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2018 Supreme(P&H) 463
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANITA CHAUDHRY, J.
Baljeet Kumar Rao - Petitioner
Versus
State of Haryana and another - Respondents
Crl. Misc. No. M-30534 of 2017
Decided On : 23-02-2018
For the Petitioner:Mr. K.S.Khehar, Advocate
For the Respondent:Mr. Arun Kumar, AAG, Mr. Vivek Suri, Advocate
IMPORTANT POINT
Rape – Quashing – False promise to marry – The acknowledged consensual physical relationship does not constitute the offence under Section 376 IPC.
Headnote:(A) Indian Penal Code, 1860, S.376 – Rape – Quashing – False promise to marry – Prosecutrix and accused were already married and their marriage was still subsisting – Both of them were in relationship for last 11 years – Therefore, the complainant could not have been induced into any physical relationship based on assurance of marriage – Their relationship if, was consensual, the allegation that she was induced with the promise of marriage stands falsified – The acknowledged consensual physical relationship does not constitute the offence under Section 376 IPC because both the parties were married – Complaint quashed – Criminal Procedure Code, 1973, S.482. (Para 19)
(B) Indian Penal Code, 1860, S.376 – Rape – Quashing – False promise to marry – The marriage of the complainant was subsisting when she entered into a relationship with the petitioner – She was not divorced – There are no allegations that she was kept as a wife by the petitioner – She has admitted to the relationship which was consensual – The FIR had been lodged 11 years after the first misadventure – Both the complainant and the petitioner were major, married and has not divorced their respective spouses till date – There are no allegations that physical relation was induced on account of extraneous consideration and the allegations per se do not attract the provisions of Section 376 IPC – Complaint quashed – Criminal Procedure Code, 1973, S.482. (Para 10)
ANITA CHAUDHRY, J.
1. The instant petition is for quashing of FIR No. 84 dated 19.5.2017 registered under Sections 376, 506 IPC, Police Station Kalka, District Panchkula (Annexure P-1) and all the consequent proceedings arising out of the same.
2. Following facts emerge from the record.
3. Ritu Kaushal gave a complaint that she was in a 10 year relationship with the petitioner and he had allured her and had been raping her since 2006. The allegations were that he took her to different places/ farm houses and was raped. The allegations are that she was given juice on one occasion which was laced with sedatives. She fell unconscious. The accused took photographs and had been showing it to her and had threatened to put them on the internet. It was also alleged that she gave birth to a child in 2009 and the child was now six years old and the accused used to take up quarrels and was threatening to kill her. On 8.10.2016, the complainant went to the office of the accused where he, his wife and four women were present who gave her a beating and threatened to kill her.
4. The police held an enquiry. Both the sides were called. Their statements were recorded. The investigating officer made its recommendation for filing the complaint.
5. Another complaint was given to Chief Minister's office which was enquired into. It was found that both the complainant and the accused were married and had children and earlier they were on good terms with each other and they used to work together in the same office. It was reported that no cognizable offence was found to have been committed. The report was submitted to the Commissioner of Police. The complaint was filed. Not satisfied, the complainant approached the CM Window and gave another complaint on 8.12.2016 which was enquired into by the DCP, Panchkula and it was reported that no cognizable offence was made out. Subsequently, the police filed challan (Annexure P-5) in June 2017. It was also mentioned that an application had been moved in the Court for conducting DNA test, that application was pending.
6. The petitioner seeks quashing of the FIR on the plea that false allegations have been levelled and the complainant was habitual in filing false complaints and a similar complaint had been made by her against one Narinder Puri and the FIR was cancelled. It was pleaded that various enquiries were held and the police officials had found that no cognizable offence was made out but still challan has been filed.
7. Reply has been filed by the State counsel as well as by the complaint.
8. I have bestowed considerable thought to the respective submissions made on behalf of both the parties.
9. A perusal of the first information report and the other material available on record, the following facts are revealed:-
1. The complainant is a married woman separated from her husband though not divorced.
2. She has accepted her physical relationship with the petitioner for the last 10 years.
3. During this period of 10 years, there was no complaint.
4. The first episode took place in 2006. The FIR has been lodged in 2017.
5. The allegations are that the accused had taken some obscene photographs and was blackmailing her and had allured her into marriage. The allegations were made that she had conceived a child in 2009 and the promise of marriage continued.
6. The accused started quarreling with her and gave threats to kill her.
10. A bare perusal of the facts in the FIR reflects that the marriage of the complainant was subsisting when she entered into a relationship with the petitioner. She was not divorced. There are no allegations that she was kept as a wife by the petitioner. She has admitted to the relationship which was consensual. The FIR had been lodged 11 years after the first misadventure. Both the complainant and the petitioner are major. There are no allegations that physical relation was induced on account of extraneous consideration and the allegations per se do not attract the provisions of Section 37
