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Judgment
M.G. Giratkar, J
Rule. Rule made returnable forthwith. Heard learned counsel appearing for the parties.
Applicant prayed to quash and set aside FIR vide Crime No. 173/2017 registered with Police Station, Mankapur on the complaint of nonÂapplicant
no. 2 for the offences punishable under Sections 376 and 417 of the Indian Penal Code. It is submitted that Police Station Officer, Mankapur
registered the offences punishable under Section 376 and 417 of the Indian Penal Code against the applicant on the false report of the nonÂapplicant
no. 2. It is falsely alleged in the report that the applicant promised to marry her and on that pretext, he established sexual relations with nonÂ‐
applicant no. 2 and committed rape on her. The applicant is doing his job as Business Officer in Ratna Sagar Private Limited, Branch at Gujrat.Â
He is falsely involved in the crime and, therefore, prayed to quash the FIR. Â
Heard learned counsel Shri N. S. Warulkar for the applicant. He has submitted that allegations made in the FIR, if taken as it is, then also, it is not
an offence punishable under Section 376 of the Indian Penal Code. In support of his submissions, he pointed out decision in Criminal Application
(APL) No. 434/2017. At last, learned counsel submitted that FIR registered against the applicant be quashed and set aside.
Heard learned Additional Public Prosecutor Ms. Jaipurkar for the nonÂapplicant no. 1 with Ms. Sapkal, learned counsel for nonapplicant no. 2.Â
Learned counsel for nonÂapplicants submitted that the applicant did sexual intercourse with nonÂapplicant no. 2 under the promise of marriage.Â
She is nearest relative of the applicant. Believing the promise of applicant, she allowed him to do sexual intercourse. Documents of marriage were
prepared. When date was fixed for marriage in the Court, applicant remained absent, therefore, nonÂapplicant no. 2 lodged the report.Â
Learned Additional Public Prosecutor has submitted that the consent given by nonÂapplicant no. 2 for sexual intercourse was under the promise of
marriage by the applicant. The consent obtained was not consent at all as defined under Section 90 of the Indian Penal Code. Learned Additional
Public Prosecutor has pointed out decision in the case of Nitin Vs. State of Maharashtra [2014 ALL MR(Cri) 2383] and decision of Hon'ble Apex
Court in the case of State of U.P. Vs. Naushad [(2013) 16 SCC 651].
We have gone through the report lodged by the nonapplicant no. 2. From the perusal of report, it is clear that the applicant is brotherÂinÂlaw of
maternal uncle of nonÂapplicant no. 2. On 11Â1Â2011, there was marriage of the sister of nonÂapplicant no. 2 at the house of her maternal uncle
Rajesh Wardhe. That time applicant was also present in the marriage.Â
The applicant started contacting her on the mobile phone of her father. Her father purchased mobile for nonÂapplicant no. 2. The applicant
was always visiting to Nagpur for office work. He used to call the nonÂapplicant no. 2 to Eternity Mall. Thereafter in the year 2012, he promised
to marry her. She also accepted the offer. The applicant was always calling her and taking her to lonely places. Applicant insisted her for
sexual intercourse saying that he would definitely marry with her and did sexual intercourse near Saint Marry School.Â
Applicant had taken her to Chikhaldara. Applicant did sexual intercourse for 4Â5 times in the hotel at Chikhaldara. He called her in the Hotel
Legend In. The applicant did sexual intercourse with her. The nonÂapplicant no. 2 always allowed him for sexual intercourse because he is the
nearest relative and promised to marry her. During that period, applicant and the nonÂapplicant no. 2 contacted one Advocate and filled marriage
forms. They went to Office of Registrar of Marriage on 4Â3Â2017. Witnesses signed on the forms. Applicant told their counsel to get the
date for marriage but thereafter he was avoiding to come to Nagpur. The nonÂapplicant no. 2 enquired to their Advocate, then he replied that the
applicant himself is avoiding to get the date for marriage. When the nonÂapplicant no. 2 came to know that she was cheated by the applicant, her
consent was obtained under the false promise of marriage, then she lodged the report in Police Station, Mankapur on 10Â8Â2017. On her report,
crime for the offences punishable under Sections 376 and 417 of the Indian Penal Code came to be registered.
Learned counsel for the applicant has submitted that in the same case, the Division Bench of this Court quashed the FIR in Criminal Application
(APL) No. 434/2017. We have gone through the said judgment. The Division Bench was not pointed out judgment of Hon'ble Apex Court in the
case of State of U.P. Vs. Naushad (cited supra).
Hon'ble Apex Court observed as under :
“Taking advantage of close relationship between families of accused and prosecutrix, accused often used to stay at prosecutrix's home and by
procuring her consent on false promise of marrying her, indulged in sexual acts with her and when she became pregnant, refused to marry her.Â
Accused committed breach of trust of prosecutrix based on relationship and brazen fraud just to appease his lust. Maximum sentence of life
imprisonment appropriate.â€
The Division Bench of this Court in the case of Nitin Vs. State of Maharashtra (cited supra) has held as under :
“On overall consideration of the facts and circumstances and the submissions made, we are of the view that at this stage, it would not be possible
nor appropriate to decide whether there was a promise of marriage, which was false even from the inception or there was a subsequent refusal by the
applicant as claimed by respondent no. 2 or for the matter of that, there was no such relationship and the complaint is actuated by some ulterior
motive. These are essentially questions of fact which cannot be gone into or decided in an application of the present nature. The case would not fall
under any of the categories, as set out above, in which this Court would be required to exercise inherent powers to quash complaint and the FIR.Â
For these reasons, we are of the view that the application deserves to be dismissed. Needless to mention that, we may not be understood to have
expressed any opinion on the merits of the controversy as the observations are essentially of a prima facie nature looking to the stage at which the
matter stands. Accordingly, the criminal application is dismissed. Rule is discharged. No order as to costs.â€
Learned counsel for the applicant has submitted that the nonÂapplicant no. 2 consented for sexual intercourse and, therefore, it is not an offence
punishable under Section 376 of the Indian Penal Code. At this stage, it was a voluntary consent or it was obtained by the applicant under the
misrepresentation of facts saying that he would marry her is a question of fact which cannot be gone into or decided in an application of the present
nature. The case would not fall under any of the categories as set out in the case of State of Haryana Vs. Bhajan Lal [1992 Supp.(1) SCC 335].Â
Therefore, we are inclined to dismiss the application. In the result, the application is dismissed.     Â
On pronouncement of judgment, Shri Warulkar, learned counsel for applicant, seeks stay to effect and operation of this judgment contending that by
interim order of this Court, State was directed not to file chargeÂsheet pending the criminal application.
In view of order of dismissal of present criminal application, we do not find any reason to continue the interim relief. The prayer of learned Counsel
for applicant for stay is thus rejected.
Fees payable to learned counsel appointed for nonÂapplicant no. 2 is quantified as Rupees Three Thousand.