Madhya Pradesh High Court
Anil Sanwale vs The State Of Madhya Pradesh on 8 December, 2022
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 8th OF DECEMBER, 2022
MISC. CRIMINAL CASE No. 56375 of 2021
BETWEEN:-
ANIL SANWALE S/O SHRI RADHESHYAM SANWALE, AGED
ABOUT 32 YEARS, OCCUPATION: JOB VILL. KANKARIYA, TEH.
KHATEGAON (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SHYAM SHUKLA, ADVOCATE.)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
1. THRU. PS. MAHILA THANA DISTT. INDORE (MADHYA
PRADESH)
RAJSHRI CHOUHAN D/O PHOOLSINGH CHOUHAN, AGED
2. ABOUT 28 YEARS, OCCUPATION: PRIVATE JOB 20/B
SHIKSHAK NAGAR, AERODROME ROAD (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1/STATE BY SHRI PRANAY JOSHI, PANEL
LAWYER.)
(RESPONDENT No.2 BY Ms. BHAKTI VYAS, ADVOCATE.)
This application coming on for hearing this day, the court
passed the following:
ORDER
This petition under Section 482 of Cr.P.C.has been filed to
quash FIR bearing Crime No.76/2021 registered at P.S., Mahila
Thana, Indore for the offence punishable under Section 376, 376(2)
(n), 323, 506 of IPC.
2. Brief facts giving rise to this petition are that on 23.3.2021 at
about 18.45 PM complainant/prosecutrix made a written complaint to
SHO, P.S., Mahila Thana, Indore to the effect that she and applicant
Anil Sanwale both belong to same community. In the year 2018 they
met on a matrimonial site, thereafter applicant alongwith his family
members came to the complainant's house saying that he was bachelor
and wanted to marry with the complainant. Applicant called the
complainant at Bijasan Mandir and thereafter on the pretext of
showing his house took her at his rented house 376, Bajrang Nagar,
Indore and on the false pretext of marriage committed sexual
intercourse with her. He made physical relationship with her several
times. In the meantime complainant came to know that applicant was
already married, therefore, she asked about the same, then applicant
told her that he had taken divorce from his earlier wife. Even after that
applicant on the false pretext of marriage established physical
relationship with her and executed a notarized agreement with regard
to their marriage. Applicant and complainant resided at applicant's
rented house 376, Bajrang Nagar, Indore till 31.5.2018 and thereafter
at Chitra Nagar, Indore, where both of them resided till the lock down
and the applicant made physical relationship with her repeatedly. After
that when complainant asked applicant to solemnize the marriage, he
refused to marry with her, then complainant's made aforesaid written
complaint on the basis of which FIR bearing Crime No.76/2021 was
registered against the applicant at P.S., Mahila Thana, Indore for the
offences punishable under Section 323, 376, 376(2)(N), 506 of IPC.
After completion of investigation charge sheet was filed against him.
Being aggrieved by the same the instant petition has been filed for
quashment of the FIR.
3. Learned counsel for the applicant submits that it is apparent
from the statement of the complainant as well as her written complaint
that applicant right from the beginning wanted to marry with her. He
alongwith his family members went to the complainant's house,
proposed her to marry with him. It is apparent from the notarized
agreement executed by the applicant and the complainant both that
complainant very well knew about the earlier marriage of the
applicant, even then she resided with the applicant as his wife for
about three years. In view of the aforesaid allegations alleged against
the applicant that he obtained her consent on the false pretext of
marriage and committed rape upon her apparently appears to be false.
Applicant has taken divorce from his earlier wife and solemnized
marriage with the complainant, therefore, ingredients of Section 376
of IPC are not fulfilled against him. Complainant nowhere stated about
any assault or threatening even by the applicant, therefore, no offence
is made out against him. Therefore, the petition be allowed and the
FIR be quashed. He has placed reliance on the judgment of Hon'ble
Supreme Court in the case of Mandar Deepak Pawar Vs. State of
Maharashtra and another passed in Cri.Appeal No.442/2022.
4. Learned counsel for the respondent No.1/State has opposed the
prayer and submits that the applicant being married introduced himself
as bachelor and on the false pretext of marriage obtained consent of
the complainant, therefore, ingredients of Section 376 of IPC are very
well attracted in the case. Complainant as well as other prosecution
witnesses have specifically made allegations against the applicant,
therefore, this petition is devoid of merit and be dismissed.
5. Learned counsel for the respondent No.2 submits that
complainant was not aware about the fact that applicant was married.
He introduced himself as bachelor and thereafter on the false pretext
of marriage obtained her consent. He after executing agreement kept
the complainant as his wife for a long period and thereafter refused to
solemnize marriage with her. The petition is devoid of merit and be
dismissed. Learned counsel for the respondent No.2 has placed
reliance on the judgment of Hon'ble Supreme Court in the case of
State of U.P. Vs. Chhoteylal, AIR 2011 SC 697.
6. Heard learned counsel for the parties and perused the record.
7. In the case of Deepak Gulati Vs. State of Haryana, reported in
(2013) 7 SCC 675, the Apex Court has held that for the offence
punishable under Section 375 of IPC, it has to be seen whether at the
initial stage itself, accused was not having the intention whatsoever, of
keeping his promise to marry the victim, the relevant extract is as
follows :-
"It is evident that there must be adequate evidence
to show that at the relevant time, i.e. at initial stage
itself, the accused had no intention whatsoever, of
keeping his promise to marry the victim. There
may, of course, be circumstances, when a person
having the best of intentions is unable to marry the
victim owing to various unavoidable
circumstances. The "failure to keep a promise made
with respect to a future uncertain date, due to
reasons that are not very clear from the evidence
available, does not always amount to
misconception of fact. In order to come within the
meaning of the term misconception of fact, the fact
must have an immediate relevance." Section 90 of
IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten
criminal liability on the other, unless the Court is
assured of the fact that from the very beginning the
accused had never really intended to marry her."
8. In the case of Dr.Dhruvaram Murlidhar Sonar Vs. The State
of Maharashtra also, the Apex Court has held as under :-
"20. 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 ambit of cheating or deception."
9. In the instant case, admittedly, complainant was major at the
time of incident.8 She in her written complaint dated 23.3.2021
specifically stated that she herself and applicant both belong to the
same community and applicant alongwith his family members went to
her house and gave proposal to marry with her, therefore, it cannot be
inferred that applicant's intention right from the beginning was not to
solemnize marriage with her. Complainant herself in her written
complaint as well as notarized affidavit/agreement stated about the
fact that she even after knowing the fact that applicant was earlier
married and was having a son lived with him at his rented house 376,
Bajrang Nagar, Indore and thereafter at another rented house situated
at Chitra Nagar, Indore for about more than two years as his wife.
Prosecution witness Kuldeep Saluja in his statement recorded under
Section 161 of Cr.P.C.specifically stated that complainant told him
about the acts of the applicant addressing as her husband.
10. In view of the above, it cannot be said that applicant obtained
complainant's consent on the basis of false promise of marriage.
Complainant stated in her complaint that applicant kept her till the
lock down period and thereafter refused to marry with her, but she has
nowhere explained as to why she did not lodge the FIR against the
applicant till 23.3.2021. As complainant has not explained the reasons
for delayed FIR, therefore, submission made by the learned counsel
for the applicant that the same is counter blast of the FIR dated
14.5.2020 lodged by him against the complainant at P.S., Khategaon,
District Dewas has also force.
11. In this backdrop the allegations of the complainant that the
applicant on false pretext of marriage made sexual and physical
relationship with her cannot be relied upon as dealt by Hon'ble
Supreme Court in the case of Mandar Deepak Pawar Vs. State of
Maharashtra and another, in Criminal Appeal No.442/2022 dated
27.7.2022 cited by the applicant.
12. In view of the aforesaid discussion, allowing the prosecution to
continue in the case would amount to abuse of the process of Court,
therefore, it is necessary to quash the proceedings in the order to serve
the ends of justice. As such, the FIR bearing Crime No.76/2021 in the
instant case as well as subsequent criminal proceedings of
S.T.No.654/2021 are liable to be quashed.
13. Consequently, this petition under Section 482 of Cr.P.C. is
allowed. FIR bearing Crime No.76/2021, registered at P.S., Mahila
Thana, Indore against the applicant for the offences punishable under
Sections 323, 376, 376(2)(N), 506 of IPC and subsequent criminal
proceedings of S.T.No.654/2021 pending before the Court of
Addl.Sessions Judge, Indore are hereby quashed.
Patil (SATYENDRA KUMAR SINGH)
JUDGE
Digitally signed by
SHAILESH PATIL
Date: 2022.12.09
10:17:56 +05'30'
