High Court
Legal Reasoning
cran2135.23-6- the applicant and respondent No.2 and they were meeting with eachother even after her marriage. Now, it appears that with some ulteriormotive the informant is coming with the case that everything wasagainst her wish, just to bring the case under Sections 420, 376(2)(n)of the Indian Penal Code. We cannot go only by contents on the faceof its record but we will have to see whether there is any element oftruth also prima facie, to attract the ingredients of those offences.Such long relationship, that too, even after the marriage and gettingthe daughter, continuation of the said relationship can only be withconsent and not otherwise. 3.We would like to rely on the decision of Pramod SuryabhanPawar vs. State of Maharashtra and another, 2019(9) SCC 608,wherein it observed that, “consent with respect to Section 375 of theIPC involves an active understanding of the circumstances, actionsand consequences of the proposed act. An individual who makes areasoned choice to act after evaluating various alternative actions (orinaction) as well as the various possible consequences flowing fromsuch action or inaction, consents to such action. The complainantand the appellant met regularly, travelled great distances to meeteach other, resided in each other’s houses on multiple occasions,engaged in sexual intercourse regularly over a course of five yearson multiple occasions.” Then it was held that, it cannot be said that cran2135.23-7- acts fulfill or the ingredients of offence under Section 375 of theIndian Penal Code punishable under Section 376 of the Indian PenalCode were attracted. We are also taking note of the decisions inShambhu Kharwar vs. State of Uttar Pradesh, 2022 SCC OnLineSC 1032. Of course this was differentiated on the facts in Rajkumarvs. State of Karnataka, 2024 SCC OnLine SC 257. However, thecore is the same is that of Pramod Suryabhan Pawar vs. State ofMaharashtra and another, (supra).4.It also appears from the FIR and the statement under Section164 of the Code of Criminal Procedure that ultimately there is ademand of Rs.4,00,000/- from the informant, which she states that tobe given by her to the applicant and then there is refusal on the partof the applicant, which has led to the registration of the FIR. This canbe, thus taken to be with mala fide intention and therefore, the caseis made out for exercise of powers under Section 482 of the Code ofCriminal Procedure and here I agree to the operative part of theorder, above. [SMT. VIBHA KANKANWADI] JUDGE asb/FEB25
Arguments
cran2135.23-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADCRIMINAL APPLICATION NO. 2135 OF 2023 Niranjan Ashok Ladde...Applicant versus 1.The State of Maharashtra 2.XYZ (Victim)...Respondents …..Mr. Yogesh A. Jadhav, advocate for the applicantMr. N.R. Dayama, A.P.P. for respondent No.1Mr. S.V. Suryawanshi, advocate for respondent No.2 ….. CORAM:SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ.DATED:13th FEBRUARY, 2025 PER COURT (PER SANJAY A. DESHMUKH, J.):-1. By this application, filed under Section 482 of the Code ofCriminal Procedure, 1973, the applicant is seeking quashment ofF.I.R. No. 136 of 2023, dated 06.04.2023, registered with Chalisgaonpolice Station, district Jalgaon, for the offences punishable underSections 376(2)(n), 420, 506 of I.P.C. as well as the consequentialcharge sheet No. 98 of 2023 and further proceeding in pursuance toR.C.C. No. 167 of 2023, pending before the learned J.M.F.C.Chalisgaon, district Jalgaon. 2.Learned advocate for the applicant pointed out to us thereport lodged by the informant, in which it is averred that the cran2135.23-2- applicant from time to time, forcibly committed sexual intercourse withher, against her will. When she was serving in a beauty parlour, theapplicant also committed rape on her there. The applicant compelledher to terminate her pregnancy in Samarth Clinic of Dr. YashwantPawar. Sometimes, Rohan Patil and Rakesh Nandade used to carryher on their vehicles to the applicant. From time to time, she hadpaid total amount of Rs.3.00 to 4.00 lacs to the applicant. Theapplicant had assured her that after medical termination ofpregnancy, he will marry with her. Therefore, the informant believedhim. In the year 2000 the applicant took her gold chain and a ring,saying that he is having financial problem. Even when the informantcame to know that the applicant is married, she avoided to lodge thereport against the applicant.3.The informant performed her marriage with another person.After some days, when the informant came to her parental house, theapplicant met her. He stated that he is not satisfied with his wife. Hedoes not like to her. He stated that they will perform the marriageand stay together. When the informant was staying at Nashik with herhusband, the applicant used to visit her, he joined E-3 class atNashik and he frequently committed rape on her and even continuedto do the same. After some days, she came to her parents house.The informant at the insistence of the applicant started to reside atChalisgaon. Whenever, the wife of the applicant used to go to her cran2135.23-3- parents house, the applicant was fetching the informant at his houseand used to commit sexual intercourse with her at his residence. Healso used to take her to his agricultural land for it. The applicantthereafter, refused to marry with the informant. He threatened that hewill commit suicide by mentioning her name in the suicide note. Herefused to pay back the amount of Rs.4,00,000/- to her. It is withthese allegations, the report has been lodged. 4.Learned advocate for the applicant submitted that it is acase of consensual sexual intercourse. The informant is more than43 years old. The applicant has been falsely implicated in this crime.There is no evidence that the informant has paid an amount ofRs.4,00,000/- to the applicant, cheated and threatened her. It is lastlyprayed to quash and F.I.R. and the charge sheet. 5.Learned A.P.P. for respondent No.1 and learned advocatefor respondent No.2 strongly opposed the application and submittedthat the name of the applicant is mentioned in the report. Theapplicant is involved in serious crime. He took disadvantage of theinformant and cheated her for Rs.4,00,000/-. There is strongevidence against the applicant. It is lastly prayed to reject theapplication. 6.Perused the report and the charge sheet. In the report, in cran2135.23-4- para 3, though the informant has stated that prior to 2000 theapplicant took away the gold chain and gold ring from her but noreport was lodged by the informant of the said incident. Even it is notspecifically stated as to when the applicant took an amount ofRs.4,00,000/- from the informant. In support of the said allegation, nodocumentary evidence is produced on record by the informant. It is acase of threatening and rape. In respect of alleged incidents, therewere various opportunities for the informant to lodge report againstthe applicant, but she did nothing till filing of the present report.When the informant used to go to Nashik, she used to go to thehouse of the applicant frequently, to stay there. This conduct of theinformant shows that she continued her relationship with theapplicant even after her marriage for years together. From barereading of the report, it appears that it is a case of consensualphysical relation between the informant and the applicant and samewas started prior to 2000 and continued till 2023. The essentialingredients of section 376(2)(n) of I.P.C. constituting the offence ofrape, cheating and threatening to the informant are lacking. In such asituation, if the applicant is compelled to face the trial, it wouldcertainly be an abuse of process of the Court. Therefore, by invokingour inherent powers under Section 482 of Cr.P.C., we are inclined toallow the application Hence, the following order:- cran2135.23-5- O R D E R I.The application is allowed.II.The F.I.R. No. 136 of 2023, dated 06.04.2023 registeredwith Chalisgaon police Station, district Jalgaon, for theoffences punishable under Sections 376(2)(n), 420, 506 ofI.P.C. as well as the consequential charge sheet No. 98 of2023 and further proceeding in pursuance to R.C.C. No.167 of 2023, pending before the learned J.M.F.C.Chalisgaon, district Jalgaon, are quashed. (SANJAY A. DESHMUKH, J.) (SMT. VIBHA KANKANWADI, J.)rlj/[PER SMT. VIBHA KANKANWADI, J.] :1.I have gone through the order authored by learned JusticeSanjay A. Deshmukh. I agree to the operative part of the order,however, I want to add elaborate reasoning and therefore, presentpart of the order is added.2.Perusal of the FIR would show that even after marriage theinformant, respondent No.2 was continuing with her relationship,including physical relationship, with the applicant. Her statementunder Section 164 of the Code of Criminal Procedure also disclosesthe same thing. There are statements of other witnesses, who saythat they were having knowledge about the love relationship between