Rajasthan High Court - Jaipur
Vajir Singh S/O Shri Gaje Singh B/C Hindu vs State Of Rajasthan on 30 January, 2020
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Writ Petition No. 163/2019
Vajir Singh S/o Shri Gaje Singh B/c Hindu, Aged About 32 Years,
R/o Village Putti Semana, Tehsil Hansi, Police Station Hansi
Sadar, Distt. Hisar, Haryana.
----Petitioner
Versus
1. The State Of Rajasthan, Through P.p.
2. The Commissioner Of Police, Police Commisonarate, Jaipur
Metropolitan, Raj.
3. The Station House Officer, Police Station Sadar, Jaipur
(West), Jaipur Raj.
4. Smt. Geeta Devi W/o Shri Hariram Prajapat D/o Shri
Ramsahai Prajapat B/c Prajapat, Aged About 35 Years,
R/o Near Chothmal House, Khatipura, Hasanpura, Jaipur
At Present R/o C/o Nawal Kishore Verma Plot No. C-38,
Majdoor Nagar, Jaipur Raj.
----Respondents
For Petitioner(s) : MR. Anoop Pareek, Adv.
For Respondent(s) : Mr. FR Meena, PP
Mr. Anshuman Saxena, Adv. for
Complainant
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA
Judgment
Reserved On 22/01/2020
Pronounced on 30/01/2020
1. By way of this criminal writ petition, the petitioner assails the
order dated 19/02/2019, passed by the Additional Chief
Metropolitan Magistrate No.16, Jaipur whereby he has returned the
file for fresh investigation to the SHO, Police Station Sadar, Jaipur
(West), Jaipur after the final report was submitted by the Police.
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2. Learned counsel for the petitioner submits that on the basis
of a written complaint made by the complainant-respondent no.4
under Section 156(3) Cr.P.C., an FIR No.273/2018 was registered
against the petitioner under Section 323, 341,376, 377, 384 IPC at
Police Station Sadar, Jaipur (West) on 07/06/2018. After
investigation, the Police found the entire case to be wholly false
and fabricated and in this regard, a negative final report was
submitted after recording the statement of the prosecutrix under
Section 164 Cr.P.C.. After the negative final report was submitted
in the Competent Court, the respondent no.4-complainant moved
an application for re-opening the case with the sole purpose to
earn money illegally from the petitioner with the collusion of her
husband. It is further submitted that the FIR and proceedings
conducted thereto may accordingly be quashed and set aside. In
support of his submissions, learned counsel for the petitioner
relied on the judgment rendered in Mithabhai Pashabhai Patel & Ors. Vs. State of Gujarat: (2009) 6 SCC 332; Prashant Bharti Vs. State of NCT of Delhi: (2013) 9 SCC 293; Tilak Raj Vs. The State of Himachal Pradesh: 2016(1) WLC (SC) Cri. 384; Baldev Gora Vs. State of Rajasthan: 2018(1) WLC (Raj.) 215; Shivashankar @ Shiva Vs. State of Karnataka & anr.: 2018 Cr.L.R. (SC) 502; Pramod Suryabhan Pawar Vs. State of Maharasthra & anr.:
2019(2) WLC (SC) Cri. 638 and Hari Ram Vs. The State of Raj. & anr. (SB Criminal Revision No.7/2017), decided on 05/09/2017.
3. Reply to the instant criminal writ petition has been filed by the respondents no.1 to 3 wherein it has been stated that from the evidence which has come on record, the respondent No.4-
complainant (Smt. Geeta Devi) was having a family dispute with her husband for last 8 to 9 years. She left her matrimonial home (Downloaded on 03/02/2020 at 09:08:40 PM) (3 of 9) [CRLW-163/2019] and came in contact with the petitioner-Vajir Singh who is a married person having two children. The wife of petitioner-Vajir Singh used to treat the respondent respondent no.4-Smt. Geeta Devi as her sister. Vajir Singh was having a live in relationship with Smt. Geeta Devi for last eight years. Smt. Geeta Devi had filed a complaint against Vajir Singh under Section 323, 341, 376, 377, 384 IPC which was found to be false after the statement of Smt. Geeta Devi was recorded under Section 164 Cr.P.C. and the Deputy Commissioner of Police, Jaipur West, Jaipur directed to final final report which was chalked out on 30/06/2018 and filed before the Court of Additional Chief Metropolitan Magistrate No.16, Jaipur Metro on 09/07/2018. Thus, as per reply of the Police, no case is made out against the petitioner.
4. A reply has also been filed by the respondent no.4- complainant wherein she has stated that she was living with the petitioner for 11 years with the promise that the petitioner would marry her. However, after 11 years, the petitioner left the rented house of the respondent no.4 and she, therefore, lodged a complaint under Section 323, 341, 376, 377, 384 IPC. When the petitioner came back to the respondent no.4 and promised to live with her, as husband and wife, the respondent no.4 gave her statement to the police on the basis of which final report was submitted. However, as the petitioner again left the respondent no.4, she submitted an application for fresh investigation. An agreement was also entered for live in relationship between the parties with the understanding that the child born out of their live in relationship would be entitled for inheritance of the properties of the petitioner.
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(4 of 9) [CRLW-163/2019] 5. Learned counsel appearing for the respondent no.4-
complainant submitted that the petitioner is guilty of committing fraud with the respondent no.4 as he has withdrawn from the live in relationship wrongfully and therefore, the respondent no.4 has a right to get the charges pressed again. He further submitted that the petitioner ought to have been directed to maintain the respondent no.4 and also give her the status. It has also been stated that a charge-sheet had been issued in departmental proceedings against the petitioner.
6. Heard learned counsel for the parties and perused the material available on record.
7. This criminal writ petition has been filed challenging the FIR and the proceedings undertaken therein.
8. The main ground raised by learned counsel for the petitioner is that the criminal proceedings could not have been initiated in the facts of the present case as admittedly the respondent no.4 has been living with the petitioner for last 11 years and thus, there is no element of criminality which can be said to have been committed by the petitioner as defined under Section 376, or 377 or Section 323, 341, 384 IPC. Moreover, in view of the statement made under Section 164 Cr.P.C., the FIR could not be further proceeded with and the final report as submitted before the learned Magistrate ought to have been accepted and there was no occasion for sending back the file for fresh investigation as there is no power available with the concerned Magistrate.
9. This Court finds that from the facts as above, it is a case of live in relationship having turned sour. There are grievances of the respondent no.4 as against the petitioner for having left and parted with her.
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10. The live in relationship in India is not recognized in the society as a pious form of relationship between a man and a woman. It is considered as an immoral act.
11. In the State of Gujarat, there is a system of "maitraykarars" which, however, came to be declared illegal by the High Court of Gujarat in the case of Minaxi Zaver Bhai Jethva Vs. State of Gujarat, decided on 15/12/1999. The Government of Gujarat later on passed an Act in 1982 prohibiting this practice.
12. In Rajasthan, there is no law with regard to the live in relation or prohibition thereto. In absence of any definite law to define the status of live in relationship, the Courts have taken a view that where a man and a woman live together as husband wife for a long term, it would be presumed that they are legally married unless proved contrary.
13. Section 2(f) of the Protection of Women from Domestic Violence Act, 2005 provides as under:-
"2(f) "domestic relationship" means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family;
14. Similar view has been again followed in Tulsa And Others Vs. Durghatiya And Others: 2008 (4) SCC 520 wherein it has been observed as under:-
"12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. A. Dinohamy v. W.L. (Downloaded on 03/02/2020 at 09:08:40 PM) (6 of 9) [CRLW-163/2019] Blahamy AIR 1927 P.C. 185 their Lordships of the Privy Council laid down the general proposition that:
Where a man and woman are proved to have lived together as man and wife, the law will presume, unless, the contrary be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.
13. In Mohabhat Ali v. Md. Ibrahim Khan AIR 1929 PC 135 their Lordships of the Privy Council once again laid down that:
The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.
14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.
15. Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy.
16. This Court in Gokal Chand v. Parvin Kumari AIR 1952 SC 231 observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage, but the presumption which maybe drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them."
15. In S. Khushboo Vs. Kanniammal: 2010 (5) SCC 600, the Supreme Court again observed as under:-
"31.While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of 'adultery' as defined under Section 497 IPC. At this juncture, we may refer to the decision given by this Court in Lata Singh v. State of U.P. and Anr. AIR 2006 SC 2522 wherein it was observed that a live-in relationship between two consenting adults of heterogenic sex does not (Downloaded on 03/02/2020 at 09:08:40 PM) (7 of 9) [CRLW-163/2019] amount to any offence (with the obvious exception of 'adultery'), even though it may be perceived as immoral. A major girl is free to marry anyone she likes or "live with anyone she likes". In that case, the petitioner was a woman who had married a man belonging to another caste and had begun cohabitation with him. The petitioner's brother had filed a criminal complaint accusing her husband of offences under Sections 366 and 368 IPC, thereby leading to the commencement of trial proceedings. This Court had entertained a writ petition and granted relief by quashing the criminal trial. Furthermore, the Court had noted that 'no offence as committed by any of the accused and the whole criminal case in question is an abuse of the process of the Court'."
16. The Delhi High Court in Alok Kumar Vs. The State (Crl. M.C. No. 299/2009) has observed that live in relationship is walk in and walk out relationship and no strings are attached to it.
17. In the aforesaid observations of the Courts, if the facts of the present case are examined, this Court finds that the petitioner was already a married person having children and with full knowledge of his wife, he was having live in relationship with respondent no.4 for 11 years and even the husband of the respondent no.4 was having full knowledge about the said aspect.
18. A person, who himself consents to be part of such relationship, cannot turn around after the same gets ugly to say that she has been forced to have sexual relation within the meaning of Section 376 IPC or even within the meaning of Section 377 IPC. There is no case infidelity or immorality interse between both the members of such relationship as infidelity and immorality are to be judged by the society in which a person lives and it is for the society to allege immorality on both such persons. However, making allegations of rape and other offences with the view to (Downloaded on 03/02/2020 at 09:08:40 PM) (8 of 9) [CRLW-163/2019] force the other partner to continue to have live in relationship, would amount to abuse of the criminal procedure.
19. The FIR or proceedings cannot be continued in such circumstances as no one can be forced to enter into live in relationship and it being not recognized under any Act, no one can force his/her partner to rejoin and come back into live in relationship once they separated. As has come on record from the documents, the complainant-respondent no.4 has also given such a statement under Section 164 Cr.P.C.. The allegation of committing fraud is not part of the FIR.
20. Hence, a subsequent application moved before the concerned Magistrate or before the Police Authorities by the respondent no.4 stating that fraud has been committed by the petitioner, would not ipso-facto be a ground for returning the case for fresh investigation by the learned Magistrate. This Court finds that the order impugned does not even give reasons for directing for fresh investigation.
21. In the opinion of this Court, a Magistrate although has a power to direct the Investigating Agency to conduct fresh investigation but it would only exercise such power after applying its mind to all the aspects. Such an order cannot be passed in a mechanical fashion and the discretion has to be exercised judiciously. In other words, the learned Magistrate is required to show from his order that he/she has reached to such a decision on some cogent grounds. Giving reasons is a sine-qua-non of any judicial order.
22. Keeping in view above principle, the order impugned passed by the learned Additional Chief Metropolitan Magistrate is found to (Downloaded on 03/02/2020 at 09:08:40 PM) (9 of 9) [CRLW-163/2019] be lacking of above aspects and the same, therefore, is liable to be set aside.
23. Apart from above, the FIR itself, which has been registered and mentions about the live in relationship, is found to be essentially a case of live in relationship between the petitioner and the respondent no.4 having become unsuccessful after 11 years. Therefore, the final report given by the Police after having reached to the said conclusion is accordingly found to be correct and merely because subsequently, the petitioner resiled from his compromise to continue with live in relationship, the final report in negative form does not warrant interference.
24. Accordingly, the present criminal writ petition is allowed. The order impugned dated 19/02/2019 passed by the learned Additional Chief Metropolitan Magistrate No.16, Jaipur is set aside. and entire criminal proceedings initiated on the basis of FIR No.273/2018, as pressed, are held to be abuse of criminal process and the same are accordingly quashed & set aside. All the pending applications also stand disposed of.
(SANJEEV PRAKASH SHARMA),J Raghu/ (Downloaded on 03/02/2020 at 09:08:41 PM) Powered by TCPDF (www.tcpdf.org)