Bombay High Court: The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ.,  refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.

Instant application was made under Section 482 of the Code of Criminal Procedure to quash and set aside the FIR for the offences punishable under Sections 376 and 417 of the Penal Code, 1860.

Factual Matrix

The crime had been registered on the basis of the report lodged by the non-applicant 2 against the applicant/accused. It was stated that the applicant and the non-applicant 2 got engaged. Due to the second wave of COVID-19 and the lockdown declared by the government, the marriage of fixed between the non-applicant 2 and accused was postponed. Marriage was again fixed for 3-5-2021, however, the non-applicant 2 was detected COVID positive and therefore, the marriage could not be performed.

Later in June, applicant arranged a party wherein non-applicant 2 and her family also enjoyed the party and later went to their respective rooms. Non-applicant 2 went to the room of the applicant with the luggage and saw that applicant was in drunken condition and complained of headache. In view of the said, non-applicant 2 gave a head massage to the applicant.

It was stated that the applicant had sexual intercourse with non-applicant 2 against her consent and under the pretext that non-applicant 2 would be her wife after a few days. Again, the next morning, applicant had sexual intercourse with non-applicant 2 and thereafter, everyone went to their respective destination.

Applicant after the above incident started avoiding non-applicant 2 and after a few days came to her house and stated that non-applicant 2 was addicted to liquor and her mental condition was such that she could not be shown pity.

In view of the above, the applicant refused to perform the marriage with non-applicant 2.

Further, it was stated that, the applicant/accused under the false promise to marry established sexual relations with non-applicant 2 and cheated her.

On the basis of the above, crime was registered.

Investigating Officer stated that the facts presented by non-applicant 2 have been reiterated and even the medical officer submitted that the sexual intercourse cannot be ruled out. Hence prima facie there was material to establish the involvement of the applicant in crime.

Analysis, Law and Decision

Settled Position

Powers under Section 482 of the CrPC can be exercised where the allegations made in the First Information Report even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

If the uncontroverted allegations made in the First Information Report or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, then the accused cannot be made to undergo the rigmarole of the criminal trial.

In the Supreme Court decision of Vineet Kumar v. State of U.P., (2017) 13 SCC 369, it was held that the Court cannot permit prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in the case of State of Haryana v. Bhajanlal, 1992 Supp (1) SCC 335.

It is a settled legal position that where there is material to indicate that the criminal proceeding is manifestly actuated with malafide and the proceedings are maliciously instituted with an ulterior motive, the High Court will not hesitate in the exercise of its jurisdiction and discretion under Section 482 of the CrPC to quash the proceedings in the process of exercise of powers under Section 482 of the CrPC. Prima facie evaluation of the facts stated in the FIR and other material is only permissible.

In Court’s opinion, on a prima facie analysis it was found that the conduct of the applicant/accused coupled with the facts stated in the FIR indicated that the applicant under the guise of the false promise to marry in future with the non-applicant 2 established sexual intercourse with the non-applicant 2.

Further, the Bench added that the intention and the motive of the applicant appeared to be sinister. Applicant/accused established the sexual relations against the will of the non-applicant 2 by obtaining her consent under the promise to marry.

Hence, the above-said consent cannot be said to be free consent.

The accused under the pretext of hosting the party on the eve of her birthday took the non-applicant 2 to the Resort and committed sexual intercourse with the non-applicant 2.

It was also the Court’s prima facie opinion that the instant matter not just involved the offence of cheating, infact it will be coupled with the offence of rape.

“…applicant/accused had hidden intention not to marry with the applicant once his sexual lust is satisfied.”

Concluding the matter, the Court denied exercising jurisdiction under Section 482 of the Code of Criminal Procedure. [Navneet v. State of Maharashtra, Criminal Application (APL) No. 853 of 2021, decided on 22-12-2021]

Advocates before the Court:

Shri J. B. Gandhi, Advocate for the applicant.

Mrs S. S. Jachak, Additional Public Prosecutor for non-applicant No.1.

Shri S. V. Deshmukh, Advocate for non-applicant No.2.

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