SHORT NOTE
HIMACHAL PRADESH HIGH COURT
Rakesh Kainthla, J.
Gulshan Kumar – Appellant
versus
State of H.P. and Anr. – Respondents
Cr.MMO No. 498 of 2021
Decided on 2.1.2024

IMPORTANT POINTS
(1) Power under Section 482 of Cr.P.C. can be exercised even after filing of charge-sheet.
(2) Sexual intercourse with married lady on false promise of marriage is not a case of misconception of fact.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 482 – Exercise of inherent jurisdiction – Power under Section 482 of Cr.P.C. can be exercised to prevent abuse of process or secure ends of justice – Court can quash F.I.R. if allegations do not constitute offence or make out a case against accused – However, it is not permissible for it to conduct a mini-trial to arrive at such findings – Submission that power under Section 482 of Cr.P.C. cannot be exercised after filing of charge-sheet is not acceptable.

Held: It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings.

Thus, the submission that the power under Section 482 of Cr.P.C. cannot be exercised after filing of the charge sheet is not acceptable. (Paras 15 and 17)

(B) Indian Penal Code, 1860 – Sections 376, 201 and 506 read with Section 3(2)(v)(a) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 read with Section 66(e) of Informant Technology Act, 2000 – Criminal Procedure Code, 1973 – Section 482 – Sexual intercourse with married lady on false promise of marriage – It was specifically mentioned in F.I.R. that informant was married at the time when she had entered into sexual relations with petitioner – She obtained divorce later on – Prosecutrix who herself was a married woman having three children, could not be said to have acted under alleged false promise given by appellant or under misconception of fact while giving consent to have a sexual relationship with appellant – She continued to have such relationship with him for about five years – Prosecutrix being a married woman and mother of three children was mature and intelligent enough to understand significance and consequences of moral or immoral quality of act she was consenting to – No case for commission of offence punishable under Section 376 of IPC is made out – F.I.R. does not mention anything about caste of informant or accused – In absence of any evidence that rape was committed on victim because she was a member of scheduled caste, offence punishable under Section 3 (2) (v) (a) of SC&ST Act, 1989, is not made out – FIR quashed.

Held: It was specifically mentioned in the F.I.R. that the informant was married at the time when she had entered into sexual relations with the petitioner. She stated that she obtained a divorce on 04.12.2019. She called the petitioner many times but his mobile number was not reachable or switched off. The petitioner even changed his mobile number. She nowhere stated that the petitioner had promised to marry her after she was divorced; hence, the promise to marry the informant is related to the period when she was already married.

Similarly, it was laid down in Naim Ahamed vs. State of (NCT of Delhi) 2023 SCC Online SC 89, that when the informant was married, had three children, developed a liking for the accused and had a sexual relationship, her plea that she had entered into the relationship on the pretext of marriage could not be accepted as she being a married woman and mother of three children was mature and intelligent enough to understand the significance and consequences of her Act.

Thus, no case for the commission of an offence punishable under Section 376 of IPC is made out.

The F.I.R. does not mention anything about the caste of the informant or the accused. It appears that the informant stated subsequently that the petitioner refused to marry her because of her caste. The police added Section 3(2) va of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It was laid down by Hon’ble Supreme Court in Dinesh v. State of Rajasthan, (2006) 3 SCC 771, that in the absence of any evidence that rape was committed on a victim because she was a member of the scheduled caste, the offence punishable under Section 3 (2) (v) (a) of SC&ST, (Prevention of Atrocities) Act, 1989, is not made out.

15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case, no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and a fine.

In the present case, there are no allegations in the complaint made to the police that the informant was a member of the Schedule Caste and she had disclosed this fact to the petitioner or that the petitioner knew the caste of the informant or her family members, therefore, the F.I.R. and the evidence do not disclose the commission of an offence punishable under Section 3(2) va of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Consequently, the F.I.R. and the investigation conducted thereafter do not disclose the commission of a cognizable offence against the petitioner. Hence, the continuation of the proceedings would be an abuse of the Court. Hence, the present petition is allowed and F.I.R. No. 36 of 2021 dated 19.03.2021 for the commission of offences punishable under Sections 376, 201, 506 of IPC, Section 3(2)va of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 66(e) of the Informant and Technology Act is ordered to be quashed. (Paras 18, 21, 22, 23, 25 and 26)

Result: Petition allowed. FIR quashed.