Subhash Kumar v. State of Uttar Pradesh Anr, AIR

1. Heard Mr. Manvendra Kumar Yadav, learned counsel for the applicants as well as Mr. Amit Singh Chauhan, learned A.G.A. for the State and perused the record.

2. This application under Section 482 Cr.P.C. has been filed to quash the charge sheet dated 21.06.2023 along with Cognizance/Summoning order dated 10.07.2023 and the entire proceeding of Criminal Case No.15675 of 2023 (State vs. Anirudh & Others), arising out of Case Crime No.195 of 2023, under Sections 376, 323, 504, 506 I.P.C. and Section 4 D.P. Act, Police Station- Nebuwa Naurangiya, District- Kushinagar, pending in the court of Judicial Magistrate, Kushinagar @ Padrauna.

3. Brief facts of the case are that an FIR was lodged on 16.05.2023 at 14:38 hours under Sections 376, 504, 506, 323 I.P.C. and Section 4 of D.P. Act against four named accused who are the applicants in the present case with the allegations that devar of elder sister of opposite party no.2 namely Keshav Kumar (applicant no.1) used to frequently visit the house of opposite party no.2. He came to her house in the month of June, 2022 when he clicked nude photographs of opposite party no.2 while she was bathing. Showing the aforesaid photographs and threatening to make the same viral, he forcefully established physical relationship with the opposite party no.2 after which he promised to marry the opposite party no.2. The opposite party no.2 agreed to the proposal as made by applicant no.1 and shared about the same with her parents who agreed to accept the same. When the parents of opposite party no.2 went with the aforesaid request of fixing marriage of applicant no.1 with opposite party no.2, the family members' of applicant no.1 refused, therefore, an application was given at local police station namely Nebuwa Naurangiya but the applicants compromised at the police station and agreed to marry applicant no.1 with opposite party no.2. They took opposite party no.2 to their residence and kept her there for three months. The marriage as agreed was not performed till then. Afterwards, they started talking about dowry and refused from marrying applicant no.1 with opposite party no.2. It has been further alleged that the parents of opposite party no.2 again went with the request of marrying opposite party no.2 with applicant no.1, on which they demanded Rs.2,00,000/- and a pulsar motorcycle. On 02.04.2023 at about 10:00 am Keshav, Anirudh, Surendra as well as Suryamali Devi assaulted and abused opposite party no.2 who was staying with them and threw her out from their house. The opposite party no.2 informed her parents and brother who took her along with them and the present FIR was lodged. After investigation, charge sheet has been submitted on 21.06.2023 and the applicants have been summoned by order dated 10.07.2023.

4. Learned counsel for the applicants submits that the present case has been lodged with false and frivolous allegations. He further contends that there is delay in lodging the FIR without giving any plausible reason for the same. He further contends that the present case has been lodged as a counter blast to the complaint as lodged by Jaiprakash-brother of applicant no.1 against opposite party no.2 and her family members on 14.07.2022 for the incident dated 21.06.2022. He further submits that from the statement recorded under Section 164 Cr.P.C., the relation between the opposite party no.2 and applicant no.1 was consensual, therefore, no offence under the relevant section is made out. He further submits that no offence under Section 376 I.P.C. is made out as there was no intention to cheat from the very beginning and no false promise to marry the victim has been given by the applicant no.1. In support of his submission, he has relied upon judgement of Sonu @ Subhash Kumar Vs. State of Uttar Pradesh & Anr, AIR 2021 Supreme Court 1405. Several other submissions have been made on behalf of the applicants to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicants have also been touched upon at length.

5. Learned A.G.A. for the State on the other hand submits that from the version of the FIR as well as statements of witnesses, the offence under the relevant section is made out against the applicants. He also contends that nude photographs of opposite party no.2 were taken in June, 2022 and in order to save the skin, the present complaint has been lodged in July, 2022, therefore, the contention of learned counsel for the applicants has no legs to stand. From the statement recorded under Section 164 Cr.P.C. as well as version of the FIR, it is clear that after threatening the opposite party no.2 to make the objectionable video viral, the applicant no.1 forcefully established physical relationship with her and thereafter in order to exploit her, promised to marry her, therefore, the promise to marry was from the very inception with intention to cheat the opposite party no.2. As regards, the family members i.e. applicant nos.2, 3 and 4, they have also cooperated with the applicant no.1 in conduct of exploiting the opposite party no.2 which is a serious offence. As regards the contention of learned counsel for the applicants regarding delay in lodging the FIR, in such serious offences where the victim is exploited for certain period and subsequently promise is made to marry her, in order to save herself from defamation in the society, it is quite natural that the delay in the FIR may happen and in such cases delay is meaningless.

6. He further submits that applicant no.1 had obtained consent for sexual relationship by making false promise of marriage, therefore, such consent was given under some misconception of fact and amounted to rape. The aforesaid has been held in the case of Harshvardhan Yadav Vs. State of U.P. and Another, 2021 SCC Online All 500. The family members also helped the applicant no.1 in cheating the opposite party no.2 as from the very inception the applicant no.1 had no intention to marry, however, has established physical relationship by making false promise taking consent for the same which amounts to rape and the other family members have also not objected to such a conduct of the applicant no.1. Relying upon another case of Anurag Soni v. State of Chhattisgarh, 2019 (13) SCC 1, learned AGA submits that the consent of opposite party no.2 was based on misconception, such consent is immaterial as it is not voluntary consent, therefore, offence under the relevant section is made out. He further submits that from the version of the FIR as well as statements of witnesses it is clear that from the very inception, the consent of opposite party no.2 was result of false promise to marry, which cannot be taken as consent and hence, the act as done by applicant no.1 amounts to rape. As the family members have not objected to such a conduct of the applicant no.1 they are also involved in the offence along with applicant no.1. He further submits that all the other contentions relate to disputed questions of fact. From perusal of the records, prima facie, it cannot be said at this stage that no offence has been committed by the applicants.

7. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.

8. This Court finds that the submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet, cognizance and the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to come only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:- (i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866, (ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335, (iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222, (iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122, (v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682, (vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454, (vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45, (viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143 and lastly (ix) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra; 2021 SCC Online SC 315.

9. In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

10. The prayer for quashing the impugned charge-sheet dated 21.06.2023, Cognizance/Summoning order dated 10.07.2023 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.

11. The present application u/s 482 Cr.P.C. is dismissed accordingly. Order Date :- 18.2.2025 Kalp Nath Singh

1. Heard Mr. Manvendra Kumar Yadav, learned counsel for the applicants as well as Mr. Amit Singh Chauhan, learned A.G.A. for the State and perused the record.

2. This application under Section 482 Cr.P.C. has been filed to quash the charge sheet dated 21.06.2023 along with Cognizance/Summoning order dated 10.07.2023 and the entire proceeding of Criminal Case No.15675 of 2023 (State vs. Anirudh & Others), arising out of Case Crime No.195 of 2023, under Sections 376, 323, 504, 506 I.P.C. and Section 4 D.P. Act, Police Station- Nebuwa Naurangiya, District- Kushinagar, pending in the court of Judicial Magistrate, Kushinagar @ Padrauna.

3. Brief facts of the case are that an FIR was lodged on 16.05.2023 at 14:38 hours under Sections 376, 504, 506, 323 I.P.C. and Section 4 of D.P. Act against four named accused who are the applicants in the present case with the allegations that devar of elder sister of opposite party no.2 namely Keshav Kumar (applicant no.1) used to frequently visit the house of opposite party no.2. He came to her house in the month of June, 2022 when he clicked nude photographs of opposite party no.2 while she was bathing. Showing the aforesaid photographs and threatening to make the same viral, he forcefully established physical relationship with the opposite party no.2 after which he promised to marry the opposite party no.2. The opposite party no.2 agreed to the proposal as made by applicant no.1 and shared about the same with her parents who agreed to accept the same. When the parents of opposite party no.2 went with the aforesaid request of fixing marriage of applicant no.1 with opposite party no.2, the family members' of applicant no.1 refused, therefore, an application was given at local police station namely Nebuwa Naurangiya but the applicants compromised at the police station and agreed to marry applicant no.1 with opposite party no.2. They took opposite party no.2 to their residence and kept her there for three months. The marriage as agreed was not performed till then. Afterwards, they started talking about dowry and refused from marrying applicant no.1 with opposite party no.2. It has been further alleged that the parents of opposite party no.2 again went with the request of marrying opposite party no.2 with applicant no.1, on which they demanded Rs.2,00,000/- and a pulsar motorcycle. On 02.04.2023 at about 10:00 am Keshav, Anirudh, Surendra as well as Suryamali Devi assaulted and abused opposite party no.2 who was staying with them and threw her out from their house. The opposite party no.2 informed her parents and brother who took her along with them and the present FIR was lodged. After investigation, charge sheet has been submitted on 21.06.2023 and the applicants have been summoned by order dated 10.07.2023.

4. Learned counsel for the applicants submits that the present case has been lodged with false and frivolous allegations. He further contends that there is delay in lodging the FIR without giving any plausible reason for the same. He further contends that the present case has been lodged as a counter blast to the complaint as lodged by Jaiprakash-brother of applicant no.1 against opposite party no.2 and her family members on 14.07.2022 for the incident dated 21.06.2022. He further submits that from the statement recorded under Section 164 Cr.P.C., the relation between the opposite party no.2 and applicant no.1 was consensual, therefore, no offence under the relevant section is made out. He further submits that no offence under Section 376 I.P.C. is made out as there was no intention to cheat from the very beginning and no false promise to marry the victim has been given by the applicant no.1. In support of his submission, he has relied upon judgement of Sonu @ Subhash Kumar Vs. State of Uttar Pradesh & Anr, AIR 2021 Supreme Court 1405. Several other submissions have been made on behalf of the applicants to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicants have also been touched upon at length.

5. Learned A.G.A. for the State on the other hand submits that from the version of the FIR as well as statements of witnesses, the offence under the relevant section is made out against the applicants. He also contends that nude photographs of opposite party no.2 were taken in June, 2022 and in order to save the skin, the present complaint has been lodged in July, 2022, therefore, the contention of learned counsel for the applicants has no legs to stand. From the statement recorded under Section 164 Cr.P.C. as well as version of the FIR, it is clear that after threatening the opposite party no.2 to make the objectionable video viral, the applicant no.1 forcefully established physical relationship with her and thereafter in order to exploit her, promised to marry her, therefore, the promise to marry was from the very inception with intention to cheat the opposite party no.2. As regards, the family members i.e. applicant nos.2, 3 and 4, they have also cooperated with the applicant no.1 in conduct of exploiting the opposite party no.2 which is a serious offence. As regards the contention of learned counsel for the applicants regarding delay in lodging the FIR, in such serious offences where the victim is exploited for certain period and subsequently promise is made to marry her, in order to save herself from defamation in the society, it is quite natural that the delay in the FIR may happen and in such cases delay is meaningless.

6. He further submits that applicant no.1 had obtained consent for sexual relationship by making false promise of marriage, therefore, such consent was given under some misconception of fact and amounted to rape. The aforesaid has been held in the case of Harshvardhan Yadav Vs. State of U.P. and Another, 2021 SCC Online All 500. The family members also helped the applicant no.1 in cheating the opposite party no.2 as from the very inception the applicant no.1 had no intention to marry, however, has established physical relationship by making false promise taking consent for the same which amounts to rape and the other family members have also not objected to such a conduct of the applicant no.1. Relying upon another case of Anurag Soni v. State of Chhattisgarh, 2019 (13) SCC 1, learned AGA submits that the consent of opposite party no.2 was based on misconception, such consent is immaterial as it is not voluntary consent, therefore, offence under the relevant section is made out. He further submits that from the version of the FIR as well as statements of witnesses it is clear that from the very inception, the consent of opposite party no.2 was result of false promise to marry, which cannot be taken as consent and hence, the act as done by applicant no.1 amounts to rape. As the family members have not objected to such a conduct of the applicant no.1 they are also involved in the offence along with applicant no.1. He further submits that all the other contentions relate to disputed questions of fact. From perusal of the records, prima facie, it cannot be said at this stage that no offence has been committed by the applicants.

7. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.

8. This Court finds that the submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet, cognizance and the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to come only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:- (i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866, (ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335, (iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222, (iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005 (1) SCC 122, (v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682, (vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454, (vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45, (viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143 and lastly (ix) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra; 2021 SCC Online SC 315.

9. In view of the aforesaid, this Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

10. The prayer for quashing the impugned charge-sheet dated 21.06.2023, Cognizance/Summoning order dated 10.07.2023 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.

11. The present application u/s 482 Cr.P.C. is dismissed accordingly. Order Date :- 18.2.2025 Kalp Nath Singh