Deepak Nayak vs State Of Madhya Pradesh And Others

Ajay Kumar Nirankari, J

The present petition has been filed by the petitioner under Section 528 of the BNSS, 2023 seeking quashment of FIR registered in Crime No.336/2023 at Police Station Mahila Thana, District Bhopal(M.P.), for offences punishable under Section 376(2)(n), 342, 323 and Section 3(I)(w) (II), 3(2)(V) of Atrocities Act, 1989 as amended on 2015.

The brief facts necessary for adjudication of the present case are that on 27/10/2023, the complainant, Sanjna Nagwanshi D/o Late Shri Hemant Nagwanshi, submitted a written complaint alleging that Dr. Deepak Nayak Hamidia Hospital, Bhopal had forcibly committed rape with her. The complainant stated that she had a lump in her neck for which she underwent surgery in August, 2023 at Hamidia Hospital, Bhopal. Her operation was conducted by Dr. Deepak Nayak, Surgeon, Ortho Department. After the operation, Dr. Deepak Nayak gave his mobile number and told her to call him if she faced any problem. Thereafter, both of them started talking to each other over the phone. Deepak also told her to come and meet him. She replied that she would meet him on the day she came to collect her medical report. On 15/10/2023, she went to the hospital to collect her report where she met with Deepak. He told her that it would take some time for the report to be prepared and asked her to accompany him to his house in the meantime. Thereafter, Deepak took her to his house where, according to the complainant, he forcibly established physical relations with her against her will. Thereafter, on 16/10/2023, she told Deepak to drop her at the railway station, stating that he had committed wrongful acts with her and she wanted to return home. Deepak allegedly told her that he would keep her with him and marry her. Thereafter, Deepak took her to a Mata Mandir where he filled vermilion in her maang. Subsequently, she returned with Deepak to his house and stayed there with him for about 15 days. During this period, according to her allegations, Deepak repeatedly established physical relations with her forcibly and against her wish. She further alleged that for the last two days, Deepak had not returned home on the pretext of duty. When she repeatedly called him, he told her that he is on night duty and is very busy. The next morning, when she again called Deepak, his mother was also connected on the conference call. Deepak's mother allegedly abused and insulted her over the phone, after which she left Deepak's house and came to the police station.

On the basis of the aforesaid written complaint, Crime No.336/2023 was registered at Police Station Mahila Thana, District Bhopal(M.P.), for offences punishable under Section 376(2)(n), 342, 323 and Section 3(I)(w)(II), 3(2)(V) of Atrocities Act, 1989 as amended on 2015.

Learned counsel for the petitioner submitted that no offence under Section 376 of the IPC is made out against the petitioner. It is further submitted that after the complaint made against the petitioner police started investigation and during the course of investigation the petitioner was granted anticipatory bail by this Court. He also submits that after submitting the challan by the police authorities the petitioner was also granted regular bail by the trial court.

Learned counsel for the petitioner further submitted that respondent No.2 is a major and was fully aware of the fact that she voluntarily accompanied the petitioner to his house and resided there for about fifteen days without raising any complaint. It is contended that no resistance was ever shown by respondent No.2 and she willingly accompanied the petitioner and voluntarily entered into a relationship with him. It is further submitted that the relationship between the petitioner and respondent No.2 was purely consensual and, therefore, no offence under Section 376(2)(n) of the IPC is made out in the present case. Hence, the impugned FIR deserves to be quashed as the essential ingredients of Section 375 of the IPC are absent. Learned counsel also argued that no false promise of marriage was ever made by the petitioner and, therefore, the petitioner cannot be prosecuted for the offence of rape on such allegation. Learned counsel further submitted that respondent No.2 resided at the petitioner's house for about fifteen days, which clearly indicates that she was consciously and voluntarily living with the petitioner and the relationship which developed between them was with the consent of both parties. In such circumstances, the case falls outside the ambit of Section 375 of the IPC. It is also submitted that respondent No.2, in her written complaint as well as in her statements recorded under Sections 161 and 164 of the Cr.P.C., specifically stated that she had gone to the temple with the petitioner, solemnized marriage and and thereafter resided with him for about fifteen days. According to learned counsel, all such acts and incidents occurred with the free will and consent of respondent No.2. He submits that the essential ingredients constituting an offence under Section 376 of the IPC are not attracted in the present case.

Per contra, learned counsel for the complainant and State opposed the prayer and submitted that the FIR on its plain reading clearly discloses the commission of cognizable offences. It is further contended that during the course of investigation, the police authorities found prima facie material constituting offences punishable under Sections 376(2)(n) against the petitioner. Therefore, no case for interference in exercise of inherent jurisdiction is made out.The continuation of the criminal proceedings arising out of the impugned FIR cannot be said to be an abuse of process of law, inasmuch as there is sufficient material available on record on the basis of which the petitioners may be convicted.

Heard learned counsel for both the parties and perused the case diary.

Perusal of the case diary clearly reveals that no clinching evidence is available against the accused/petitioner. In such circumstances, this Court can very well exercise its inherent powers under Section 528 of the BNSS. From the material available on record, it appears that the petitioner did not forcibly commit any offence punishable under Section 376(2)(n) of the IPC against respondent No.2. On the contrary, the relationship which developed between the petitioner and respondent No.2 was consensual in nature, and there is nothing on record to indicate that any false promise of marriage was made or subsequently breached by the petitioner. The Hon'ble Apex Court in XXXX Vs. State of M.P . reported in (2024) 3 SCC 496 in paragraph 18 has held as under :-

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."

The word rape is also defined under Section 375 & 376 of IPC. For ready reference Section 375 and 376 are reproduced as under:-

Section 375 - Rape (Indian Penal Code, 1860) A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

Section 376 - Punishment for Rape

(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

(2) Whoever,-

(a) being a police officer, commits rape-

(i) within the limits of the police station to which such police officer is appointed; or

(ii) in the premises of any station house; or

(iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or

(b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or

(c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or

(d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home, place or institution; or

(e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or

(f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or

(g) commits rape during communal or sectarian violence; or

(h) commits rape on a woman knowing her to be pregnant; or

(i) commits rape on a woman when she is under sixteen years of age; or

(j) commits rape, on a woman incapable of giving consent; or

(k) being in a position of control or dominance over a woman, commits rape on such woman; or

(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or

(n) commits rape repeatedly on the same woman,shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.

On a bare reading of Sections 375 and 376 of the IPC, it is evident that a person may be punished for the offence of rape if physical relations are established against the will of a woman, without her consent, or with her consent obtained under fear of death or hurt, or on the basis of a false promise of marriage.

None of the aforesaid ingredients appear to be attracted in the facts of the present case. Once it is evident from the material available on record that the relationship between the parties was established with the free will and consent of the prosecutrix, it can be presumed that the relationship was purely consensual and the prosecutrix was fully aware of the nature and consequences of her acts. Therefore, prima facie, the essential ingredients constituting the offence of rape are not made out against the petitioner.

It is a well-settled principle of law that the High Court, while exercising its inherent powers under Section 482 of the Cr.P.C. or Section 528 of the BNSS, may quash FIR or the entire criminal proceedings where the essential ingredients constituting the alleged offence are not made out and where continuation of such criminal proceedings would amount to gross abuse of the process of law.

In overall consideration of the facts, circumstances of the case, the law applicable thereto, and the material available on record, including the perusal of the case diary, it appears that continuation of the criminal proceedings arising out of the impugned FIR would amount to gross abuse of the process of law. This Court finds substantial force in the grounds urged and the arguments advanced by learned counsel for the petitioner at the time of hearing.

Accordingly, the petition filed by the petitioner is hereby allowed. FIR bearing Crime No.336/2023 registered at Police Station Mahila Thana, District Bhopal(M.P.) and the entire proceeding pending before the trial court arising out of the said FIR for the offences punishable under Section 376(2)(n), 342, 323 and Section 3(I)(w)(II), 3(2)(V) of Atrocities Act, 1989 as amended on 2015, are hereby quashed. The petitioner is discharged from the offences.

Let a copy of this order be sent to concerned trial court for necessary compliance.