Nagesh Chandra @ Narendra Mahaut S/o Late Chandulal Mahout Aged About 45 Years R/o v. 1 - State of Chhattisgarh Through The Police Station Torwa, Bilaspur, District - Bilaspur
Case Details
1 ROHIT KUMAR CHANDRA Digitally signed by ROHIT KUMAR CHANDRA Date: 2025.03.10 10:27:33 +0530 2025:CGHC:11042 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 415 of 2023 Nagesh Chandra @ Narendra Mahaut S/o Late Chandulal Mahout Aged About 45 Years R/o Ward No. 31, Chief House Godaripara, Police Station Chirmiri, District - Koriya (C.G.) ... Petitioner(s) versus 1 - State of Chhattisgarh Through The Police Station Torwa, Bilaspur, District - Bilaspur (C.G.) 2 - Abc Nill ... Respondent(s) For Petitioner For State/ Respondent No.1 : : Mr. Sajal Kumar Gupta, Advocate. Mr. Sangharsh Pandey, G.A. For Respondent No.2/victim Mr. Mirza Hafeez Baig, Advocate
Legal Reasoning
Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal , Judge Per Ramesh Sinha, Chief Justice
Decision
Order on Board 06.03.2025 1. Heard Mr. Sajal Kumar Gupta, learned counsel for the petitioner. Also heard Mr. Sangharsh Pandey, learned Government Advocate, appearing for the State /respondent No.1 and Mr. Mirza Hafeez Baig, learned counsel, appearing for respondent No.2/ victim. 2 2. The present petition under Section 482 of the Code of Criminal Procedure (for short, ‘CrPC’) has been filed by the petitioner with the following prayer :- “It is, therefore, prayed that this Hon'ble Court may be pleased to quash FIR, charge-sheet and subsequent Sessions Trial in Sessions Case No. 205/2022, pending before the Additional charge of Additional Sessions Judge, F.T.C. Bilaspur, District Bilaspur in Crime No. 161/2022, P.S. Torwa, Bilaspur (C.G.), in the interest of justice.” 3. As per the prosecution story, it is alleged against the present petitioner that he has committed rape upon his own wife prior to marriage in the year 2008 and thereafter, the petitioner and victim performed marriage on 16.01.2010, they were living together since from the marriage upto, and then the victim left the house of the petitioner and subsequently, she lodged the FIR on 22.04.2022 against the petitioner at Police Station, Torwa, District – Bilaspur (C.G.) in offence punishable under Section 376 of IPC and after due investigation, the police has filed charge-sheet against the petitioner. On the basis of said charge-sheet, the Sessions Trial is commenced in Sessions Case No. 205/2022, which is pending before the Additional Sessions Judge, F.T.C. Bilaspur for framing of charge. 4. Learned counsel for the petitioner submits that the petitioner is belonging to Hindu Religion, whereas the complainant belongs to Muslim Religion and respondent No.2 is her legally wedded wife 3 as they have performed love marriage on 16-01-2010 (copy of marriage certificate is filed as Annexure-P/3) and they lived together for a considerable period i.e. upto 22.04.2022 and thereafter, she has lodged the impugned FIR after more than 12 ½ years of the marriage and residing with the petitioner alleging that he has committed forceful rape upon his own wife prior to marriage in the year 2008. The complainant earlier performed marriage with one Mohd. Sajid Hussain Sheikh, thereafter she get divorce from her first husband and performed second marriage with the present petitioner according to the Muslim Custom at Lutara Sharif (Copy of divorce certificate/talaqnama is filed as Annexure-P/4). He further stated that before the marriage, the complainant pronounced her name as Shamim Shabana and after the marriage with the petitioner, she changed her name as Shweta Chandra Mahaut and somewhere she has used her name as Smt. Shamim Shabana @ Shweta Chandra Mahaut. He also submitted that the complainant had earlier made similar complaint before the State Mahila Ayog, wherein she had levelled similar allegation, which was enquired by the Mahila Ayog and subsequently, the complainant has given an application on 15.11.2021, wherein she has made submission that she love so much to her husband/petitioner and she has made false allegation and not intended to proceed further against her husband/petitioner. He also contended that in the writ petition filed before this Court in WPCR No. 572/2020, she referred 4 herself as Shweta Chandra @ Shabana W/o Shri Nagesh Chandra (petitioner) and claimed in her writ petition that she performed a love marriage with a boy from the Hindu community. She also alleged that respondent Nos. 7 to 9, therein, were unhappy with the marriage, boycotted her and committed atrocities, including rape. She has also submitted an affidavit in the said WPCR, which was disposed of by this Hon’ble Court on 13.07.2023. He contended that complainant is a young lady having love affair with the petitioner and their relationship before marriage was consensual. They had got married and lived together for a substantial period of time and thereafter, some dispute arose between them, therefore, a false FIR has been registered. He further contended that as per Exception 2 under Section 375 of IPC, sexual intercourse by a man with his own wife cannot be termed as rape and hence, a charge under Section 376 of IPC cannot be sustained against the appellant. In support of his contention, he placed reliance on the judgment passed by the Apex Court in the case of Kuldeep Singh Vs. State of Punjab and others, reported in 2025 SCC OnLine SC 211. 5. On the other hand, learned counsel appearing on behalf of the complainant/respondent No.2 opposed the aforesaid submission and submitted that respondent No.2 is the victim of the said crime whereas the petitioner has committed rape upon the victim from September, 2009 to 08.02.2022 by detaining the victim for that period. The petitioner is already a married Hindu person, having 5 three children and without giving divorce to his earlier wife, hence no question arises of marriage as projected by the petitioner in the instant petition. He further argued that the petitioner knowing this fact that he is already married had forcefully raped the complainant, whereas several allegations have been levelled by the respondent No.2 in her written complaint dated 22.04.2022, which is part of charge-sheet, this allegation is found to be proved during the course of investigation, hence police has filed charge- sheet against the petitioner/accused. He further argued that the instant petition, being devoid of merit, is liable to be dismissed, further the petitioner has liberty to raise all such questions as raised before this Hon’ble Court to be raised before the learned trial Court to prove his innocence. 6. We have heard learned counsel for the parties and perused the material available on record including the impugned charge sheet. 7. The Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335 laid down the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, their Lordships laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: - 6 “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1)Where the allegations made in the first information report or 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 a case against the accused. (2)Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3)Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4)Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5)Where the allegations made in the FIR or 7 complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7)Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 8. The Supreme Court in the matter of Manoj Kumar Sharma and others v. State of Chhattisgarh and others, (2016) 9 SCC 1 held as under:- “35. While discussing the scope and ambit of Section 482 of the Code, a similar view has been taken by a Division Bench of this Court in Rajiv Thapar and others vs. Madan Kal Kapoor (2013) 3 SCC 330 wherein it was held as under:- “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 8 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch as it would negate prosecution’s/ complainant’s the case without allowing the prosecution/ complainant to lead evidence. Such a determination must always be rendered with circumspection. To caution, invoke care its and inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence reasonable, and is based indubitable on sound, facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/ complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the 9 foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC: 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5 If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising t therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.” 9. The Honble Supreme Court in the matter of Sonu alias Subhas Kumar (supra) has held that pretext of marriage would not constitute the offences under Section 376 and on that basis 10 quashed the entire FIR as well as charge-sheet and also framed the guideline in this regard. 10. The Honble Supreme Court in the matter of Kuldeep Singh (supra) has held that as per Exception 2 under Section 375 of IPC, sexual intercourse by a man with his own wife cannot be termed as rape and hence, a charge under Section 376 of IPC cannot be sustained and accordingly quashed the entire criminal proceedings initiated against the appellant therein. 11. It has been submitted by learned counsel for the petitioner that respondent No.2 is her legally wedded wife and they have performed marriage on 16-01-2010 and they lived together for a considerable period i.e. upto 22.04.2022 and thereafter, she has lodged the impugned FIR after more than 12 ½ years of the marriage and residing with the petitioner alleging that he has committed forceful rape upon his own wife prior to marriage in the year 2008 and therefore, no offence under Section 376 of IPC is made out against him since he is covered under Exception No.2 appended to Section 375 of IPC. The petitioner has also brought to out notice the writ petition filed by the respondent No.2 before this Court being WPCR No. 572/2020, wherein she referred herself as Shweta Chandra @ Shabana W/o Shri Nagesh Chandra (petitioner) and claimed that she performed a love marriage with a boy from the Hindu community and alleged that respondent Nos. 7 to 9, therein, were unhappy with the marriage, boycotted her and committed atrocities, including rape. She has 11 also submitted an affidavit in the said WPCR, which was disposed of by a Co-ordinate Bench of this Court on 13.07.2023. Further from perusal of the Annexure-P/5, which is an FIR dated 26.06.2021 under Crime No. 287/2021 registered by the respondent No.2 against one Tabarak Hussain Jalaluddin Ansari and Farjana Anasri at Police Station Sirgitti, District – Bilaspur (C.G.), wherein also she has referred the name of the present petitioner as her husband. Further from perusal of Annexure-P/8, it is evident that respondent No.2 had earlier made similar complaint before the State Mahila Ayog, wherein she had levelled similar allegation against the petitioner/husband, which was enquired by the Mahila Ayog and subsequently, the respondent No.2 / complainant has given an application on 15.11.2021, wherein she has made submission that she love so much to her husband/petitioner and she has made false allegation and not intended to proceed further against her husband/petitioner, thus it was established that the victim had solemnized the marriage with the petitioner out of her own free will and she resided with her after marriage till 04.02.2022. 12. Considering the aforesaid facts and circumstances of the case, particularly, the fact that respondent No.2 is the legally wedded wife of the petitioner and they have performed marriage on 16.01.2010 and they lived together for a considerable period i.e. upto 22.04.2022 and thereafter, she has lodged the impugned FIR after more than 12 ½ years of the marriage and residing with the 12 petitioner, alleging that he has committed forceful rape upon his own wife prior to marriage in the year 2008, considering the conduct of respondent No.2 and in the light of aforesaid judicial precedents, it is evident that no prima facie case constituting any offence is made out against the petitioner and he is entitled to the relief sought for. 13. Accordingly, the instant petition is allowed and the impugned charge sheet dated 31.07.2022 submitted before the Court of Judicial Magistrate First Class, Bilaspur in pursuance of the FIR No. 161/2022 registered at Police Station Torwa, District – Bilapsur against the petitioner under Section 376 of IPC and further criminal proceedings in Sessions Case No. 205/2022, pending before the Court of Additional Sessions Judge, F.T.C., Bilaspur, District – Bilaspur (C.G.) are hereby quashed and set aside. Sd/- Sd/- (Ravindra Kumar Agrawal) (Ramesh Sinha) Judge Chief Justice Chandra