Court No. - 65
Case :- APPLICATION U/S 482 No. - 35811 of 2019
Applicant :- Sonu @ Subhash Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Manish Trivedi Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Manish Trivedi, learned counsel for the applicant and Sri Suraj SIngh, learned A.G.A. for the State.
This Application under Section 482 Cr.P.C. has been filed with a prayer to quash the charge-sheet dated 25.04.2018 in Case No. 1066/IX/19 arising out of Case Crime No. 121 of 2018 under Section 376 I.P.C., P.S. Kotwali, District Mathura.
Learned counsel for the applicant has mainly hammered the point that the victim/O.P. No.2 is a major girl who has entered into sexual intercourse with the accused applicant of her own free will, and relied upon the judgement of Hon'ble Apex Court in Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. 2019 0 Supreme (SC) 901 in which following is held in para 22 of the judgement:-
'22. 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.'
Further he has argued that in statement of victim recorded under Section 164 Cr.P.C., the victim has stated to have allowed cohabitation with the accused of her own free will, hence offence under Section 376 I.P.C. is not made out. I.O. has over-looked these aspects of the matter and has filed charge-sheet in routine manner which is nothing but an abuse of process of law.
Learned A.G.A. has vehemently opposed the prayer of quashing and has argued that this is the case wherein false promise has been given by the accused applicant to the O.P. No. 2 that he would marry her from which he subsequently resiled, thus offence under Section 376 I.P.C. would be made out.
I have gone through the F.I.R.
In F.I.R., it is recorded by O.P. No.2 that accused applicant was her neighbour with whom victim developed friendship. Later, the applicant gave assurance that he would marry her and under that false promise, he continued to physically exploit her. The parents and other family members of accused applicant also assured her that they would facilitate the marriage of accused applicant with O.P. No.2. Thereafter about one and half years, the accused had gone to Jhansi and from there also, he used to call O.P. No.2 and said that he wanted to marry her and called her over to Jhansi. When she reached there, the marriage was refused.
In statement under Section 164 Cr.P.C. which is annexed at page no. 46 of the paper book, the victim has stated that she had love relationship with the accused for about a period of one & a half years. The accused applicant used to tell her that he would marry her and she fell prey to his false promise and, thereafter relationship as husband and wife was made and rest of the statements are the same which are mentioned in F.I.R.
Police after having investigated the case has filed charge- sheet against the accused applicant. The statements which have been recorded by I.O. during investigation cannot be scrutinized in proceedings under Section 482 Cr.P.C.
This Court would rely upon the law laid down by Hon'ble Apex Court in Anurag Soni Vs. State of Chhattisgarh 2019 SCC OnLine SC 509 in which para nos. 37 and 39 are quoted here-in-below:
“37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.
39. Considering the aforesaid facts and circumstances of the case and the evidence on record, the prosecution has been successful in proving the case that from the very beginning the accused never intended to marry the prosecutrix; he gave false promises/promise to the prosecutrix to marry her and on such false promise he had a physical relation with the prosecutrix; the prosecutrix initially resisted, however, gave the consent relying upon the false promise of the accused that he will marry her and, therefore, her consent can be said to be a consent on misconception of fact as per Section 90 of the IPC and such a consent shall not excuse the accused from the charge of rape and offence under Section 375 of the IPC. Though, in Section 313 statement, the accused came up with a case that the prosecutrix and his family members were in knowledge that his marriage was already fixed with Priyanka Soni, even then, the prosecutrix and her family members continued to pressurise the accused to marry the prosecutrix, it is required to be noted that first of all the same is not proved by the accused. Even otherwise, considering the circumstances and evidence on record, referred to hereinabove, such a story is not believable. The prosecutrix, in the present case, was an educated girl studying in B. Pharmacy. Therefore, it is not believable that despite having knowledge that that appellant's marriage is fixed with another lady - Priyanka Soni, she and her family members would continue to pressurise the accused to marry and the prosecutrix will give the consent for physical relation. In the deposition, the prosecutrix specifically stated that initially she did not give her consent for physical relationship, however, on the appellant's promise that he would marry her and relying upon such promise, she consented for physical relationship with the appellant-accused. Even considering Section 114-A of the Indian Evidence Act, which has been inserted subsequently, there is a presumption and the court shall presume that she gave the consent for the physical relationship with the accused relying upon the promise by the accused that he will marry her. As observed hereinabove, from the very inception, the promise given by the accused to marry the prosecutrix was a false promise and from the very beginning there was no intention of the accused to marry the prosecutrix as his marriage with Priyanka Soni was already fixed long back and, despite the same, he continued to give promise/false promise and alluded the prosecutrix to give her consent for the physical relationship. Therefore, considering the aforesaid facts and circumstances of the case and considering the law laid down by this Court in the aforesaid decisions, we are of the opinion that both the Courts below have rightly held that the consent given by the prosecutrix was on misconception of fact and, therefore, the same cannot be said to be a consent so as to excuse the accused for the charge of rape as defined under Section 375 of the IPC. Both the Courts below have rightly convicted the accused for the offence under Section 376 of the IPC.”
In the case of Anurag Soni (Supra) as well as in the case of Pramod Suryabhan Pawar (Supra) relied on by learned counsel for the applicant, it is clearly laid down that the Court has to see as to whether the consent given by the victim is free consent or whether the same was given under misconception of fact which is subject matter of evidence. As regards the discrepancy in the statement of victim, that is also a subject matter of the evidence, hence at this stage it cannot be said that cognizable offence is not made out against the accused applicant.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case."
(Emphasis added) The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
The prayer for quashing the proceedings is refused.
However, the applicant may approach the trial court to seek discharge at appropriate stage, if so advised, and before the said forum, he may raise all the pleas which have been taken by him here.
The applicant shall appear before the court below within 30 days from today and may move an application for bail. If such an application is moved within the said time limit, the same would be disposed of in accordance with law. For a period of 30 days, no coercive action shall be taken against the accused applicant in the aforesaid case. But if the accused does not appear before the court below, the court below shall take coercive steps to procure his attendance.
With this direction, this Application under Section 482 Cr.P.C. is disposed of.
Order Date :- 26.9.2019
A. Mandhani