Learned Advocate for the v. State of Uttar Pradesh and another

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD943 CRIMINAL APPLICATION NO.679 OF 2023ASHOKNATH SITARAM SHARMAVERSUSTHE STATE OF MAHARASHTRA AND ANOTHER...Mr. D.A. Madke, Advocate for applicantMr. V.K. Kotecha, APP for respondent No.1Mrs. Renuka Ghule Palve, Advocate (appointed) for respondent No.2...CORAM :SMT. VIBHA KANKANWADI &S.G. CHAPALGAONKAR, JJ.DATE:04th SEPTEMBER, 2024ORDER :(PER : SMT. VIBHA KANKANWADI, J.)1Present application has been filed under Section 482 of the Codeof Criminal Procedure, 1973 for quashing Charge Sheet bearing No.30/2021i.e. proceedings in Special Case No.60/2021 pending before learned SpecialJudge, under the Atrocities Act, Jalgaon arising out of offence vide CrimeNo.54/2021 dated 15.02.2021 registered with Zilla Peth Police Station, Tq. &Dist. Jalgaon, for the offence punishable under Sections 376, 504, 506, 507of the Indian Penal Code, 1860, under Sections 3(1(r), 3(1)(W)((i), 3(1)(W) 2943_Cri.Appln_679_2023(ii) of the Scheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act, 1989 and under Section 67 of the Information TechnologyAct. 2Heard learned Advocate Mr. D.A. Madke for applicant, learnedAPP Mr. V.K. Kotecha for respondent No.1 and learned appointed AdvocateMrs. Renuka Ghule Palve for respondent No.2. 3The learned Advocate appearing for the applicant has taken usthrough the First Information Report and the entire charge sheet. He submitsthat as per the First Information Report respondent No.2 i.e.informant/prosecutrix was 38 years old lady having two children, but shesays that she has taken divorce from her husband. She has stated that she isa member of Scheduled Caste. She came to know the applicant, who wasthen Branch Manager of State Bank of India, Branch Shiv Colony, Jalgaon inSeptember, 2017. Though she is stating that the physical relationshipbetween them was due to constrained circumstances; yet, she has lodged theFirst Information Report on 15.02.2021, which indicates that the relationshipbetween them was consensual in nature. There are chats between theapplicant and respondent No.2, which would show that the relationship wasconsensual. Statements of witnesses would show that it was informed by 3943_Cri.Appln_679_2023informant to the witness that there was love affair between herself and theapplicant. There was no question of promise to marry that would have given.Further, statements of Bank sweepers would show that respondent No.2 usedto cook food and bring tiffin for the applicant in the Bank. Taking intoconsideration these facts, it would be unjust to ask the applicant to face thetrial. 4Learned Advocate for the applicant relies on the decision inShambhu Kharwar vs. State of Uttar Pradesh and another [AIR 2022 SC3901], Pramod Suryabhan Pawar vs. State of Maharashtra and another[(2019) 9 SCC 608], Devendra Vikas Pawar vs. State of Maharashtra andanother in Criminal Application No.495 of 2022 decided by Division Bench ofthis Court Bench at Nagpur on 22.12.2022 to support his contention.Further, he says that there was no question of invoking the Atrocities Actwhen it is stated that there was love affair. 5Per contra, learned APP as well as learned Advocate Mrs. RenukaGhule Palve appointed through Legal Aid to represent respondent No.2strongly opposed the application and submitted that perusal of FirstInformation Report would show that the applicant has literally laid a trap toget the sexual favours from respondent No.2. Even the first act, which is 4943_Cri.Appln_679_2023stated to be in September, 2017, it was by giving some intoxicant in the colddrink. Even at that time the applicant had taken photographs of theinformant as well as made a clip. Then by threatening to make thosephotographs viral as well as giving threat to commit suicide the FirstInformation was not lodged. He has established the contact once again aftera gap of time and even got a house on rent for her from January, 2019 toMarch, 2020. He had forced her to take divorce from her husband by statingthat he would perform marriage. Later on she came to know that he wasalready married. The evidence has been collected in the form of clips havingdialogues/conversation between the applicant and respondent No.2. Eventhe applicant had forwarded her video and photographs to one of his friends.All these facts would show that the relationship was not consensual and,therefore, when the charge sheet is already filed, let the trial take place. 6Before turning to the merits, we would like to consider the legalposition. In Pramod Pawar (supra) it has been observed by the Hon’bleSupreme Court that - “18.To summarise the legal position that emerges from the abovecases, the “consent” of a woman with respect to Section 375 mustinvolve an active and reasoned deliberation towards the proposed act.To establish whether the “consent” was vitiated by a “misconceptionof fact” arising out of a promise to marry, two propositions must be 5943_Cri.Appln_679_2023established. The promise of marriage must have been a false promise,given in bad faith and with no intention of being adhered to at thetime it was given. The false promise itself must be of immediaterelevance, or bear a direct nexus to the woman’s decision to engage inthe sexual act.” 6.1Further, in Shambhu Kharwar (supra) after reproducingparagraph No.18 from Pramod Pawar (supra) the facts in that case wereconsidered and it was observed that “Even assuming all the allegations in thecharge sheet are correct, the offence under Section 376 of the Indian PenalCode has not been made out. The facts of the case those were consideredwere that the appellant and the second respondent were in consensualrelationship from 2013 till December, 2017. They were both educated adults.The second respondent i.e. informant had got married in 2014 to someoneelse and the said marriage ended in a decree of divorce by mutual consent in2017. Thus, these two decisions would indicate that the facts of thecase are required to be considered. 6.2Further, we would like to rely on the decision in Shaikh Arif vs.The State of Maharashtra and another [(2024) 4 SCC 463], wherein it isobserved that - 6943_Cri.Appln_679_2023“In view of the provisions of Section 375 of the Indian Penal Code, ifthe victim of the alleged offence of rape is not under 18 years of age,maintaining a sexual relationship with her consent, is not an offence.As held by this Court in the case of Anurag Soni vs. State ofChhattisgarh [(2019) 13 SCC 1], if the consent of the victim is basedon misconception, such consent is immaterial as it is not a voluntaryconsent. If it is established that from the inception, the consent of thevictim is a result of a false promise to marry, there will be no consent,and in such a case, the offence of rape will be made out.”6.3Further, we are taking note of the decision in Rajkumar vs. TheState of Karnataka and another [2024 SCC OnLine SC 257], wherein afterconsidering the decision in Shambhu Kharwar (supra) it was observed that –“A relationship may be consensual at the beginning but the same statemay not remain so for all time to come. Whenever one of thepartners show their unwillingness to continue with such relationship,the character of such relationship at it was when started will notcontinue to prevail and, therefore, by taking the view that therelationship had not remained consensual, they rejected the prayer toquash the First Information Report.”This case was then relied by the coordinate Bench of this Courtat Principal Seat in Amol Bhagwan Nehul vs. The State of Maharashtra andanother in Criminal Writ Petition No.3181 of 2023 decided on 28.06.2023. 7Thus, from all these decisions, it can be considered that the facts 7943_Cri.Appln_679_2023would govern the point of consent. Here, the contents of First InformationReport are therefore important. There are allegations that even in thebeginning the sexual intercourse was done by giving some intoxicant in colddrink but she had not lodged the report because of threat to make herphotographs and the clip viral. Though it appears that from January, 2019 toMarch, 2020 they were residing in a rented premises in Navi Mumbai, butthen she also states that by giving promise to marry the applicant had forcedher to take divorce from her husband. In April, 2020 she came to know thatthere is no divorce between the applicant and his wife. He had theknowledge that the informant is a member of Scheduled Caste and ultimatelyin April, 2020 he had abused her in the name of caste. She has specificallystated that the applicant has blackmailed her. Even he had forwarded herphotographs and the clip to his friend. There are chats on record and theelectronic evidence has been collected to that extent. Under suchcircumstance, when there is prima facie evidence, we do not find this to be afit case where we should exercise our inherent powers under Section 482 ofthe Code of Criminal Procedure for quashing the First Information Report andthe charge sheet. Application, therefore, stands rejected. (S.G. CHAPALGAONKAR, J.)( SMT. VIBHA KANKANWADI, J. )agd