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IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
Arun Kumar Singh Deshwal,J.
Imran Khan @ Ashok Ratna – Applicant
Versus
State of U.P. and Another – Respondents
APPLICATION U/S 528 BNSS No. - 11862 of 2025
Decided On : 06-05-2025
Key Points: - The court held that marital status does not negate the possibility of non-consensual sexual acts being punishable under Section 377 IPC, affirming the individual rights of the wife to give or deny consent (!) (!) (!) . - The court rejected the argument that delay in lodging the FIR automatically invalidates the complaint, ruling that continuous harassment can justify lateness (!) (!) . - Refusal for medical examination does not invalidate the proceeding, as sufficient corroborating evidence exists to support allegations regardless of witness inconsistencies (!) (!) . - The court clarified that unnatural sexual acts performed by a husband on his wife against her wishes constitute an offence under Section 377 IPC, regardless of her age or marital status (!) (!) . - The applicant's request to quash the proceedings regarding allegations of dowry harassment and unnatural offences was rejected (!) (!) . - The court found that the specific demand of dowry is not necessary to attract the offence under Section 498A IPC, as cruelty committed by the husband is sufficient (!) (!) . - The court distinguished between consensual and non-consensual acts, stating that non-consensual carnal intercourse remains an offence even if consensual acts between adults are decriminalized (!) (!) (!) . - The judgment emphasized that a woman's fundamental right to dignity and privacy protects her choice regarding sexual orientation and consent (!) (!) (!) . - The court determined that no ground for quashing was made out, emphasizing the independent rights of the wife (!) (!) . - The applicant is at liberty to apply for bail before the court below, though the application to quash was rejected (!) (!) .
JUDGMENT :
Arun Kumar Singh Deshwal, J.
1. Heard Sri Sharique Ahmed, learned counsel for the applicant, Sri Manish Kumar Tripathi, learned counsel for opposite party no.2 and Sri Ramesh Kumar, learned A.G.A.for State.
2. The present application has been filed to quash the entire proceedings of Criminal Case No. 525 of 2023 ( State Vs. Imran Khan @ Ashok Ratna ), arising out of case crime no. 41 of 2023, under Sections 4 98-A, 323, 504, 506, 377 I.P.C. and 3/4 Dowry Prohibition Act, Police Station-Shivkuti, District-Prayagraj, pending in the court of learned Additional Chief Judicial Magistrate, Prayagraj, Aligarh, including the charge sheet dated 28.06.2023 and summoning/cognizance order dated 10.08.2023.
3. Facts giving rise to the controversy are that the opposite party No.2 has lodged an F.I.R. against the applicant on 23.02.2023 in case crime No. 41 of 2023 under Section 4 98-A, 323, 504, 506, 377 I.P.C. and 3/4 Dowry Prohibition Act. Police, after investigation, submitted charge-sheet against the applicant on 28.06.2023 under Section 4 98(a) , 323, 504, 506, 377 I.P.C. and 3/4 Dowry Prohibition Act, whereupon cognizance has also been taken by the learned Magistrate on 10.08.2023, which is under challenge in the present case.
4. The learned counsel for the applicant has submitted that impugned proceeding is malicious and illegal on the following ground:-
i. Though the last date of the incident, as mentioned in the F.I.R. is of the year 2019, but the F.I.R. was lodged on 23.02.2023 that is after a considerable delay. In support of his contention, counsel for the applicant has relied upon the judgment of the Apex Court in the case of Shivendra Pratap Singh Thakur @ Banti Vs. State of Chhattisgarh and Others in Criminal Appeal No. 2588 of 2024 wherein the Apex Court quashed the proceeding on the ground that F.I.R. was lodged after a delay of 39 days without any explanation, and F.I.R. itself does not mention the date or time of the committal of offence.
ii. Submission of learned counsel for the applicant submits that no offence under Section 377 I.P.C. is made out as applicant and opposite party No.1 are husband and wife. In support of his contention learned counsel for applicant has relied upon Judgments of Madhya Pradesh High Court in the case of Manish Sahu v. The State of Madhya Pradesh in Misc. Criminal Case No.8388 of 2023 as well as in Shashank Harsh Vs. State of Madhya Pradesh, Station House Officer in Misc. Criminal Case No.40044 of 2023, wherein Single Judge Bench of Madhya Pradesh High Court observed that when the wife was residing with her husband and during the subsistence of their marriage, if there is an allegation of committing unnatural sex, then the offence under Section 377 I.P.C. will not be made out unless the wife is below 18 years old.
iii. It is further submitted by learned counsel for the applicant that opposite party No.2 refused her medical examination, which would be fatal for her case. In support of this submission, learned counsel for the applicant has also relied upon the Apex Court’s judgement in State of Himachal Pradesh Vs. Rajesh Kumar in Criminal Appeal No. 2097 of 2014 wherein conviction was set aside by the High Court which was also affirmed by the Supreme Court on the ground that if the prosecutrix never co-operated with the medical staff, that will adversely affect the criminality of her version of the event.
iv. It is further submitted by learned counsel for the applicant that all the independent witnesses did not support the version of the opposite party No.2, as mentioned in her F.I.R. and from her statement recorded under Sections 161 and164 Cr.P.C., no offence of demand of dowry is made out.
v. Counsel for the applicant further submitted that during the investigation conducted in pursuance of F.I.R. lodged by the police department against the applicant and opposite party No.2, opposite party No.2 herself stated that she was aware of earlier marriage and subsequent after the divorce
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