Court No. - 72
Case :- APPLICATION U/S 482 No. - 21905 of 2019
Applicant :- Pawan Shivhare @ Jagat Narayan Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ray Sahab Yadav Counsel for Opposite Party :- G.A.
Hon'ble Saumitra Dayal Singh,J.
1. Sri Dheeraj Kumar Singh, Advocate has filed appearance on behalf of opposite party no. 2 and also filed short counter affidavit of that petition. Taken on record.
2. Heard Sri Ray Sahab Yadav, learned counsel for the applicant, Sri Dheeraj Kumar Singh, learned counsel for opposite party no. 2 and learned A.G.A. on behalf of State.
3. Present 482 Cr.P.C. application has been filed to quash the charge sheet dated 16.12.2018 and cognizance order dated 21.3.2018 as well as entire proceedings of Case Crime No.724 of 2017 under Sections 376, 506 IPC, P.S. Kotwali, District Jhansi pending in the court of Additional District Judge/F.T.C. II, Jhansi.
4. Learned counsel for the applicant submits that arising out of misunderstandings and misgivings, a wrong prosecution came to be lodged against the applicant by the opposite party no. 2. In this regard, it is submitted that the applicant and the opposite party no. 2 had formed a consensual relationship wherein both sides were aware of their marital status, inasmuch as, the opposite party no. 2 was aware that the applicant no.1 was undergoing a bad matrimonial relationship and the applicant was aware that the opposite party no. 2 had divorced her previous husband.Still they had performed a marriage on 17.5.2017 and had started living together as husband and wife. Thereafter, the first wife of the applicant filed a frivolous FIR alleging commission of offence of dowry etc. against the applicant as also opposite party no. 2. Being offence by that, FIR being lodged, the opposite party no. 2 in an act of rashness, lodged the present FIR against the present applicant which has given rise to the instant prosecution. There was neither any real occurrence nor any criminal offence had been committed by the applicant. In such circumstances, the parties have been able to resolve their difference outside the court by means of a written compromise reached between them. A copy of that has been annexed as Annexure-9 to the present application. As also, it has been annexed as S.C.A.-1 filed by the opposite party no. 2. Even otherwise, it has been submitted that there was no injury suffered by the opposite party no. 2 and in her statement to the Doctor at the time of her medical examination, she has also stated that she was aware of the fact of first marriage of the applicant. The contents of Paragraph- 2 to 9 of the short counter affidavit read as under:-
"2 That the applicant and the opposite party no. 2, both are husband and wife, both solemnized their marriage on 17.05.2017 in Raja Ram Temple, Orchha and both were living as husband and wife.
3. That on 10.08.2017, the first wife of the applicant, namely Priyanka Shivhare against the applicant, his entire family and opposite party no. 2 lodged the First Information Report on dated 10.08.2017 being case crime no. 153/2017 under section 498A, 323, 506, 494 IPC and ¾ Dowry Prohibition Act.
4. That after lodging the First Information Report by the first wife of the applicant against the entire family of the opposite party no. 2 being annoyed for lodging the first Information Report against them, the opposite party no. 2 being annoyed lodged the First Information Report against applicant and his entire family on 08.12.2017 being case crime no. 724/2017, under sections 376, 342, 506, 120-B, 328 IPC.
5. That on 09.05.2019 the opposite party no. 2 and the applicant have written a compromise and there is also the signature of his father namely Imrat Rai also. The dispute of both, husband and wife has been closed. Now both do not want proceedings against each other and both will have closed their litigation against each other. The copy of the compromise dated 09.05.2019, is being filed herewith and marked as Annexure no. SCA-1 to this affidavit.
6. That according to the compromise, both the husband and the wife have decided to live separately and now there is no dispute between both of them. The applicant has returned the entire Wife-Wealth, Gold-Silver Jewelries and money etc. to the opposite party no. 2.
7. That in both the parties, there was matrimonial dispute which has been closed due to compromise, therefore, on the basis of compromise, S.T. No. 70 of 2018, under Section 378, 506 IPC should be quashed.
8. That this offence is not of being the society and is of private nature, therefore, on the basis of compromise, should be quashed.
9. That in view of the facts and circumstances stated above it is just and expedient in the interest of justice that this Hon'ble Court kindly be pleased to quash/set aside the impugned charge-sheet dated16.12.2018 as well as congnizable order dated 21.03.2018 passed by learned court below and entire proceeding of Session Trial No. 70/2018, (arising out of Case Crime No. 724/2017), U/s 376, 506 IPC, P.S. Kotwali, District Jhansi pending in the court of Additional District Judge/F.T.C.-II, Jhansi, on the basis of compromise between the parties, during the pendency of the present application before this Hon'ble Court, otherwise, the applicants shall suffer irreparable loss and injury."
5. In view of the above, it appears that the allegation of rape came to be levelled against the applicant no. 1 owing to misunderstandings and misgivings that existed at the relevant time. But as to the real occurrence that the parties were in consensual relationship and that now they have parted ways by making absurd allegation. Inasmuch as, the opposite party no. 2 does not wish to press charges against the applicant. As to the stage of trial, it has been stated that no charges have been framed and no evidence is there.
6. No useful purpose would be served in allowing such a prosecution to proceed any further where the opposite party no. 2, who would be a key prosecution witness, if the trial were to proceed, has declared his unequivocal intent to turn hostile by stating that she had made allegations upon misunderstandings and misgivings between the parties and no real occurrence had taken place.
7. Thus, in view of the well settled principles of law as laid down by the Hon'ble Apex Court reported in 2003(4) SCC 675 (B.S. Joshi Vs. State of Haryana) as well as the Judgment of the Apex Court reported in J.T., 2008(9) SC 192 (Nikhil Merchant Vs. Central Bureau of Investigation and another), the proceedings of the aforesaid case is hereby set aside.
8. Accordingly, application is allowed.
Order Date :- 31.5.2019 Meenu