State.Mr v. M. Janrao

Legal Reasoning

appln-2011-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.2011 OF 2023Gayas Ahmed Nizamuddin ShaikhAge: 39 years, Occu.: Business,R/o. Sohel Nagar, Latur,Taluka and District Latur .. ApplicantVersus1.The State of MaharashtraThrough Police Station Officer,MIDC Police Station, Latur,Taluka and District Latur. 2.XYZ .. Respondents…Mr. Amol T. Jagtap, Advocate for the applicant.Mrs. R. P. Gour, APP for respondent No.1/State.Mr. V. M. Janrao, Advocate for respondent No.2 (Absent).... CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ. RESERVED ON : 13 FEBRUARY 2025 PRONOUNCED ON : 04 APRIL 2025ORDER (Per Smt. Vibha Kankanwadi, J.) :-.Present application has been filed initially for quashing the FIRvide Crime No.256 of 2023 dated 05.04.2023 registered with MIDCPolice Station, Latur, Taluka and District Latur and later on, by way ofamendment, for quashing the proceedings in Sessions Case No.97 of2023 pending before the learned Sessions Judge, Latur for the offencespunishable under Sections 376(2)(n), 376(2)(f), 376(c)(a), 363, 506 of[1] appln-2011-2023.odtIndian Penal Code.2.Heard learned Advocate Mr. Amol T. Jagtap for the applicant andlearned APP Mrs. R. P. Gour for respondent No.1/State. LearnedAdvocate for respondent No.2 is absent. 3.Learned Advocate for the applicant has taken us through thecontents of the FIR and the charge-sheet. He submits that theinformant/respondent No.2 was a married lady of 29 years. The presentapplicant is the cousin brother of her ex-husband. She states that shewas married in 2010 and had two sons and two daughters from herhusband. In May 2022, upon the invitation of the applicant, theinformant, her husband and the family went to reside in the house ofapplicant on rent. The present applicant developed faith and then hestarted saying to the informant that he likes her. She had not given anyresponse to him, but on one day when she was alone, he forcibly hadsexual intercourse with her by saying that he loves her and she shouldmarry him and then by giving threat to kill her husband and children, heleft. She then states that the applicant used to visit her house whenevershe used to be alone and used to have sexual intercourse. She thenstates that the applicant insisted her that she should get divorce from thehusband and marry him and gave threats to kill children and thehusband and, therefore, she had taken divorce from husband on[2] appln-2011-2023.odt10.12.2022. She then states that after the husband left her due toconstrained circumstances, she was staying with the applicant and herchildren. During the said period, the applicant used to have sexualintercourse with her, but was not marrying with her. Her mother hadcome to meet her on 29.03.2023 and, therefore, they both went to thehouse of the applicant to ask as to when he was going to marry her. Atthat time, the applicant flatly refused and gave threat to kill her. Afterconsidering this FIR, it can be certainly said that the relationship wasconsensual. At no point of time, she had ever raised any objection forthe relationship and, therefore, the basic ingredients of the offences arenot made out. 4.Learned Advocate for the applicant relies on the decision inShambhu Kharwar Vs. State of Uttar Pradesh and Another, [AIROnline 2022 SC 1302], wherein the law clarified in Pramod SuryabhanPawar Vs. State of Maharashtra, [AIR 2019 SC 4010] have beenreiterated and, therefore, when the consent can be considered from theallegations itself, then it would be unjust to ask such accused to face thetrial.5.Learned APP strongly opposed the application. Respondent No.2has filed the affidavit-in-reply, wherein the same facts are repeated. It isstated that the applicant used to threaten her and her entire family and,[3] appln-2011-2023.odttherefore, she used to be under mental tension. The applicant hasexploited her. She had never consented him. The police haveinvestigated the matter and filed the charge-sheet. Therefore, let therebe trial.6.As aforesaid, the informant was a married lady having fourchildren. The applicant is stated to be the cousin brother of the husbandof the informant. It is hard to believe that she was not knowing theapplicant since the time of her marriage. She has not stated when shecame to know or got acquainted with the applicant. She states that sheused to speak with the applicant on phone occasionally and thenapplicant told that she along with the husband should come to reside inhis house on rent and then since May 2022, they went to reside in thehouse of the applicant. Thus, though she was married in 2010, she hastried to pose that the relationship developed only after May 2022. HerFIR would show that in the same month i.e. when they shifted to thehouse of applicant, it is stated that the applicant had forcible sexualintercourse with her. This is something unbelievable and then she saysthat since threat was given to kill her husband and children, she had notinformed the said act committed by the applicant with her to her husbandor anybody, but then she further states that the applicant used to visit herhouse frequently whenever she used to be alone and then used to havesexual intercourse with her forcibly. This also cannot be a coincidence[4] appln-2011-2023.odtthat he used to come only when she used to be alone. She then statesthat after some days, applicant told that she should give divorce to herhusband and should marry him. She had refused and at that time theapplicant told her that if she doesn’t marry him by giving divorce to thehusband, he would kill her husband and children. She then states thatdue to fear then she took divorce from her husband on 10.12.2022. Thehusband left her and went to Osmanabad, but she continued to stay inthe same house belonging to the applicant. This is also the clearindication of the fact that the relationship was consensual. She thenstates that the applicant was residing with her and her children andapplicant used to have sexual intercourse with her, but was notperforming marriage with her. Here, the investigating officer hasrecorded statements of the parents and brothers of the informant.Statement of atleast two children, who might be sufficiently matured,could have been taken to support the fact that the applicant used toreside with them and as to how was the behaviour of the applicant withthem. The informant then states that her mother had come to meet heron 29.03.2023 and at that time, she herself and her mother went to thehouse of applicant (which appears to be the another house) and askedhim as to when he is going to marry the informant. At that time, applicantabused and flatly refused to marry her. The statements of the parents ofrespondent No.2 would show that when the husband of the informant[5] appln-2011-2023.odthad given Talaq to the informant, they had asked him as to why he hasgiven divorce to their daughter. The husband of the informant told themthat applicant used to visit her house and the applicant and informantused to talk on phone. There used to be quarrels between informant andhis mother (informant’s mother-in-law) and, therefore, the applicant hadasked him to shift to his house so that the quarrels would be reducedand, therefore, they went to stay in the house of applicant on rent. Whenthe applicant used to come frequently to his house, then he had askedthe applicant the reason for his frequent visit. Thereupon, the applicanttold that he likes informant and then threatened the husband by sayingthat he should give divorce to the informant, otherwise he would be killedand, therefore, due to fear, he has given Talaq on 10.12.2022. This is infact unbelievable that before taking the decision of divorce, the informantand her husband would not have consulted the near relatives. Thisappears to be due to the consensual relationship and now the thingshave been twisted. In Shambhu Kharwar (Supra) also there weresimilar allegations by the informant that the accused had forced her tobreak her marriage and thereupon the matrimonial relationship hadcome to an end. There also after the relationship had ended, accusedand informant were living together. With the similar facts before us, weare of the opinion that it would be an abuse of process of law to ask theapplicant to face the trial since the crucial ingredients of the offence[6] appln-2011-2023.odtunder Section 375 of the Indian Penal Code are absent. Of course, inthe case of Rajkumar Vs. State of Karnataka, 2024 SCC OnLine SC257, wherein taking into consideration the facts of the case it wasobserved that they are accepting the view taken by the Co-ordinateBench in Shambu Kharwar (Supra), but differentiating the same, takinginto consideration the facts, it was observed that “a relationship may beconsensual at the beginning but the same state may not remain so for alltime to come. Whenever one of the partners show their unwillingness tocontinue with such relationship, the character of such relationship as itwas when started will not continue to prevail and, therefore by taking theview that the relationship had not remained consensual, they rejectedthe prayer to quash the FIR.” This was the view taken, however, hereeven after the divorce was taken on 10.12.2022, the relationshipcontinued till 29.03.2023 without agitation or narration to the near anddear ones and, therefore, we take this to be a fit case where we shouldexercise our powers under Section 482 of the Code of CriminalProcedure, as it would be then abuse of process of law to ask theapplicant to face the trial. The case squarely fall within the parameterslaid down in State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors,[AIR 1992 SC 604], R.P. Kapur Vs. The State of Punjab, [AIR 1960 SC866] and Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtraand Ors., (Three Judge Bench decision) [AIR 2021 SC 1918]. Hence,[7] appln-2011-2023.odtthe following order :-ORDERI)The Criminal Application stands allowed.II)The FIR vide Crime No.256 of 2023 dated 05.04.2023registered with MIDC Police Station, Latur, Taluka and DistrictLatur as well as the proceedings in Sessions Case No.97 of 2023pending before the learned Sessions Judge, Latur for the offencespunishable under Sections 376(2)(n), 376(2)(f), 376(c)(a), 363,506 of Indian Penal Code, stand quashed and set aside as againstthe present applicant.[ SANJAY A. DESHMUKH ] [ SMT. VIBHA KANKANWADI ] JUDGEJUDGEscm[8]