Allahabad High Court
Keertan Singh @ Rahul Singh & Others vs State Of U.P. Thru. Secy. Home. Lko & ... on 2 December, 2020
Bench: Ritu Raj Awasthi, Saroj Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 9 Case :- MISC. BENCH No. - 23386 of 2020 Petitioner :- Keertan Singh @ Rahul Singh & Others Respondent :- State Of U.P. Thru. Secy. Home. Lko & Others Counsel for Petitioner :- Kapil Misra,Anurag Tilhari Counsel for Respondent :- G.A. Hon'ble Ritu Raj Awasthi,J.
Hon'ble Mrs. Saroj Yadav,J.
Heard Shri Jyotindra Mishra, Advocate assisted by Shri Kapil Misra on behalf of petitioners as well as learned Additional Government Advocate for the State.
This writ petition has been filed challenging the first information report no.0486/2020 dated 14.11.2020, under Sections - 376, 314, 504, IPC and 3/4 D.P. Act, 1961 lodged at police station - Bakshi Ka Talab, District - Lucknow.
Learned counsel for the petitioner submits that totally false and frivolous case has been lodged against the petitioners in order to harass them. The informant on her own has developed physical relationships with the petitioner no.1 and as such the offence under Section - 376 IPC is not made out against the petitioner no.1. It is submitted that petitioner no.2 is the mother of petitioner no.1 whereas petitioner no.3, 4, 5 and 6 are close relatives of petitioner no.1 being sister, aunt and uncle. It is submitted that the petitioner no.2, the mother of petitioner no.1 had also lodged first information report as case crime no.0485 dated 13.11.2020, under Section- 384 IPC against the informant, her mother and brother. The impugned FIR had been lodged in counterblast. In support of his submission, learned counsel for the petitioner had relied on the following orders/ judgment :-
(i) Order dated 16.11.2018 passed in Writ Petition No.33226 (MB) of 2018.
(ii) Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra, 2018 SCC OnLine SC 3100 passed in Criminal Appeal No.1443 of 2018.
(iii) Maheshwar Tigga vs. State of Jharkhand, 2020 SCC OnLine SC 779 passed in Criminal Appeal No.635 of 2020.
(iv) Pramod Suryabhan Pawar vs. The State of Maharashtra passed in Criminal Appeal No.1165 of 2019.
Learned counsel for the petitioners submits that Hon'ble Apex Court in the case of Deepak Gulati vs. State of Haryana, (2013) 7 SCC 675 has held that as under :-
"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."
The submission is that in case, from the facts of the case it comes out that the victim is a consenting party and consent being bonafide, the offence of Section 376 IPC would not be attracted. It is submitted that same proposition of law has been laid down by the Hon'ble Apex Court in the case of Maheshwar Tigga vs. State of Jharkhand, 2020 SCC OnLine SC 779 as well as Pramod Suryabhan Pawar vs. State of Maharashtra passed in Criminal Appeal No.1165 of 2019.
Learned Additional Government Advocate on the other hand submits that from the perusal of the impugned first information report it is very much clear that the informant was victimized by the petitioner no.1 since 2018 on the basis of promise of marriage. She was under bonafide belief that the petitioner no.1 will marry her and under such belief the petitioner no.1 had deceitfully developed physical relationships with the victim- informant. The informant has made specific allegations against the petitioner no.1 regarding commission of offence under Section - 376 IPC and has also stated that due to non-fulfilment of illegal demands of money made by the family of the petitioner no.1 the engagement of the informant-victim with the petitioner no.1 was rescinded and the informant has been victimized.
We have considered the submissions and gone through the record.
In the present matter from the perusal of the impugned FIR it appears prima-facie that a fatherless girl was duped by petitioner no.1 to indulge in sexual relationship on the false promise of marriage. The petitioner no.1 sexually exploited the victim and apparently performed the engagement ceremony also. Thereafter, the mother of petitioner no.1 lodged an FIR implicating the victim and her family members alleging that the victim and her family members are demanding Rs.10 lac.
It prima-facie shows that the petitioner no.1 had no bonafide intentions right from the very beginning to marry the victim and had deceitfully developed physical relationships with her on a false promise of marriage. We are of the considered view that so far as the legal propositions as laid down by the Hon'ble Apex Court in the case of Deepak Gulati (supra) as well as in the case of Maheshwar Tigga vs. State of Jharkhand 2020 SCC OnLine SC 779 and Pramod Suryabhan Pawar vs. The State of Maharashtra passed in Criminal Appeal No.1165 of 2019 are concerned, there is no disptue about the legal position. However, the Court has to see in each and every individual case, the facts of the case to come to a conclusion as to whether the consent of the victim was bonafidely obtained by the person who had victimized the victim and had developed physical relationship. In the present case considering the facts we do not find the bonafides of the petitioner no.1 to inspire confidence and we feel that in such matters the discretion of the Court under Article 226 of the Constitution shall not be exercised. However, it is made clear that the observations made in this order shall not be read to determine the merit of the case and they have been only made to decide the present case. The writ petition being devoid of merit is dismissed.
At this stage Shri Jyotindra Mishra, learned Senior Advocate appearing for the petitioners submits that he does not want to press the writ petition on behalf of petitioners no.2 to 6 with liberty to file a fresh petition.
The writ petition on behalf of petitioners no.2 to 6 is accordingly dismissed as withdrawn with liberty to file the fresh.
Order Date :- 2.12.2020 mks