Himachal Pradesh High Court
Raj Kumar vs State Of Himachal Pradesh And Another on 11 September, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.MMO No.33/2017Reserved on : 10.09.2019 Date of decision : 11.09.2019 Raj Kumar ... Petitioner.
Versus State of Himachal Pradesh and another ...Respondents Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No For the Petitioner : Mr. Ajay Chandel, Advocate For the Respondent : Mr. Nand Lal Thakur Additional Advocate No. No. 1 General, for the State.
For Respondent No.2 : Mr. Naveen K. Bhardwaj, Advocate Anoop Chitkara, Judge Challenging the registration of FIR No. 204 of 2015 dated 26.10.2015, registered in the file of Police Station Manali, District Kullu, HP, under Section 376 of IPC, as well as the Police report filed under Section 173 of CrPC and summoning order dated 16.06.2016, the petitioner has come 1 Whether reporters of Local Papers may be allowed to see the judgment?::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 2
up before this Court under Section 482 of Code of Criminal .
Procedure, for quashing of all these proceedings.
2. I have heard Mr. Ajay Chandel, ld. counsel for the petitioner, Mr. Nand Lal Thakur, ld. Additional Advocate General for respondent No.1 and Mr. Naveen K. Bhardwaj, Advocate for respondent No.2 and I have also waded through the complete case file.
3. On 26th April, 2014, the petitioner and the victim, who is the second respondent, entered into an agreement inter-se. At that time age of the petitioner was 46 years and that of victim was 30 years. The affidavit forms part of the petition as Annexure P-3.
4. The victim was a widow having three children and her husband had expired in the year 2007. It was agreed between the first party (The Petitioner) and the second party (Victim/Second respondent), that the first party shall maintain the second respondent and her three children and in return she will live in the house of the petitioner and do all house hold works. The first party agreed to provide a future maintenance to second party and her children and would also bear all ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 3 expenses of their studies and shall not create any dispute with .
her. It was further agreed that second party and her children will be entitled to live in the house of the first party till their death and will be provided all types of maintenance throughout their life. It was further agreed that in case of failure of the first party to maintain the second party and her children, the second party would be entitled to claim maintenance and in lieu thereof the first party would pay a sum of Rs. 3 lacs to her.
5. That on 26th March, 2015, the second respondent (victim) filed a complaint in the Court of Judicial Magistrate First Class, Manali, Kullu, H.P. under Section 9(b) and 37(2)(c) of the Protection of Women from Domestic Violence Act, 2005, against the petitioner Raj Kumar. The copy of the said complaint forms part of the petition vide Annexure P-1. The allegations levelled in the complaint are that the victim was married in the year 1999 and from the said marriage three children were born and thereafter she lost her husband. She further stated that she had married Raj Kumar in the year 2014. At the time of marriage Raj Kumar had assured her that ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 4 he had left his first wife, from whom he also had two children.
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Initially, his behavior was cordial and was also providing maintenance to her children but for the last one month he was troubling her. Everyday, he would consume liquor and under intoxication he would abuse and beat her. Now, he he neither gives maintenance amount nor gives any lump sum amount to her and as such he is causing physical and mental harassment to her. She further alleged that the petitioner Shri Raj Kumar is stating that since his first wife has returned, as such he no more needs her. Even mother-in-law has stopped talking to her, Resultantly, she sought maintenance under Section 20 and 22 of the Domestic Violence Act.
6. The accused filed a reply to the said application and denied that he had any domestic relationship with the respondent. He further denied that he lived with her at any time or shared house hold with her. In nutshell, he denied all the allegations. In the rejoinder the victim reiterated all the allegations and further added that it was after one and half year of the marriage that she came to know about the first ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 5 marriage and he had grown two children out of that wedlock.
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The said rejoinder was filed on 14th September, 2015.
7. On 26th October, 2015, the victim filed a report under Section 154 CrPC in Police Station, Manali, District Kullu, H.P., which led to the registration of FIR No. 204 of 2015 dated 26.10.2015, in the file of the police station Manali, against the petitioner for the commission of offence punishable under Section 376 IPC. The allegations in the said FIR were that she was a permanent resident of Tehsil Bhal District Mandi and running a shop in Manali. She lost her husband on 18 th August, 2007 and thereafter Shri Raj Kumar accused saw her and gave a proposal to her that he would like to marry her. On this she consulted her relatives and after that consented to the said marriage. Subsequently he got prepared some documents in Mandi and told her that these documents are the documents of their marriage and asked her to put her signature on the same.
Those documents were made in English script. She further stated that she has not well read and as such could not understand the contents thereof and without reading the same she put her signature on those. Thereafter they came to ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 6 Manali where he started living with the victim like her husband .
and indulged in physical relationships. She further stated that she has three children from her earlier marriage the said children also lived with her in Manali. She stated that the accused lived with her and her children. For the last one and half years, he is regularly visiting her and establishing sexual relationship with her. Just 15 days before, he visited her maternal home and even there, he again established sexual relationship with her. Now he started abusing her and has started proclaiming that she is neither his wife nor does he know her. He has asked her not to call him and proclaims that he is free and she can do whatever she wants to. She complained that he befooled her for one and half years under the pretext of marriage. She further stated that she was poor widow and there was no reason for commit fraud upon her and action be taken.
8. On 2nd November, 2015, the police got statement of victim under Section 164 Cr.PC., in which she reiterated the allegations and further clarified that on some occasions Shri Raj Kumar, accused claimed her to be his wife and on other ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 7 occasions he refused to accept her as his wife. He should .
accept either of the things and he does not accept her as his wife, then he should not establish relationship with her.
9. After this, on 18th March, 2016, the statement of the victim was recorded by the Judicial Magistrate, First Class, in the case of domestic violence and she was assigned as CW-1 and the copy of the said statement is part of this petition.
Reiterating both the allegations, she further stated that the accused told her that his first wife is no more. On this she inquired from his relatives and consulted her relatives, then the accused also visited her home. Because of the reason that both the victim and the accused were widow and widower as such the proposal to accept each other was matured. She further alleged that accused claims himself to be a Crorepati (Multimillionaire) and called her as a beggar and abuse her.
10. After conclusion of the investigation in the FIR, the police filed a report under Section 173 (2) Cr.PC. Vide report dated 26.10.2015 which forms part of the petition as Annexure P-3.
::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 8REASONING:-
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11. The victim, who is the second respondent was a married lady. She very well knew how does a person marry, what are the rituals and the process of marriage. Even before she started living with the accused, she had consulted her relatives. There can be no marriage only by way of an agreement. Her relatives would not have let her go ahead only with the agreement of marriage and in the absence of any rituals and performance of marriage as per Hindu rites. She has not mentioned in the FIR or in her complaint under Domestic Violence Act about the place or date of marriage with the accused. Her precise allegations in FIR are that the accused made her believe that the agreement she signed were the documents of their marriage. This might have sound well if she was previously not married or was a dumb lady. She runs her own shop in the tourist place of Manali and must be street smart. So, there is a substance in the submissions of the counsel for the Petitioner that she has abused the process of law by improving upon her story of live-in relationship to that of her belief of having married the accused.
::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 912. Section 494 of IPC penalizes marrying again .
during the subsistence of existing marriage. Section 198 of Code of Criminal Procedure states that no Court shall take cognizance of an offence punishable under Chapter XX of the IPC, except upon a complaint made by some person aggrieved by the offence. Chapter XX of IPC contains offence relating to marriage and incorporates section 493 and 498 of IPC, as well.
Therefore, if the victim was aggrieved because of the fact that her marriage was solemnized during subsistence of the first marriage, then the proper course available to her may be by filing a complaint under Section 493/495 IPC., if she chooses to do so. Because the sentence under Section 493/495 IPC extends up to ten years therefore, the bar of taking cognizance after period of limitation as contained in Section 468 Cr.PC does not apply. It is for the victim to take recourse to such relief, if she had actually married the accused.
13. As far as her allegations are concerned that she had signed the agreement under the belief that it is a marriage agreement and because same was in English script as such ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 10 she could not understand the same hence understood the .
nature of the agreement so signed by her. As per the said agreement she would be entering into live in relationship with the accused and not marrying him. The law is well settled that marriages do not take place by way of any agreement. In our country, marriages can only take place under the provisions of the Special Marriage Act and Hindu Marriage Act.
14. The conduct of the victim who established relationship with the petitioner, prima facie falls under live in relationship and the changing ethos of the society have started sanctioning such relationships. Be that as it may, that is not to be adjudicated in the present petition, which is only to prevent the miscarriage of justice by way of abuse of process of law by the second respondent, claiming herself to be a victim of sexual offence.
15. Even as per the victim she consented to all the acts coitus and voluntarily cohabited with him. Even after the minutest scrutiny of her allegations, the element of the misconception of fact is totally absent.
::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 1116. Section 482 of Cr.PC comes to the rescue of .
the accused, in the present proceedings commenced for commission of offence punishable under section 376 IPC, who claims that the registration of FIR and consequent proceedings are the abuse of process of court law and as such to secure ends of justice they are entitled to invoke the inherent powers of the High Court.
17. In Dr. Dhruvaram Murlidhar Sonar versus State of Maharashtra & others, 2019 AIR (SC) 327, Hon'ble Supreme Court quashed the FIR under Sections 376 (2)(b), 420 readwith Section 34 IPC and Section 3(1)(x) of the SC/ST Act, holding in paras 21 and 22 of the judgment as follows:-
21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home." Thus, they were living together, sometimes at ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 12 her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company.
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It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.
22. Further, the FIR nowhere spells out any wrong committed by the appellant under section 420 of the IPC or under section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under section 482 of the Cr.P.C., 1973.
18. In Parmod Suryabhan Pawar versus The State of Maharashtra and another, in Criminal Appeal No. 1165 of 2019, Hon'ble Supreme Court quashed the FIR under Sections 376, 417, 504 and 506(2) of the Indian Penal Code and Sections 3(1) (u), (w) and 3(2) (vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Attrocities Act, 1989, holding in paras 18, 19, 20 and 21 of the judgment as follows:-
"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 13 the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise .
of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.
19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows:
(i) The complainant and the appellant knew each other since 1998 and were intimate since 2004;
(ii) The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant; and
(iii) The appellant expressed his reservations about marrying the complainant on 31 January 2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015.
The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax.
20. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 14 the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence .
under Section 375 of the IPC has occurred.
21. With respect to the offences under the SC/ST Act, the WhatsApp messages were alleged to have been sent by the appellant to the complainant on 27 and 28 August 2015 and 22 October 2015. At this time, Sections 3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as it stands today had not been enacted into the statute. These provisions were inserted by the (Prevention of Atrocities) Amendment Act 201513 which came into force on 26 January 2016. Prior to the Amending Act, the relevant provisions of the statute (as it stood then) were as follows:
"3. (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe. - "Amending Act" ...
(x) intentionally insults or intimidates with intent to humiliate a member of a Schedule Caste or a Scheduled Tribe in any place within public view;
(xi) assaults or uses force to any woman belonging to a Schedule Caste or a Scheduled Tribe with intent to dishonour or outrage her modesty;
(xii) being in a position to dominate the will of a woman belonging to a Scheduled Caste or a Scheduled Tribe and uses that position to exploit her sexually to which she would not have otherwise agreed; ..."
19. In view of the analysis of the entire evidence and the application of law, it is fit case where the FIR, charge sheet and all consequential proceedings are required to be quashed.
Therefore, the petition is allowed and FIR No. 204 of 2015 dated 26.10.2015, registered in Police Station Manali, District Kullu, H.P. for the commission of offence under Section 376 IPC as well as consequential proceedings pending before the Sessions Judge Kullu, District Kullu, in Sessions Trial No. 25 of ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP 15 2016 titled as State of H.P. versus Raj Kumar are hereby .
quashed.
20. The First Respondent, i.e. the State of H.P., shall supply a certified copy of this judgment to the second respondent/victim, through a lady police official, above the rank of ASI, without waste of time.
All pending application(s), if any, also stand disposed of.
(Anoop Chitkara) Judge.
11th September, 2019 (Subhash) ::: Downloaded on - 29/09/2019 04:14:42 :::HCHP