Madhya Pradesh High Court
Anant Vijay Soni vs The State Of Madhya Pradesh on 21 September, 2017
1
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Revision No.2195/2015
Miscellaneous Criminal Case No.6960/2015
1. Anant Vijay Soni,
Son of Duli Chand Soni,
Aged 27 years,
R/o 129, Shanti Nagar,
Chhatarpur (M.P.)
Present Address:
B.95 Shahpura Bhopal
District Bhopal (MP)
Petitioner
versus
1. State of Madhya Pradesh,
Through: P.S. Mahila Thana,
Bhopal (MP)
2. Poonam Nagle,
D/o R.R. Nagle,
Aged about 35 years,
R/o 21A, Sarvjan Colony,
Akbarpur, Kolar Road,
Bhopal (MP)
Respondents/complainant
.................................................................................................................
Present:- Hon'ble Shri Justice C.V. Sirpurkar
..................................................................................................................
Shri Sankalp Kochar, counsel for the petitioner.
Shri Yogesh Dhande, Government Advocate for the
respondent/State.
Shri Abhishek Arjaria, counsel for the complainant.
..................................................................................................................
2
ORDER
(21-09-2017)
1. Miscellaneous Criminal Case No.6960/2015 has been instituted on 28.04.2015 on an application under section 482 of the Code of Criminal Procedure filed on behalf of petitioner/accused Anant Vijay Soni for quashing the first information report no. 33/2015 registered by Mahila Thana, Bhopal on 25.03.2015 under section 376 of the Indian Penal Code and 3(1)(xii) of SC & ST (Prevention of Atrocities) Act, 1989.
2. Criminal Revision No.2195/2015 is directed against the order dated 04.08.2015 passed by the Court of Special Judge, Bhopal appointed under SC & ST (Prevention of Atrocities) Act, 1989 in Case No. SC-ATR/36/2015 registered upon the charge sheet arising from aforesaid FIR no.33/2015 registered by Mahila Thana, Bhopal against the accused/petitioner.
3. Since both of aforesaid cases have arisen from same crime no.33/2015 registered by Mahila Thana, Bhopal against petitioner Anant, they have been analogously heard and are being decided by this common order.
4. The case of the prosecution before the trial Court may be summarized as hereunder: Prosecutrix is a 27 years old educated lady belonging to a scheduled caste, who runs her own non- governmental organization. In the year 2008, she was Manager in Birla Sun life Insurance Company. Petitioner Anant Vijay Soni was her neighbour. The prosecutrix got the petitioner employed as Adviser Agent in Birla Sun life Insurance 3 Company. Thereafter the petitioner developed closeness with her, which later turned into a romantic relationship. On 10.04.2010, on the birthday of the prosecutrix, the petitioner took her to Salkanpur. When the prosecutrix asked as to when petitioner intends to marry her. The petitioner replied that he would marry only the prosecutrix and if she did not believe him he would marry her immediately. Thereafter, the petitioner put vermilion in her hair and assured her that they had become husband and wife. After their return to Bhopal, the petitioner went along with the prosecutrix to her house and the same night had sexual intercourse with her. Thereafter, the petitioner used to visit Bangalore and Mumbai off and on and stayed at the residence of the prosecutrix, as her husband and continued to exploit her physically. In the year 2012, the prosecutrix and the petitioner told the mother of the prosecutrix that they had married in the temple in the year 2010. During the period of next two years, he promised three or four times to the mother of the prosecutrix that he would marry the prosecutrix. In the year 2013, the petitioner's sister Sarika Soni opened a call centre in the partnership with the petitioner and shifted to her residence after promising the prosecutrix that their relationship would continue. On 07.10.2013, he had taken the prosecutrix for treatment to Dr. Malti Bhugwani. On 16.06.2014, which was birthday of the petitioner, they were sleeping together. At about 03:00 a.m., there was a call on mobile phone of the petitioner. When the prosecutrix picked the phone, she found that there was a girl on the other side. When the prosecutrix accosted the 4 petitioner regarding the girl, he slapped her and instructed her not to receive his mobile phone. Thereafter, he demanded Rs.60-70,000/- from the prosecutrix on the pretext that he was shifting to Pune and needed money to pay to the landlord. However, the prosecutrix refused to give him any money. On 01.10.2014, when the prosecutrix was shifting residence, the petitioner helped her in shifting the household goods. On that occasion also, he promised the mother of the prosecutrix that he would marry the prosecutrix around Makar Sankranti the following year. On 14.12.2014, the petitioner had sexual intercourse with the prosecutrix for the last time and the same day, the prosecutrix had gone to the Railway Station to see off the petitioner, who was going to Pune. When the prosecutrix reminded the petitioner of his promise to marry her, he declined and taunted her that the people from her caste clean toilets. He humiliated the prosecutrix with reference to her caste. After that, he started to avoid the prosecutrix and would not receive her telephone calls or respond to her messages. On 03.02.2015, when the prosecutrix called the petitioner on telephone, he humiliated her with reference to her caste and instructed her not to bother him on telephone again. Thus, the petitioner had sexually exploited the prosecutrix on false promise of marriage, cheated her off Rs.6-7 lacs, humiliated and insulted her with reference to her caste and thereafter when he had had enough of her, refused to have anything to do with her. The prosecutrix lodged the first information report on 25.03.2015. Pursuant to aforesaid first information report lodged by the prosecutrix, 5 Mahila Thana, Bhopal investigated the matter and filed a charge sheet in the Court of Special Judge, Bhopal. The Special Judge, Bhopal framed charge of the offences punishable under sections 376(1) of the Indian Penal Code and 3(2)(v) and 3(1)(xii) of the SC & ST (Prevention of Atrocities) Act,1989.
5. Petitioner Anant had challenged the first information report lodged against him by means of the petition under section 482 of the Code of Criminal Procedure filed on 28.04.2015. During the pendency of aforesaid petition, the charge was framed by the trial Court. Consequently, he filed criminal revision no.2195/2015 on 03.09.2015 for setting aside the charge.
6. Learned counsel for the petitioner has prayed for quashing of the first information report and setting aside of the charge mainly on the grounds that the prosecutrix was in her early thirties when the petitioner is said to have married her in the temple. She was a mature and educated working woman. She had married one Rajesh Bele on 07.07.2007. Rajesh Bele and the prosecutrix filed for divorce by mutual consent in the Court of Principal Judge, Family Court, Bhopal under section 13-B of the Hindu Marriage Act, 1955 on 07.12.2011. Subsequently, a decree of divorce by mutual consent was passed on 28.06.2012. Thus, the marriage between Rajesh Bele and the prosecutrix subsisted from 07.07.2007 till 28.06.2012. As such, on 10.04.2010 when the petitioner is said to have married the prosecutrix in a temple and is said to have had sexual intercourse with her for the first time, she was in the wedlock 6 with aforesaid Rajesh Bele. In these circumstances, there could have been no promise of marriage, false or otherwise. In support of aforesaid contention, the petitioner has filed copies of the petition under S. 13-B of the Hindu Marriage Act filed jointly by Rajesh Bele and the prosecutrix on 07.12.2011 and copy of the judgment and decree of divorce by mutual consent dated 28.06.2012 passed thereon by Principal Judge, Family Court, Bhopal.
7. Learned counsel for the petitioner has contended that even if all allegations made in the first information report against the petitioner are taken at their face value and presumed to be true, it is clear that the consent for repeated instances of intercourse was not granted by the prosecutrix on any misconception of facts but this was a sexual relationship between two consenting adults for mutual enjoyment without any commitment. A consensual sexual intercourse would not become rape simply because the relationship between the parties has become sour subsequently. In this regard, learned counsel for the petitioner has placed reliance upon the case of Rajiv Thapar and others vs. Madan Lal Kapoor, AIR 2013 SC (Supp) 1056 and has submitted that for quashing first information report on a petition under section 482 of the Code of Criminal Procedure, the Court can consider the documents filed by the defence provided they are unimpeachable and are of sterling character. Learned counsel for the petitioner has also placed reliance upon the judgment rendered by the Supreme Court in the case of Prashant Bharti vs. State (NCT of Delhi), AIR 2013 SC 2753 7 and has contended that during the subsistence of earlier valid marriage, it cannot be said that the prosecutrix was induced into a physical relationship under an assurance of marriage. In these circumstances, it has been urged that the first information report has obviously been lodged with an ulterior motive to wreck vengeance upon the petitioner; therefore, it deserves to be quashed and the charge framed by the trial Court is liable to be set aside.
8. Learned Government Advocate for the respondent/State and learned counsel for the respondent no.2 have vehemently opposed the petition under section 482 of the Code of Criminal Procedure and criminal revision filed under section 397 of the Code of Criminal Procedure. It has been contended that both of them would not be maintainable.
9. Learned counsel for the prosecutrix has invited attention of the Court to statements made by the prosecutrix under sections 164 and 161 of the Code of Criminal Procedure and the statement made by her mother under section 161 of the Code of Criminal Procedure and has submitted that the prosecutrix is a woman belonging to a scheduled caste. She was sexually exploited for a period of more than 4 years by the petitioner who belonged to a upper caste. The prosecutrix submitted to sexual exploitation due to false promise of marriage repeatedly made by the petitioner to her and her mother. Thus, the consent given by the prosecutrix was based upon misconception of fact and would not convert the rape committed by the petitioner upon the prosecutrix into the act of consent. It has also been 8 submitted that the petitioner had insulted and humiliated the prosecutrix with reference to her scheduled caste at a place in public view; therefore, it has been contended that the first information report is not liable to be quashed; however, the learned counsel for the prosecutrix has not disputed the documents filed by the petitioner with regard to earlier marriage namely the petition under section 13-B of the Hindu Marriage Act and the judgment and decree dated 28.06.2012 rendered by Family Court, Bhopal.
10. On perusal of record and due consideration of rival contentions, the Court is of the view that the petition under section 482 of the Code of Criminal Procedure must succeed for the reasons hereinafter stated.
11. First of all the Court shall consider whether this petition under section 482 of the Code of Criminal Procedure is maintainable even after framing of the charge in the case.
12. It is true that after filing of the petition under section 482 of the Code of Criminal Procedure, the case before the trial Court proceeded and subsequently a charge as stated above, has been framed by the trial Court; however, the Supreme Court has held in the case of Satish Mehra Vs. State (NCT of Delhi) and another, AIR 2013 SC 506 that the power under section 482 of the Code of Criminal Procedure for quashing the first information report would be available for exercise not only at the threshold of the criminal proceedings but also at a relatively advance stage thereof, namely after framing of charge against the accused. Thus, it is clear that a petition under section 482 of 9 the Code of Criminal Procedure would not be rendered infructuous simply because the charge has been framed by the trial Court. Thus, the Court would treat the petition under section 482 of the Code of Criminal Procedure as being maintainable and proceed to adjudicate it on merits.
13. The next question that arises for consideration is whether in proceedings under section 482 of the Code of Criminal Procedure for quashing the first information report, the documents filed by the defence, which are not annexed to the charge sheet, can be taken into consideration ?
14. In the case of Rajiv Thapar (supra), the Supreme Court had delineated the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under section 482 of the Cr.P.C.:
(i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?
(ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e. the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/ complainant; and /or the material is such, that it cannot be justifiably refuted by the prosecution/complainant
(iv) Step four, whether proceeding with the trial would result in an abuse of process of the Court, and would not serve the ends of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr. P. C.
15. The aforesaid principles may also be found to have been adopted by the Supreme Court in the cases of Harshendra Kumar D. vs. Rebatilata Koley, AIR 2011 SC 1090 and Anita 10 Malhotra vs. Apparel Export Promotion Council, (2012) 1 SCC 520.
16. In the case at hand, we may note that the petitioner/accused has placed reliance upon the joint petition for divorce by mutual consent filed under section 13-B of the Hindu Marriage Act by the prosecutrix and her husband Rajesh Bele in the Court of Principal Judge, Family Court and the judgment and decree dated 28.06.2012 passed by that Court. These documents have not been disputed by the prosecution or the prosecutrix before this Court in any manner. Therefore, the Court shall consider those documents for the purpose of determining whether the first information report is liable to be quashed.
17. A perusal of the petition under section 13-B of the Hindu Marriage Act reveals that on 07.12.2011, the prosecutrix had given her age as 26 years. It is not in dispute that though the prosecutrix belonged to a scheduled caste, she was a mature and educated lady with experience of working in different organizations like non-governmental organization and Insurance Companies. Thus, she was a modern lady having a mind of her own. The prosecutrix has concealed the factum of her previous marriage to aforesaid Rajesh Bele in the first information report and her statements to the police under section 161 and 164 of the Code of Criminal Procedure; however, it is absolutely clear from the documents filed by the petitioner that she had married Rajesh Bele on 07.07.2007 by Hindu Rites. She separated from Rajesh Bele in August, 2007. However, the petition for divorce 11 by mutual consent was filed on 07.12.2011 and the decree of divorce was granted on 28.06.2012. These facts and the documents on which they are based have not been disputed by the prosecutrix. As per the allegations made by the prosecutrix, the petitioner put vermilion in her hair and asserted that they had become husband and wife, on 10.04.2010. As per her allegations, she first had sexual intercourse with the petitioner the same night. Thereafter, they lived as husband and wife continuously till 16.12.2014. Thus, she continued in a live in relationship with the petitioner for a period of about 4 years and 8 months between 10.04.2010 and 16.12.2014. Out of aforesaid duration, from 10.04.2010 till 12.06.2012 i.e. for a period of about 2 years and 2 months, she continued to be legally wedded to her first husband Rajesh Bele. As such, by her own admission, her sexual relationship with the petitioner for a period of about 2 years and 2 months was in the nature of an adulterous relationship.
18. In the case of Prashant Bharti (supra), in similar fact situation, the Supreme Court has held in paragraph no.16 that:
16. The factual position narrated above would enable us to draw some positive inferences on the assertion made by the complainant/prosecutrix against the appellant-accused (in the supplementary statement dated 21.2.2007). It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/prosecutrix was married to Lalji Porwal on 14.6.2003. It also reveals, that the aforesaid marriage subsisted till 23.9.2008, when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecutrix accused Prashant Bharti of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference 12 and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecutrix, that the appellant-accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under an assurance of marriage. If the judgment and decree dated 23.9.2008 produced before us by the complainant/prosecutrix herself is taken into consideration along with the factual position depicted in the supplementary statement dated 21.2.2007, it would clearly emerge, that the complainant/prosecutrix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the appellant-accused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/prosecutrix, that she was induced to a physical relationship by Prashant Bharti, the appellant-accused, on the basis of a promise to marry her, stands irrefutably falsified.
19. Likewise, in the case of Uday Vs. State of Karnataka, AIR 2003 SC 1639, the Supreme Court has held that :
In a case of this nature two conditions must be fulfilled for the application of S. 90, I. P. C. 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.
It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket 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. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
20. In the light of aforesaid principles, when we revert back to the facts of the case at hand, we find that the prosecutrix has 13 alleged that she entered into a sexual relationship with the petitioner on assurance that he would marry her; however, she was clearly aware of the fact that she was in a subsisting valid conjugal relationship with Rajesh Bele, yet she repeatedly indulged in sexual intercourse with the petitioner for a period of 2 years and 2 months. Thus, her assertions that she submitted to physical relationship with the petitioner on the assurance that he would marry her, is per se false and as such, unacceptable. Due to her subsisting valid marriage, there was no question of any one being in a position to induce her into a physical relationship under an assurance of marriage. Thus, it is clear that the prosecutrix was in an adulterous relationship with the petitioner from 10.04.2010 to 28.06.2012. In these circumstances, it is clear as day that the assertions made by the prosecutrix that she was induced into a physical relationship by petitioner Anant on the basis of promise to marry, stands irrefutably falsified.
21. It is obvious that the prosecutrix entered into physical relationship with the petitioner with her eyes open during the subsistence of her previous valid marriage. It was a relationship between two consenting adults who knew their respective minds, for mutual sexual enjoyment without any commitment to marry. The conduct of the petitioner as brought forth in the statement of the prosecutrix that he floated in and out of her residence as he pleased, indicate as much. In any case, a woman like prosecutrix well acquainted with of the ways of the world, would not wait for an inordinately long period of four years and eight months to realize that the petitioner had no intention to 14 marry her. Had she entered into physical relationship on the promise of marriage, she would have realized long ago that this relationship had no future and would have walked out of it long ago. This also indicates that there indeed was no commitment to marry.
22. The Supreme Court has held in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SUPREME COURT 604 that in following categories of cases, the Court may, in exercise of powers under Article 226 of the Constitution or under Section 482 of the Cr.P.C., interfere with proceedings relating to cognizable offence to prevent abuse of the process of any Court or otherwise to secure the ends of justice; however, the power should be exercised sparingly and that too in rarest of rare cases.
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 F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.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 F.I.R. 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 S.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.15
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.
23. As already observed hereinabove the present one appears to be a case of consent between the two adults for mutual physical gratification. This is also a case where the false promise of marriage was allegedly made during the subsistence of earlier marriage of the prosecutrix. In these circumstances, it appears that the case has been instituted after intimate relationship between the parties for a period of about 5 years had gone sour; therefore, the case falls in category number 7 enumerated above. In this backdrop, the allegation of the prosecutrix that the petitioner had humiliated and insulted her with reference to scheduled castes on the railway station in public view, can also not be relied upon.
24 . In aforesaid view of the matter, allowing the prosecution to continue in the case would amount to abuse of the process of Court; therefore, it is necessary to quash the proceedings in order to serve the ends of justice. As such, the FIR in the instant case is liable to be quashed.
25. Consequently, this miscellaneous criminal case instituted under Section 482 of the Cr.P.C. is allowed. The first information report number 33/2015, registered by Police Station Mahila Thana, Bhopal dated 25.3.2015, is quashed.
26. Criminal Revision No.2195/2015 is also allowed and the charge framing under Section 376 (1) of the I.P.C. and Sections 16 3 (2)(v) and 3(1)(xii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1969, is also set aside.
(C.V. Sirpurkar) Judge b BIJU BABY 2017.09.26 23:46:42 -07'00' HIGH COURT OF MADHYA PRADESH : AT JABALPUR Criminal Revision No.2195/2015 Miscellaneous Criminal Case No.6960/2015 Anant Vijay Soni
-Vs-
State of Madhya Pradesh and another ORDER Post for : 21/09/2017 (C.V. Sirpurkar) Judge