IMPORTANT POINT
Rape – Consensual sex between two adults is not rape.

JUDGMENT :

(C.T. Ravikumar, J.) :

Leave granted.

1. The captioned Appeal is directed against the order dated 26.07.2018 of the High Court of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No. 16825 of 2018. The said Writ Petition was filed under Article 226 of the Constitution of India seeking quashment of FIR dated 21.02.2018 bearing Case Crime No. 28 of 2018 registered under Sections 376 and 313 of the Indian Penal Code, 1860 (for short the ‘IPC’) at Police Station Nandganj in Ghazipur District of the State of Uttar Pradesh. In view of the fact that quashment of FIR was sought under Article 226 of the Constitution of India, it is relevant to refer to a decision of this Court in Pepsi Foods Ltd. v. Special Judicial Magistrate, (1998) 5 SCC 749. It was held therein that the High Court could exercise its power of judicial review in Criminal matters and it could exercise the power either under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘Cr.P.C’), to prevent the abuse of process of the court or otherwise to secure the ends of justice. Nomenclature under which a petition is filed is not quite relevant. If the court finds that the petitioner could not invoke the jurisdiction of the Court under Article 226, it may treat the petition under Section 482, Cr. P.C.

2. Heard the learned counsel for the appellant and the learned counsel for the State of Uttar Pradesh for respondent Nos. 1 to 3 and also the learned counsel for respondent No. 4 (the complainant).

3. The gravamen of her complaint, based on which the above-mentioned crime was registered on 21.02.2018, is revealed from the following allegations made thereunder: -

“…My elder sister Meera Devi was married to Satendra Yadav Village Kukuda P.S. Nandganj, District – Ghazipur, Lalu Yadav S/o Seshnath Yadav R/o Atarsuya P.S. Nandganj District – Ghazipur used to come to my house along with the brother in law Ravindra Yadav of my elder sister, at that time about five years back I was a student of High School, then the said Lalu Yadav by way of deceiving myself promise that he will marry me and established physical relationship with me without my consent and started living with me as the husband. He used to say that he would marry me when he gets a job. My mother Rajvati Devi and my father Hari Singh Yadav was also of the knowledge of our relation. When my father and mother raised an objection about our relation then Lalu Yadav told her that he will marry Preeti. He told her that nobody should object and therefore my parents went silent and Lalu Yadav kept established with me the applicant without my consent due to which I became pregnant after the knowledge of which he give me a medicine of with which and abortion has occurred and when the said Lalu Yadav came to the house of the applicant on 28.09.2017 then he took the said applicant to Varanasi on 29.09.2017 and kept me in a hotel and again made physical relationship with me due to which I became pregnant in May 2017 and said Lalu Yadav did my abortion my pressuring me again, thereafter again 17.12.2017 the said Lalu Yadav took me to a hotel in Varanasi an made physical relationship with me their, thereafter Lalu Yadav got a job in army and after which he is refusing to marry the applicant…”

4. In the contextual situation, it is relevant to refer to the details given under item No. 3 in Annexure- P2/FIR, which read thus: -

“3 (a) occurrence of offence.

1. Day Date from – 05.01.2013

Date To – 05.01.2018

(b) Information received at P.S:

Date: 21.02.2018. Time: 21.34 hr.”

5. Before delving into the rival contentions, it is relevant to note that though this Court stayed further proceedings in case Crime No. 28/2018 on 13.11.2018, this Court virtually modified the same on 18.08.2023 as under: -

“It is made clear that the interim order passed by this Court staying further proceedings in Crime No. 28/2018 registered at P.S. Nandganj, District Ghazipur, U.P