Allahabad High Court
Monu Rungata Alias Mohit Kumar vs State Of U.P. And Another on 23 August, 2022
Author: Gautam Chowdhary
Bench: Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 85 Case :- APPLICATION U/S 482 No. - 20299 of 2022 Applicant :- Monu Rungata Alias Mohit Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dhirendra Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the applicant, learned A.G.A. and perused the record.
The applicant, through the present application under section 482 Cr.P.C. has invoked the inherent jurisdiction of this Court with a prayer to quash the entire proceeding of Case Crime No. 98 of 2019 State Vs. Monu Rungata and others, as well as charge sheet dated 12.6.2019 whereby the learned Magistrate has taken the cognizance vide order dated 3.3.2021 arising out of case crime No 98 of 2019, under sections 376, 504, 506 IPC, P.S. Chauri Chaura, District Gorakhpur .
It is contended by learned counsel for the applicant that an FIR was lodged against the applicant and his mother and father with the allegations that the applicant committed rape with the informant by promise of marriage and during the course of investigation the statement of the O.P. No. 2 victim namely Preeti Jaiswal was recorded under section 161 Cr.P.C. as well as as 164 Cr.P.C. and thereafter she was medically examined for determination of opinion of rape. It is further argued by learned counsel for the applicant that the O.P. No. 2 is major and is aged about 26 years and she is already divorcee lady and her divorce was taken place in the year 2016.Learned counsel for the applicant has also placed the reliance of paragraph no. 6 of the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another reported in AIR 2019 SC 4010, wherein it has been stated that High Court has failed to distinguish between rape and consensual sex. Thereafter he also place the reliance of paragraph nos. 20 and 21 of Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others reported in 2018 ) Supreme (SC) 1296, which is quoted below.
"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 be- tween the parties would not constitute an offence under Section 376 of the IPC.
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 appel- lant 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 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. 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."
In reply of the above contention, it is submitted by learned A.G.A. Sri Rajeshwar Singh that O.P. No. 2/ victim was working as lady servant in the house of the applicant. Further stated that applicant made physical relation with the victim with the assurance that he would marry with her, but the victim was not living in his relationship, when the victim was became pregnant on the basis of continuous rape, she was beaten by the applicant, so the miscarriage of her took place, therefore, the judgements cited by the learned counsel for the applicant, no benefit can be given to the applicant. He has also cited a judgement in the case Yodla Srinivasa Rao Vs. State of A.P. decided on 29.09.2006 in Criminal Appeal No. 1369 of 2004 by the Hon'ble Supreme Court wherein it has been stated that:
"Section 90- Consent known to be given under fear or misconception. A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person - if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."
Considering the arguments as raised by learned counsel for the applicant as well as learned A.G.A. and from the perusal the the record and judgements cited by learned counsel for the applicant are not applicable in this case. I am of the view that impugned order is based upon relevant consideration and supported by cogent reason, the same does not suffer from any irregularity, illegality or jurisdictional error, hence, no interference is required by this Court. The prayer for quashing the impugned order is refused.
The application lacks merit. It is liable to be dismissed and is, accordingly dismissed.
Order Date :- 23.8.2022 RPD