Nikhil Narayan Mathur vs The State Of Madhya Pradesh
2022 Latest Caselaw 5980 MP

                                 1          MISC. CRIMINAL CASE No. 59397 of 2021




IN THE HIGH COURT OF MADHYA PRADESH
                          AT INDORE
                             BEFORE
              HON'BLE SHRI JUSTICE ANIL VERMA

                   ON THE 23rd OF APRIL, 2022

             MISC. CRIMINAL CASE No. 59397 of 2021

 Between:-
 NIKHIL NARAYAN MATHUR S/O SHRI VISHWADEEP MATHUR ,
 AGED ABOUT 34 YEARS, OCCUPATION: SERVICE S.A. 4 C-27
 SURYA NAGAR (UTTAR PRADESH)
                                                    .....PETITIONER
 (BY SHRI A.K. KHARE ADVOCATE )

 AND

 THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
 THR. P.S. AJK (MADHYA PRADESH)
                                                .....RESPONDENTS
 (BY SHRI RAJESH JOSHI, G.A. FOR STATE )
 (MS SURBHI BAHAL, ADVOCATE FOR OBJECTOR)
      This petition coming on     this day, the court passed the

following:

                             ORDER

The applicant has filed the present petition under Section 482 of the Code of Criminal Procedure (in short Cr.P.C.) for quashment of FIR and all consequential proceedings with regard to crime No. 296/2021 registered at police station AJAK Indore for commission 2 MISC. CRIMINAL CASE No. 59397 of 2021

of offence under section 376 (2)(n) and 506 of the Indian Penal Code, 1860 and Sec. 3(1)(w)(II), 3(2)(v) and 3(2)(va) of the Scheduled Caste / Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in short SC/ST Act).

As per prosecution story, the prosecutrix belongs to Scheduled Caste category and applicant belongs to General Caste. Applicant is working as Branch Manager in State Bank of India. In the year 2013-2014 when applicant was posted at Gwalior and he was living in a rented house, the prosecutrix used to go to his house for domestic chores and to cook food. The applicant contemplated her to marry in the year 2017. Applicant proposed her that she will have to leave her husband and children and stay with the applicant at Bhopal. Accordingly, the prosecutrix left her house and came to live with the applicant. The applicant kept the prosecutrix in a rented house at Indore and committed rape upon her several times without her consent. Applicant used to take her to Delhi and there also used to rape her several times in the Guest House and forced her to have unnatural sex with him by intoxicating the prosecutrix and threatened her to upload her porn video on social site. The applicant had committed her sexual harassment regularly and falsely implicated her in the case of blackmailing and due to which she was sent to Jail. The prosecutrix submitted a return complaint in P.S. Juni Indore, Indore against the applicant. On the basis of such complaint, FIR bearing No.296/2021 has been registered against the 3 MISC. CRIMINAL CASE No. 59397 of 2021

applicant.

Learned counsel for the applicant contended that prosecutrix is a 34 years old major lady and having two children. Applicant is a branch manager in state Bank of India Branch Naraina, New Delhi. He never gave any assurance to the prosecutrix to marry with her. After 2014 prosecutrix established physical relations with applicant on her accord and they came close with each other. After sometime, when applicant came to know that prosecutrix is a married lady and having 2 children, he told the prosecutrix that she will have to leave her husband and children, but the prosecutrix started pressurizing the applicant and used to threaten him that she will lodge report of committing rape against the applicant or she will commit suicide. When the applicant's marriage was fixed with Bhawna Saxena in the year 2016, then the prosecutrix started blackmailing him and on demand the applicant paid Rs. 5,00,000/- to her in two installments by transferring the amount in her bank account. However, the prosecutrix submitted a complaint in the Police station Mahila Thana against the applicant. The applicant again paid Rs. 2 lakhs to the prosecutrix.

It is further contended by the learned counsel for the petitioner that the prosecutrix admitted in her written complaint submitted before Mahila Thana that she wants to live with applicant and applicant will manage her expenses and also arrange place for her living, prosecutrix is a corrupt lady and earlier she lived with 4 MISC. CRIMINAL CASE No. 59397 of 2021

one Kunal as his wife. After misusing the relations she also left Kunal and therefore, applicant lodged the FIR against the prosecutrix for blackmailing him. On the basis of his FIR, offence under Section 384, 387, 388 and 34 of IPC has been registered against the prosecutrix. She remained in Jail and enlarged on bail by order of the High court. The prosecutrix continued to have physical relationship with the applicant even after knowing very well that he is not in a position to marry her. Even then if she had consensual sex with the applicant, then it is not a case where consent of the prosecutrix was obtained either by misrepresentation or misconception of fact. In support of his submission he has placed reliance upon following judgments of the Hon'ble Apex court and Hon'ble High courts:

1/ Judgment dated 22/11/2018 passed by Hon'ble Apex court passed in Criminal appeal No. 1443 of 2018 in case of Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra; 2/ State of Haryana Vs. Bhajan Lal reported in 1992 Supp(1) SCC 335.

3/ Uday Vs. State of Karnataka reported in 2003(2) Supreme 145;

4/ Tilak Raj Vs. State of Himachal Pradesh reported in AIR 2016 SC 406;

5/ Order dated 6/4/2018 passed by the Hon'ble Supreme court in Criminal appeal No. 504/2018 in the matter of 5 MISC. CRIMINAL CASE No. 59397 of 2021

Shivashankar @ Shiva Vs. State of Karnataka; 6/ Vineet Kumar Vs. State of UP reported in AIR 2017 SC 1884;

7/ Order dated 18/7/2019 passed by this Court in M.Cr.C. No. 16158/2019 (Umesh Lilani Vs. State of MP);

Under these circumstances he prays that the impugned FIR and the consequential proceedings initiated on the basis of aforesaid crime may be quashed.

Per contra, learned GA for State opposes the prayer and contended that consent of sexual intercourse was on account of false promise of marriage and the applicant very well knows the fact that his marriage with the prosecutrix is not possible even then he persuaded to have physical relationship on the pretext of marriage. Hence learned counsel prays for rejection of the petition.

Learned counsel for the prosecutrix also opposes the petition and prays for its rejection by submitting that there is sufficient evidence available on record to connect the applicant with the aforementioned crime.

I have heard learned counsel for the parties and perused the case diary and other relevant documents filed by the parties.

From perusal of the case diary, it appears that during posting at Gwalior as Branch Manager the applicant came in the contact of prosecutrix when he was staying in a rented house and the 6 MISC. CRIMINAL CASE No. 59397 of 2021

prosecutrix used to go to his house for domestic chores and to cook food, at that time intimacy was developed between them and physical relations was also developed. It is also admitted fact that prosecurix is a married lady aged about 34 years and having two children. It is also admitted position that whenever first time physical relations between applicant and prosecutrix was developed at that time applicant was unmarried. It is also alleged that prosecutrix left her husband and children and started living with the applicant at Bhopal and applicant has also kept the prosecutrix in a rented house at Bhopal. In the aforesaid circumstances, it appears that applicant made physical relations with the prosecutrix on the promise of marriage and she was confident that applicant will marry with her, but in the year 2016 when applicant's marriage was fixed with Bhawna Saxena then the dispute between applicant and prosecutrix has been started.

Learned counsel for applicant contended that prosecutrix blackmailed him and on her demand he had paid Rs. 5 lakhs to her in two installments. It is also admitted fact that present applicant lodged the FIR against the prosecutrix at Police Station Juni Indore and on the basis of said FIR offence under sections 384, 387, 388 and 34 of IPC has been registered against the prosecutrix and she was taken into custody and later on she was released on bail. It is also contended that prosecutrix had filed a compromise application before Mahila Thana Indore to the effect that applicant always 7 MISC. CRIMINAL CASE No. 59397 of 2021

loved her and she also wants to live with him but later on she has categorically denied to file such application before the police.

The Hon'ble Supreme Court in the case of Gyan Singh Vs. State of Punjab and others reported in (2012) 10 SCC 303, has also held as under :

"57. Quashing of offence or criminal proceedings on the ground of settlement between an offender and victim is not the same thing as compounding of offence. They are different and not interchangeable. Strictly speaking, the power of compounding of offences given to a court under Section 320 is materially different from the quashing of criminal proceedings by the High Court in exercise of its inherent jurisdiction. In compounding of offences, power of a criminal court is circumscribed by the provisions contained in Section 320 and the court is guided solely and squarely thereby while, on the other hand, the formation of opinion by the High Court for quashing a criminal offence or criminal proceeding or criminal complaint is guided by the material on record as to whether the ends of justice would justify such exercise of power although the ultimate consequence may be acquittal or dismissal of indictment."

Having carefully examined the law laid down by the Hon'ble Apex court in the case of Gian Singh (supra) and upon consideration of the material available on record, it is clear that interference under Section 482 of Cr.P.C. is not warranted.

In view of the prima facie evidence available on record, at this stage the allegation made by prosecutrix cannot be turned out that she has given consent for physical relationship with the 8 MISC. CRIMINAL CASE No. 59397 of 2021

applicant under misconception of the fact and on the pretext of marriage. All these questions can be decided after recording of evidence by both the parties. At this stage it cannot be said that no prima facie case is made out against the present applicant.

Hence present petition filed by applicant for quashment of FIR and consequential proceedings have no merit and is hereby dismissed.

C.C. as per rules.

(ANIL VERMA) JUDGE BDJ

Digitally signed by BHUVNESHWAR DATT JOSHI Date: 2022.04.27 15:24:29 +05'30'