Chandra Prakash vs State Of Uttarakhand & Another

R.C. Khulbe, J

By way of present application, moved under Section 482 of Cr.P.C. the applicant seeks to quash the impugned charge sheet no. 202 of 2018 dated 11.10.2018, impugned summoning order dated 18.03.2019 as well as entire proceedings of Criminal Case No.1853 of 2019, "State Vs. Chandra Prakash" under Section 376 IPC, pending in the Court of Chief Judicial Magistrate, Dehradun.

Factual matrix of the case is that respondent no.2-Deepti Nawal gave information to S.H.O. Nehru Colony, Dehradun with the allegations that the applicant met with her at his friend's house who was also pursuing B.Tech with the applicant and respondent no.2 is the cousin of applicant's friend. He developed cordial relationship with the respondent and also made physical relations on the pretext of marriage in the year 2011 at Dehradun. After making physical relationship with respondent no.2, the applicant had switched off his phone. Thereafter, respondent no.2 went to Bareilly on 29.04.2018 on the occasion of marriage of the applicant's sister. Where the applicant refused to marry with respondent no.2, thereafter, respondent no.2 approached the police and got the FIR registered.

After completion of investigation, charge sheet under Section 376 IPC was submitted against the applicant and, accordingly, the applicant was summoned on 18.03.2019 by the CJM, under Section 376 IPC.

Heard learned counsel for the parties and perused the record.

It is argued by the learned counsel for the applicant that the applicant has falsely been implicated in the crime; no offence is made out against him and he did not make any physical relationship with respondent no.2. When respondent no.2 came to the house of applicant at Bareilly on 29.04.2018, he gave an application to the S.H.O. Bareilly on 03.05.2018 and entire document regarding email sent by respondent no.2 to the applicant were submitted to the police along with the application. After giving the application, the impugned false FIR was lodged against the applicant. He never made any promise to marry with respondent no.2. There is no evidence on record to summon the applicant under Section 376 IPC.

Per contra, learned counsel appearing on behalf of respondent no.2-Deepti Nawal, argued that the applicant made physical relations with her on the pretext of marriage in the year 2011. The applicant was continuously in touch with respondent no.2 since 2011 to 2013. She went to the house of applicant at Bareilly and reminded him about his promise regarding the marriage but the applicant refused to marry with respondent no.2 then she gave an application to S.H.O. Nehru Colony, Dehradun on the basis of the said information, FIR was lodged at Police Station, Nehru Colony, Dehradun. After lodging the FIR, her medical examination was conducted on 26.07.2018. There is, prima facie, evidence on record against the applicant regarding offence committed by him under Section 376 IPC.

The Hon'ble Apex Court in State of Haryana v. Bhajan Lal 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."

A copy of the FIR dated 23.07.2018 is on record. As per the FIR, the applicant made physical relationship with respondent no.2 on the pretext of marriage in the year 2011. But the FIR is silent about the day, time, date and month as to when the applicant made physical relations with respondent no.2. Although the medical report dated 26.07.2018 is on record, but as per the medical report, the statement was given by respondent no.2 to the Doctor at the time of conducting the medical is that the applicant promised to marry her and established sexual relationship with her several times.

From the perusal of the above medical report, it is clear that even at the time of conducting the medical, respondent no.2 did not disclosed the day, time, date and month when the applicant made sexual relationships with respondent no.2. Apart from that, in the medical report no external and internal injuries have been shown.

As per the FIR, the applicant made sexual relationship with respondent no.2 in the year 2011 while the FIR was lodged on 23.07.2018 after a period of more than seven years. Apart from that respondent no.2 sent a notice to the applicant through her advocate in the year 2013 in which she also demanded Rs.50,000/- from the applicant. In the said notice there is no whisper about the occurrence of any such incident of rape. There is no evidence on record to show that the applicant made physical relations with respondent no.2 on the pretext of marriage. Apart from that, the medical report is silent about the sexual relations. As per the FIR as well as the statement given to the Doctor by respondent no.2, it was consensual sex.

It is an admitted fact that in the year 2011, the applicant and respondent no.2 were major. If there was a sexual relation even then the applicant cannot be summoned under Section 376 IPC after a gap of more than 7 years. The learned trial Court did not notice this fact and, simply, summoned the accused under Section 376 IPC on the basis of charge sheet while there is no, prima facie, evidence against the applicant to summon him under Section 376 IPC.

In view of the above observations, the present criminal misc. application filed under Section 482 Cr.P.C. is liable to be allowed and, accordingly, the same is allowed. The entire proceedings of Criminal Case No.1853 of 2019, "State Vs. Chandra Prakash" under Section 376 IPC, pending in the Court of learned Chief Judicial Magistrate, Dehradun, along with the impugned charge sheet no. 202 of 2018 dated 11.10.2018 and the impugned summoning order dated 18.03.2019, is hereby quashed.

Present C482 application stands disposed of, as above.

Pending applications, if any, also stand disposed of accordingly.