainant's own

case that she could not tolerate this and wanted to remind the petitioner of

good old days and promises. She subsequently lodged an FIR under Section

376 IPC against the petitioner. These facts make it abundantly clear that sole

design of the complaint was to prevent the petitioner from leaving India

because petitioner had decided to walk out of the live-in relationship between

the parties. This is clear from the sequence of events stated by the

complainant in her compliant. She in her complaint under Section 354/506

IPC had not stated as to at what time she reached the airport but in her

subsequent FIR she had given time of her reaching at the airport at 11.30

a.m. Obviously, she had reached airport well in advance knowing the timing

of the flight. It seems the quarrel had taken place when the petitioner was to

enter the departure building as there is no visitors' lounge at IGI Airport

(International) and the visitors have to stay outside the departure building

where taxis and cars drop the passengers who have to catch flight. There are

several gates at the departure building and each gate is manned by security

persons, no one can enter the departure building without an air-ticket and a

passport or without a security pass. The police post is at one corner of the

departure building itself and police station is downstairs near arrival building.

The alleged incident reported by complainant had taken place around 12.30

p.m., the FIR was lodged at 4.00 pm when the police post is at the corner of

the departure building. The four and half hours difference in lodging of FIR

shows that the FIR was lodged after a considerable long time with a design to

deposit passport of the petitioner with the police so late that the passport of

the petitioner was not returned to the petitioner. This is clear from the

subsequent events as the petitioner was not returned his passport by police

and his LoC was opened by the police. This case reflects that the police was

acting under some influence. Even thereafter when petitioner asked for return

of passport to the police, the police refused to return it on the ground that it

was part of the case property.

8. It is settled law that the Court should refrain from quashing FIR

on the ground that allegations made in FIR were false. However, when FIR is

lodged with mala fide motives to wreck vengeance, the Courts have interfered

as an exceptional matter and quashed the FIRs. In M/s Eicher Tractors

Limited & Ors. v. Harihar Singh & Anr. 2009(1) JCC 260, State of Karnataka

v. M. Devendrappa 2002 (1) JCC 214, State of Haryana v. Bhajan Lal 1992

SCC (Crl.) 426 and Madhavrao J. Scindhia v. Sambhajirao C. Angre 1988

SCC (Crl.) 234, Supreme Court held that where allegations made in an FIR or

complaint were so absurd and inherently improbable on the basis of which no

prudent person could ever reach a just conclusion, this was sufficient ground

for quashing the FIR. The Apex Court also held that where criminal

proceeding is manifestly attended with mala fide and where proceeding is

maliciously instituted with an ulterior motive for wrecking vengeance on the

accused and with a view to spite him due to private and person grudge, the

FIR can be quashed.

9. In the present case, motive of the complainant is writ large in her

two complaints. She had entered into live-in relationship knowing fully well

that the petitioner was not even divorced at that time. She being an educated

lady, already once married, was not a naïve as not to know the realty of live-in

relationship. It cannot be thought that she was not aware that live-in

relationship was not a marriage but it was a relationship of convenience

where two parties decide to enjoy company of each other at will and may

leave each other at will. However, despite entering into 'live-in relationship'

with the petitioner, she could not tolerate that petitioner should marry

someone else and when the petitioner was about to leave India with his

fiancée and was at the airport, she went to the airport with the sole motive,

which is clear from the sequence of events, to prevent petitioner from flying

out from India and to teach him a lesson. She had been lived with the

petitioner in London. She knew that the petitioner was working in London.

She enacted the events in such a manner that the petitioner could not get

hold of his passport for considerable long time and could not leave India for

that period. She made allegations of rape against the petitioner.

10. This Court while granting anticipatory bail to the petitioner in the

rape case lodged by the complainant observed as under:

7. The facts of the case as narrated in two FIRs show that there was admittedly a live-in relationship between the Petitioner and the complainant for more than five years. The petitioner found that he could not go ahead with the marriage although at one point of time the parties had proposed to marry each other. The circumstances narrated preclude an automatic inference on absence of that consent of that complainant. Such conclusion would have to be preceded by a careful examination of events that transpired during the five years when the live-in relationship subsisted and during which according to the complainant she underwent an abortion as well. Prima facie it appears to this Court, on the basis of existing averments in the FIR that it would be unsafe to infer an absence of consent of the complainant; which is an essential ingredient of the offence of rape. The Court is also unable to discern parity of the facts in Yedla Srinivasa Rao v. State of Andhra Pradesh and the instant case. There the prosecutrix was between 15 years and 17 years living in a village and right from the beginning she refused to participate in the act but the accused kept on persisting and persuading her. The fact that the police took four months to register the second FIR is also a pointer to the difficulty in early inferring the offence of rape in these circumstances."

11. I consider that the FIR No. 426/2007 PS IGI Airport was got

registered against the petitioner out of malice in order to wreck vengeance on

the petitioner because petitioner refused to continue live-in relationship with

the complainant, after due deliberations. The incident is of 12.30 pm (around)

FIR's registration time is 4.00 pm, MLC of complainant was done at 7.15 pm

showing no external injuries on her body. The allegations that accused

petitioner, despite his fiancée being there handed over his passport to her for

safe custody are preposterous. It is not her case that he was wearing clothes

with no pockets. There is no reason a man would hand over his passport to a

woman who had come to airport only to quarrel with him.

12. Keeping in view the above circumstances, I consider that it is a

fit case where FIR should be quashed to prevent the misuse of criminal justice

system for personal vengeance of a partner of 'live-in relationship'. The

petition is allowed. FIR No No. 426/2007 PS IGI Airport is hereby quashed.

August 09, 2010                                  SHIV NARAYAN DHINGRA, J.
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