Saujanya Kumar Vikas vs State Of U.P. And 2 Others on 29 January, 2019

[Cites 16, Cited by 6]

Allahabad High Court

Saujanya Kumar Vikas vs State Of U.P. And 2 Others on 29 January, 2019

This writ petition has been filed seeking the quashing of F.I.R. dated 09.01.2019 registered as Case Crime No.0019 of 2019, under Sections-420, 376, 504, 506 I.P.C. and Section 67 of Information Technology (Amendment) Act, 2008, P.S.-Nawabad, District-Jhansi.

What transpires from the perusal of the record is that the petitioner, a Sub-Divisional Magistrate, is facing some very serious and grave charges and an F.I.R. under a number of penal offences which include offences u/s 376, 504, 506 of I.P.C. and Section- 67 of Information Technology (Amendment) Act in Police Station Nawabad District-Jhansi has been lodged against him. The first informant is Km. Shalini Budhauliya, who is daughter of a constable. If we narrate the substance of the version contained in the F.I.R. it would read somewhat like this. The victim is a resident of District Jalaun where the petitioner remained posted for a period of time. The acquaintance developed in between them which then grew into intimacy. The petitioner is said to have bluffed the victim employing the contrivance of making false promises of marriage with her. It was in that background that he started spending intimate times with her and the petitioner even made physical relationship with the victim. Such relationship continued for some period of time. Later on the victim discovered that the petitioner was not a bachelor but was to the contrary a married person and was also the father of two children. As was natural, the victim refused categorically to have marriage with him in such circumstances. It appears that at some point of time the petitioner got transferred to a different District-Chitrakoot but misusing his position and clout, he extended threats to the victim's family members and tried to continue the contact. According to the victim's version, she kept in perspective the future of petitioner's wife and her two children and refused point blank to have marriage with the petitioner. The petitioner thereafter gave coercive threats of different types and sent massages and whatsapp massages from a particular mobile number, the details of which have been given in the F.I.R. Not only this, the petitioner also sent vulgar obscene photographs to her family members. The version further discloses that the victim is an unmarried girl and the high-handedness of the petitioner who is a P.C.S. Officer, has made her life hell. She by lodging the F.I.R. with the aforesaid allegations sought protection for her life and beseeched to get justice, asking for stringent action against the petitioner.

Heard petitioner's counsel at length and perused the record.

Learned counsel for petitioner, during the course of his argument, has admitted petitioner's intimate acquaintance with the victim, which according to him he had just coincidently developed during the course of his posting in District-Jalaun. The petitioner used to attend a gym while the victim lived nearby the same and thus she came to be known to the petitioner and his family. The victim is the unmarried daughter of a constable who was then posted far away in Jammu and Kashmir and, according to the counsel, because of her poor position the victim and her family members were facing serious economic odds. It has been further submitted by the counsel that petitioner had a humane heart and looking to the poor economic condition of the constable's daughter and seeing her needs he conferred upon the victim enormous financial help from time to time. According to counsel this was all known to petitioner's wife who herself never objected to it and in fact even persuaded the petitioner to do so. In the process of this merciful exercise the petitioner spent about Rs.1 lac upon the victim over a period of time. According to counsel, for all these reasons and in the aforesaid background being impressed by his angelic humanism the victim herself appears to have fallen in love with the petitioner to the extent that one day she laid bare her feelings before him. But her unilateral love towards him was spurned and not accepted by the petitioner. He thereafter also declined providing her financial assistance which she demanded. According to counsel, the petitioner-accused also made his wife aware of these facts and so when the victim next visited his house, his wife took her to task. All this indignated the victim who has lodged this false F.I.R. against the petitioner in order to exploit him financially. As an additional limb of arguments the counsel has also contended that even if the allegations of the F.I.R. be accepted as such they would not constitute the offence of rape as such kind of physical relationship as alleged would come under the caption of consensual sex only. Counsel has also placed reliance upon the Apex Court decision given in Dhruvaram Murlidhar Sonar vs State of Maharashtra and others, 2018 LawSuit (SC) 1297 and has sought to argue on its basis that if the petitioner promised to marry the victim but could not keep the promise, it will give rise only to civil liability and the victim would be at the most entitled to have civil damages alone. Contention is that such kind of relationship, as is said to have existed between petitioner and the victim, would show that it was at the most a live-in relationship and the petitioner should not be blamed for it as the victim herself was a consenting party to it. To have sex with a consenting major girl is beyond the mischief of definition constituting the offence of rape. Submission is that for all these reasons there is no need to investigate the matter and the F.I.R. itself should be quashed as the same is bereft of elements which may constitute any criminal offence.

We have also heard Shri Rupak Chaubey, learned Additional Government Advocate who has opposed the submissions made by the petitioner's counsel and has submitted that the facts as they prima facie transpire from the perusal of the F.I.R. would go to show that the petitioner had a licentious heart who lacked fidelity towards his wife and under the impulse of lascivious propensities he attempted to trap an innocent unmarried girl who is the victim of this case. In this process he appears to have masqueraded himself as a genuine lover and concealing his actual marital status misled the victim by making false promise of having marriage with her. It further transpires from the perusal of the petition that the petitioner spent profligately upon the victim from time to time. According to the admission made in the petition itself the money given in different instalments was to a tune of Rs.40,000/-, Rs.1000/-, Rs.5000/-, Rs.10,000/-, Rs.5000/-, Rs.10,000/-, Rs.15,000/- and then Rs.10,000/-. According to learned A.G.A. the things are evidently speaking for themselves and it does not need any elaborate argument to establish that all this exercise was done in order to instill and inculcate in the victim a false belief about the genuineness of his love for her and to have faith in his promise of marriage. But actually she was just being baited out to fall in the trap and quench the carnal desires of the petitioner. It was emphasized by learned A.G.A. that at this stage when the investigation is afoot this Court must accept the allegations made in the F.I.R. as such and as per the established legal principles see for itself whether the allegations made in the F.I.R. are constituting the criminal offences or not, without entering into any deep probe about the truthfulness of the allegations. What is to be seen is, according to learned A.G.A., whether the allegations made in the F.I.R., if taken to be true, would constitute the criminal offences or not. The contention is that there is categorical allegation in the F.I.R. that the petitioner had concealed his marital status and is guilty of gross misrepresentation in order to exploit her physically. It has also been submitted that the petitioner being a higher executive officer was expected to act in a much more accountable and responsible manner and such kind of debased conduct, as has been allegedly displayed by the accused according to the F.I.R., should neither be soft-pedalled nor be countenanced with. According to learned A.G.A. a number of criminal offences including the offence of rape are clearly made out from the recital of the contents of the F.I.R. and the victim had absolutely no reason to falsely implicate the petitioner. In fact, according to learned A.G.A. it takes a lot of courage and candour for an ordinary girl like the one who is victim in this case, whose parents are so ordinarily placed in society, to come out in open and take up cudgels against a person who is so highly placed in society. The reason being that making complaint in such matters necessarily involves not only the exposure of girl's own chastity, dignity and honour, all of which get besmirched in the estimate of society but also involves the risk of incurring the displeasure and wrath of the powers that be. According to learned A.G.A. a sensitive approach is called for in such matters and at any rate a full-fledged investigation into the case and all the steps necessarily involved in the same must not be trammelled at its very threshold. Learned A.G.A. has also relied upon a number of case laws in order to show the limited ambit and scope of the Court to quash the F.I.R. in exercise of its writ jurisdiction and also in order to show that the present case does not fall in any of the categories which may justify the quashing of a F.I.R. or to stay the arrest of the accused. Learned A.G.A. in this regard has relied upon the Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 which have recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet and may also furnish grounds to quash an F.I.R.

Before discussing anything else this Court would like to refer to the Apex Court's decision which has been relied upon by the petitioner's counsel. The perusal of the judgment shows that the law on the point has been expatiated upon by the Hon'ble Supreme Court at quite some length and many important decisions given by the Apex Court earlier in this regard have also been referred to in the judgment. One of the cases finding its reference is that of Uday v. State of Karnataka, 2003(4)SCC 46 and it would be apt to quote a relevant portion thereof at this stage which reads as thus :

".................. but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. .............."

Keeping in perspective the aforesaid observation made by the Apex Court when we adverted to the conspicuous facts of this case we find that the law laid down by the Apex Court about consensual sex would hardly come to the rescue of the petitioner. If we go by the allegations as have been made in the F.I.R., it does not appear to be a case at all falling in the category where it may be said that the petitioner had any bonafide intention to have marriage with the victim. He is admittedly a married person having two children and it has neither been pleaded on petitioner's behalf nor this is anybody's case that he was disgruntled with his marital life and wanted to abandon his wife or that he ever wanted to have a new beginning with the victim as his another wife. That being so, the sexual relationship, which according to the victim the petitioner made with her, shall neither have any legal sanction nor shall it have any moral vindication. It shall be called nothing except a lecherous deviation of an infidel husband or a promiscuous aberration displaying a lustful propensity towards one who was not his married wife. If we have to go by the contents of F.I.R. then it also does not appear to be a case at this stage where it may be said that the marital status of the petitioner was ever known to the victim. According to the version given in the F.I.R. the aforesaid fact of petitioner being married could be discovered only at a much later stage after the victim had already fallen prey to the false promise of marriage which the petitioner made to the victim. The unmarried status of the petitioner was a mistaken fact and what can be deduced from a reading in between the lines is that in all probability the consent of the victim was deceitfully procured or was granted under a mistake of fact. A false promise may or may not be a fact but whether the petitioner was married or unmarried is no doubt a fact. According to the allegations it was this crucial fact which could be discovered only after the lady had already been physically exploited, and therefore such kind of consent, as is said to have been procured or given, stands vitiated and it would be said that the same was obtained through deceit and misrepresentation. If the victim was not informed by petitioner-accused about his marital status or was not made aware of it for a long time, what else can it be termed than misrepresentation and deceit. Had the married status of petitioner been known to the victim and had the facts of the case been that she consented to have sex with the petitioner with the knowledge that he was already having a wife and children which would make her marriage with petitioner impossible, the situation would have been legally quite different. Then in such a situation the consent could not have been said to have been given under any mistake of fact. This also does not appear to be a case at all where it may be said that though initially the petitioner had some bonafide intentions to have love relationship with the victim and genuinely wanted to have her as his wife but extraneous uncontrollable circumstances intervened which made it difficult to keep the promise. This is not at all a case of not fulfilling a promise which could have been fulfilled. The promise of marriage as alleged in the F.I.R., could be termed nothing except a bluff and ploy and a contrivance to exploit the girl physically because there was absolutely no prospect of petitioner having marriage with the victim with his wife and children remaining intact.

If we come to the facts of the case Dhruvaram Murlidhar Sonar (supra), relied upon by the petitioner's counsel, it was an admitted position of fact that the accused and the alleged victim of that case were both working in the same Primary Health Centre and it was alleged by the victim of that case that the accused-appellant had informed her that he was a married man but was having sharp differences with his wife and he needed a month's time to get their marriage registered. But despite this factual position the victim fell in love with the appellant of that case as she being a widow needed a companion. She agreed to the proposal made by the appellant and started living together with him. But later on the accused-appellant married with another lady and could not keep his promise with the victim which made the victim aggrieved who then lodged complaint making charges of rape against the appellant of that case. It was in this conspicuous factual background that the Hon'ble Apex Court found that she had taken a conscious decision after active application of mind to all the things and the tacit consent given by the victim was not found to be the result of any misconception created in her mind. It was also not found to be a case of victim making a passive submission in the face of any psychological pressure exerted upon her and thus the offence of rape was not held to have been committed. The very fact that the appellant of aforesaid case was found to have informed the victim about his marital status and also about the matrimonial differences which he had with his wife would carve out the major distinction which would put the aforesaid case on an entirely distinguishable footing in comparison to the facts of the present case where the accused is said to have deliberately concealed his marital status.

Another case referred to in the same judgment is that of Deelip Singh alias Dilip Kumar v. State of Bihar, 2005(1) SCC 88. In this case also two questions were framed to be decided by the Apex Court, one of which was -

(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her"?

In this case also the favourable finding towards accused was returned because in the facts of the case the Hon'ble Supreme Court had found no evidence to suggest that the accused had no intention to marry the victim at all from the inception or that the promise which he made to marry the girl was false to his knowledge. No circumstances emerging from the prosecution evidence established this fact. On the other hand, it was seen in the evidence that later on the accused had become ready to marry her but his parents took him away from the village. This circumstance in the view of the Apex Court was sufficient to indicate that the accused might have been prompted by a genuine intention to marry the girl but the promise did not materialise on account of the pressure exerted by his family elders. It was in this factual background that it was found to be a case of breach of promise to marry rather than a case of false promise to marry. The bare perusal of these findings would indicate that the facts of the present case are on an entirely different footing and therefore even Deelip Singh's case (supra) cannot be of any help to the petitioner.

Yet another case referred to in aforesaid Dhruvaram's case is that of Uday vs. State of Karnataka (supra). The findings given in this case also turned on its own facts as the Apex Court was of the view that the victim girl of that case knew that her marriage was not possible and was bound to be seriously opposed. But despite this, she exercised the choice between resistance and assent and she must have known the consequences of the consent because she was all the time conscious of the fact that their marriage would not take place on account of caste considerations. It was with these findings that the Apex Court concluded that her consent was not the consequence of any misconception of facts and it was a free voluntary conscious consent to have sexual intercourse with the appellant of that case. It goes without saying that the allegations made in the present F.I.R. are disclosing facts which are qualitatively different and would not attract the application of the law as has been laid down in the aforesaid case.

In fact the contentions raised by the petitioner's counsel on the point of law would find their complete answer in paragraph no.20 of the case relied upon by the counsel himself which reads as thus :

"(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."

It does not need any further elaboration on the point as the facts of the present case are such which simply do not attract the law in favour of petitioner and in fact the observations made in the aforesaid paragraph make out a clear case of rape against the petitioner. We also do not find much substance in the defence plea that the petitioner was bestowing upon the victim financial favours because it was a kind hearted exercise towards a family friend. The petitioner was a Sub Divisional Magistrate while the victim was a constable's daughter whose father was posted far away in Kashmir and was not at all serving him in any capacity. The victim was a stranger to petitioner and acquaintance with her is being claimed as a result of sheer coincidence. The victim was not serving as any domestic aid or maid in his home. She or her father or anybody from her family was not at all rendering any kind of service to the petitioner's family in any capacity. There was no parity in their social status and it is too much to believe that the largesse which the petitioner was regularly conferring upon the victim was just a laudable humanitarian exercise of a beneficent heart. To speak the least, there appears in the conduct of the petitioner 'method behind the madness' and much more appears to have existed on the sly than what meets the eye. The allegations made in the F.I.R. of sending vulgar obscene photographs and messages to her and extending threats are also making out offences and are not at all compatible with any healthy friendly relationship. The defence plea as raised by the counsel about the victim falling in love with the petitioner unilaterally and she nurturing a dream to marry him also sounds to be a preposterous defence argument specially in the wake of the claim pleaded by the petitioner that his wife was very much close to the victim and the victim was all the time aware about the existence of petitioner's wife and his children. If the victim was regularly visiting the petitioner's family, as is being claimed by the counsel for petitioner and has also been pleaded in the petition, then it sounds highly implausible to accept that the daughter of a constable with full knowledge about the marital status of the petitioner would still dream that the petitioner who was a Sub Divisional Magistrate should abandon his wife and two children and contract marriage with her. The defence plea that the victim had developed rather close family relationship with petitioner's wife and was on regular visiting terms, also appears to be a very untenable specious plea for the simple reason that if a poor girl was given by the petitioner's wife and petitioner the honour and dignity to have family relationship with a significantly higher executive of the district and who was also being profusely showered with such large financial favours why on earth would she at all show and come up with such unreasonable and absurd outburst of love or would even dream of having marriage with the petitioner and would thereby all of a sudden for no rhyme or reason compel such a generous friend to stop all financial help. This Court is ordinarily loath to enter into any such kind of roving inquiry into the factual details of a case and it is ordinarily not done by the court to analyse or weigh the allegations at any great length at this stage but as the arguments in the case have been advanced at a rather great length and even the petition before us contains rather elaborate and detailed defence pleas, this Court had to express its reasons why it does not feel persuaded to accept them. The matter deserves detailed investigation.

In the case of Dhruvaram Murlidhar Sonar (supra) which has been relied upon by the petitioner's counsel, the Court has also gone at some length to discuss the scope of court's power to quash the F.I.R. or the criminal proceedings. It would be apt to quote the relevant portion of the judgment which reads as thus :

"(8) It is well settled that exercise of powers under Section 482 of the Cr.P.C. is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.

(9) This Court in State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Cr.P.C. Seven categories of cases have been enumerated where power can be exercised under Section 482 of Cr.P.C. Para 102 thus reads:

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power Under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

(10) In Rajesh Bajaj v. State NCT of Delhi and Ors., (1999) 3 SCC 259, this Court has held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. If the factual foundation for the offence has been laid in the complaint, the court should not hasten to quash criminal proceedings during the investigation stage merely on the premise that one or two ingredients have not been stated with details.

(11) In State of Karnataka v. M. Devendrappa and Anr., (2002) 3 SCC 89, it was held that while exercising powers Under Section 482 Code of Criminal Procedure, the court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It was further held as under:

"It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto".

Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case once again and finds that the submissions made by the petitioner's learned counsel call for determination on pure questions of fact which may be adequately discerned only through proper investigation. The law regarding sufficiency of grounds which may justify quashing of F.I.R. in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in submission of charge sheet and then eventually in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ingredients constituting the offence is required in order to see whether the F.I.R. requires to be investigated or deserves quashing. The ambit of investigation into the alleged offence is an independent area of operation and does not call for interference in the same except in rarest of rare cases. The view taken in the case of Satyapal vs. State of U.P. and others, 2000 Cr.L.J. 569 which was further confirmed by another Full Bench of this Court in the case of Ajit Singh @ Muraha v. State of U.P. and others (2006 (56) ACC 433) makes the position of law in this regard clear and this Court does not find it advisable to whittle down the power or scope of investigation in the given case. The operational liberty to collect sufficient material, if there exists any, cannot be scuttled prematurely by any uncalled for overstepping of the Court. It has to be an extremely discreet exercise. This Court also does not deem it proper, and therefore cannot be persuaded to have a kind of pre-trial before the actual trial begins nor does this Court see any good reason why the investigating agency should not be given fullest opportunity to make proper inquiry and reach at the just conclusions in the matter. This Court also does not deem it proper to suffocate or trammel the ambit and scope of independent investigation into the case. A more elaborate discussion of various facts and circumstances, as they emerge from the allegations made against the accused and a more elaborate discussion about the acceptability or non-acceptablity of the defence pleas raised in the petition is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during investigation or trial in case it takes place. But it shall suffice to observe that the perusal of the record makes out prima facie offences at this stage and there appear to be sufficient ground for investigation in the case. We do not find any justification to quash the F.I.R. or the proceedings against the accused arising out of it as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing.

The prayer for quashing the same is refused as we do not see any breach of constitutional provisions or any abuse of the process of law.

The writ petition therefore stands dismissed.

Order Date :- 29.1.2019 M. Kumar

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