Arvind Chauhan vs State Of Uttarakhand And Another
2023 Latest Caselaw 2016 UK

     HIGH COURT OF UTTARAKHAND AT NAINITAL
            Criminal Misc. Application No. 1909 of 2021

Arvind Chauhan                                            .....Applicant.
                          Versus
State of Uttarakhand and another                          .... Respondents

Present :
Mr. Rajendra Dobhal, Senior Advocate, assisted by Mr. Kamlesh Budhlakoti and Mr.
Shubhang Dobhal, Advocates, for the applicant.
Mr. T.C. Agarwal, Deputy A.G., for the State of Uttarakhand.
Mr. Shashi Kant Shandilya, Advocate, for respondent No.2.

                             JUDGMENT

Hon'ble Sharad Kumar Sharma, J.

The respondent No. 2 on 17th November, 2020, had registered the FIR, being FIR No. 587, by naming the present applicant as to be an accused person to be involved for commission of offence under Sections 323, 376, 506 of the IPC.

2. As per the allegation, which were levelled in the FIR, she admits the fact, that she got in touch with the present applicant about three years earlier, when they for first time met at Max Hospital Mussoorie Road, Dehradun, where the present applicant claims was working and gradually they developed their relationship through Facebook and due to which, when they became much closer to each other. She contends that under an assurance of marriage, which later proved to be false, she has established the physical relationship at different hotels and Ashram, as mentioned in the FIR, i.e., Ashok Hotel, Neelknath Hotel, Sriram Ashram, Dehradun Taj, Tehri, Chamba, Dhanaulti and at one of the Hotels at Narendra Nagar.

3. It was contended by the complainant that on 15th July, 2019, at Sriram Ashram, the applicant is said to have placed sindoor on the mang of the victim, and under the pretext of the alleged hoax marriage, which is referred to in the FIR, it is submitted that he committed the offence under Section 376 of the IPC.

4. She submitted that when she had forced upon the applicant to get married, he denied to marry with the present victim. Consequently, the FIR was registered with the aforesaid allegations.

5. It is not even that, if the allegations which had been levelled in the FIR are taken into consideration, it rather refers to a prior FIR No. 111 of 2019, which was registered against the present applicant at Thana Muni Ki Reti, for the offences under Section 380, 504, 323, and 411 of the IPC. Due to the registration of the said FIR, the applicant was said to have been arrested, and was later on, he was released on bail.

6. She submitted that owing to the WhatsApp records which are available with her, it shows that the present applicant has threatened the victim /respondent No.2, herein, and when she had forced upon him to get married, he had physically assaulted her, and had denied to marry the complainant.

7. Before further dealing with the principal present FIR, it becomes necessary to observe, that the earlier FIR, which was registered at Police Station Muni Ki Reti, being FIR No. 111 of 2019, though initially, it was for the offence under Sections 380, 504, 323 and 411 of the IPC, but later on, the charges, which were framed against the present applicant was for the offence under Sections 376, 323 and 506 of the IPC.

8. In relation to the aforesaid offence, the Sessions Trial No. 11 of 2020, State of Uttarakhand Vs. Arvind Chauhan, was registered, and the same was tried by the Court of District and Sessions Judge, Tehri Garhwal, and in the said judgment as it was rendered by the Sessions Court on 10th April, 2023, the applicant was acquitted of the offences, for which the trial was conducted by the Sessions Court, i.e. for the offences under Sections 376, 323, and 506 of the IPC. Thus the same cannot be taken note off for the purposes of the present C-482 Application.

9. In fact, it is almost based on the similar ground, that the present FIR has been registered by respondent No.2, which upon culmination of the investigation, the chargesheet was submitted, and later on, a summoning order was issued by the Court of Chief Judicial Magistrate, Haridwar, registering Criminal Case No. 587 of 2020, State Vs. Arvind Chauhan.

10. The complainant appeared in the witness box, and had recorded her statement and in which she has almost

reiterated the same facts and the allegations, which were referred to in the earlier FIR No. 111 of 2019, and that as referred to in the instant FIR, being FIR No. 587 of 2020 dated 17th November, 2020.

11. If the statements which were recorded under Section 164 of the Cr.P.C. of respondent No.2, they are taken into consideration, it shows that they were in close intimate relationship with each other and since it continued to persist for sufficient long time, they became closer to each other, and the very fact that on the date when the offence was alleged to have been committed, the respondent No.2 was major and she had voluntarily travelled with the present applicant to different places and she has voluntarily established physical relationship. May be under a false pretext of marriage, that in itself will not amount to be an act of commission of offence under Section 376 of the IPC, particularly when, in her statement, she has candidly stated that on account of physical relationship, which she has established with the present applicant, she admits to have conceived and got pregnant and later on she further to have aborted in accordance with the medical report, which has also been placed on record by the present applicant. Even at the stage till she got pregnant or even later on when she aborted, there is no allegation as such with regard to the offence under Section 313 committed by the present applicant, particularly when, she contends that at Sriram Ashram, the applicant has said to have filled her mang and said to have married with the complainant / respondent No.2.

12. New offences couldn't be permitted to be introduced, which were otherwise not instituted by the complainant at the first available opportunity, regarding an incident which was already in knowledge, when she was aware of the entire facts at the time when the FIR was registered by the complainant and particularly under the facts and circumstances of the instant case where respondent No.2, was already a married lady and she has registered the FIR No. 111 of 2019, in which the applicant has been acquitted in Sessions Trial No. 11 of 2020. She cannot be said to be ignorant of law and its procedure. If that be the situation, if the applicant was having a relationship with the present applicant and when she admits the fact, that she conceived and later on aborted, and that too, even upto that stage, she has not raised any alarm as such, this Court is of the view, that she would be treated as to be a consenting partner to the offence. As such, once the element of consent is available under the facts and circumstances of the case, thus it cannot be said that the present applicant was involved in the commission of offence under Section 376 of the IPC, for which, he would be prosecuted in the instant Criminal Case No. 587 of 2020, in the light of the judgment rendered by this Court in Criminal Misc. Case No. 79 of 2021, Manoj Kumar Arya Vs. State of Uttarakhand and another, which yet again was based upon an earlier judgment of the Hon'ble Apex Court, which has dealt with almost a similar case as to what would be the element required to satisfy the commission of offence under Section 376 of the IPC, particularly when, the rape which has been defined under Section 375 of the IPC, where the consent plays a

predominant role, the principles and the guiding factors had been laid down by the Hon'ble Apex Court in the judgment reported in 2021 SCC OnLine SC 181, Sonu alias Subhash Kumar Vs. State of U.P. and another, particularly the reference may be had to para 10 and 11 of the said judgment, no offence under Section 376 of the IPC could be said to be made out against the present applicant. Relevant paragraphs 10 and 11 are extracted hereunder :-

"10. Further, the Court has observed:-

"To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established."

13. The learned counsel for the respondent in order to carve out an exception has contended, that at least an offence under Sections 493 of the IPC could be made out against the applicant, for that he may be permitted to prosecute the present applicant.

14. There are certain limitations with the Court even while exercising its inherent powers under Section 482 of the Cr.P.C. The jurisdiction under Section 482, cannot be utilized as a platform to give a weapon to the complainant to prosecute an applicant, who has been otherwise acquitted in the proceedings of earlier Sessions Trial and by virtue of today's judgment in the instant Criminal Misc. Application to attract the provisions contained under Section 493 of the IPC. The provisions contained under Section 493 of the IPC, reads as under :-

"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.--Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

15. The element of Section 493 of the IPC of cohabitating and having sexual relationship, would be only attracted when a woman is not lawfully married to a male, because in both the cases, i.e., in the Sessions Trial No. 11 of 2020, State of Uttarakhand Vs. Arvind Chauhan, in which the applicant has been acquitted or in the present Criminal Case

No. 3105 of 2022, State Vs. Arvind Chauhan, it had never been the case of the applicant that the so called theory of marriage carved by her, which she has consistently canvassed in both the proceedings, it is not her case at any stage, that she was not lawfully married. Rather to the contrary, she has regularly asserted upon the fact that owing to the incident of marriage, which has chanced in Sriram Ashram, she herself accepts the factum of marriage as to be a lawful marriage, which has to be taken as to be a recuse by the complainant to establish the physical relationship.

16. When on the pretext of marriage, she had contended that there was a valid marriage held in Sriram Ashram, if the factum of marriage is being treated by the complainant to be a valid marriage and pressed that status, then Section 493 of the IPC is not attracted, as argued by the learned counsel for the applicant, because the complainant cannot be permitted to carve out a case, which is contrary to her own admitted version and stand taken by her in prosecuting the applicant in the two Criminal Cases referred to hereinabove.

17. Apart from it, and as has been argued by the learned counsel for the respondents, that this Court while exercising its inherent powers under Sections 482 of the Cr.P.C. can always take a cognizance of the matter with regard to drawing the offence under Section 493 of the IPC, for enabling the respondent to prosecute the applicant for the said offence, this Court is apprehensive to accept the argument of the learned counsel for the respondent, because

when the fact of existence of commission of offence under Section 493 of the IPC, was never an aspect which was ever attempted to be argued by the applicant at the stage when she was facing the proceedings of Sessions Trial No. 111 of 2020, or even at the stage when the present C-482 Application was being contested by respondent No.2.

18. In that eventuality, and even as per the opinion of this Court, the forum of 482 Cr.P.C. is not available to the complainant to provide a licence to the complainant, that if he or she fails to prosecute the applicant for the commission of offence, which is subject matter of trial in a criminal case, if there is a failure on behalf of the complainant, she may be permitted to be equipped with to prosecute the applicant for other offences, which were otherwise not attracted, though according to him, it might have been applicable when Sessions Trial No. 111 of 2020 or the Case No. 3105 of 2021, State Vs. Arvind Chauhan, were pending before the Chief Judicial Magistrate, Haridwar.

19. Hence, for the aforesaid reasons, this Court is of the view that the C-482 Application deserves to be allowed. The same is accordingly allowed. The proceedings of Criminal Case No. 3105 of 2021, State Vs. Arvind Chauhan, pending consideration before the Court of Chief Judicial Magistrate, Haridwar, would hereby stand quashed.

(Sharad Kumar Sharma, J.) 02.08.2023 Shiv