Madhya Pradesh High Court
Saman Basoor vs The State Of Madhya Pradesh on 29 May, 2024
Author: Vishal Dhagat
Bench: Vishal Dhagat
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL DHAGAT
ON THE 29 th OF MAY, 2024
MISC. CRIMINAL CASE No. 11134 of 2023
BETWEEN:-
SAMAN BASOOR S/O SHRI PARAMJEET SINGH
BASOOR, AGED ABOUT 29 YEARS, OCCUPATION:
BUSINESS RESIDENT OF ANANTARA TILHARI POLICE
STATION GORABAZAR JABALPUR DISTRICT JABALPUR
(MADHYA PRADESH).
.....PETITIONER
(BY SHRI MANISH DATT - SENIOR ADVOCATE WITH SHRI N.P. VARMA -
ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION GORABAZAR DISTRICT
JABALPUR (MADHYA PRADESH).
2. VICTIM A D/O NOT MENTION NOT MENTION
(MADHYA PRADESH).
.....RESPONDENTS
(BY SHRI SANTOSH YADAV - DEPUTY GOVERNMENT ADVOCATE)
This petition coming on for admission this day, th e court passed the
following:
ORDER
Petitioner has filed this petition under Section 482 of the Code of
Criminal Procedure for quashing and setting aside of order dated 13.02.2023
passed in MJCR No. 4548/2021, by the Judicial Magistrate First Class,
Jabalpur.
2. A complaint was filed on 29.12.2019 by prosecutrix at Police Station
Gora Bazar, District Jabalpur under Section 376(2)(n) of Indian Penal Code,
which was registered at Crime No. 313/2019. After investigation, police filed
closure report bearing No. 1/19, dated 28.02.2020. Statement of prosecutrix in
closure case was recorded on 30.06.2022. She stated that she became
acquainted with petitioner on Facebook. It is submitted that petitioner
introduced her to his mother and family members and assurance was given for
engagement. After visit of petitioner to Europe, attitude of petitioner and his
family members changed. Petitioner promised her to do marriage and
established physical relationship with her. After establishing physical
relationship, petitioner did not marry her. She went to police station and filed a
complaint. On complaint, petitioner has filed an affidavit that he is ready to
marry the prosecutrix. Prosecutrix had also signed on paper that she does not
want any further proceedings against petitioner. No action was taken against
petitioner by police and thereafter, petitioner refused to marry her. Petitioner has
done her physical and mental exploitation. Prosecutrix want to prosecute
petitioner and her mother. Statement of investigating officer Surekha Parmar
was also recorded. It is submitted that FSL report of prosecutrix is negative
and no other witness or documentary evidence was found, which could
establish offence against petitioner as alleged by prosecutrix. Therefore, closure
report 1/20 is filed on 28.02.2020. Taking into account aforesaid statement,
Court gave finding that detailed investigation was not done by investigating
officer. All witnesses ought to have been examined by investigating officer.
Prosecutrix made statement against petitioner for prosecuting him. Considering
statement of complainant and seriousness of offence, Court directed for further
investigation in the matter.
3. Learned Senior Counsel appearing for petitioner submitted that no
offence under Section 376(2)(n) of IPC is made out against the petitioner, as it
is a case of breakdown of relationship which cannot be equated with rape.
Police after investigation had come to conclusion that it is a case of consensual
sexual relationship. Police investigated the matter and did not find any offence
against the petitioner. Learned Senior Counsel appearing for petitioner placed
reliance on judgment passed in case of Shivshankar @ Shiva vs State of
Karnataka and another, reported in 2018 (3) All Cr. LR 87 (SC), wherein it
is observed that it is difficult to hold that sexual intercourse in course of a
relationship which continued for eight years, as 'rape.' Reliance is also placed
on judgment passed in case of Dhruvaram Murlidhar Sonar vs State of
Maharashtra, reported in AIR 2019 SC 327, wherein it was held by Apex
Court Court that there is clear distinction between rape and consensual sex.
Court must very carefully examine whether complainant had actually wanted to
marry the victim or had malafide motives and had made a false promise to this
effect only to satisfy his lust. Only later case will fall within ambit of cheating
and deception. Apex Court further held that there is distinction between mere
breach of promise and not fulfilling of false promise. If accused is not made the
promise with the sole intention to seduce the prosecutrix to indulge in sexual
acts, would not amount to rape. There may also be cases where prosecutrix
agrees on account of love and passion for accused and not solely on account
of misconception created by accused. Knowledge of consensual relationship
does not constitute offence of rape. Learned Senior Counsel appearing for
petitioner submitted that prosecutrix is a matured woman of 25 years of age. In
this case, there was breakdown of relationship between petitioner and
prosecutrix and therefore, petitioner does not agree to marry her. Facts as
narrated in police investigation and also in statement given by prosecutrix in
Court will not make out any offence under Section 376 of Indian Penal Code.
Trial Court had committed an error in rejecting closure report filed by police.
4. Government Advocate appearing for the state opposed the prayer and
submitted that petitioner is an influential person. He may use his influence in
investigation also. Petitioner was named in complaint given by prosecutrix, but
police has recorded complaint against unknown person. Petitioner has given an
affidavit before Superintendent of police that he wants to marry the prosecutrix.
Over this, prosecutrix has filed an application for not taking any further action
against the petitioner. Thereafter, petitioner refused to marry the prosecutrix.
Facts clearly show that petitioner is trying to influence the investigation of case
and under his influence, closure report has been filed.
5. Heard learned counsel for the parties.
6. On considering facts and circumstances of the case, it is found that
Magistrate has only passed order for doing further investigation in the case, as
statement of witnesses has not been recorded and detailed investigation has not
been done. Prosecution has also made allegation that petitioner is trying to
influence investigation in the case. In view of same, no error is found in the
order passed by the Judicial Magistrate First Class. Police Station Gora Bazar,
District Jabalpur is directed to do detailed investigation in the matter and
thereafter take a decision to file charge-sheet or submit closure report.
7. No opinion is expressed by this Court regarding merits of the case.
Police is free to do investigation in accordance with law in fair and impartial
manner.
8. M.Cr.C. is disposed off with aforesaid direction.
(VISHAL DHAGAT)
JUDGE
vkt
