Reserved
In Chambers
Case :- APPLICATION U/S 482 No. - 36252 of 2018 Applicant :- Sushil Bharadwaj Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajendra Kumar Pandey Counsel for Opposite Party :- G.A.
Hon'ble Ram Surat Ram (Maurya),J.
1. Heard Sri Sushil Kumar Tiwari, holding brief of Sri Rajendra Kumar Pandey, for the applicant.
2. This application under Section 482 Cr.P.C. has been filed, for quashing the charge sheet dated 01.07.2018, the order of Judicial Magistrate, taking cognizance thereon and entire proceeding of Criminal Case No. 21884 of 2018 (State Vs. Sushil Bharadwaj), arising out of Crime No. 1414 of 2017, under Section 376, 506 IPC, PS Phase III, Gautam Budh Nagar.
3. Sugandha Sanajya (opposite party-2) lodged an FIR on 26.12.2017 at 23:59 hours (registered as Case Crime No. 1414 of 2017, under Section 376, 506 IPC), at PS Sector 71, Phase III, Gautam Budh Nagar, against Sushil Bharadwaj. It has been alleged in FIR that the informant was resident of B- 463, Sector-51, NOIDA. The applicant was resident of K-303, Rail Vihar, Sector-62, NOIDA. The applicant committed rape several time with opposite party-2 during 15.10.2017 to 22.12.2017 under false deception to give her employment and committing breach of trust, exploited her physically. She was not employed. On 22.12.2017, he again committed rape and threaten that if this thing is told to anyone then he would kill her and he would got abducted her son Atherv. He falsely assured to marry her. Aforementioned incidents were committed with her at Janta Flat, C-3/7, Sector-71.
4. After registration of FIR, the police investigated the matter. Investigating Officer recorded statements of the victim under Section 161 Cr.P.C., in which she supported the FIR story. On 21.11.2017, she refused for her internal medical examination. Investigating Officer also got her statement recorded under Section 164 Cr.P.C. on 18.04.2018, in which she had again confirmed the FIR story. The police has also obtained mobile call details of the parties. After completing investigation, the police submitted charge sheet on 01.07.2018, on which cognizance has been taken by the concerned Magistrate. Hence this application has been filed.
5. The counsel for the applicant submitted that FIR has been lodged on false allegations that the applicant had committed rape with opposite party-2 during 15.10.2017 to 22.12.2017 under false deception to give her employment and to marry her. Both the applicant and opposite party-2 were married and in fact they had children also as such there was no question of marriage between them. From call details of mobile of the parties, it was apparent that husband of opposite party-2 was suffering from cancer. She herself called the applicant on 14.05.2017 and demanded for financial assistance for treatment of her husband. The applicant transferred Rs. 50,000/- on 23.05.2017 and Rs. 1,00,000/- on 25.10.2017 in her account. She has also taken Rs. 2,00,000/- cash during this period, saying that the condition of her husband was serious. When the applicant demanded his money, then she lodged the impugned FIR on false allegations. The police has mechanically submitted charge sheet ignoring the documentary evidence of the applicant. He relied upon the judgment of Supreme Court in Uday v. State of Karnataka, (2003) 4 SCC 46, in which it has been held that two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o’clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent. Supreme Court in Vineet Kumar v. State of U.P., (2017) 13 SCC 369, has been held that inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v. Bhajan Lal, 1992 Suppl (1) SCC 335.
6. I have considered the arguments of the counsel for the parties and examined the record. A three Judges Bench in State of H.P. v. Mango Ram, (2000) 7 SCC 224, has held that the consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. In Satpal Singh v. State of Haryana, (2010) 8 SCC 714, has held that the concept of “consent” in the context of Section 375 IPC has to be understood differently, keeping in mind the provision of Section 90 IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all. Scheme of Section 90 IPC is couched in negative terminology. Consent is different from submission.
7. In the present case, the informant has stated that rape has been committed with her under deception of giving employment. At present, under Section 114 A of Evidence Act, 1872, on her aforementioned statement, a presumption has to be raised that there was no consent. Simply for the reasons, they were married as such the marriage was not possible, her entire statements cannot be disbelieved. Various arguments raised at this stage may be relevant for cross-examination of the prosecutrix and on that basis it cannot be said that her entire version is false. The police has rightly submitted charge sheet in this case, which is not liable to be quashed at a pretrial stage.
8. The application has no merit and it is dismissed.
Order date: 28.11.2018 Rahul/-