Allahabad High Court
Krishna Nand Mishra @ Pankaj vs State Of U.P. And Anr on 19 September, 2019
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 65 Case :- APPLICATION U/S 482 No. - 34223 of 2019 Applicant :- Krishna Nand Mishra @ Pankaj Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Krishna Murari Tripathi,Brijesh Kumar Mishra Counsel for Opposite Party :- G.A. D.D. Chauhan Hon'ble Dinesh Kumar Singh-I,J.
Sri D. D. Chauhan, Advocate filed his Vakalatnama on behalf of opposite party no. 2 and the same is taken on record.
Heard Sri Krishna Murari Tripathi, learned counsel for the applicant, Sri D. D. Chauhan, learned counsel for the opposite party no. 2, and Sri G. P. Singh, learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed with a prayer to quash the summoning order dated 02.07.2019 and entire proceeding of Case No. 4717 of 2018 (State Vs. Krishna Nand and others), in Case Crime No. 0103 of 2019, under Sections 376, 504, 506 of I.P.C. and 3/4 of Dowry Prohibition Act, Police Station Kotwali Mau, District Mau, pending before the court of Chief Judicial Magistrate, Mau with a further prayer to stay the further proceeding of the above said case.
It is argued by the learned counsel for the applicant that the opposite party no. 2 has falsely implicated the accused applicant in the present case. This is a false and malicious prosecution only for the harassment of the accused-applicant. No such occurrence had ever taken place. Reliance has been placed upon law laid down by the Hon'ble Apex Court in Pramod Suryabhan Pawar Vs. State of Maharashtra and another 2019 0 Supreme (SC) 901, relevant para is quoted hereinbelow:
"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 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."
Reliance has also been placed upon law laid down by the Hon'ble Apex Court in Dhruvaram Murlidhar Sonar Vs. State of Maharashtra & Others 2019 0 AIR (SC) 327, relevant para is quoted hereinbelow:
"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant 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 later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."
Learned counsel for the opposite party no. 2 has vehemently opposed the prayer for quashing and argued that the accused applicant had made false promise to the opposite party no. 2 that he would marry her and under that impression he established physical relationship with her and ultimately refused to marry her. Therefore, it is a clear case of offence under Section 376 of I.P.C. The charge sheet has been rightly submitted. The same argument has been raised by the learned A.G.A. as well.
I have gone through the F.I.R. It is mentioned in it by the victim that her marriage were settled with the accused applicant on 12.03.2019. For fixing the marriage in the month of March, 2016, father, mother and the accused-applicant himself had come to the work place of the father of the opposite party no. 2 and it was agreed that there would be no obstacle of dowry in their marriage. After this proposal, it was told to the family of the accused-applicant to give them one week's time to the said proposal. After one week, when applicant's father telephoned the opposite party no. 2, she gave her consent for the marriage. In the meantime, the accused-applicant after telephoning the father of the opposite party no. 2 asked for Rs. 50,000/- as he wanted to open the coaching centre and promised that within six month, the said amount would be returned. Thinking that marriage was about to be solemnized, the said amount was extended, about this the family members of the accused-applicant were also apprised. Some amount was also extended to the family of the accused-applicant in view of Bariksha ceremony. In the meantime the family of the accused applicant continued to assure opposite party no. 2 and that the marriage would be solemnized, the date of marriage was also fixed to be 10.07.2017. In the meantime, the accused-applicant started coming to the house of opposite party no. 2 and vice-versa. Marriage cards were also distributed. During this period, the accused applicant started having physical relationship with the opposite party no. 2 without her consent forcibly and continued to state that she need not worry as marriage was about to take place. Ultimately, the marriage was refused and F.I.R. has been lodged.
The I.O. has submitted the charge sheet against the accused-applicant, after having recorded the statement of as many as nine witnesses. The evidence which have been gathered by the I.O. cannot be scrutinized in proceedings under Section 482 Cr.P.C. as the same would require trial. The reliance has been place by the learned counsel for the applicant on above mentioned case laws where too indicates that it has to be seen in the present case as to whether the consent for sexual intercourse by the opposite party no. 2 to the accused applicant was free consent or not and whether there was intention of accused applicant to marry of the opposite party no. 2 right from the beginning or not and whether the said promise of marrying opposite party no. 2 was false only given with a view to satisfying his carnal lust. All these things are subject matter of evidence, which cannot be determined at this stage without trial. As far as the facts of these above mentioned cases are concerned, they are entirely different. Therefore those judgments which are relied upon, are passed in the specific facts of those cases only but the principle which has been laid down in them is definitely to be followed in the present case and accordingly it is subject matter of the trial that the consent given by the opposite party no. 2 was free or not. At this stage, it cannot be said that cognizable offence is not made out against the accused applicant.
The arguments which are made by the learned counsel for the applicant are related to factual aspect which cannot be seen at this stage in the proceeding under Section 482 Cr.P.C.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no cognizable offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
Time and again it has been highlighted by Supreme Court that at the stage of charge sheet factual query and assessment of defence evidence is beyond purview of scrutiny under Section 482 Cr.P.C. The allegations being factual in nature can be decided only subject to evidence. In view of settled legal proposition, no findings can be recorded about veracity of allegations at this juncture in absence of evidence. Apex Court has highlighted that jurisdiction under Section 482 Cr.P.C. be sparingly/rarely invoked with complete circumspection and caution. Very recently in Criminal Appeal No.675 of 2019 (Arising out of S.L.P. (Crl.) No.1151 of 2018) (Md. Allauddin Khan Vs. The State of Bihar & Ors.) decided on 15th April, 2019, Supreme Court observed as to what should be examined by High Court in an application under Section 482 Cr.P.C. and in paras 15, 16 and 17 said as under:
"15. The High Court should have seen that when a specific grievance of the appellant in his complaint was that respondent Nos. 2 and 3 have committed the offences punishable under Sections 323, 379 read with Section 34 IPC, then the question to be examined is as to whether there are allegations of commission of these two offences in the complaint or not. In other words, in order to see whether any prima facie case against the accused for taking its cognizable is made out or not, the Court is only required to see the allegations made in the complaint. In the absence of any finding recorded by the High Court on this material question, the impugned order is legally unsustainable.
16. The second error is that the High Court in para 6 held that there are contradictions in the statements of the witnesses on the point of occurrence.
17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code Of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." (Emphasis added) The prayer for quashing the proceedings is refused.
Whatever arguments raised by the learned counsel for the applicant before this Court, the same may be raised before the trial court at appropriate stage to seek discharge, if so advised.
This application under 482 Cr.P.C. is dismissed.
Order Date :- 19.9.2019 VPS