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2019 Supreme(Del) 2287
IN THE HIGH COURT OF DELHI AT NEW DELHI
MANOJ KUMAR OHRI, J.
IN THE MATTER OF:
Ajeet Singh and Ors - Petitioner
Versus
State & Anr - Respondent
CRL.M.C. 1474 of 2018 & CRL. REV. 785 of 2016 & CRL. M.A. 5356 of 2018
Decided On : 20-11-2019
For the Petitioner:Mr. Hrishikesh Baruah, Mr. Hemant Phalpher and Mr. Siddhant Kaushik, Advocates
For the Respondent: Dr. M.P. Singh, APP.
The distinction between consensual sex and rape, and the parameters for quashing proceedings under Section 482 Cr.P.C.
Headnote:
Section 482 Cr.P.C. - Quashing of Charge-sheet - Section 376 IPC - Prashant Bharti Vs. State (NCT of Delhi) - Mohit Nagar Vs. State and Anr. - Rahul Mishra Vs. State (Govt. of NCT of Delhi) - Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Ors. - Rajiv Thapar and Ors. Vs. Manda Lal Kapoor
Fact of the Case:
The petitioner sought quashing of the charge-sheet and consequent proceedings arising from an FIR under Section 376 IPC, contending that the complaint was filed with malafide intentions and that the complainant was already married at the time of the alleged offense.
Finding of the Court:
The court dismissed the petitions, stating that the initial physical relations were consensual based on the promise of marriage, but later became non-consensual and forcible, leading to a clear distinction between consensual sex and rape.
Issues: Abuse of process of law, validity of the FIR, consensual nature of the physical relations, and applicability of Section 376 IPC.
Ratio Decidendi: The court emphasized the distinction between consensual sex and rape, citing relevant case law, and highlighted the parameters for quashing proceedings under Section 482 Cr.P.C.
Final Decision: Both the petitions were dismissed, and the court's views were stated to be for the purpose of disposal of the petitions without affecting the trial of the case.
JUDGMENT :
1. The present criminal miscellaneous petition has been filed under Section 482 Cr.P.C. seeking quashing of the charge-sheet and consequent proceedings arising out of FIR No.865/2015 registered under Section 376 IPC at P.S. Hari Nagar. The petitioner has also filed the aforementioned Crl. Rev. Petition under Section 397/401 Cr.P.C. against the impugned order dated 08.09.2016 whereby the charge under Section 376 IPC was framed against the petitioner.
2. In the present case, the complainant was impleaded as respondent No.2 in both the petitions. The notice of the present petitions was served on her and her counsel duly appeared and even filed the Vakalatnama on her behalf. The counsel appeared on subsequent dates as well however, thereafter neither the complainant nor her counsel appeared. The matter was taken up on 07.11.2019 on which date, the counsel for the complainant was telephonically informed about the pendency of the present case however, neither the complainant nor her counsel appeared on that date. Learned APP, on instructions from the I.O., submitted that the complainant was informed by the Investigating Officer about the order dated 07.11.2019 passed by this Court. The arguments were heard on behalf of the petitioner as well as learned APP for the State. The trial court record, which had been requisitioned, was also perused.
3. Learned counsel for the petitioner contended that the present FIR is a gross abuse and misuse of the process of law inasmuch as the complaint has been filed with malafide intentions. It was submitted that ingredients of the offence punishable under Section 376 IPC are not made out as the complainant at the time of the registration of the FIR was already married to one Arvind Sharma which marriage according to the learned counsel for the petitioner is still subsisting.
4. Learned counsel for the petitioner has referred to various documents filed along with the petitions, in support of his aforesaid submission, that the complainant was already married and that she has filed a criminal case for rape and other offences against her husband namely, Arvind Sharma. He has also referred to the court orders to show that the complainant was also previously married to one Nishant Mishra.
5. Based on the aforementioned materials and statement of the complainant recorded during investigation, it is submitted that the complainant was already married twice and had two daughters out of the said marriage. It was urged that since complainant was already married and the said marriage was still subsisting, no case is made out against the petitioner. In support of his submission, he has placed reliance on the decision rendered by Supreme Court in Prashant Bharti Vs. State (NCT of Delhi) reported as (2013) 9 SCC 293 and decisions of the Coordinate Bench of this Court in Mohit Nagar Vs. State and Anr. reported as 2017 SCC OnLine Del 7616, Rahul Mishra Vs. State (Govt. of NCT of Delhi) reported as 2018 SCC OnLine Del 7231.
6. Learned counsel for the petitioner also contended that even otherwise it is a fit case of quashing of the FIR as it has been admitted by the complainant that she was in a live-in relationship with the petitioner for quite some time. It was stated that the complainant had taken a conscious decision to continue to live with the petitioner. In support of his submission, learned counsel for the petitioner has placed reliance on the decision rendered in Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Ors. reported as 2018 SCC Online SC 3100, in support of his submissions that if physical relations continued then it does not amount to rape under false promise to marry.
7. The scope of Section 482 Cr.P.C. and the parameters to exercise the power under Section 482 Cr.P.C. by the High Court to quash the prosecution at the stage of issuing process or at the stage of framing of charge have been enunciated time and again. In Rajiv Thapar and Ors. Vs. Manda Lal Kapoor reported as (2013) 3 SCC
