Shubham Upadhyay vs State Of Madhya Pradesh & Another

Mohd. Fahim Anwar, J

The petitioner/accused Shubham Upadhyay has filed this petition under Section 482 of the Code of Criminal Procedure (for short as “the

Cr.P.C.â€) for quashment of FIR dated 05.03.2019 registered under Crime No.07/2019 at Police Station Mahila Thana, Sagar for offence under

Sections 376, 376 (2) (n) and 506 of the Indian Penal Code.

Brief facts necessary for disposal of this case are that, from 01.01.2017 to 30.12.2018 the prosecutrix, aged about 26 years was working with the

petitioner, who was running a short film making agency in the name of AMP Production. The prosecutrix was engaged for working in some short

video films. It is alleged that in the meanwhile on the assurance of leaving her on her house petitioner has entered into her house and committed

forceful sexual intercourse and later on promised her that he will marry her. It is also alleged that petitioner has repeatedly committed intercourse with

the prosecutrix and when she had become pregnant the petitioner terminated her pregnancy. It is also alleged that later on, petitioner refused to marry

with the prosecutrix then she lodged the report, on that basis, crime under the aforementioned offence has been registered against the petitioner and

after completion of investigation the Police submitted charge-sheet against the petitioner.

Learned counsel for the petitioner has submitted that there is not an iota of evidence on record as to indicate that the petitioner was involved in the

said offence and vitiates the entire case of the prosecution. The petitioner denies all the allegations levelled against him and submitted that there is no

explanation given by the prosecutrix for the delay in lodging the FIR as there is no whisper in the complaint that in between the period of alleged rape,

the prosecutrix approaching the petitioner to marry her or the petitioner ever threatened him. The prosecutrix has failed to mention the date of incident

and rather the continuing cause of action was averred which does not substantiate the allegations levelled in the FIR; and hence, no case under

Section 506 of IPC is made out against the petitioner; and thus, the FIR lodged against the petitioner deserves to be quashed. On perusal of the

statements of the members of theater group, which were recorded after lodging the FIR it is evident that no such incidence took place. The petitioner

has also submitted a letter to the Superintendent of Police with regard to the conduct of the prosecutrix. It is further submitted that the petitioner is a

young person. He is a permanent resident of Sagar District and has a responsibility to maintain his family. He is also not having any criminal

antecedents. It is also submitted that the petitioner has been a tremendous contributor in the field of Arts and culture through his work and plays. In

view of the aforesaid, prayer has been made to quash the FIR and its consequent proceedings.

Learned counsel for the petitioner has placed reliance on a decision of the Apex Court in the case of State of Haryana and other v. Ch. Bhajan Lal

and others (AIR 1992 SC 604) and submitted that the commencement of investigation in a cognizable offence by a police officer is subject to two

conditions, firstly, the police officer should have reason to suspect the commission of a cognizable offence as required by Section 157 (1) and

secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation into the facts and

circumstances of the case as contemplated under clause (b) of the proviso to Section 157 (1). Further, as clause (b) of the proviso permits the police

officer to satisfy himself about the sufficiency of the ground even before entering on an investigation, it postulates that the police officer has to draw

his satisfaction only on the material which were placed before him at that stage, namely the first information together with the documents, if any,

enclosed. In other words, the police officer has to satisfy himself only on the allegations mentioned in the first information before he enters on an

investigation as to whether those allegations do constitute a cognizable offence warranting an investigation.

Similarly, the Hon’ble Apex Court in the case of Kaini Rajan Vs. State of Kerala [(2013) 9 SCC 113] has held that:

“8. We may indicate that from the reading of the judgments of the Trial Court as well as the High Court, it becomes clear that even as per the version of the

prosecutrix, on few occasions there were sexual encounters between the parties, after the first alleged incident in 1997. She accepted that they were consensual

and she was a willing party, though she did so on the promise of the appellant that he would marry her. In respect of these subsequent acts between the parties,

the appellant was charged with the offence under Section 417 IPC but exonerated by the trial Court itself. The conviction is related to the first incident which is

treated as rape, believing the prosecution version that it was forcible and without the consent of the prosecutrix. The entire case is to be examined on this limited

aspect.â€​

Similarly, learned counsel for the petitioner has relied on a decision of Division Bench of this Court in the case of Dev rat Mishra Vs. State of M.P.

and another [2011 (2) M.P.L.J. 365; wherein the Division Bench of this Court has held that, the High Court while exercising powers under Section

482 may consider material produce on behalf of accused to arrive at a decision whether the charge as framed could be maintained but not before the

investigation is complete and charge-sheet is filed.

Learned Government Advocate as well as learned counsel for the respondent No.2 have vehemently opposed the petition by contending that the

petitioner has committed forceful intercourse against her and he has accorded the consent of sexual intercourse at later stage, that too on the false

promise of marriage; and, therefore, the consent was vitiated and the forceful sexual intercourse committed by the petitioner falls under the purview of

rape. It is also contended that such question of fact depends upon the evidence and cannot be considered at this stage. Hence, prayed for rejection of

the petition.

Learned Government Advocate for the respondent/State on the other hand as relied on a decision of the Apex Court in the case of Anurag Soni

Vs. State of Chhattisgarh [(2019) 13 SCC 1;] wherein, it was held that, the accused had mala fide motives and had made false promise only to satisfy

the lust. But for the false promise by the accused to marry the prosecutrix, the prosecutrix would not have given the consent to have the physical

relationship. It was a clear case of cheating and deception. The consent given by the prosecutrix was on misconception of fact. Such incidents are on

increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the

body, mind and privacy of the victim. As observed by the Supreme Court in a catena of decisions, while a murderer destroys the physical frame of the

victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no

means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society

and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and

offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has

subsequently married, is no ground not to convict the appellant-accused for the offence punishable under Section 376 of the IPC. The appellant-

accused must face the consequences of the crime committed by him.

Heard learned counsel for the parties.

The condition which is sine qua non for recording a First Information Report is that there must be an information and that information must

disclose a cognizable offence. It is, therefore, manifestly clear that if any information disclosing a cognizable offence is laid before an officer-in-charge

of a police station satisfying the requirements of Section 154 (1) the said police officer has no other option except to enter the substance thereof in the

prescribed form, that is to say, to register a case on the basis of such information. While conducting the investigation in a cognizable offence the said

officer has to come to the conclusion that these two conditions are going to be fulfilled or not:-

(i) The Police Officer should have reason to suspect the commission of a cognizable offence as required by Section 157 (1) of the Cr.P.C.

(ii) The Police Officer should subjectively satisfying ground himself as to whether there is sufficient ground for entering on an investigation.

From the perusal of the FIR and the statements of prosecutrix recorded under Sections 161 and 164 of the Cr.P.C., it is evident that the petitioner

and the prosecutrix both were well known to each other. The prosecutrix lodged an FIR on 05.03.2019 against the petitioner alleging that when the

prosecutrix was engaged for working in film, the petitioner on the assurance of dropping her in her house, entered in to her room and has forcibly

committed sexual intercourse with her. In the FIR, it is narrated that the petitioner has committed sexual intercourse in the year 2017 and later on he

repeated the act several times on the pretext of marriage. It is also alleged that the petitioner terminated her pregnancy when she had become

pregnant. When the prosecutrix insisted the petitioner to marry her, on refusal of the same, she lodged an FIR against him. Although there is a delay

of 2 years in lodging of the FIR but the explanation given for delay in lodging the FIR seems to be convincing and does not make any difference as the

same has been lodged only when the petitioner has refused to marry her. As no external injury was found on the person of the prosecutrix during the

course of medical examination also does not make any difference because it is said to be conducted after two years of first instance of alleged

forceful rape and later on it is said to be done with the consent of the prosecutrix that too, on the pretext of marriage.

In this situation, it seems that the matrix applied in the above said judgments referred by the learned counsel for the petitioner does not apply and it is

distinguishable on facts.

In the backdrop of the legal position and the discussion of the facts and circumstances of the case, in view of this Court, this is not a fit case to

quash the FIR or other proceedings. If it is done then it will amount to gross injustice to the complainant and will frustrate the object of section 482 of

the Cr.P.C. The petitioner may raise all the grounds taken by him before the trial Court at appropriate stage.

In view of the aforesaid, no case is made out for interference in exercise of powers under section 482 of the Cr.P.C. Petition being devoid of

substance stands dismissed.