Uttarakhand High Court
Sarthak Verma vs State Of Uttarakhand And Another on 9 September, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
1
Reportable
Judgment reserved on: 16.06.2025
Judgment delivered on: 09.09.2025
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application u/s 482 No.1481 of 2022
Sarthak Verma ......Applicant
Vs.
State of Uttarakhand and Another .....Respondents
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Presence:
Mr. Pawan Mishra, learned counsel for the applicant. Mr. S.S. Chauhan, learned D.A.G. with Mr. Bhaskar Chandra Joshi, learned A.G.A. for the State of Uttarakhand/respondent No.1. Mr. Rajat Mittal, learned counsel for respondent No.2-complainant. Hon'ble Pankaj Purohit, J. (Per) By means for the present C482 application, the applicant has put to challenge the Charge-sheet No.32 of 2022 dated 24.03.2022, cognizance/summoning order dated 29.04.2022 passed by learned Chief Judicial Magistrate, Dehradun and the entire proceedings of Criminal Case No.3017 of 2022 State Vs. Sarthak Verma, under Sections 504, 506, 420, 375(4), 376, 493, 495 and 496 IPC, pending in the Court of learned Chief Judicial Magistrate, Dehradun.
2. The brief facts of the case are that respondent No.2 had lodged an FIR on 10.09.2021 being Case Crime/ FIR No.0178 of 2021 at P.S. Basant Vihar, District Dehradun, alleging that the applicant, while concealing the fact of his earlier marriage, married her on 24.08.2020 as per Hindu Rites and Rituals, and thereafter, she was also subjected to physical and mental cruelty by the applicant and her in-laws for demand of dowry. Upon discovering applicant's subsisting prior marriage, she was left deceived and sexually exploited. Thereafter, an FIR was registered under Sections 498-A, 494, 377, 323, 504, 506 IPC and under Section 3/4 of the Dowry Prohibition Act, 1961. During investigation, certain Sections were dropped by the first Investigating Officer, but after changing of 2 Investigating Officer, further offences were added and a charge-sheet dated 24.03.2022, came to be filed under Sections 504, 506, 420, 375(4), 376, 493, 495 and 496 IPC, and thereafter, the learned Chief Judicial Magistrate took cognizance and summoned the applicant for trial under the aforementioned Sections. Hence, this C482 application.
3. Learned counsel for the applicant vehemently argues that the Investigating Officer has framed the charge- sheet in a mechanical manner without proper investigation and perusal of materials on record. This is evident from the fact that certain penal provisions were excluded during initial investigation and added later, only at the second round of investigation at the behest of respondent No.2. He further argues that the learned Chief Judicial Magistrate, without due application of mind and in a routine manner, has taken cognizance and summoned the applicant for trial.
4. Learned counsel for the applicant submits that the entire criminal proceeding is a manifest abuse of process initiated at the behest of respondent No.2 with malafide intent. He further submits that the FIR dated 10.09.2021 is a concocted attempt to falsely implicate the applicant in grave offences, whereas, respondent No.2 had already filed a Complaint Case No.326 of 2021 before the learned Judicial Magistrate, Dehradun under Sections 420 and 495 IPC on 12.08.2021, based on the very same allegations. He also submits that concealment of this fact amounts to misleading the authorities and results in a parallel prosecution which is violation of Article 20(2) of the Constitution of India.
5. Learned counsel for the applicant contends that the investigation was not conducted fairly or independently. He further contends that under the influence of respondent No.2, the first Investigating Officer was replaced and the 3 subsequent Investigating Officer, without proper application of mind, added contradictory provisions including 375(4), 376, 493, 495 and 496 IPC. He also contends that such addition of offences are not maintainable, particularly in light of own admission of respondent No.2 that her marriage with the applicant was solemnized and duly registered on 24.08.2020, thereby, the possibility of offences relating to rape or deceitful cohabitation is automatically excluded. The charge-sheet therefore is vitiated by arbitrariness and bias.
6. Learned counsel for the applicant also draw the attention of this Court in the judgment rendered by Hon'ble Apex Court in the case of Ashwani Bhatia Vs. State of Haryana and Another reported in 2010 SCC OnLine P&H 5930.
7. Per contra, learned State Counsel submits that after a thorough investigation and upon perusal of material collected during the course, including the statement of witnesses under Section 161 Cr.P.C. and the statement of victim recorded under Section 164 Cr.P.C., the Investigating Officer submitted the charge-sheet. He further submits that on finding a prima-facie case established from the said material, the learned CJM, Dehradun has rightly taken the cognizance and summoned the applicant.
8. Learned counsel for respondent No.2, on the basis of counter affidavit, submits that the Investigating Officer during investigation found that the applicant was already a married person and despite of that fact, still unlawfully married respondent No.2 and did not disclose the information of his previous existing marriage to respondent No.2 and in fact the applicant in order to hide his first marriage kept on misbehaving with respondent No.2 and eventually respondent No.2 was left with the only option of seeking divorce from the applicant. He further 4 submits that the entire evidence available on record unerringly show that the applicant from the very beginning only wanted to indulge in sexual intercourse with respondent No.2 by falsely concealing his previous marriage.
9. Learned counsel for the applicant relying upon rejoinder affidavit states that respondent No.2 was indeed made aware about the registration of his previous marriage and only after knowledge of the said marriage, respondent No.2 got married with the applicant. He further states that respondent No.2 is not a victim of any sexual assault but she may be a victim due to second marriage of the applicant and for which she had already filed a Criminal Case No.326 of 2021 before the learned Judicial Magistrate, Dehradun, which is still pending. He also submits that while lodging FIR against the applicant, she failed to disclose the information about the pending Criminal Case before the learned Judicial Magistrate amounting to abuse of process of law.
10. Having heard the learned counsel for the parties and on perusal of the entire material available on record, this Court finds that the sexual intercourse between the applicant and the respondent No.2 appears to have taken place, when respondent No.2 was under the belief that she was the lawfully wedded wife of the applicant. However, the material on record reflects that the earlier marriage of the applicant was subsisting at the time of alleged marriage with respondent No.2, therefore, making it a void marriage as it did not fulfill the essential condition under Section 5(1) of the Hindu Marriage Act, 1955. In such circumstances, the offence would be covered within the ambit of Section 375 fourthly IPC, which provides that consent obtained under a mistaken belief of lawful marriage, does not amount to free consent. In support of 5 this proposition, reliance has also been placed by learned counsel for respondent No.2 upon catena of judgments like Bhupinder Singh Vs. U.T. of Chandigarh reported in 2006 8 SCC 531; Siddharth Narendra Banthia Vs. The State of Maharashtra & Anr. reported in 2022 SCC OnLine Bom 1552.
11. At this stage, it is relevant to take note of the judicial pronouncements, which have clarified the scope of clause 'fourthly' of Section 375 IPC. In Siddharth Narendra Banthia (Supra) case, Hon'ble Supreme Court while examining the ambit of Clause 'Fourthly' observed in Paras 24 and 25 as follows:
"24. From the point of view of the prosecutrix, her belief as to her situation in life qua the man, accused of committing the rape, is of decisive significance. This belief, in turn, ought to be induced by a positive act on the part of the man to make her believe that she is married to him. If there is evidence to show the existence of circumstances which made the prosecutrix to entertain such belief, then clause fourthly would be attracted as the aspect of knowledge on the part of the man that he is not her husband is often an objective fact. To put it in other words, clause fourthly is attracted where there is knowledge on the part of the man about he being not the husband of the prosecutrix and the consent is on account of such mistaken belief that he is her husband and a belief on the part of the prosecutrix that she is the wife of the man. If the aforesaid twin conditions are prima facie made out then the challenge to the prosecution on the ground that the physical relations were with the consent of the prosecutrix does not merit acceptance.
25. In the case at hand the prosecutrix categorically alleges that the petitioner made her to solemnize the marriage and cohabit with her by making a representation that he is unmarried. Since the petitioner allegedly solemnized the marriage with the prosecutrix, during the life of his wife, the marriage was, thus, void. The petitioner knew that he is not the husband of the prosecutrix and yet allegedly had physical relations with her. In the circumstances of the case, prima facie, the submission on behalf of the respondent No. 2 that the prosecutrix would not have given consent but for the belief induced by the petitioner by falsely representing that he was unmarried (though much married) appears to carry substance."
12. Likewise, in Chetan Khanna V. 'C' and Anr. reported in 2017 SCC Online Del 8588, Hon'ble Delhi High Court in Para Nos.10 and 11 reiterated the same principal. For ready reference, Para Nos.10 and 11 are quoted hereinbelow:-
"10. From the evidence adduced by the prosecution it has been proved beyond reasonable doubt that Chetan Khanna married the prosecutrix as per Hindu rites and customs on 21st July, 2008. In respect of his earlier subsisting marriage, the prosecution sought to prove the same by the evidence of the prosecutrix who stated that she found one folder containing photocopy of the ration card of the appellant containing details of his 6 family members including his wife and daughter. When this fact was put to the appellant in his statement under Section 313 Cr.P.C, his explanation was that the prosecutrix had taken out photocopy of his ration card from his bag during one of his visits to her office for collecting the installment of loan and that everyone including the prosecutrix had knowledge of his earlier marriage and a daughter born from the said wedlock. Thus, the factum of the earlier subsisting marriage when Chetan Khanna married the prosecutrix on 21st July, 1998 at Arya Samaj Mandir, Yamuna Bazar, Delhi is not denied or disputed. When Chetan Khanna married the prosecutrix, he submitted an affidavit Ex.PW 4/A wherein he claimed to be unmarried/ bachelor. Photocopy of the ration card has not been exhibited during trial and is a marked document, thus cannot be read in evidence.
11. From the evidence led by the prosecution it has proved beyond reasonable doubt the marriage performed by the appellant with the prosecutrix claiming himself to be a bachelor, thereafter both of them living as husband and wife and thus taking her consent for sexual intercourse on the claim that he was a lawfully married husband of the prosecutrix though he had an earlier subsisting marriage. There is no illegality in the impugned judgment of conviction convicting the appellant for offence punishable under Sections 376/417 and 495 IPC."
These decisions make it abundantly clear that where consent is obtained by concealing the fact of an earlier subsisting marriage, the prosecutrix is made to believe herself as lawfully married, such consent is vitiated by misconception of fact within the meaning of Section 375 fourthly IPC.
13. Furthermore, the reliance placed by the learned counsel for the applicant in the case of Ashwani Bhatia (Supra) is misplaced. In this case, the prosecution had voluntarily entered into a relationship with the accused on the basis of a promise of marriage which was not subsequently fulfilled. The Hon'ble Court in those circumstances held that breach of promise, by itself, would not ipso facto convert a consensual relationship into an offence of rape. However, the facts of the present case stand on an entirely different footing. It is an admitted position that the applicant was already married at the time he solemnized marriage with the respondent No.2. This fact was deliberately suppressed from the respondent No.2, who on being misled, consented both to the marriage as well as to the physical relations. Such consent, obtained by concealing the subsistence of a valid prior marriage, cannot be said to be free and voluntary. Hence, this act of applicant clearly falls within Section 375 fourthly of IPC. In 7 these circumstances, the precedent in Ashwani Bhatia (Supra) affords no assistance to the applicant.
14. The submission of the applicant that the respondent No.2 had earlier filed a Complaint Case No.326 of 2021 under Sections 420, 495 IPC before the learned JM, Dehradun and thereafter, instituted the present FIR under Sections 498-A, 494, 377, 323, 504, 506 IPC and under Section 3/4 of the Dowry Prohibition Act, 1961, concealing the pendency of the Complaint Case, is also without merit. The offences alleged in the two proceedings are distinct in nature, and therefore, the institution of FIR cannot be said to be barred or an abuse of process of law. Moreover, the learned CJM, Dehradun, upon a prima-facie satisfaction of the materials on record, has rightly taken cognizance of the offences and summoned the applicant.
15. In view of the aforesaid and considering the limited scope of jurisdiction under Section 482 Cr.P.C., this Court while invoking its inherent jurisdiction under Section 482 of Cr.P.C., cannot go into the disputed question of facts as alleged. In order to make out a case for interference under Section 482 of Cr.P.C., the applicant has to satisfy the Court that even if the entirety of the case of the prosecution has taken as true, no case is made out. But, here this is not a case, therefore, this Court doesn't incline to interfere into the matter.
16. Accordingly, the present C482 application is dismissed.
17. Interim order dated 24.08.2022 stands vacated.
18. Pending application(s), if any, stands disposed of.
(Pankaj Purohit, J.) 09.09.2025 PN