Manzoor Ahmad Wani vs . on 3 May, 2019

[Cites 23, Cited by 0]

Jammu & Kashmir High Court - Srinagar Bench

Manzoor Ahmad Wani vs . on 3 May, 2019

HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CRMC No. 40/2019
IA No. 01/2019
IA No. 02/2019
Date of Order: 03.05.2019
Manzoor Ahmad Wani
Vs.
State of J&K and Others
Coram:
Hon'ble Mr Justice Rashid Ali Dar, Judge
Appearance:

For petitioner(s): Mr. M. Ayoub Bhat, Advocate
For respondent(s): Mr. N. H. Shah, Sr. AAG.
i/ Whether to be reported in Yes/No
Press/Media?
ii/ Whether to be reported in Yes/No
Digest/Journal?

1. The principle of law laid down in various judgments by the Hon'ble Apex

Court as well as this Court including in State of Maharashtra v. Arun

Gulab Gawali, reported in AIR 2010 SCC 3762, Pratibha v. Rameshwari

Devi & Others, reported in 2007 (12) SCC 369 and Jatinder Nath Bakshi

v. State of J&K and Others, reported in 2009(3) JKJ 679 (HC), is that

power under Section 561-A Cr. PC, is to be exercised in rarest of rare cases

and with circumspection. Legal position is also settled that it would be only

the allegations levelled in the First Information Report or a complaint that

have to be looked into, to examine the scope for quashment of a criminal

case. The prayer made in terms of instant petition is accordingly to be

tested on the touchstone of above principles.

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2. It is pleaded in terms of this petition:

(i) That a false and frivolous FIR bearing No. 77/2018 has been
registered at Police Station, Mattan, for the commission of offence
punishable under Section 376, 420, against the petitioner and he has
been arrested and is in the jail for the last more than two months.
(ii) That the only purpose of lodging of the FIR by the complainant
Shameema Akhter is to pressurize and harass the petitioner so that he
succumbs to marry with the complainant.
(iii) That the petitioner is innocent and has not committed any offence
whatsoever.
(iv) That the complainant has not rested here, she had lodged another FIR
bearing No. 197/2018, for the commission of offence punishable under
Section, 354, 392, 506 RPC and has involved all the family members of
the petitioner in the said FIR.
3. Copy of First Information Report bearing No. 77/2018 dated 20.12.2018,

registered at Police Station Kulgam, gives the gist of allegations levelled

against the petitioner as:

"That the complainant was perusing further studies at Rajasthan, the
accused Manzoor Ahmad Wani was also studying there and they
introduced with each other and become friends also, after that the
friendship converted into affairs. While returning back from Rajasthan
to her home, the petitioner several times made contact with her for
meetings. In the Month of September, 2018, when her family members
were out in connection with some agriculture work, the said accused
person arrived at her home and raped/sexually assaulted her in the
pretext of marry. After some time, the complainant came to know that
the accused Manzoor Ahmad Wani had got engaged somewhere,
thereby deceit her. "

4. The contention of petitioner is that on its face value, the allegation, if taken

into consideration, same would not constitute any offence, necessitating

CRMC No. 40/2019 Page 2 of 29
proceedings with the trial stated to have commenced on submission of final

report under Section 173 Cr. PC. Copy of said report was brought on

record during the course of arguments. It is emphatically contended that the

proceedings are motivated and in order to wreck vengeance for not

marrying (as per the allegations of the First Information Report), the

petitioner and his family members are being harassed. It is being also stated

that one more case has been registered against the petitioner herein along

with family members, who too have been taken into custody. In the report

lodged in 2nd case, no allegations were levelled for the commission of

offence under Section 376 RPC, but on her examination under Section 164-

A Cr. PC, prosecutrix has stated that rape was committed upon her by the

petitioner and his brother (i.e., in 2nd FIR). The petitioner was bailed out on

conditional bail by the orders of the Court of learned Principal & Sessions

Judge, Anantnag, for examination purposes, on 22.02.2019. Later the

conditional bail in his favour was cancelled and he was re-arrested and is

presently lodged at Sub District Jail, Anantnag (Kheribal) and on same date

the challan of the instant case was produced before this Court of learned

JMIC, Anantnag, against the said accused person.

5. Learned counsel made endeavor to substantiate on arguments while relying

on judgment of Calcutta High Court titled Hari Majhi v. The State,

reported in 1990 (CriLJ) 650 and case titled Jayanti Rani Panda v. State

of West Bengal and Ors, reported in 1984 (CriLJ) 1535 and contended

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that consent given on false promise to marry would not be treated as act,

within the meaning of Section 375 of Penal Code and treated offence of

rape. Deception to marry would not thus be a ground for prosecution,

according to him, the trial before the Sessions Court is likely to take long

time and has propensity to incarcerate petitioner herein.

6. The facts as noted in Hari Majhi v. The State, reported in 1990 (CriLJ)
650, are referred as:

" It may be mentioned that the first sexual intercourse took place
sometime in May 1981 and the First Information Report was lodged
on 7th March, 1983.

4. The first charge against the accused is that he had sexual
intercourse with Aloka Majhi against her will or without her
consent. The second charge is that the accused cheated the said
Aloka Majhi is that he induced her intentionally by giving false
assurance to her that the accused would marry her and by such
inducement she was seduced by the accused for making sexual
intercourse. The entire case of the prosecution depends on the
evidence of Aloka Majhi, the complainant, P.W. 1. She has said in
her evidence as follows:-

"About four years back, one day at about 11 a.m. while I was
working in the field of our village accused Haru Majhi told
me that he would marry me and saying that he caught hold
of me. I protested against him for his such act as there were
many persons in the field at that time. I then extricated
myself from the clutches of the accused. The accused again
told that he would marry me and I need not be afraid of him.
After that incident he used to visit my father's place and to
assure me that he would marry me. He on that assurance

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wanted to have sexual intercourse with me. I did not at first
agree to his proposal. The accused then approached my
father and my elder brother with a proposal that he would
marry me. He also told my grandmother that he would marry
me. On his persuasion I believed that he would actually
marry me. Thereupon I started mixing with him and I also
went to see Cinema show with him for two times. While I was
returning with him from the Cinema show for the second
time the accused performed sexual intercourse with me in a
field. I at (first) did not agree to have sexual intercoruse with
him, but as he gave me assurance that he would marry me, I
consented to his proposal and he accordingly performed
sexual intercourse with me on that day. Afterwards the
accused used to have sexual intercourse with me once or
twice in a month regularly. As a result of his sexual
intercourse with me I conceived.... While I was carrying for
one month, the accused married a woman of Kanajuli, P. S.
Dhaniakhali. After his above marriage, he also married me
during the pendency of this case after observing all the
Hindu rites and formalities on the persuasion of the members
of Gram Panchayat and my parents. I am now staying at my
father's house. Accused gave me assurance the he would take
me to his house after eight days of my marriage. But the
accused did not take me to his house. He did not turn up to
my father's house after my marriage with him. I allowed the
accused to have sexual intercourse with me as he assured
that he would marry me. I would not have accorded my
consent to his said act had I known that he would deceive me
in the above way. As a result of my conception by the
accused I delivered a female child. That female child is now
aged four years. The accused does not give maintenance
either to me or to my female child."

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5. It appears to us that the petitioner fell in love with the accused
and, accordingly, she allowed him to have sexual intercourse with
her.

6. It would be evident from the said evidence that the accused had
sexual intercourse with the girl with her consent which she, being
above the age of 16 years, was competent to give. The prosecution
case is that she agreed to sexual intercourse because the accused
promised to marry her. But on this ground he cannot be held guilty
of rape. The prosecution case does not cover any of the
circumstances in Section 375 of the Penal Code. In our view, the
accused cannot be held guilty of rape for having sexual intercourse
with P.W 1 after having promised to marry her.

7. We have now to consider the charge under Section 417 of the
Penal Code. This charge also could not be brought home. Where
the charge of cheating, as in this case, rests upon a representation,
which is false and which relates not to an existing fact but to a
certain future event, it must be shown by the prosecution that the
representation is false to the knowledge of the accused when it was
made. It will be of no consequence to show that in fact the
representation has ultimately turned out to be untrue.

7. The facts as noted in Jayanti Rani Panda v. State of West Bengal and

Ors, reported in 1984 (CriLJ) 1535, are referred as:

"2. The petitioner lodged a complaint to the police in August 1978
alleging that the accused opposite party No. 2, a teacher of the local
village school, used to visit her residence and one day during the
absence of the complainant's parents from the house told her that he
was in love with the complainant and that he wanted to marry her.
The complainant wanted the marriage to be performed. The accused
is alleged to have promised that he would do so and that he would

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himself obtain the consent of her parents. Acting on such assurance
she started cohabiting with the accused and this continued for
several months during which period the accused often used to visit
her house late at night and some times spend the night with her.
Eventually she conceived and when she insisted that the marriage
should be performed as quickly as possible the accused proposed
abortion of the child and agreed to marry the complainant sometime
after the Panchayat elections. The complainant not having agreed
to abortion the accused ultimately disowned the promise and
stopped visiting her house. On this allegation Debra P.S. Case No.
20 was started. The accused pleaded innocence and complained
that he has been implicated at the instance of a political rival in
order to blackmail him, the complainant herself being a woman of
easy virtue.

3. At the trial a question was raised as to the age of the girl,
whether she was below the age of consent or not and whether the
consent was fraudulently obtained and was hit by Section 90 of the
Penal Code. On the question of age the learned Judge found that
she was above 16 years of age at the relevant time. On the other
question, viz., whether the consent allegedly given by the
complainant was within the mischief of Section 90 of the Penal
Code, the learned Judge observed that having regard to the facts of
the case even if it is assumed that a wholly false promise was given
yet then the accused could not be held liable for the offence of rape
because consent to the intercourse in such a case was not given
under a "misconception of fact" as provided by Section $0 of the
Penal Code. Precisely his finding is "A false promise is not a fact -
within the meaning of the Code. The matter would have been
otherwise if the accused on the pretext of fake marriage or posing
as a husband ravished the girl." In that view of the matter the
learned Judge held that the act committed by the accused did not

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come within the ambit of the Penal Code and on such finding
acquitted, the accused of the offence under Section 376, IPC.

4. Being aggrieved the petitioner has filed the present revisional
application and obtained the Rule. Mr. Hait appearing on behalf of
the petitioner raised two points in support of the revisional
application. Firstly, it was contended that there is no legal evidence
to show that the girl was above the age of 16 years and secondly
that even if she had attained the age of consent, the consent
obtained in this case was hit by the provisions of Section 90 of the
Penal Code".

7. In support of the contention Mr. Hait contended that a
misconception as to the intention of the person in stating the
purpose for which the consent is asked is a misrepresentation of a
statement of fact within the meaning of Section 3 of the Evidence
Act, and a consent given on a misrepresentation of fact is one given
under a misconception of fact within the meaning of Section 90 of
the Penal Code. In support of this contention, reliance was placed
in the case of Emperor v. Soma, 36 Ind Cas 850 : 18 Cri LJ
18(Lah). That was a case where the question of consent in the
context of an allegation of kidnapping of a minor girl came for
consideration. It was held in the facts of that case that the intention
of the accused was to marry the girl to one Dayaram and she
obtained Mr. Kujan's consent to the taking away of the girl by
misrepresenting her intention. Therefore the point that was decided
in that case was that at the time when the offence was committed by
taking away the girl, there was a positive misrepresentation of fact,
viz., the representation as to the intention regarding the purpose of
taking away. In the instant case before us the ' facts cannot be
placed as high as that.

Here the allegation of the complainant is that the accused used to
visit her house and proposed to marry her. She consented to have

CRMC No. 40/2019 Page 8 of 29
sexual intercourse with the accused on a belief that the accused
would really marry her. But one thing that strikes us is that if she
had really been assured of marriage by the accused who was
visiting her house and in whose promise she had faith, why should
she keep it a secret from her parents if really she had belief in that
promise. Assuming that she had believed the accused when he held
out a promise, if he did at all, there is no evidence that at that time
the accused had no intention of keeping that promise. It may be that
subsequently when the girl conceived the accused might have felt
otherwise. But even then the case in the petition of complaint is that
the accused did not till then back out. Therefore it cannot be said
that till then the accused had no intention of marrying the
complainant even if he had held out any promise at all as alleged.
The failure to keep the promise at a future uncertain date due to
reasons not very clear on the evidence does not always amount to a
misconception of fact at the inception of the act itself. In order to
come within the meaning of misconception of fact, the fact must
have an immediate relevance. The matter would have been different
if the consent was obtained by creating a belief that they were
already married. In such a case the consent could be said to result
from a misconception of, fact. But here the fact alleged is a promise
to marry we do not know when. If a full grown girl consents to the
act of sexual intercourse on a promise of marriage and continues to
indulge in such activity until she becomes pregnant it is an act of
promiscuity on her part and not an act induced by misconception of
fact. Section 90 IPC cannot be called in aid in such a case to
pardon the act of the girl and fasten criminal liability on the other,
unless the Court' can be assured that from the very inception the
accused never really intended to marry her.

8. The next case referred to by Mr. Hait instead of supporting his
contentions really goes against him. The facts of that case
Edgington v. Fitzmaurice, (1885) 29 Ch. D. 459 were entirely

CRMC No. 40/2019 Page 9 of 29
different. But the principle laid down may have some relevance.
This decision lays down that a misstatement of the intention of the
defendant in doing a particular act may be a misstatement of fact,
and if the plaintiff was misled by it, an action of deceit may be
founded on it. The particular observation at p. 483 runs to the
following effect: "There must be a misstatement of "an existing
fact." Therefore, in order to amount to a, misstatement of fact the
existing state of things and a misstatement' as to that becomes
relevant. In the absence of such evidence Section 90 cannot be
called in aid in support of the contention that the consent of the
complainant was obtained or a misconception of fact. There is
obviously no question of fear of injury. There fore in the facts of this
case we are unable to say that the consent was given on a
misconception of fact.

8. Learned counsel for the petitioner also gave reference of the following

judgments in support of his contentions:

(i) G. Sagar Suri & Another v. State of UP & Others, reported in AIR
2000 SC 754.
(ii) Uday v. State of Karnatka, reported in AIR 2003 SC 1639.
(iii) State of Haryana & Others v. Ch. Bhajan Lal & Others, reported in
AIR 1992 SC 604
(iv) Dr. Sharda Prasad Sinha v. State of Bihar, reported in 1977 (1) SCC
505.
(v) Vineet Kumar & Others v. State of UP & Another, reported in 2017
(13) SCC 369.
(vi) Pratibha v. Rameshwari Devi & Others, reported in 2007 (12) SCC
369.

In case referred at S. No. (1), G. Sagar Suri & Another v. State of
UP & Others, it has been observed thatjJurisdiction under Section
482 of the Code has to be exercised with a great care. In exercise of its
jurisdiction High Court is not to examine the matter superficially. It is

CRMC No. 40/2019 Page 10 of 29
to be seen if a matter, which is essentially of civil nature, has been
given a cloak of criminal offence. Criminal proceedings are not a short
cut of other remedies available in law. Before issuing process a
criminal court has to exercise a great deal of caution. For the accused
it is a serious matter. This Court has laid certain principles on the
basis of which High Court is to exercise its jurisdiction under Section
482 of the Code, Jurisdiction- under this Section has to be exercised to
prevent abuse of the process of any court or otherwise to secure the
ends of justice. In State of Karnataka v. L. Muniswamy and Others,
AIR (1977) SC 1489 = [1977] 3 SCR 113, this Court said that in the
exercise of the wholesome power under Section 482 of the Code High
Court is entitled to quash a proceeding if it comes to the conclusion
that allowing the proceed-ing to continue would be an abuse of the
process of the Court or that the ends of justice require that the
proceedings are to be quashed."

In case referred at S. No. (ii), Uday v. State of Karnatka, it has been
observed as:

"There is yet another difficulty which faces the prosecution in
this case. In a case of this nature two conditions must be
fulfilled for the application of Section 90 IPC. Firstly, it must
be shown that the consent was given under a misconception of
fact. Secondly, it must be proved that the person who obtained
the consent knew, or had reason to believe that the consent was
given in consequence of such misconception. We have serious
doubts that the promise to marry induced the prosecutrix to
consent to having sexual intercourse with the appellant. She
knew, as we have observed earlier, that her marriage with the
appellant was difficult on account of caste considerations. The
proposal was bound to meet with stiff opposition from members
of both families. There was therefore a distinct possibility, of
which she was clearly conscious, that the marriage may not
take place at all despite the promise of the appellant. The
question still remains whether even if it were so, the appellant

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knew, or had reason to believe, that the prosecutrix had
consented to having sexual intercourse with him only as a
consequence of her belief, based on his promise, that they will
get married in due course. There is hardly any evidence to
prove this fact. On the contrary the circumstances of the case
tend to support the conclusion that the appellant had reason to
believe that the consent given by the prosecutrix was the result
of their deep love for each other. It is not disputed that they
were deeply in love. They met often, and it does appear that the
prosecutrix permitted him liberties which, if at all, is permitted
only to a person with whom one is in deep love. It is also not
without significance that the prosecutrix stealthily went out
with the appellant to a lonely place at 12 O'clock in the night. It
usually happens in such cases, when two young persons are
madly in love, that they promise to each other several times
that come what may, they will get married. As stated by the
prosecutrix the appellant also made such a promise on more
than one occasion. In such circumstances the promise loses all
significance, particularly when they are overcome with
emotions and passion and find themselves in situations and
circumstances where they, in a weak moment, succumb to the
temptation of having sexual relationship. This is what appears
to have happened in this case as well, and the prosecutrix
willingly consented to having sexual intercourse with the
appellant with whom she was deeply in love, not because he
promised to marry her, but because she also desired it. In these
circumstances it would be very difficult to impute to the
appellant knowledge that the prosecutrix had consented in
consequence of a misconception of fact arising from his
promise. In any event, it was not possible for the appellant to
know what was in the mind of the prosecutrix when she
consented, because there were more reasons than one for her
to consent."

CRMC No. 40/2019 Page 12 of 29
In case referred at S. No. (iii), State of Haryana & Others v. Ch.
Bhajan Lal & Others, it has been observed that the trial Court under
Section 239 and the High Court under Section 482 of the Code of
Criminal Procedure is not called upon to embark upon an enquiry as
to whether evidence in question is reliable or not or evidence relied
upon is sufficient to proceed further or not. However, if upon the
admitted facts and the documents relied upon by the complainant or
the prosecution and without weighing or sifting of evidence, no case is
made out the criminal proceedings instituted against the accused are
required to be dropped or quashed.

"In the exercise of the extra-ordinary power under Article 226 or the
inherent powers under Section 482 of the Code of Criminal Procedure,
the following categories of cases are given 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 channelized and inflexible guide- ï7 myriad kinds of cases
wherein such power should be exercised:

(a) 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;

(b) where the allegations in the First Information Report and
other materials, if any, accompanying the F.I.R. 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;

(c) 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;

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(d) 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;

(e) 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;

(f) 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;

(g) 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. [305D-H; 306A-E] 8.2. In the instant case, the
allegations made in the complaint, do clearly constitute a
cognizable offence justification and this case does not call for
the exercise of extraordinary or inherent powers of the High
Court to quash the F.I.R. itself."

In case referred at S. No. (iv), Dr. Sharda Prasad Sinha v. State of
Bihar, it has been observed that where the allegations contained in the
complaint did not constitute any offence and the Sub-Divisional
Magistrate was in error in taking cognizance of it. The High Court in
the circumstances ought not to have rejected the application of the
appellant for quashing the order of the Sub-Divisional Magistrate.

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In case referred at S. No. (v), Pratibha v. Rameshwari Devi & Others,
the Apex Court in para 10 of the judgment has observed that before
parting with this judgment, "we may also remind ourselves that the
power under Section 482 of the Code has to be exercised sparingly and
in the rarest of rare cases.

In case referred at S. No. (vi), Vinet Kumar & Others v. State of UP
& Another, it has been observed that Inherent power given to the High
Court under Section 482 Cr .P.C. is with the purpose and object of
advancement of justice. In case solemn process of Court is sought to be
abused by a person with some oblique motive, the Court has to thwart
the attempt at the very threshold. The Court cannot permit a
prosecution to go on if the case falls in one of the Categories as
illustratively enumerated by this Court in State of Haryana vs. Bhajan
Lal. Judicial process is a solemn proceeding which cannot be allowed
to be converted into an instrument of operation or harassment. When
there are material to indicate that a criminal proceeding is manifestly
attended with mala fide and proceeding is maliciously instituted with
an ulterior motive, the High Court will not hesitate in exercise of its
jurisdiction under Section 482Cr.P.C. to quash the proceeding under
Category 7 as enumerated in State of Haryana vs. Bhajan Lal.
About Category 7 is clearly attracted in the facts of the present case.
Although, the High Court has noted the judgment of the State of
Haryana v. Bhajan Lal, but did not advert to the relevant facts of the
present case, materials on which Final Report was submitted by the
IO. We, thus, are fully satisfied that the present is a fit case where
High Court ought to have exercised its jurisdiction under Section 482
Cr. PC and quashed the criminal proceedings.

Facts as can be noted in the case are:

"The accused have made several financial transactions with complainant, Smt. Rekha Rani, her husband, Akhilesh Kumar and her son, Ankur in the months of May, 2015. Accused No.3 gave Rs.9 lakh to husband and son of the complainant for business CRMC No. 40/2019 Page 15 of 29 purposes. An amount of Rs.7 lakh 50 thousand was given in cash to complainant and her husband by accused No.1. Further, husband of complainant received Rs.3 lakh 60 thousand in cash and Rs.2 lakh 40 thousand by cheque dated 29.05.2015 from accused No.1.

3. An agreement dated 29.05.2015 was signed by the husband of the complainant and accused No.1 acknowledging the payment of Rs.3 lakh 60 thousand in cash and Rs.2 lakh 40 thousand by cheque. A cheque of Rs.6 lakh was handed over by the husband of the complainant to accused No.1 to ensure the re-payment. Another agreement between the complainant and accused No.1 was entered into on 01.06.2015 wherein it was acknowledged that complainant and her husband had taken Rs.7 lakh 50 thousand in cash from accused No.1. Earlier, husband of complainant took Rs.6 lakh from accused No.1. Parties entered into an agreement agreeing with certain conditions. Third agreement was entered into between the son of complainant and accused No.1 on 31.08.2015 wherein son of complainant acknowledged that his parents have taken an amount of Rs.14 lakh 50 thousand. Complainant and her husband gave cheques of Rs.6 lakh and Rs.8 lakh 50 thousand to accused No.1 drawn on Prathama Bank, Kanth Branch, District Moradabad for recovery of the amount given by the accused. Agreement noticed that the amount was borrowed with promise to return the amount. The agreements were written on Non-Judicial Stamp Papers which were not registered but contained signatures of the parties mentioned therein.

4. Accused No.3 filed a complaint under Section 138 of Negotiable Instruments Act being Complaint No.1587/2015 against husband and son of the complainant with the allegation that amount of Rs.9 lakh was paid to the opposite parties who had issued a cheque of Rs.9 lakh with the assurance that the amount will be repaid by CRMC No. 40/2019 Page 16 of 29 22.08.2016. It was stated by accused No.3 in the complaint that after lapse of time when the amount was not paid, the cheque was deposited which was returned back by the Bank with remark "No Sufficient Balance". When the opposite parties were contacted in this regard, the opposite parties told not come to them. After giving a notice on 05.09.2016, complaint was filed on 21.09.2015. Accused No.1 had also filed an Application on 29.09.2015 under Section 156(3) Cr.P.C. against the complainant, her husband and son. Cheque given by son of the complainant of Rs.6 lakh to accused No.2 was also dishonoured. Complaint filed by accused No.1 under Section 138 of Negotiable Instruments Act was registered as Complaint No.3280/2015. Complaints against complainant, her husband and son were filed in the month of September, 2015 alleging dishonoured of cheque and complaint of non-payment of amount given to the complainant and her husband and son.

5. On 30.10.2015 complainant filed an Application under Section 156(3) Cr.P.C. against all the three accused alleging commission of offence under Section 376(d),323 and 452 IPC. In the application allegation was made against the accused that on 22.10.2015 at about 7.30 p.m. all the three accused came to the house of the complainant. At that time she was alone in the house. It was alleged that all the three accused started misbehaving with her. They beat her with stick, fist and kick. Thereafter, accused, Vineet and Nitendra raped her one by one while Sonu stood outside the room. When Sonu told them about arrival of complaint's husband, all the three accused fled away. It was further alleged that she went to the Police Station on the same day but the Police did not register FIR. An order dated 03.11.2015 was passed by the Additional Chief Judicial Magistrate-IV, Moradabad for registration and investigation to the concerned Police Station. On 06.11.2015, the First Information Report was CRMC No. 40/2019 Page 17 of 29 registered being No.251/2015 at Police Station Kanth, District Moradabad under Section 376(d), 323, 452 IPC against the accused. After registration of the case, crime was investigated by Investigating Officer(IO). The IO recorded the statements of complainant, her husband and mother-in-law. Complainant in her statement repeated her allegation. It was further stated that she went along with her husband to Police Station but report was not lodged. On next day, she went to Government Hospital, Moradabad with her husband for medical examination. Doctor conducted medical examination to external injuries but refused to her internal examination. Husband and father-in-law of the complainant also recorded statements. They stated that before they arrived at the house, accused had already fled away. IO asked the complainant "as to whether now she is ready to get done medical examination", husband of the complainant answered "no, now there is no benefit out of medical examination. Now, I don't want to get my wife's medical examination done as much time has been elapsed". When the husband was also asked some questions to get her wife medically examined following answers were given by the husband:

"Question - Now get the medical examination of hour wife done so that D.N.A. etc. proceeding could be done?

Ans.- This occurrence is of 22.10.2015 in the evening at 19.30 hrs. and since then till now I have also have sexual intercourse with my wife several times. Thus, now there is no benefit out of medical examination and instead I myself will be positive."

6. Before the IO, complainant, her husband, father-in-law and mother-in- law all stated that at the time of occurrence there was no electricity.

CRMC No. 40/2019 Page 18 of 29

7. The accused also recorded statement of various persons in support of the claim of the accused that at the time alleged by the complainant they were not present and till 9 p.m. they were with their friends in Dushehara Mela. IO recorded the statement of certain persons who stated that accused were with them till 9 p.m. on 22.10.2015.

8. Although, the complainant and her husband refused medical examination when they are so asked by IO on 07.11.2015, but she got her medical examination done on 20.11.2015. Pathology Report (filed at page 50 of paper book) stated as : "No spermatozoa alive or dead are seeing the received smears within sealed envelope".

9. On 24.11.2015 complainant got her statement recorded under Section 164 Cr.P.C. In the statement the age of complainant was recorded as 47 years. In the statement the complainant repeated her allegations.

10. After statement under Section 164 Cr.P.C. was recorded, IO carried out detailed investigation by recording statements of brother of complainant's husband and his wife. Along with the complainant, the brother of her husband as well as his wife were also staying in the same house at the relevant time. The IO recorded the statement of Nikesh Kumar, brother of complainant's husband. It is useful to extract below the statement of brother of complainant's husband as recorded by the IO:

"Statement of Shri Nikesh Kumar son of Subhash Chandra Vishnoi resident of Mohalla Vishanpura, Kasba Kanth is present. Upon enquiry has stated that on 22.10.15 there was Dushehara Mela. I alongwith my children had gone to see Mela(Fair) and had returned back to my house at 5.00-5.30 p.m. Rekha Rani is my real Bhabhi (sister-in-law). There has been monetary transaction between Akhilesh and Vineet. Time to time my brother used to borrow a sum CRMC No. 40/2019 Page 19 of 29 of Rs.Two lakh, four lakh from Vineet and used to invest the same in his business and then used to return. Now there has been inter-se dispute among them owing to monetary transaction. On this dispute my sister- in-law Rekha has instituted case against Vineet and others. It is not good to mention such shameful facts and my sister- in-law has not done good. There are young children in the family and there would be wrong effect of these facts. I have spade my brother Akhilesh and father have also scolded him. Now he is saying that mistake has been committed and whatever has occurred has occurred. I and my wife have gone to Court. Moradabad and have submitted our affidavit in the Court. We have mentioned the correct fact therein. We will tell the same fact in the Court that no such occurrence has taken place in our house. My Bhabhi Rekha has lodged a case in the Court out of anger which is a false case."

11. The wife of Nikesh Kumar, Smt. Bina Vishnoi also made the following statement before the IO which is the part of the Case Diary:

"Statement of Smt.Bina Vishnoi w/o Nikesh Kumar resident of Mohalla Vishanpura Kasba and P.S. Kanth is present. Upon enquiry, she has stated that on 22.10.15 there was Dushehara festival and we after seeing Dushehara Mela had returned back and came at our house at about 5.00 p.m. I had opened my shop. I have a grocery shop. Most of transaction takes place in the evening. Rekha is my elder real Jethani. My Jeth Akhilesh has monetary transaction with Vineet and others. He used to borrow money Rs. Two lakh, four lakh from Vineet to invest the same in his business and the returns the same. Now what has happened I do not know and inter-se dispute has cropped up among them and my Jethani has taken such a wrong step which does not happens in our house. Our family and the family of Vineet are the respected family of Mohalla and we have business and trade of lakh of rupees. We have spade an scolded them. Our children are CRMC No. 40/2019 Page 20 of 29 also growing to be young. When you people visit it has effect on them. Now they are realising the mistake. No occurrence of rape etc. has happened in our house and in this regard the complete Mohalla will tender evidence. I have even appeared in the Court and submitted an affidavit and will tell the true fact in the Court.

Question- On 22.10.15 in the evening at 7.30 p.m. you were present at your room/shop the whether you have heard any cry or had seen Vineet coming or going?

Ans. - On 22.10.15 since 5.00 p.m. we were at our house and no one had come in our house and Rekha has informed us. No such occurrence of rape could take place in our house. You could enquire from our all neighbours."

12. The affidavits were also given by Nikesh Kumar and Smt. Bina Vishnoi who were residing in the same house. Smt. Bina Vishnoi is also running a shop of General Store in one portion of the house. She stated that on the date of occurrence Rekha Rani was in her parental house to celebrate Dushehara and was not present at her house.

13. IO after completion of investigation and after taking into consideration the materials collected during the investigation came to the conclusion that no such incident took place on 22.10.2015 as alleged by the complainant. Final Report No.40/15 was submitted by the IO on 29.11.2015 which is to the following effect:

"The First Information Report in the above mentioned incident was registered on 6.11.2015 and the investigation was taken up by me. After recording the statement of the witnesses and inspection of the place of occurrence the allegation was found to be false by me. Therefore this final report No.40/15 is being submitted for your consideration."

CRMC No. 40/2019 Page 21 of 29

14. After submission of Final Report on 29.11.2015 Police has also submitted a further report before the Additional Chief Judicial Magistrate for initiating proceeding under Section 182 Cr.P.C. against the complainant. Respondent No.2 moved Protest Petition dated 07.01.2016. It was allowed by the Addl.CJM on 28.05.2016. An Application under Section 482 Cr.P.C. was filed before the High Court. It was allowed and order dated 28.05.2016 was set aside directing the Magistrate to pass fresh order. The Magistrate passed again order dated 03.08.2016 summoned the accused. Revision was filed before the Sessions Judge against the order dated 03.08.2016 which was dismissed by order dated 22.10.2016.

15. The accused filed Application under Section 482 Cr.P.C. to quash the order dated 03.08.2016 and the order passed by the Sessions Judge. It was prayed by the accused that orders were passed without appreciating the evidence and material on records, they deserve to be set aside and the Protest Petition be rejected. The High Court refused the prayer for quashing the orders by making the following observations:

"From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the Bar relates to the dispute question of fact, which cannot be adjudicated upon by this Court in exercise of power conferred under Section 482 Cr.P.C. at this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in case of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.)426, State of Bihar Vs. R.P. Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceuticals Works Ltd. Vs. Mohd. Saraful Haq and another (par 10) 205 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage."

CRMC No. 40/2019 Page 22 of 29

9. Per contra, learned Sr. AAG submits that the Court has to exercise restraint while exercising power under Section 561-A Cr. PC. The learned counsel for the respondents has taken reliance on following judgments:

(i) Jatinder Nath Bakshi v. State of J&K and Others, reported in 2009(3) JKJ 679 (HC).

(ii) Pratibha v. Rameshwari Devi & Others, reported in 2007 (12) SCC 369.

(iii) State of Maharashtra v. Arun Gulab Gawali, reported in AIR 2010 SC 3762.

10. It may be proper to have reference of principle of law laid down in these cases.

In case referred at S. No. (i), Jatinder Nath Bakshi v. State of J&K and Others, this Court in para 13 of the judgment has observed that for quashing of the proceedings or the order under Section 561-A Cr. PC, an extraordinary case is to be made out. The power is to be exercised by the Court in rarest of rare cases and powers to be exercised with great caution as has been mandate by the Hon'ble Supreme Court in plethora of judgments.

In case referred at S. No. (ii), Pratibha v. Rameshwari Devi & Others, the Apex Court inn para 10 of the judgment has observed that before parting with this judgment, "we may also remind ourselves that the power under Section 482 of the Code has to be exercised sparingly and in the rarest of rare cases".

In case referred at S. No. (iii), State of Maharashtra v. Arun Gulab Gawali, the Apex Court in para 12 of the judgment has observed that the power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the FIR/Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a CRMC No. 40/2019 Page 23 of 29 conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage not it can 'soft-pedal the course of justice' at a crucial stage of investigation proceedings. The provisions of Articles 226 , 227 of Constitution of India and Section 482 of the Coe of Criminal Procedure, 1973 (hereinafter called as 'Cr. PC.') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers."

11. It is being further submitted that this Court cannot scuttle the proceedings as investigation has already been conducted in exercise of statutory powers of the police and it would be for the Sessions Court to evaluate the whole material during trial and on conclusion thereof frame opinion about guilt or innocence of accused. It according to him would be too risky to accept that there would be no chance of conviction in the matter.

12. Considered the rival arguments and perused the material on record.

13. Their lordships of Hon'ble Apex Court in State of Orissa v. Suraj Kumar Sahoo, reported in (2005) 13 SCC 540, have sounded a note of caution regarding the power of High Court to be exercised in terms of Section 561- A Cr. PC, corresponding to Section 482 of Central Code. Their lordships enunciated that the High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the CRMC No. 40/2019 Page 24 of 29 entire facts are incomplete and hazy and the issues involved, whether factual or legal, being of magnitude and cannot be seen in their true perspective without sufficient material before the Court. While exercising inherent jurisdiction as observed their lordships is not permissible for the High Court to act as if it was a trial Court. It would be none of the duties of the High Court to appreciate the evidence to conclude whether the material produced are sufficient or not for holding the accused guilty.

14. The Apex Court in the case of Satvinder Kaur v. State, reported in AIR 1999, SC 3597 held that the appreciation of the evidence is the function of the Court when seized of the matter. Further their lordships observed that for the purpose of exercising its power under Section 482 Cr. PC, to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegation made in the complaint or the documents accompanying the same per se, it has no jurisdiction to examine the correctness of otherwise of the allegations.

15. It may be proper to refer to the recent judgment of Hon'ble Apex Court in Anurag Soni v. State of Chhattisgarh (decided on 09.04.2019), wherein the conviction of appellant was not set aside, with the case projected by prosecution as:-

"The prosecution case in brief was that the prosecutrix was the resident of Koni, Bilaspur, District Bilaspur. Prosecutrix was familiar with the accused since 2009 and there was love affair between them. The appellant had even proposed her for marriage and this fact was CRMC No. 40/2019 Page 25 of 29 within the knowledge of their respective family members. At the time of incident, accused was posted as Junior Doctor in the government hospital of Maalkharoda and at that time the prosecutrix was doing her studies of Pharmacy in Bhilai. On 28.4.2013 the accused expressed his desire to the prosecutrix that he wanted to meet her and accordingly on 29.4.2013 at 7.25 a.m. the prosecutrix boarded Durg Danapur Express train and reached Sakti railway station from where the accused took her on a motorcycle to his house situated at Maalkharoda and there she stayed from 2 pm of 29.4.2013 to 3 p.m. of 30.4.2013 and during this period despite refusal of the prosecutrix the accused established physical relation with her on the pretext of marrying her. On 30.4.2013 the accused asked the prosecutrix to leave by saying that on 1st or 2nd May he will talk to his parents about their marriage and he will soon marry with her. On 30.4.2013 at about 6 in the evening accused Anurag Soni and the prosecutrix reached Bilaspur by train and from where their friend namely Umashankar took them on a motorcycle to the house of Mallika Humne, friend of prosecutrix, where the accused dropped her and went back. Next morning accused dropped the prosecutrix at Railway Station, Bilaspur from where she boarded train for Bhilai (Durg). Accused asked the prosecutrix not to tell about the incident to anyone and as a result of which the prosecutrix did not disclose the incident to anyone, but from 2.5.2013 to 5.5.2013 the prosecutrix had repeatedly asked from the accused about the marriage and when she did not receive any reply from the accused, on 6.5.2013, she informed her family members about the incident and then the family members of the prosecutrix had gone to the house of accused at village Kharod and informed his family members about the incident whereupon the family members of accused had said that now marriage of accused and prosecutrix was the only option available. In the meantime, members of both the families used to visit house of each other, however, after keeping the prosecutrix and her family members in dark for about two months, the accused had refused to marry the prosecutrix and performed marriage with another girl and then on 21.6.2013 the prosecutrix submitted written report CRMC No. 40/2019 Page 26 of 29 (Ex. P3) in the police station Maalkharoda in respect of rape committed by the accused upon her on the pretext of marriage based on which FIR (Ex.P4) for the offence under Section 376 of IPC was registered against the accused.

3.1 That during the course of investigation, the investigating officer recorded the statement of concerned witnesses including the prosecutrix. The investigating officer collected the medical evidence and other evidence. The accused was arrested. After completion of the entire investigation, a charge sheet was filed against the accused for the offence punishable under Section 376 of the IPC.

3.2 That the learned magistrate committed the case to the learned Sessions Court, which was numbered as Sessions Trial No. 201/2013. That the learned Sessions Court framed the charge against the accused for the offence under Section 376 of the IPC. The accused denied the charge so framed and claimed trial, and therefore he came to be tried by the learned Sessions Court for the aforesaid offence.

3.3 The prosecution in support of its case examined as many as 13 witnesses including the prosecutrix (PW3) as under:

1. Pritam Soni PW1

2. Manikchand PW2

3. Prosecutrix PW3

4. Patwari Ghanshyam PW4

5. Dr. C.K. Singh PW5

6. Dr. K.L. Oraon PW6

7. Amritlal PW7

8. Pankaj Soni PW8

9. Dr. P.C. Jain PW9

10. Constable Jawaharlal PW10

11. Sub-Inspector S.P. Singh PW11

12. Inspector Sheetal Sidar PW12

13. Srimati Priyanka Soni PW13 CRMC No. 40/2019 Page 27 of 29 3.4 After the closing pursis were submitted by the prosecution, three witnesses were examined on behalf of the accused in defence. The statement of appellant accused was recorded under Section 313 of the Cr. PC. wherein he denied the circumstances appearing against him and pleaded innocence and false implication. As per the accused his marriage was already fixed with one Priyanka Soni and this was in the knowledge of the prosecutrix, even then the prosecutrix and her family members continued to pressurize him to marry the prosecutrix, and then he married with Priyanka Soni on 10.06.2013 in Arya Samaj.

Therefore, it was the case on behalf of the accused that a false FIR was lodged against him.

4. That on appreciation of evidence, the learned Sessions Court observed and held that the prosecutrix gave consent for sexual intercourse on a misrepresentation of fact and the promise by the accused that he would marry the prosecutrix and therefore the said consent cannot be said to be a consent and therefore the accused committed the offence under Section 376 of the IPC. Thereupon, the learned Sessions Court convicted the accused for the offence under Section 376 of the IPC and sentenced him to undergo 10 years rigorous imprisonment."

16. Viewing the matter in the above backdrop, I am of the opinion that this Court would not be justified in embarking upon an enquiry as sought by the petitioners herein regarding his stand about the prosecution story or for returning any finding as to the nature of allegations levelled in the FIR.

The facts as projected by the petitioners before this Court are half backed and it is not deemed apt at this stage to conclude that the allegations levelled against the petitioners are vexatious in nature, necessitating same CRMC No. 40/2019 Page 28 of 29 to be quashed. The contention of learned Sr. AAG that it would be quite premature and risky for this Court to stall the trial by accepting the counter version of the petitioner as the final word about the merits of allegations appears quite weighty. Most of the judgments relied on by learned counsel for the petitioner would be attracted after the trial is concluded, while rest have distinctive features and so said judgment would not be sufficient to be relied on for granting the prayer made in petition.

17. No interference is made out, therefore, the petition merits dismissal and is, accordingly, dismissed in limini. Reference of judgments on either side to appreciate the legal position shall not be treated any expression of opinion on merits as the merits are to be considered by the trial Court in accordance with the law and after taking the trial to its logical conclusion.

18. A copy of this order be sent to learned Principle & Sessions Judge, Anantnag.

(Rashid Ali Dar) Judge Srinagar 03.05.2019 "Manzoor"

MANZOOR UL HASSAN DAR 2019.05.07 15:05 CRMC No. 40/2019 Page 29 of 29

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