Yogesh Kumar Sharma S/O Shri ... vs State Of Rajasthan
2022 Latest Caselaw 6165 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous (Petition) No. 6611/2022

 1.     Yogesh      Kumar      Sharma        S/o     Shri        Hanuman   Prasad
        Sharma, Aged About 34 Years, Resident Of Ward No. 2,
        Brahmanon Ka Mohalla, Kuhada, Tehsil Virat Nagar,
        District Jaipur (Rajastahan).
 2.     Gopesh      Kumar      Sharma        S/o     Shri        Hanuman   Prasad
        Sharma, Resident Of Ward No. 2, Brahmanon Ka Mohalla,
        Kuhada, Tehsil Virat Nagar, District Jaipur (Rajastahan).
                                                                    ----Petitioners
                                    Versus
 1.     State Of Rajasthan, Through The Public Prosecutor.
 2.     Victim, ... D/o Shri Vinod Kumar Sharma, resident of
        Kuhada, Tehsil Virat Nagar, District Jaipur (Rajasthan)
                                                                  ----Respondents

For Petitioner(s) : Mr. Hemant Gajraj with Mr. Mamraj Jat For Respondent(s) : Mr. Sudhir Jain Mr. Prashant Sharma, PP

HON'BLE MR. JUSTICE BIRENDRA KUMAR

Judgment reserved on : 06/09/2022 Date of Pronouncement : 14/09/2022

1. The petitioners have sought for quashment of order dated

11.7.2022 whereby the learned court below has taken cognizance

against the petitioners for offences under Section 376 and 376D

IPC and issued warrant of arrest to face trial. The offences alleged

are said to have been committed against respondent No.2.

2. The background of the allegation and the chronology of the

dates and events are as follows:

(i) Petitioner Yogesh Kumar Sharma is an advocate and another

petitioner Gopesh Kumar Sharma is full brother of Yogesh Kumar

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Sharma. Yogesh Kumar was in love with respondent No.2 and

entered into marriage with her on 2.7.2018. The marriage was

registered with the competent authority on 2.7.2018 itself. Since

the marriage was against the wishes of the family members of the

girl, the marriage was performed and registered at Ghaziabad in

U.P. On the date of marriage both were of marriageable age.

According to Secondary School Certificate, respondent No.2 was

born on 17.12.1992. After marriage, petitioner Yogesh and

respondent No.2 jointly filed S.B. Cr. Misc. Petition No. 3648/2018

for protection of their life and liberty. The petitioners appeared

before the Court in person on 6.7.2018 and the Court passed

following orders:

"`X' (respondent No.2) present in person stated that she is aged 26 years and is studying in B.A. Final Year. She further stated that she had performed marriage with petitioner No.2, namely Yogesh Kumar Sharma, according to her own free-will and accord and is living happily with him as a wife.

After hearing the learned counsel appearing for the petitioners, as well as, learned Public Prosecutor appearing for the State, and going through the contents of the instant petition, this Court is of the view that nobody can be permitted to take law in his own hands merely because marriage is not acceptable.

Consequently, the present petition stands disposed of, by issuing direction to the concerned SHO to ensure necessary vigil that no harm is caused to the life and liberty of the petitioners at the hands of those, who are opposed to the marriage."

(ii) It is worth to notice that Prakash Chand, the brother of

respondent No.2 filed FIR No. 173 dated 29.6.2018 with Virat

Nagar Police Station, Jaipur (Rural) alleging therein that

respondent No.2 was kidnapped by the petitioners in the

intervening night of 28-29th June, 2018. Inspite of order dated

(3 of 11) [CRLMP-6611/2022]

6.7.2018 of this Court, the petitioner and the victim were

apprehended by the police on the very next day i.e. 7.7.2018.

Statement of respondent No.2 was recorded under Section 164

Cr.P.C. in connection with FIR No. 173/2018 above wherein she

stated "I am B.A. passed. My date of birth is 17.12.1992. I have

4 brothers and sisters. My family members did not want to send

me to get some coaching outside the family. That is why I was

perplexed. I wanted to pursue my studies, therefore, in the night

of 29.6.2018 without informing the family members, I left my

home alone and went to the house of my friend Sapna at Jaipur. I

stayed with Sapna for 7-8 days and attended the coaching. I

went there voluntarily. No one had induced me to go there. Now

I want to go back to my parents. None has done anything wrong

with me."

(iii) The police, considering the aforesaid statement of the victim,

submitted a negative report on 28.7.2018 after investigation of

FIR No. 173/2018,

(iv) Since the victim was along with her parents, petitioner

Yogesh Kumar Sharma filed D.B. Habeas Corpus Writ Petition No.

148/2018 before this Court. The Habeas Corpus Petition was

heard by a Division Bench of this Court on 9.8.2018 when the

respondent No.2 was produced before the Court by the police, the

Court has recorded as follows:

"Ms. `X' is present in court and has submitted that she does not want to go with the petitioner- Yogesh Kumar Sharma and she wants to stay with her parents."

The Division Bench had noticed the order passed in S.B. Cr.

Misc. Petition No. 3648/2018 also. However, considering the

(4 of 11) [CRLMP-6611/2022]

statement of victim (respondent No.2), the habeas corpus petition

was dismissed on 9.8.2018. Thereafter, on 10.9.2018, FIR No.

273/2018 was lodged by respondent No.2 against the petitioners

stating therein that on 14.1.2018 when respondent No.2 had gone

to the temple, both the petitioners who were Pujaries thereat,

asked respondent No.2 to put the articles of worship inside the

room. First, respondent No.2 entered into the room thereafter

both the petitioners entered and ravished her one after another

and created a video clip of the incident. After that, the petitioners

started blackmailing respondent No.2 by showing her the video

and they ravished her on subsequent occasions also. Petitioner

Yogesh Kumar Sharma was putting pressure for marriage but

respondent No.2 refused. Petitioner Yogesh was insisting that if

respondent No.2 would not marry with him, the petitioner Yogesh

would not allow her to be married with anyone. The petitioner

Yogesh even lured her by saying that he is a practicing lawyer

having good immovable property. The petitioner had provided a

mobile phone purchased by petitioner to respondent No.2 and

asked her to talk off and on and respondent No.2 was talking with

the petitioner. The petitioner forcibly took signature of respondent

No.2 on some papers to create some documents that they are in

relationship voluntarily. The respondent No.2 was also asked to

write some letters to the petitioner and keep some letters written

by the petitioner. Thereafter petitioner Yogesh started coming to

her house and make friendly relations with father and the brother

of respondent No.2. In the month of July, the petitioners along

with their parent Hanuman Prasad and sister Babli and Ganesh

S/o Babli met with respondent No.2. The petitioners disclosed to

(5 of 11) [CRLMP-6611/2022]

them that the petitioner Yogesh wanted to marry with respondent

No.2 and they are going to enter into court marriage, those people

were to prepare for reception on 27.7.2018. The family members

started making preparation for reception. Pandals etc. were put up

at the decided place. At that time also respondent No.2 had clearly

stated that she does not want to marry with the petitioner Yogesh

Kumar Sharma. In the evening of 28.7.2018, petitioner Yogesh

went to her house and when respondent No.2 was alone,

petitioner stated that tonight at about 1.00-1.30 A.M., respondent

No.2 would come out telling that she was going to attend call of

nature, accordingly respondent No.2 came out and on a

motorcycle of the petitioners left the house. After investigation of

the aforesaid FIR, the police submitted negative report No.2/2019

on 21.2.2019 stating therein that the allegation is false one,

however on protest petition filed in the case, the learned

Magistrate inquired the matter under Section 202 Cr.P.C. and took

cognizance by the impugned order dated 11.7.2022.

3. Mr. Hemant Gajraj, learned counsel for the petitioners

submits that this is a classic example of misuse of process of law

by respondent No.2. Though the incident narrated above would

show that two adults had already decided to go with relationship

of marriage, however under pressure of the family members of

respondent No.2, respondent No.2 decided to leave the company

of the petitioner. Learned counsel further contends that entire

conduct of the petitioner and respondent No.2 specially of

petitioner Yogesh Kumar Sharma narrated above would not make

out a case that the petitioners would be left to face trial for the

offence of rape. The respondent No.2 consciously did not disclose

(6 of 11) [CRLMP-6611/2022]

alleged incident dated 14.1.2018 and subsequent allegations at

the earliest. Moreover, the police after investigation of the same

issue twice submitted final report. Learned counsel contends that

now the question is whether the statement made before the

Hon'ble High Court, the learned Magistrate under Section 164

Cr.P.C. and before the Magistrate vide inquiry under Section 202

Cr.P.C by respondent No.2 would be disbelieved in one stroke only

for the reason that now under pressure of the parents and other

family members, respondent No.2 says that every statement was

made by her under duress and all the documents were signed by

her under pressure. Learned counsel submits that if trial of such

allegations would be allowed to go on before the court below,

flood gate would be opened that a party to the consensual

relationship or to marriage relationship would be at liberty to level

the allegation of rape at any point of time of their consesual

relationship. Learned counsel has relied upon the judgment of this

Court in Shantanu Sharma Vs. State of Raj. & Anr., in S.B.

Cr. Misc. Petition No. 5607/2022 decided on 1.9.2022 wherein

the FIR containing allegation of rape was quashed by this Court as

the victim complainant was not only married with the accused

petitioner but she had given birth to a male child and birth of the

child was registered disclosing paternity wherein name of the

accused petitioner was there as father.

4. Learned counsel for the respondent No.2 contended that it is

consistent case of the private respondent that respondent No.2

was put under threat of divulgance of video clip as a result

whereof she did not make any complaint to anyone for the

subsequent act committed by the petitioners. Since she was

(7 of 11) [CRLMP-6611/2022]

under pressure of the petitioners, she made statement before the

competent authorities which were not voluntary statements.

Moreover, the law is well settled that when the FIR/complaint

discloses commission of a cognizable offence, the court should not

scuttle it at the threshold and should allow the trial to be carried

on. Learned counsel for the respondent further contended that

limitations on the power of the Court under Section 482 Cr.P.C in

the matter of quashing of FIR are well para-metered. The Court

cannot enter into a roving inquiry to find out the truthfulness and

trustworthiness of the allegations at this stage. Reliance has been

placed on the judgment of the Hon'ble Supreme Court in

Maninder Kaur Vs. Rajinder Singh reported in 1992 (Supp2)

SCC 25.

5. The question for consideration is whether the criminal

prosecution of the petitioners suffers from malice to wreak

vengeance. In other words, if the impugned order and further

proceedings in pursuance of the impugned order is allowed to go

on, would it result in miscarriage of justice and abuse of the

process of law?

6. The case of respondent No.2, while opposing the prayer of

the petitioners, is that every document was created under

pressure and the statements by the respondent No.2 before the

Hon'ble High Court or before the learned Judicial Magistrate under

Section 164 Cr.P.C were under duress.

7. The record reveals that respondent No.2 was free from

clutches of the petitioners atleast from 7.7.2018 onwards till

lodging of the FIR on 10.9.2018. There is no explanation or

specific material why the matter was not reported at the earliest.

(8 of 11) [CRLMP-6611/2022]

Respondent No.2 was free at least on the date of FIR or her

statement under Section 202 Cr.P.C. wherein respondent No.2

stated that petitioner Yogesh proposed her for marriage stating

that he is an advocate by profession and having 30 bighas of

landed property. Due to fear, the complainant agreed for marriage.

The marriage papers were prepared by Yogesh on 28.6.2018.

Yogesh along with his father, sister and son of the sister met with

respondent No.2 and petitioner stated that he is going to perform

marriage with respondent No.2 and thereafter a celebration would

be organized. Those people started putting pandals etc for the

celebration. The accused persons took respondent No.2 to

Gaziabad and got her signature on several papers and got a

forged document of marriage under threat.

From the admission of respondent No.2 regarding conduct of

the petitioner especially petitioner Yogesh, it is evident that

consent of respondent No.2 a student of B.A. was not obtained by

fraud, rather the petitioner was always ready and willing to go

with their relationship. Respondent No.2 did not make any

statement of coercion or undue influence before the Bench of this

Court considering petition under Section 482 Cr.P.C nor before the

learned Magistrate rather deliberately suppressed that she had

already entered into love marriage with one of the petitioner and

marriage was already registered one.

8. In Raju & ors. Vs. State of M.P., reported in (2008) 15

SCC 133, the Hon'ble Supreme Court said that it cannot be lost

sight of that rape causes the greatest distress and humility to the

victim but at the same time, false allegation of rape can cause

equal distress, humiliation and damage to the accused as well.

(9 of 11) [CRLMP-6611/2022]

The accused must also be protected against the possibility of false

implication.

In Pramod Suryabhan Panwar Vs. State of Maharashtra

& Anr., (2019) 9 SCC 608, the Hon'ble Supreme Court

considered the word "consent" appearing under Section 375 IPC

and said that consent involves active understanding of

circumstances, actions and consequences of proposed act.

Individual who makes a reasoned choice to act after evaluating

various alternative actions (or inaction) as well as various possible

consequences flowing from such action or inaction, consents to

such action.

9. The statement of respondent No.2 before a Bench of this

High Court wherein she admits her marriage with petitioner

Yogesh, her subsequent statement before the Magistrate under

Section 164 Cr.P.C. wherein also she stated that she had

voluntarily left the house, admission of respondent No.2 that

petitioner Yogesh called her on mobile which was gifted by Yogesh

and Yogesh asked her to leave the house in the wee hours of

night, respondent No.2 followed and left her house thereafter

Yogesh and respondent No.2 met with father of Yogesh and other

family members and Yogesh in their presence stated that both are

going to solemnize court marriage. Thereafter, a marriage

celebration party would be hosted then the family members

started preparing for celebration. All these happened only after

alleged incident of January, 2018 as such action of respondent

No.2 at different stages goes to show that she was deliberately in

consequential relationship with petitioner Yogesh.

(10 of 11) [CRLMP-6611/2022]

The narration of chronology of events above and conduct of

the petitioner Yogesh in filing habeas corpus petition when

respondent No.2 was handed over to her parents by the police

goes to show that the petitioner Yogesh was all alone willing for

maintaining matrimonial relationship as such he had no dishonest

or fraudulent intention to obtain consent of respondent No.2 at

any point of time from the beginning till end of their relationship.

If a short relation of marriage could not survive, the aggrieved

party cannot be allowed to bring malicious prosecution of sexual

assault.

10. The court is conscious that at this stage, it cannot enter into

a roving or fishing inquiry to ascertain the truthfulness of the

allegation. However, the materials available on record speaks

volumes to persuade the Court to not to shut its eyes and allow

the process of law to be abused by allowing bald allegations to be

used at any point of time to wreak vengeance and harass a fellow

citizen. The court cannot ignore the materials on record only for

statement of respondent No.2 that everything was created by the

petitioners by putting the complainant respondent No.2 in fear or

pressure.

The judgment in Maninder Kaur (supra) was rendered in

quite different facts and circumstances of the case, hence the

same is not applicable in the facts and circumstances of the

present case.

11. Consequently, this Court is of the firm opinion that the

impugned order and all subsequent proceedings suffer from malice

to wreak vengeance, which cannot be allowed to go on.

(11 of 11) [CRLMP-6611/2022]

Therefore, the impugned order is quashed and this petition stands

allowed.

(BIRENDRA KUMAR),J

BRIJ MOHAN GANDHI /77/83

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