Madhya Pradesh High Court
Rahul vs The State Of Madhya Pradesh on 8 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 8th OF MAY, 2024
MISC. CRIMINAL CASE No. 52014 of 2023
BETWEEN:-
RAHUL S/O SHRI SHYAMKUMAR
SHARMA, AGED ABOUT 37 YEARS,
OCCUPATION: BUSINESS, R/O 1187,
SCHEME NO. 114, PART 1, INDORE
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI OMPRAKASH SOLANKI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION LASUDIYA, DISTT.
INDORE (MADHYA PRADESH)
2. VICTIM X, THROUGH P.S. LASUDIYA,
DIST. INDORE (MADHYA PRADESH)
.....RESPONDENTS
(R. NO.1 BY KRATIK MANDLOI - PANEL LAWYER)
This petition coming on for admission this day, the court passed
the following:
ORDER
The applicant has preferred this petition under Section 482 of
Code of Criminal Procedure, 1973 (in short, 'Cr.P.C.') for quashment of
First Information Report (in short, 'FIR') dated 08/12/2022 registered
against him at Crime No.1874/2022 at Police Station Lasuidya, District
Indore (M.P.) for the offences under Section 366, 376, 376(2)(n), 377
and 506 of Indian Penal Code, 1860 (in short 'IPC'), order dated
21/07/2023 passed by 8th Additional Sessions Judge and Special Judge
(O.A.W.), Indore (M.P.) in S.T.No.41/2023, whereby charges under
Section 376(2)(n), 366, 377 and 506 (Part-II) of IPC have been framed
against the applicant as well as all consequential proceeding thereto.
02. The brief facts of the case are that prosecutrix is a major and
married lady. Accused / applicant was residing in front of her house.
Applicant developed friendship with her and after some time, he told her
that he annoyed with his wife and proposed her for marriage. In the
month of February, 2022, applicant came to the house of prosecutrix
when she was alone there and established physical relationship with her
on the pretext of marriage and told her not to disclose the incident to
anyone. After some time, when her husband got knowledge of her
relationship with the applicant and then husband of the prosecutrix
expelled her from his house. On 03/10/2022 prosecutrix went to the
applicant's house, where applicant denied to live with her and wife of the
applicant refused to stay in the house. Thereafter, they went to Ujjain
with the applicant and stayed there for two days, and applicant
committed unnatural sexual act with her forcibly. On 06/12/2022,
applicant left her and not attended her phone calls and switched off his
phone. He also threatened the prosecutrix that he will kill children. On
this complaint, police registered an FIR.
03. Learned counsel for the applicant contended that from perusal of
the FIR it shows that there is a consent based relationship between the
applicant and prosecutrix and prima facie no ingredients of offence
under Section 375 and 377 of the IPC are made out against the applicant.
Despite that trial Court has committed an error in framing charge against
him under Section 376(2)(n), 366, 377 and 506 (Part-II) of IPC.
Prosecutrix is a major lady and admittedly she took mutual divorce from
her husband on 16/12/2022 vide judgment passed by the 2nd Additional
Principal Judge, Family Court, Indore. In a consensual sexual
relationship with a man other than her husband, cannot later on liable
him to prosecute for rape on the ground of false pretext of marriage. FIR
has been lodged against him with mala fide intention. On the basis of
aforesaid, it has been prayed that the impugned order passed by the trial
Court be set aside and the FIR and all other consequential proceedings
be quashed.
04. Per contra, learned counsel for the respondent/State vehemently
opposes the prayer made by applicant and submitted that the contentions
canvased by the applicant are in the nature of his defence, which cannot
be believed without recording of the evidence.
05. Despite service of notice, nobody appeared on behalf of the
respondent No.2 / prosecutrix.
06. I have heard learned counsel for both the parties at length and
perused the record with due care.
07. Before entering into the facts and circumstances of the instant
case, it is necessary to consider the ambit and scope of jurisdiction
provided under Section 482 of Cr.P.C. It is well settled that exercise of
powers under Section 482 of Cr.P.C. is exception and not the rule. Under
this section, the High Court has inherent power to make such orders as
may be necessary to give effect to any order under the Cr.P.C. or to
prevent the abuse of process of any Court or otherwise to secure the ends
of justice. But the expressions "abuse of process of law" or "to secure
the ends of justice" do not confer unlimited jurisdiction on the High
Court and the alleged abuse of process of law or the ends of justice could
only be secured in accordance with law, including procedural law and
not otherwise.
08. In the instant case, admittedly the prosecutrix is a major, matured
and married lady. She got mutual divorce from her husband Ajay Rajput
and 2nd Additional Principal Judge, Family Court, Indore vide judgment
and decree dated 16/12/2022 passed a divorce decree by which her
marriage has been dissolved with her earlier husband. Applicant is also a
major, married and mature person. As per the prosecution story, on the
pretext of marriage, present applicant sexually exploited the prosecutrix.
09. Hon'ble the Apex Court in the case of Prashant Bharti Vs. NCT
of Delhi reported in AIR 2013 SC 2753 has held that under Section 376
of IPC, complainant alleging that her consent was obtained under
promise of marriage. Complainant found to be already married at the
relevant time and obtaining consent of married woman for sex on
assurance of marriage is incomprehensible, therefore, allegation of
complainant stands falsified.
10. Hon'ble the apex Court in the case of Dr. Dhruvaram Murlidhar
Sonar Vs. State of Maharashtra and Others reported in AIR 2019 SC
327, in para 20 has held as under:
"20. 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. There is
also a distinction between mere breach of a
promise and not fulfilling a false promise. If the
accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in
sexual acts, such an act would not amount to rape.
There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love
and passion for the accused and not solely on
account of the misconception created by accused,
or where an accused, on account of circumstances
which he could not have foreseen or which were
beyond his control, was unable to marry her
despite having every intention to do. Such cases
must be treated differently. If the complainant had
any mala fide intention and if he had clandestine
motives, it is a clear case of rape. The
acknowledged consensual physical relationship
be- tween the parties would not constitute an
offence under Section 376 of the IPC.
Again similar principle has been laid down by the Apex Court in
the case of XXXX Vs. State of Madhya Pradesh and Another passed
in Criminal Appeal No.3431/2023 on 06/03/2024.
11. In the instant case, prosecutrix is a major, matured and married
lady. It is not a case where prosecutrix was of an immature age, who
could not foresee her welfare and take right decision. She was a grown
up lady and matured and intelligent enough to understand the
consequences of the moral and immoral acts for which she consented
during subsistence of her earlier marriage. In fact, it was a case of
betraying her husband. It is the also admitted case of the prosecutrix that
her husband came to know about her illicit relationship with the
applicant and expelled her from his house. Thereafter, they were
separated and got decree of divorce by way of mutual consent. After
getting the divorce from her husband, prosecutrix started living with the
present applicant and established physical relationship with him. All
these circumstances lead to the conclusion that prosecutrix freely,
voluntarily and consciously consented to having sexual intercourse with
the applicant and her consent was not in consequence of any
misconception of fact.
12. The evidence as a whole including FIR, testimony of prosecutrix
and MLC report prepared by medical practitioner clearly indicate that
the story of prosecutrix regarding sexual intercourse on false pretext of
marrying her is concocted, false and not trustworthy. In fact, the said act
of the applicant seems to be consensual in nature and any question of
misconception and misrepresentation does not arise.
13. From perusal of the aforesaid evidence available on record, this
Court is of the considered opinion that the prosecutrix / respondent No.2
was having physical relationship with the applicant since long period.
Under these circumstances of the case, it cannot be said that applicant
made physical relationship with the prosecutrix on the pretext of
marriage and after that he refused to marry her. Prosecutrix was also a
married woman and during the relationship with the applicant, she got a
decree of divorce from her husband.
14. In these circumstances, no offence under Sections 376(2)(n), 366,
377 and 506 (Part-II) of IPC is made out against the applicant and this
Court is of the considered view that prosecution of the applicant for the
aforesaid offences in respect of Crime No.1874/2022 registered at Police
Station Lasuidya, Indore would be nothing but misuse of process of law.
Present case is a fit case, where extra ordinary powers inherited to this
Court may be exercised in favour of the present applicant.
15. Accordingly, present petition filed under Section 482 of Cr.P.C. is
allowed and FIR dated 08/12/2022 registered at Crime No.1874/2022 at
Police Station Lasuidya, District Indore (M.P.) for the offences under
Section 366, 376, 376(2)(n), 377 and 506 of IPC and all consequential
proceedings arising therefrom along with impugned order dated
21/07/2023 passed by 8th Additional Sessions Judge and Special Judge
(O.A.W.), Indore (M.P.) in S.T.No.41/2023, whereby trial Court has
framed charges against the applicant, are also hereby quashed. Applicant
Rahul Sharma is hereby discharged from all the aforesaid offences.
Certified copy as per rules.
(ANIL VERMA)
J U D G E
Tej
