ORDER

1. This petition filed under section 482 of the Criminal Procedure Code, 1973 (hereinafter referred as ‘Cr.P.C.’) takes exception to the First Information Report dated 22.9.2021, whereby offence under section 376(2)(n) of the IPC was registered against the applicant.

2. The case of the applicant is that respondent No.2 preferred a written complaint dated 21.9.2021 before the concerned Police Station at Chhindwara. The said complaint was reduced in writing in the shape of impugned FIR. If the averments/allegations of FIR are read and accepted as such, no offence under section 376(2)(n) of the IPC is made out.

3. To elaborate, learned counsel for the applicant submits that as per the story narrated in the FIR/complaint, the applicant met with respondent No.2 in a marriage in Wardha in the year 2016. Thereafter, applicant and respondent No.2 remained in touch on Facebook. During their chatting in the Facebook, they exchanged their phone numbers and thereafter started conversation on phone as well. Respondent No.2 informed the applicant that his grandfather expired and thirteen day ritual is scheduled on 2.6.2021. Respondent No.2 further informed the applicant that on the said date, her family members including her two children will go to Chandia District Umariya. Since, applicant could not get leave from her Department, she will remain at home. The applicant approached her on 31.5.2021 at 10:00 p.m. and she permitted him to remain with her and both of them developed physical relation. The applicant went back on 2.6.2021 to Mumbai.

4. As per the story, the applicant gave her an impression that he will marry her. Later on, when respondent No.2 insisted for marrying her, applicant informed that he is already a married person.

5. Learned counsel for the applicant submits that FIR itself shows that respondent No.2 is a married woman having two children. This can further be substantiated on plain reading of her statement recorded under section 164 of the Cr.P.C., wherein she mentioned the name of her husband as Badal Kumar Kaul. In her another statement recorded under section 161 of Cr.P.C. she not only mentioned the name of husband, she mentioned the names of both the sons as Ishan Kaul and Rehan Kaul.

6. The principal issue raised by learned counsel for the applicant is that if facts and story narrated in the FIR is accepted on its face value, it does not attract section 376(2)(n) of IPC. In support of his submissions, he placed reliance on (2003) 4 SCC 46 (Uday v. State of Karnatka) and (2013) 9 SCC 293 (Prashant Bharti v. State (NCT of Delhi).

7. Per contra, Shri Amit Bhurrak, learned P.L. supported the FIR and submits that at this stage no interference is warranted. Shri Bhurrak placed reliance on Gwalior Bench order passed in M.Cr.C. No. 10486 of 2017 (Kishore Kumar Arya v. State of M.P. and Another). It’s a common ground taken by Government counsel and counsel for respondent No.2 that applicant may be directed to face the trial and if he is innocent and has not committed any offence he will be exonerated. The trial Court is best suited to decide the matter after recording the evidence of the parties.

8. The parties confined their arguments to the extent indicated above.

9. I have heard the parties at length and perused the record.

10. The apex Court way back in State of Haryana v. Bhajan Lal 1992 suppl (1) 335, gave certain illustrations in which interference can be made in exercise of power under Article 226 of the Constitution or under section 482 of Cr.P.C. The First test reads as under -

“(1) Whether the allegations made in the first information report of the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.’’ (Emphasis supplied)

11. As noticed above, the whole case of applicant is based on this first illustration. A plain reading of FIR makes it clear that--

(a). The applicant and responden