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SUPREME COURT OF INDIA
A.K. SIKRI, S. ABDUL NAZEER, JJ.
DR. DHRUVARAM MURLIDHAR SONAR – APPELLANT
VERSUS
THE STATE OF MAHARASHTRA & ORS. – RESPONDENTS
CRIMINAL APPEAL NO. 1443 OF 2018 (Arising out of S.L.P. (Criminal) No.6532 of 2018)
Decided On : 22-11-2018
1992 Supp (1) SCC 335; (1999) 3 SCC 259; (2002) 3 SCC 89; (2017) 13 SCC 369 – Relied upon
(b) Code of Criminal Procedure, 1873 – Section 482 – FIR registered u/s 376(2)(b) and 420 r/w Section 34, Indian Penal Code, 1860 and Section 3(1)(x), Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Rape and consensual sex – Prosecutrix falling in love with appellant, residing with him either at her house or his – Distinction between mere breach of a promise and not fulfilling a false promise – Appellant not making promise of marriage with sole intention of seducing prosecutrix – Held, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC – FIR not mentioning any wrong committed by appellant u/s 420, IPC or section 3(1)(x), SC/ST Act – High Court, held, not justified in rejecting appellant’s application u/s 482. (Para 20, 21, 22)
(2003) 4 SCC 46; (2005) 1 SCC 88; (2013) 7 SCC 675; Criminal Appeal No.504 of 2018 – Relied upon
Facts of the case:
The appellant is the accused No.1 in the FIR registered at the instance of the complainant/respondent No.4. At the relevant point of time, the appellant was serving as a medical officer, Primary Health Centre whereas the complainant was working as an Assistant Nurse at the same establishment. Her husband died on 05.11.1997, leaving behind her and her two children. During this time, the appellant informed her that there have been differences between him and his wife, and therefore, he is planning to divorce his wife. Further, the appellant informed the complainant that since they belong to different communities, a month is needed for the registration of their marriage. Therefore, she started living with the appellant at his Government quarters. The appellant acted as if he has married her and has maintained a physical relationship with her. However, he has failed to marry her as promised. When things stood thus, his brother, i.e accused No. 2, claims to have married her. Thereafter complainant received the information from the co-accused about the marriage of the appellant with some other woman. Therefore, she filed the complaint and FIR came to be registered against the appellant and the co-accused.
The investigating agency filed a final report. The appellant filed the criminal application under Section 482 before the High Court for quashing the FIR and the charge sheet which has been dismissed.
Finding of the Court:
High Court should not have rejected application u/s 482 CrPC.
Result: Appeal allowed.
Key Points: - Appreciation of evidence is not permissible under Section 482 of the CrPC (!) . - A High Court can quash a complaint if the allegations set out therein do not constitute the offense of which cognizance has been taken (!) . - The distinction between rape and consensual sex, and between a mere breach of promise and not fulfilling a false promise, must be kept in mind (!) . - An acknowledged consensual physical relationship between parties would not constitute an offense under Section 376 of the IPC (!) . - The inherent jurisdiction under Section 482 of the CrPC, though wide, must be exercised sparingly, carefully, and with caution (!) . - If a criminal proceeding is manifestly attended with mala fide and/or is maliciously instituted with an ulterior motive, the High Court may quash the proceeding under Section 482 CrPC (!) . - The allegations in the FIR did not prima facie constitute any offense under Section 376(2)(b) of the IPC (!) . - The FIR did not mention any wrong committed by the appellant under Section 420 of the IPC or Section 3(1)(x) of the SC/ST Act (!) . - The High Court was not justified in rejecting the appellant's application under Section 482 of the Cr.P.C. (!) . - The appeal was allowed, and the FIR and chargesheet were quashed (!) (!) .
JUDGMENT
S.ABDUL NAZEER, J.
1. Leave granted.
2. This appeal is directed against the judgment and order dated 02.07.2018 in Criminal Application No.3590 of 2012, whereby the High Court of Judicature at Bombay (Bench at Aurangabad) dismissed the application filed by the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C') for quashing the First Information Report No.59 of 2000 registered with Mhasawad Police Station, District Nandurbar, for the offences punishable under Sections 376 (2)(b), 420 read with Section 34 of the Indian Penal Code, 1860 (for short 'IPC') and under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the SC/ST Act') and the chargesheet filed in the court of judicial magistrate, F.C. Shahada, Nandurbar District.
3. The appellant is the accused No.1 in the aforesaid FIR, registered at the instance of the complainant/respondent No.4. At the relevant point of time, the appellant was serving as a medical officer, Primary Health Centre at Toranmal, Dhadgaon Taluq, Nandurbar District, whereas the complainant was working as an Assistant Nurse at the same establishment. The allegations made by the complainant in the FIR in brief are that her husband died on 05.11.1997, leaving behind her and her two children. During this time, the appellant informed her that there have been differences between him and his wife, and therefore, he is planning to divorce his wife. Further, the appellant informed the complainant that since they belong to different communities, a month is needed for the registration of their marriage. Therefore, she started living with the appellant at his Government quarters. The FIR further states that she had fallen in love with the appellant and that she needed a companion as she is a widow. Therefore, they started living together, as if they were husband and wife. They resided some time at her house and some time at the house of the appellant. The appellant acted as if he has married her and has maintained a physical relationship with her. However, he has failed to marry her as promised. When things stood thus, his brother, i.e accused No. 2, claims to have married her. Thereafter, in the year 2000, complainant received the information from the co-accused about the marriage of the appellant with some other woman. Therefore, she filed the aforesaid complaint and FIR dated 06.12.2000 came to be registered against the appellant and the co-accused.
4. After the completion of the investigation, the investigating agency filed a final report on 14.06.2001. The appellant filed the criminal application under Section 482 before the High Court for quashing the FIR and the chargesheet. As noticed above, the High Court has dismissed the criminal petition by its order dated 02.07.2018.
5. Learned counsel for the appellant contends that in the instant case the process of the court is sought to be abused by the complainant with oblique motive. The criminal proceeding is manifestly intended with mala fides and the proceeding is maliciously instituted with an ulterior motive. It is submitted that the complainant was involved in relationship with the brother of the appellant and the appellant was not in relationship with her at any point of time. As a matter of fact, marriage was solemnized between the brother of the appellant and complainant. The complainant was constantly blackmailing the appellant for some reason or the other. It is submitted that even if the entire allegations made in the complaint are taken at their face value and accepted in its entirety, such allegations do not constitute any offence.
6. On the other hand, learned advocate appearing for respondent Nos.1 to 3 has sought to justify the impugned order.
7. We have carefully considered the submissions of the learned counsel made at the Bar and perused the materials placed on record.
8. It is well settled that exercise of powers under Section 482 of
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