S. B. Cri. Misc. Petition No. 2556 of 2014. Case: Anup K. Paul Vs State of Rajasthan and Anr.. Rajasthan High Court
| Case Number | S. B. Cri. Misc. Petition No. 2556 of 2014 |
| Counsel | For Petitioner: Mahesh Bora, Sr. Adv., assisted by Nishant Bora, Advs. and For Respondents: Vikram Rajpurohit, Public Prosecutor, R. S. Chouhan, Advs. |
| Judges | Vijay Bishnoi, J. |
| Issue | Criminal Procedure Code (2 of 1974) - Section 482; Indian Penal Code (45 of 1860) - Sections 376, 313, 420 |
| Citation | 2016 CriLJ 509 |
| Judgement Date | July 24, 2015 |
| Court | Rajasthan High Court |
Judgment:
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This criminal misc. petition under section 482, Cr. P.C. has been filed by the petitioner with a prayer for quashing the FIR No.229 dated 01.10.2014 lodged at Police Station, Shashtri Nagar, Jodhpur.
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Brief facts, necessary for disposal of this criminal misc. petition, are that respondent No.2 filed a written complaint at Police Station, Bajaj Nagar, Jaipur on 29.09.2014, which is reproduced as under:
(Vernacular matter omitted.......Ed.)
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Pursuant to the aforesaid complaint, the police has lodged the FIR No.97/2014 at Police Station, Bajaj Nagar for the offences punishable under sections 376 and 313, IPC and made a report that as per the complainant, the incident complained of had happened at Jodhpur and, therefore, the complaint was sent to the Police Station, Shashtri Nagar Jodhpur. Thereafter, the impugned FIR was registered at Police Station, Shashtri Nagar, Jodhpur on 01.10.2014 for the offences punishable under sections 376 and 313, IPC. The FIR reads as under:
(Vernacular matter omitted.......Ed.)
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Learned counsel for the petitioner has challenged the impugned FIR by raising the following arguments:
(i) That the impugned FIR is highly belated and filed by respondent No.2 only with a prayer that the petitioner be restrained from marrying another girl on 29.09.2014 at Kerala. It is argued that as per the impugned FIR, the petitioner has refused to marry the respondent No.2 in April, 2013 but for the first time, the complaint was lodged on 29.09.2014, however, no explanation of lodging the complaint after delay of 17 months has been given.
(ii) That even if the contents of the impugned FIR are read in its entirety and all the contents are accepted to be true, then also no offence under section 376, IPC is made out against the petitioner. It is contended that the petitioner and the respondent No.2 both are adult and by their own free will they entered into intimate relations with each other, hence, consensual relation does not fall within the definition of 'rape' as given in section 375, IPC. It is further argued that the impugned FIR does not contain any allegation to the effect that the respondent No.2 was forced to get intimate with the petitioner or does not contain any allegation that the petitioner has no intention to marry the respondent No.2 since beginning. In such circumstances, it cannot be held that the petitioner made physical relation with respondent No.2 by giving her false promise to marry. Learned counsel for the petitioner has further argued that making physical relation on promise to marry does not constitute any offence punishable under section 376, IPC when there is no material to suggest that a boy, who made physical relation with a girl, with promise to marry, has no intention of not marrying her since beginning. In support of above arguments, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court in Uday v. State of Karnataka, 2003 Cri LJ 1539: (AIR 2003 SC 1639); Pradeep Kumar Verma v. State of Bihar and Anr., AIR 2007 SC 3059; Prashat Bharti v. State of NCT of Delhi, 2013 Cri LJ 3839: (AIR 2013 SC 2753); Deepak Gulati v. State of Haryana, 2013 Cri LJ 2990: (AIR 2013 SC 2071) and of this Court in Farook Ahmed (DR.) v. State of Rajasthan and Anr., 2013(3) Cr LR (Raj) 1273.
(iii) That from bare reading of the contents of the FIR, no offence under section 313, IPC is made out against the petitioner as the respondent No.2 has not stated in her complaint that the petitioner got aborted the child without her consent.
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On the strength of above arguments, learned counsel for the petitioner has prayed that this criminal misc. petition may be allowed and the impugned FIR and further investigation conducted by the police may be quashed and set aside.
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Per contra, learned Public Prosecutor and the counsel appearing on behalf of the respondent No.2 have opposed the petitioner. Learned Public Prosecutor has informed this Court that the police has concluded the investigation and proposed to file charge-sheet against the petitioner for the offences punishable under sections 376(2) (n), 313 and 420, IPC. It is submitted by the learned Public Prosecutor that during the course of investigation, the police found that the petitioner has repeatedly committed offence of rape upon the respondent No.2 by making a false promise of marriage and as such he committed offence punishable under section 376(2)(n), IPC. The learned Public Prosecutor has further submitted that the petitioner has also got aborted the child of the respondent No.2 and as such committed the offence punishable under section 313, IPC. It is also submitted that the petitioner has promised the respondent No.2 to marry her on 13.05.2013 and for that purpose the father of respondent No.2 has booked tent, band etc. and also made several arrangements but just before the marriage, the petitioner had refused to marry the respondent No.2 and as such, he has also committed the offence punishable under section 420, IPC. Learned Public Prosecutor has also argued that in her statement recorded under section 164, Cr. P.C., the respondent No.2 has specifically alleged that the petitioner has repeatedly committed rape upon her by making false promise of marriage and in view of the material collected by the police during the course of investigation, no case for quashing the impugned FIR and further investigation is made out.
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Learned counsel appearing for respondent No.2 has argued that from the allegations levelled in the impugned FIR, statement of respondent No.2 recorded under section 164, Cr.P.C. as well as from the statement of other witnesses recorded by the police during the course of investigation and the material collected by it, the case against the petitioner for commission of offences punishable under sections 376(2)(n), 313 and 420, IPC are made out. Hence, no interference is called for by this Court while exercising inherent powers under section 482, Cr. P.C. and this criminal misc. petition is liable to be dismissed.
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Heard learned counsel for the rival parties and perused the case diary made available by learned Public Prosecutor.
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There is no doubt that the Court should be very careful while exercising the powers under section 482, Cr. P.C. particularly in the matters of quashing of criminal complaints.
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The Hon'ble Supreme Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the High Courts under section 482, Cr. P.C. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: (AIR 1992 SC 604), the Hon'ble Supreme Court has listed the categories of cases when the power under section 482, Cr. P.C. can be exercised by the High Courts. The law laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal (supra) has later on followed in various decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692: (AIR 1988 SC 709); State of Haryana v. Bhajan Lal,1992 Supp (1) SCC 335: (AIR 1992 SC 604); Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194: (AIR 1996 SC 309); Central Bureau of Investigation v. Duncans Agro Industries Ltd (1996) 5 SCC 591: (AIR 1996 SC 2452); State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164: (1996 AIR SCW 591), Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259: (AIR 1999 SC 1216); Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd. (2000) 3 SCC 269: (AIR 2000 SC 1869); Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168: (AIR 2000 SC 2341), M. Krishnan v. Vijay Singh (2001) 8 SCC 645: (AIR 2001 SC 3014) and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122: (AIR 2005 SC 9). The principles relevant are as under:
(i) A complaint can be quashed where the allegations made in the complaint, even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.
For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.
(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.
(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.
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