Dilip Singh Shekhawat vs State Of Uttarakhand & Another

Lok Pal Singh, J

1) Criminal Misc. Application under Section 482 Cr.P.C. has been filed seeking quashing of the charge sheet dated 30.06.2012, cognizance order dated 16.07.2012, passed by Judicial Magistrate II, Dehradun, as also the entire proceedings of criminal case no. 4215 of 2012, State Vs Dilip Singh Shekhawat, under Sections 376, 504, 506, 420 IPC, pending in the selfsame court.

2) Brief facts of the case are that the second respondent lodged an FIR against the applicant on 22.04.2012 with P.S. Cantt. Dehradun, under Section 376, 504, 506, 420 IPC, alleging therein, that she was posted as Lt. Colonel in Military Hospital, Dehradun in the month of June 2011 and was staying at 25/3, Beachers Road along with her two school going children. She is a single parent divorced legally in 2004. On 09.11.2011, at 05:00 A.M., due to short circuit, her house caught fire and entire household goods perished. She shifted in her guest room, where she had to face drinking water problem. The second respondent asked Colonel H.R.S. Rana, her family friend, to arrange for water. Colonel Rana introduced her to the applicant as his Course Office. Thereafter, the applicant kept coming in her absence regularly and helped the children in family chores. On being asked why the applicant is helping her, applicant told her that he want to settle with her and would help her throughout life. On this, complainant flatly refused and told that she is not interested. Next day, applicant told the complainant please give me a chance to look after her as he was divorced three years back and has two children. On 16.11.2011, the applicant came to the guest room of complainant, while the children were at school, and forcibly established sexual relationship with the complainant against her wish. On 05.12.2011, applicant took the complainant in a temple and put sindoor and accepted her as his wife. After sometime, applicant gave phone number of a lady to the complainant saying that said lady is my sister. Later on, during one of the conversations, that lady told the complainant that she is not the sister of applicant but herself was a victim. She also told the complainant that the applicant is not divorced and he had cheated her. On coming to know that the complainant knew everything about the applicant, he forced her to write on receipt of post dated cheques that she should not complain about him and did not disclose about this marriage to his Unit and threatened her with dire consequences.

3) After conclusion of the investigation, the Investigating Officer submitted charge sheet against the applicant under Sections 376, 504, 506, 420 IPC. The Magistrate concerned took cognizance of the matter vide order dated 16.07.2012 as under:

"Perused entire papers. Cognizance taken in respect of offences punishable under Sections 376, 504, 506, 420 IPC. Case be registered."

4) It has been contended in the application filed under Section 482 Cr.P.C. that though the complainant has stated in the FIR that she had got divorce from her previous husband in the year 2004, but after lodging the FIR against the applicant, she instituted a divorce suit on 21.05.2012, which was decreed ex-parte (Applicant has also annexed the copy of divorce petition filed by second respondent against her husband Sandeep). It is contended that the complainant also harassed one Colonel S. Mukhopadhyay, who ultimately committed suicide and left a suicide note on 01/02/10.2008. Wife of Col. S. Mukhopadhyay got lodged FIR against the second respondent under Section 306 IPC, at P.S. Taluka, District Bhuj, Gujarat.

5) In the counter affidavit filed by respondent no. 2 she had almost reiterated the averments made by her in the FIR.

6) Along with the counter affidavit filed by the State statement of complainant as well as witnesses recorded under Section 161 Cr.P.C. have been annexed. Bansidhar Ojha, priest of Maa Durga Temple, Supply Cantt., has categorically stated in his statement recorded under Section 161 Cr.P.C. that the second respondent tried to obtain a marriage certificate from him, but he denied giving any marriage certificate as he had not conducted any such marriage in said temple. He even stated that since he had joined the temple as a priest, neither any marriage has been solemnized in the temple, nor had he conducted any marriage ceremony in the said temple.

7) In the rejoinder affidavit, most of the averments made in the counter affidavit filed by respondent no. 2, were denied.

8) Heard learned counsel for the parties and perused the entire record.

9) Learned counsel for the applicant would submit that a false FIR has been lodged by the second respondent, whereof second respondent was not a divorcee and after lodging the false FIR against the applicant, she filed a divorce petition on 21.05.2012 against her husband Sandeep.

10) Learned counsel for the applicant would further submit that there is no whisper in the medical report to suggest that the applicant has committed rape with the second respondent. He would also submit that the second respondent is in a habit of blackmailing army personnel for money as she had earlier blackmailed one Col. S. Mukhopadhyay, who ultimately committed suicide on 04.10.2008, and in the detailed suicide note left by him had blamed the second respondent responsible for committing suicide. Learned counsel would submit that the averments made in the FIR would reveal that the same are vague, false and unbelievable. Learned counsel for the applicant would contend that it has nowhere been mentioned in clear words in the FIR that the applicant ever intentionally insulted or criminally intimidated the second respondent. It is also contended that assuming that there were physical relationships between the applicant and second respondent, such an act cannot be said to have been covered under the definition of rape as it is a clear cut case of consensual sex. Learned counsel for the applicant would further argue that there is nothing in record to show that the applicant had ever cheated the second respondent.

11) Learned counsel for the applicant placed reliance on the judgment rendered by Hon'ble Apex Court in Dr. Dhruvaram Murlidhar Sonar vs State of Maharashtra and others AIR 2019 SUPREME COURT 327. Paragraph nos. 20, 21, 22, and 23 of said judgment are relevant in the context of present case and the same are extracted hereunder:

"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.

In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that she is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time at his home." Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.

Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 of the IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 of the Cr.P.C.

In the result, the appeal succeeds and is accordingly allowed. The impugned order of the High Court dated 02.07.2018 in Criminal Application No.3590 of 2012, is hereby set aside. The First Information Report dated 6.12.2000 filed by the complainant in the Police Station at Mhasawad, District Nandurbar, on the basis of which Crime No.59 of 2000 is registered against the appellant, is hereby quashed. The chargesheet dated 14.06.2001 filed by Mhasawad Police Station against the appellant for the offences under Sections 376 (2)(b), 420 read with Section 34 of the IPC and Section 3(1)(x) of the SC/ST Act is also quashed."

12) On the other hand, Mr. Sandeep Tandon, learned Dy. Advocate General would submit that at this stage the Court should not consider the evidence meticulously. He would further submit that since cognizance has been taken in respect of the offences complained of against the applicant, the applicant is at liberty to move an application seeking his discharge before the concerned Magistrate at an appropriate stage.

13) Having heard learned counsel for the parties, I am of the view that the averments made in the FIR appears to be vague and false, more particularly, when the second respondent herself claimed to be a divorcee, whereof she had not obtained any decree of divorce at the time of alleged incident and subsequent to the lodging of FIR and during the investigation she instituted a divorce petition against her husband Sandeep and succeeded in obtaining an ex parte divorce decree on 05.01.2013. This Court also finds that on the same set of allegations made by the second respondent against Col. S. Mukhopadhyay, he was forced to commit suicide on 04.10.2008, as he could not withstand the continuous blackmailing meted out to him at the hands of second respondent. In view of the fact that the first averment in regard to divorce, as mentioned by the second respondent, is false after she herself has claimed that she is the wedded wife of the applicant, but contradictory allegations have been levelled in the FIR. It appears that the I.O. without verifying the truthfulness of the averments levelled in the FIR, submitted the charge sheet. It also appears to this Court that the Magistrate concerned also without application of mind took cognizance in the matter in a routine manner.

14) Prima facie, the allegations levelled in the FIR against the applicant appears to be vague & false and does not constitute any offence punishable under Sections 376, 504, 506, 420 IPC, complained of against him, therefore, continuance of criminal proceedings against the applicant would be a futile exercise and would waste the precious time of the Court.

15) In view of the above discussion, the criminal misc. application under Section 482 Cr.P.C. is allowed. Consequently, charge sheet dated 30.06.2012, cognizance order dated 16.07.2012, as also the entire proceedings of criminal case no. 4215 of 2012, State vs Dilip singh Shekhawat, under Sections 376, 504, 506, 420 IPC, pending in the court of Judicial Magistrate II, Dehradun are hereby quashed.