Telangana High Court

Major Amit Yadav vs The State Of Telangana on 31 January, 2023

Bench: K.Surender

     HIGH COURT FOR THE STATE OF TELANGANA
                     AT HYDERABAD
                           *****

Criminal Petition No.479 OF 2023 and I.A. Nos. 2 & 3 of 2023 in Crl.P.No.479 of 2023 Between:

Major Amrit Yadav ... Petitioner

And The State of Telangana, rep. by its Public Prosecutor, High Court for the State of Telangana, Hyderabad & another ... Respondents DATE OF JUDGMENT PRONOUNCED: 31.01.2023

Submitted for approval.


THE HON'BLE SRI JUSTICE K.SURENDER
 1   Whether Reporters of Local
     newspapers may be allowed to            Yes/No
     see the Judgments?

 2   Whether the copies of judgment
     may be marked to Law                    Yes/No
     Reporters/Journals

 3   Whether Their
     Ladyship/Lordship wish to see           Yes/No
     the fair copy of the Judgment?




                                         ___________________
                                           K. SURENDER, J



          * THE HON'BLE SRI JUSTICE K. SURENDER
           + Criminal Petition No.479 OF 2023
                           and

I.A. Nos. 2 & 3 of 2023 in Crl.P.No.479 of 2023

% Dated 31.01.2023 # Major Amrit Yadav ... Petitioner And $ The State of Telangana, rep. by its Public Prosecutor, High Court for the State of Telangana, Hyderabad & another ... Respondents

! Counsel for the Petitioner: Sri. K. Venumadhav

^ Counsel for the Respondents: Sri S. Sudershan Additional Public Prosecutor for R1

>HEAD NOTE:

? Cases referred 2 (2019) 5 SCC 688

(2022) Lawsuit (SC) 973

THE HONOURABLE SRI JUSTICE K. SURENDER

CRIMINAL PETITION No.479 OF 2023 ALONG WITH I.A.Nos.2 AND 3 OF 2023

COMMON ORDER:

1. This Criminal Petition is filed under Section 482 Cr.P.C.,

seeking to quash the proceedings in P.R.C.No.74 of 2022 on the

file of the XXII Additional Chief Metropolitan Magistrate at

Secunderabad.

2. Heard learned counsel appearing on both sides and learned

Additional Public Prosecutor for the State. Perused the record.

3. The petitioner is charge-sheeted for the offences under

Sections 376(2)(n), 496, 417 and 506 of IPC on the basis of a

complaint lodged by the 2nd respondent. In the complaint, she

stated that she got married to one Rajiv Sayam and had two

sons. In the month of August 2016, she shifted to Trimulgherry,

Hyderabad. In the month of January 2017, she got acquainted

with the petitioner. The petitioner allegedly asked her to seek

separation from her husband. They lived separately and

petitioner used to take care of all the necessities. During

November 2018, the petitioner used to call her daily and they

had developed physical intimacy. The petitioner promised to

marry her after she gets divorce from her husband. On

09.08.2020, the petitioner stayed in the house of 2nd respondent

for a week and before leaving to Meerut from Secunderabad, took

her to gold shop and purchased Mangalsutra and tied around

her neck in the presence of god and her son. Petitioner

continued to have sexual intercourse with her for the reason of

petitioner marrying her. 2nd respondent went and met the

petitioner at Meerut. On 21.12.2020 Petitioner dropped her at

Nizamuddin Railway Station and since then the petitioner

stopped seeing her, for which reason the present complaint was

filed alleging rape and cheating.

4. During the pendency of the present Criminal Petition, the

parties have compromised the matter and, accordingly,

respondent No.2/defacto complainant filed I.A.Nos.3 and 2 of

2022 to permit to compound the offences and to compromise the

case, respectively.

5. Vide order dated 18.01.2023, this Court, after recording

the submissions made by the learned counsel for the petitioner

as well as respondent No.2, directed the parties to appear before

the Secretary, Telangana High Court Legal Services Committee,

Hyderabad, for their identification and also directed the

Secretary to submit a report by 30.01.2023. In compliance with

the said order, the Secretary has submitted her report, on

24.01.2023.

6. In the report of the Secretary, Telangana High Court Legal

Services Committee, Hyderabad, it is stated that in obedience of

the orders dated 18.01.2023, the petitioner/Accused and the 2nd

respondent have appeared before her along with their counsel

and on examination and verification of their particulars from

their Aadhar Cards, they were tallied. Thus the identification of

both the parties has been established.

7. The parties herein have filed a joint memo of compromise

stating that at the intervention of the elders, they have settled

the disputes between them amicably and 2nd respondent has no

objection to quash the proceedings against the petitioner herein

in the above case. The said joint memo of compromise and the

report of the Secretary are placed on record.

8. Sri S.Sudershan, learned Additional Public Prosecutor

appearing for the State-1st respondent would submit that the

case was registered under Section 376 of IPC, as such, this

Court cannot quash the proceedings as the Hon'ble Supreme

Court in the case of State of Madhya Pradesh v. Laxmi

Narayan and others [(2019) 5 Supreme Court Cases 688]

case, held that in case of serious offences such as rape or

offence against society, High Court under inherent powers

cannot quash the proceedings. In view of the judgment of

the Hon'ble Supreme Court in Laxmi Narayana's case and

also in view of the heinous nature of offence alleged, the

petition has to be dismissed.

9. In the present case, as seen from the averments, the

2nd respondent/complainant was already married and

having two children by the date she got acquainted with this

petitioner. Both the petitioner and the 2nd respondent have

gone to different places and also had physical relation over a

period of four years. The 2nd respondent was not a divorcee

when she was having a relation with the petitioner.

However, she voluntarily had physical intimacy with this

petitioner. It cannot be said that the petitioner had in any

manner committed the offence of rape when the 2nd

respondent had consented to have physical relationship

with the petitioner. During subsistence of her marriage, if

the 2nd respondent had physical relation with this petitioner,

it cannot be said that this petitioner, in the present facts and

circumstances of the case, is liable either for the offence of rape

or cheating. The 2nd respondent is aged around 40 years and the

petitioner is aged 36 years and unmarried.

10. The Honb'le Supreme Court in the case of Shambhu

Kharwar v. State of Uttar Pradesh and another1 held as

follows:

"13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge- sheet, the essential ingredients of an offence under IPC. The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge- sheet as they stand, the crucial ingredients of the offence under IPC are absent. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent."

11. A bare reading of the complaint would indicate that the 2nd

respondent had sexual relation over a period of four years with

this petitioner consensually. In the said circumstances, when

the 2nd respondent/defacto complainant is not willing to

prosecute the case against the petitioner in the court, the

proceedings would only result in wastage of trial court's time.

Both on facts when the allegations did not make out any offence

of rape or cheating and also when the parties are inclined to

compromise the matter, only for the reason of there being

mention of rape in the charge sheet and the parties have

compromised, intervention of this Court under inherent powers

under Section 482 of Cr.P.C, cannot be denied.