# Arvind Kumar & Anr v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 424
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-01
- **Case number:** Application u/s 482 No. 37777 of 2019
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-anr-v-state-of-u-p-anr-46022
- **Pages:** 25

## Headnote

A. Criminal Law - Criminal Procedure
Code (2 of 1974)- Section 482 -
Quashing of charge-sheet - Offences
u/Ss.323, 504, 506, 376, 377 of Indian
Penal Code - Rape - allegation that the
accused committed rape upon the
victim forcibly against her wishes by
false promise to marry her Held - High
Court
cannot
embark
upon
the
appreciation of evidence produced by
the accused in his defence while
considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings - if perusal of the F.I.R.,
material collected by the I.O. makes out
a prima facie case against the accused -
Charge-sheet not liable to be quashed
(Para 26)

B.Criminal Law - Indian Penal Code (45
of 1860) - Section 376 - Rape -
Consensual sex - False promise to
marry Held - Accused did not rape
victim forcefully but he established
physical relations with her on the
promise to marry her but against her
wishes, which amounts to rape on the
principal of cheating and deception of
fact - offences of this nature involves
social defamation - there is always a
general tendency to suppress such
events at the initial stage in order to
avoid the lady being stigmatized -
offence committed by the applicant is
egregious in nature and speaks about
depravity of the applicants character,
who had no moral qualms in violating
modesty and honour of a lady due to
which she suffers mental agony &
social death (Para 14)

Dismissed. (E-4)

List of Cases cited :-

## Text

_Characters 0–39,622 of 82,660. This is a partial read: ask again with offset=39622 for what follows._

424 INDIAN LAW REPORTS ALLAHABAD SERIES
embark upon an enquiry in respect of the
accusations.

18. The order passed by the learned
Magistrate is in conformity with the settled
law. I do not find any illegality in the order
under challenge. The prayer for quashing
the
summoning
orders
and
further
proceedings of the complaint case is
refused.

19. This application under Section
482 Cr.P.C. is hereby dismissed.

20. No order as to costs.
----------
(2021)01ILR A424
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2020

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Application u/s 482 No. 37777 of 2019

Arvind Kumar & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Ranjit Saxena

Counsel for the Opposite Parties:
A.G.A., Sri Daya Shanker Pandey

A. Criminal Law - Criminal Procedure
Code (2 of 1974)- Section 482 -
Quashing of charge-sheet - Offences
u/Ss.323, 504, 506, 376, 377 of Indian
Penal Code - Rape - allegation that the
accused committed rape upon the
victim forcibly against her wishes by
false promise to marry her Held - High
Court
cannot
embark
upon
the
appreciation of evidence produced by
the accused in his defence while
considering the petition filed under
Section 482 CrPC for quashing criminal
proceedings - if perusal of the F.I.R.,
material collected by the I.O. makes out
a prima facie case against the accused -
Charge-sheet not liable to be quashed
(Para 26)

B.Criminal Law - Indian Penal Code (45
of 1860) - Section 376 - Rape -
Consensual sex - False promise to
marry Held - Accused did not rape
victim forcefully but he established
physical relations with her on the
promise to marry her but against her
wishes, which amounts to rape on the
principal of cheating and deception of
fact - offences of this nature involves
social defamation - there is always a
general tendency to suppress such
events at the initial stage in order to
avoid the lady being stigmatized -
offence committed by the applicant is
egregious in nature and speaks about
depravity of the applicants character,
who had no moral qualms in violating
modesty and honour of a lady due to
which she suffers mental agony &
social death (Para 14)

Dismissed. (E-4)

List of Cases cited :-

1. Thermax Ltd. & ors. Vs K.M. Johny &
ors. (2011) 11 SCC

2. Hem Raj Vs St. of Har. (2014) 4 SCC 395

3.Rishipal Singh Vs St. of U.P. (2014) 7 SCC
215

4. Subhash Kashinath Mahajan Vs The St.
of Mah. & ors. (2018) 6 SCC 454
1 All. Arvind Kumar & Anr. Vs. State of U.P. & Anr.
425
5. Dhruvaram Murlidhar Sonar Vs St. of
Mah. & ors. 2019 (1) SCALE-6

6.M. Srikanth Vs St. of Telangana
(2019) 10 SCC 373

7.Saleem Ahmed Vs. State & ors. 2019
(15)

8. Parminder Kaur & ors. VS St. of Pun.
2020 (2) ALD (Crl.) 417 (SC)/2020 MLJ
(Crl.) 609;

9.Rakesh
Kumar
Yadav
Vs
St.
of
Chhatt.2020 (2) RCR (Crl.) 148

10. Sushil Sethi & ors. Vs St. of Arun. P.
reported in 2020 (3) SCC 240

11.Santosh Prasad Vs The St. of Bihar
(2020) 3 SCC 443

12.In Re: Assessment of the Criminal
Justice System In Response to Sexual
Offences reported in 2020 (1) ALT (Crl.)
1 (A.P.)

13. P. Gopalkrishnan Vs St. of Ker. &
ors.
reported
in
2019
(16)SCALE
752/AIR 2020 SC1;

14.Ganga Prasad Mahto Vs St. of Bihar
& ors. reported in 2019 (5) SCALE 305

15.Habiburrahaman Vs. St. of U.P. (Cri.
Misc. Appl. U/S. 482 No. 1305 of 2018
dt 09.01.2019

16. Laxman Prasad & ors. Vs. St. of
U.P. (Criminal Misc. Application U/S.
482 No. 10821 of 2010 dt 18.07.2019

17. Akhilesh Mishra & ors. Vs. St. of U.P.
(Misc. Bench No. 29683 of 2017 decided
on 16th November, 2018).

18. Mohd. Allauddin Khan Vs The St. of Bih.
& ors. 2019 0 Supreme (SC) 454

19. Rajeev Kaurav Vs Balasahab & ors.
2020 0 Supreme (SC) 143

20. Anurag Soni Vs St. of Chhatt. (2019) 13
SCC 1

21. R.P. Kapur Vs St. of Pun. AIR 1960 SC
866

22. St.of Har. & ors. Vs Ch. Bhajan Lal &
ors.1992 Supp.(1) SCC 335

23. St. of Bih. & anr. Vs P.P. Sharma & anr.
1992 Supp (1) SCC 222

24. Zandu Pharmaceuticals Works Ltd. &
ors. Vs Mohammad Shariful Haque & anr.
(2005) 1 SCC 122

25. M. N. Ojha Vs. Alok Kumar Srivastava;
(2009) 9 SCC 682

26. Nallapareddy Sridhar Reddy Vs The
State of An. P. & ors. 2020 0 Supreme (SC)
45 And. P.

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. The present 482 Cr.P.C. application
has been filed to quash the charge sheet no.
1/2019 dated 5th January, 2019 and
Cognizance taking order dated 19th July,
2019 passed in Criminal Case No. 3374 of
2019 (State Vs. Arvind & Others), under
Sections 323, 504, 506, 376, 377 and 420
I.P.C., Police Station-Surajpur, DistrictGautam Budh Nagar, arising out of Case
Crime No. 940 of 2018, under Sections
323, 504, 506, 376 and 377 I.P.C., Police
Station-Surajpur, District-Gautam Budh
Nagar, pending in the Court of Additional
426 INDIAN LAW REPORTS ALLAHABAD SERIES
Chief Judicial Magistrate, Gautam Budh
Nagar. The applicants have further prayed
for
stay
of
the
aforesaid
criminal
proceedings during the pendency of the
present application.

2. Heard Mr. Ranjit Saxena, learned
counsel for the applicants, Mr. Daya
Shanker Pandey, learned counsel for
opposite party no.2 and Mr. Pankaj
Srivastava, learned A.G.A. for the State as
well as perused the entire material available
on record.

3 . On the matter being taken up, on
19th October, 2019, a Coordinate Bench of
this Court passed following order:

"Heard
Sri
Ranjit
Saxena,
learned counsel for the applicants, Sri
Attreya
Dut
Mishra,
learned
A.G.A.
appearing for the State and perused the
record.

his application under Section 482
Cr.P.C has been moved with a prayer to
quash the charge-sheet no. 1 of 2019 dated
05.01.2019 as well as cognizance order
dated 19.07.2019 filed in Crl. Case
No.3374 of 2019 (State vs. Arvind and
others) under sections 323, 504, 506, 376,
377, 420 IPC arising out of Case Crime
No.0940 of 2018, Police Station Surajpur,
District Gautambudh Nagar and also to
quash the entire proceedings of the
aforesaid case and also a prayer is made to
stay the proceedings in this case till the
disposal of this application.

It is argued by the learned
counsel
for
the
applicants
that
the
applicants have been falsely implicated by
the opposite party no. 2. She has falsely
implicated the other persons also by
blackmailing them as it is her habit. She
has disclosed her age to be different as one
place she has disclosed her age to be 33
years and at another place to be 27 years.
She is a fraud lady. She had tried earlier to
blackmail the applicants regarding which
the applicants had lodged FIR through an
application under section 156(3) Cr.PC,
copy of which is at pages 44-47 of the
paper book. She had also refused herself to
be medically examined which is evident
from the report of Samudaik/Prarthamik
Swasth Kendra, Gautambudh Nagar, copy
of which is annexed at page-124 of the
paper book. These aspects have not been
taken
into
consideration
by
the
Investigating Officer of this case and has
filed charge-sheet in a routine manner,
which is nothing but an abuse of the
process of the Court. He has relied upon
the judgments of Supreme Court rendered
in Dhruvaram MurlidharSonar vs. State of
Maharasthra
and
others,
MANU/SC/1518/2018, Subhash Kashinath
Mahajan vs. State of Maharashra and
others, MANU/SC/0275/2018 and Hem Raj
vs.
State
of
Haryana,
MANU/SC/0016/2014.

Learned counsel for the applicant
has also argued that the accused-applicant
no. 1 is suffering from kidney ailment and
is on dialysis which is being done thrice in
a week.

Learned A.G.A. has vehemently
opposed the prayer for quashing the
proceedings and has brought to the notice
of the Court that in the statement of the
victim recorded under section 164 Cr.PC.
which is annexed at page-128, she has
clearly supported the prosecution version
by saying that she had met the applicant
no.1 about 2 1/2 years ago at Sector 12,
Noida for the purposes of getting job and
during this period both of them developed
1 All. Arvind Kumar & Anr. Vs. State of U.P. & Anr.
427
nearness to each other and the accused had
promised that he would marry her and
under that promise, he continued to
establish physical relationship with the
victim against her wishes. Unnatural sex
was also done with her. She used to work
and all the money was taken by the
applicant
no.
1
by
deceiving
her.
Subsequently, she came to know that he
was a married man and keeping her in
dark, she was being physically exploited.

I have gone through the FIR, in
which the opposite party no. 2/victim has
stated that she resides in Noida. About two
years ago, the accused-applicant no. 1 had
met her in Greater Noida in Designer Arch
and during this period, he proposed to
marry her and started coming to her flat.
One day he had established physical
relationship with her after assuring her
that he would marry her and thereafter
when she told the accused to marry her, he
used to avoid and under false promise that
he would marry her, he continued to
commit rape upon her. He used to tell her
that both his kidneys are dis-functional and
if she leaves him, he would die and by
saying this, he used to blackmail her and
also used to commit unnatural sex. She did
not know that he was already married. She
used to give the entire salary to the
accused-applicant no.1. Thereafter, when
she became jobless in the year 2018, she
brought some money from her father and
opened a Cafe in Sector 62. When she
asked for the money which was given to the
accused to be returned, he refused and
when she threatened that she would make
complaint to the police in this regard, out
of Rs.four lacs, which was given to him,
about Rs.one lac and fifty thousand was
given back to her through cheque. Rest of
the money, she has taken from her father
and thereafter the accused started running
cafe with her, telling the people that they
were husband and wife. He continued to
have physical relationship with her despite
resistance.
She
kept
quiet
but
on
15.09.2018, when she called him on phone,
she heard voice of some lady at the other
end and when she reached the home of the
accused-applicant no.1, she found that the
accused-applicant no. 1 was a married
person. Thereafter, the father of the
applicant no. 1 had given her threat to kill
her and also abused her. Thereafter, she
called the police at 100 number and the
police had picked up the accused-applicant
no.1 and had also asked the opposite party
no. 2 to show the place where she was
raped in Noida. When she came to the
police station Surajpur and gave an
application, the accused-applicant was
called there and then he fell on the feet of
the opposite party no. 2 and told her that
he would keep her properly and that he
should be excused and feeling pity upon
him, the accused was got released from
there. When the opposite party no. 2
reached her home, the father of the
accused-applicant no.1 Prem Pal Singh
started abusing her and stated that he
would not return her money nor his son
would keep her and one of his friend
Neeraj had also threatened to kill her. One
Vipin and Kishan Kant had also abused
and threatened that her life would be
spoiled.

Matter requires consideration.

Learned A.G.A. has accepted
notice on behalf of opposite party no. 1.

Issue notice to opposite party no.
2 returnable within four weeks.

Both the opposite parties shall
file counter affidavits by the next date.
428 INDIAN LAW REPORTS ALLAHABAD SERIES

List this case on 06.12.2019.

Till then no coercive action shall
be taken against the applicants in the
aforesaid criminal case subject to the law
laid down by Hon'ble Supreme Court in the
case of Asian Resurfacing of Road Agency
Pvt.
Ltd.
vs.
Central
Bureau
of
Investigation, 2018 SCC Online SC 310."

4. Before addressing the legal aspects
of the case before this Court, it would be
worthwhile to record the following relevant
facts for deciding the present application
under Section 482 Cr.P.C.:

On 17th September, 2018 at
04:34 p.m., opposite party no.2, namely,
Vineeta Chauhan has lodged a first
information report against five named
accused persons including applicant nos. 1
and 2, namely, Arvind Kumar and Prempal
Singh, who are allegedly son and father,
under Sections 323, 504, 506, 376 and 377
I.P.C. at Police Station-Surajpur, DistrictGautam
Budh
Nagar.
In
the
first
information report, it has been alleged that
the informant/ opposite party no. 2/victim
has stated that she resides in Noida. About
two years ago, the accused-applicant no. 1
had met her in Greater Noida in Designer
Arch and during this period, he proposed to
marry her and started coming to her flat.
One day, he had established physical
relationship with the informant on the
promise that he would marry her and
thereafter
when
she
told
the
accused/applicant no.1 to marry her, he
used to avoid and under false promise that
he would marry her, he continued to
commit rape upon her. He used to tell her
that both his kidneys are dis-functional and
if she leaves him, he would die and by
saying this, he used to blackmail her and
also used to commit unnatural sex. She did
not know that he was already married. She
used to give the entire salary to the
accused-applicant no.1. Thereafter, when
she became jobless in the year 2018, she
brought some money from her father and
opened a Cafe in Sector- 62. When she
asked for the money, which was given to
the accused/applicant no.1 to be returned,
he refused and when she threatened that she
would make complaint to the Police in this
regard, a sum of about Rs. one lac and fifty
thousand out of Rs. Four lacs which was
given to him, was given back to her
through cheque. Rest of the money, she has
taken from her father and thereafter the
accused/applicant no.1 started running cafe
with her, telling the people that they were
husband and wife. He continued to have
physical relationship with her despite
resistance.
She
kept
quiet
but
on
15.09.2018, when she called him on phone,
she heard voice of some lady at the other
end and when she reached the home of the
accused-applicant no.1, she found that the
accused-applicant no. 1 was a married
person. Thereafter, the father of the
applicant no. 1 had threatened to kill her
and also abused her. Thereafter, she called
the police at 100 number and the police had
picked up the accused-applicant no.1 and
had also asked the opposite party no. 2 to
show the place where she was raped in
Noida. When she came to the police station
Surajpur and gave an application, the
accused-applicant was called there and then
he fell on the feet of the opposite party no.
2 and told her that he would keep her
properly and that he should be excused and
feeling pity upon him, the accused was
released from there. When the opposite
party no. 2 reached her home, the father of
the accused-applicant no.1 Prem Pal Singh
started abusing her and stated that he would
not return her money nor his son would
keep her and one of his friend Neeraj had
1 All. Arvind Kumar & Anr. Vs. State of U.P. & Anr.
429
also threatened to kill her. One Vipin and
Kishan
Kant
had
also
abused
and
threatened that her life would be ruined.

5. The said first information report
lodged by opposite party no.2 has been
challenged by all the five named accused
persons including applicant nos. 1 and 2 by
means of Criminal Misc. Writ Petition no.
27147 of 2018. The said writ petition has
been disposed of by a Division Bench of
this Court vide order dated 28th September,
2018, wherein the arrest of the accused
persons have been stayed till filing of the
Police report under Section 173 (2) Cr.P.C.

6. On lodging of the aforesaid first
information
report,
the
Investigating
Officer
has
recorded
statements
of
witnesses. After
completing
statutory
investigation under Chapter XII Cr.P.C.,
the Police has submitted the charge-sheet
against the applicants under Sections 323,
504, 506, 376, 377 and 420 I.P.C. On
submission of the aforesaid charge-sheet,
the Additional Chief Judicial MagistrateII,
Gautam Budh Nagar has
taken
cognizance vide order dated 19th July,
2019 and has directed registration of the
case which has been registered as Criminal
Case No. 3374 of 2019 (State Vs. Arvind
& Others), under Sections 323, 504, 506,
376, 377 and 420 I.P.C., Police StationSurajpur, District-Gautam Budh Nagar.
Both the applicants have also been
summoned by the court below vide order
dated 19th July, 2019. It is against the
aforesaid
charge-sheet
and
taking
cognizance order/summoning order that
the present application under Section 482
Cr.P.C. has been filed.

7. Mr. Ranjit Saxena, learned counsel
for the applicants has made following
submissions on behalf of the applicants:

I. The entire criminal proceedings
being Criminal Case No. 3374 of 2019
(State Vs. Arvind & Others), under
Sections 323, 504, 506, 376, 377 and 420
I.P.C., Police Station-Surajpur, DistrictGautam Budh Nagar, arising out of Case
Crime No. 940 of 2018, under Sections
323, 504, 506, 376 and 377 I.P.C., Police
Station-Surajpur, District-Gautam Budh
Nagar, initiated against the applicants are
an abuse of process of law.

II. No case under Section 376
I.P.C. is made out against the applicants as
there is no medical examination report
because the victim/opposite party no.2 has
refused to get herself medically examined
internally. It is settled legal position that
medical examination report is the only
evidence for initiating a trial against the
accused persons, who are son and father in
the present case, and hence, they cannot be
jointly held guilty for an offence under
Section 376 I.P.C.

III. Initially Opposite party no.2
is a sly, liar, cheater and fraud woman, as is
evident from her three different date of
births mentioned in her Pan Card as 25th
July, 1978, Aadhar Card as 25th July, 1985
and in the present first information report
as 1990. She is habitual to scold and
blackmail
people
by
threatening
to
implicate them in a false rape case. She
earned money by blackmailing many
people in the past. Initially, opposite party
no.2 married one Mohd. Malik resident of
Jafrabad Delhi. Thereafter opposite party
no.2 divorced Mohd. Malik about 8 years
ago. Thereafter she remained with one
Vikki Pandit resident of Noida in living
relationship. Opposite party no.2 met with
applicant no.1 through Sudhir Chauhan and
they became friends and started meeting
each other. But after some time, opposite
430 INDIAN LAW REPORTS ALLAHABAD SERIES
party no.2 started asking for money from
the applicant no.1 and when the applicant
no.1 refused to give the same, then she
started threatening him that if he does not
give her money, she will implicate him in a
false rape case. Thus, frightening the
applicant, opposite party no.2 and her
colleague, namely, Sudhir Chauhan took
Rs. 2,95,000/- from applicant no.1. Fearing,
neither applicant no.1 revealed the said
blackmailing from his family nor his
friends nor the Police. Thereafter opposite
party no.2 again blackmailed applicant no.1
and demanded Rs. 10 lacs. Applicant no.1
gave Rs. 4 lacs to opposite party no.2 only
through her colleagues, namely, Hussain
Abbas and Sudhir Chauhan due to which
opposite party no.2 along with her
colleagues have beaten applicant no.1 by
threatening to implicate him in a false rape
case. Ultimately, applicant no.1 got fed up
from such blackmailing and has made an
application before the Station House
Officer, Police Station-Surajpur, DistrictGautambudh Nagar on 16th September,
2018 for lodging of the first information
report. When the Police has not considered
the same, applicant no.1 has also lodged
first information report on 26th September,
2018 against opposite party no.2, Hussain
Abbas and Sudhir Chauhan through an
application under Section 156 (3) Cr.P.C.,
which has been registered as Case Crime
No. 0981 of 2018, under Sections 323, 384,
386, 389, 504, 506 and 507 I.P.C., Police
Station-Surajpur, District-Gautam Budh
Nagar.

IV. Learned counsel for the
applicants submits that the criminal case
initiated by opposite party no.2 against the
applicants is a case of counter blast to the
criminal case initiated by applicant no.1
against opposite party no.2 and her two
colleagues, as he has made an application
before the Court below as well as before
the Station House Officer of the concerned
Police Station on 16th September, 2018,
whereas Opposite party no.2 has lodged
first
information
report
against
the
applicants on 17th September, 2018.

V. Learned counsel for the
applicants also submits that the allegations
of opposite party no.2 that by concealing
that applicant no.1 was already married,
applicant no.1 has established physical
relationship on the promise to marry her
and he was living with opposite party no.2
as husband and wife and she gave her
salary per month to applicant no.1, are
totally false and incorrect. Applicant no.1 is
already married with one Shashi Bala and
is having one daughter, who was studying
in B.Sc. Final year. Neither applicant no.1
promised opposite party no.2 to marry her
nor lived with her as husband nor
established any physical relationship with
her. He has never taken any money from
opposite party no.2.

VI. Learned counsel for the
applicants next submits that neither the
applicant no.1 has established physical
relations
with
opposite
party
no.2
forcefully nor on the principle of deception
of fact i.e. on promise to marry her due to
which opposite party no.2 has refused to
get herself medically examined internally.
Applicant no.1 was also not living with
opposite party no.2 in any relationship.
Therefore no case under Section 376 I.P.C.
is made out against the applicant no.1. The
applicant is running a company in the name
and style of Balaji Enterprises. Applicant
no.1 is not involved in any criminal case.
The kidney of applicant no.1 is not
functioning and he used to get dialysis done
twice a week in Max Hospital, Ghaziabad.
Applicant no.2, who is a retired teacher, is
1 All. Arvind Kumar & Anr. Vs. State of U.P. & Anr.
431
also not involved in the alleged offence in
any manner. Being the father of applicant
no.1, he has been falsely implicated in the
present case.

VII. Learned counsel for the
applicants lastly submits that for the
alleged incident took place in the year
2018, the present first information report
has been lodged on 17th September, 2019
i.e. after so many days for which no
plausible explanation has been given by
opposite no.2, which also makes the
prosecution story doubtful.

VIII. Learned counsel for the
applicants, therefore, submitted that the
present
criminal
proceedings
initiated
against
the
applicants
are
not
only
malicious but also amount to an abuse of
the process of the court of law. On the
cumulative
strength
of
the
aforesaid
submissions, it is submitted by learned
counsel
for
the
applicants
that
the
proceedings of the above mentioned
criminal case are liable to be quashed by
this Court.

IX. In support of his case, the
learned counsel for the applicants has
placed reliance upon following judgments
of the Apex Court:

(i) Thermax Ltd. & Ors. Vs. K.M.
Johny & Ors. Reported in 2011 (11) SCC;

(ii) Hem Raj Vs. State of Haryana
reported in 2014 (4) SCC 395;

(iii) Rishipal Singh Vs. State of
U.P. reported in 2014 (7) SCC 215;

(iv) Subhash Kashinath Mahajan
Vs. The State of Maharastra & Others
reported in 2018 (6) SCC 454;

(v) Dhruvaram Murlidhar Sonar
Vs. State of Maharashtra & Others reported
in 2019 (1) SCALE-64;

(vi) M. Srikanth Vs. State of
Telangana reported in 2019 (10) SCC 373;

(vii) Saleem Ahmed Vs. State &
Others reproted in 2019 (15);

(viii) Parminder Kaur & Others
VS. State of Punjab reported in 2020 (2)
ALD (Crl.) 417 (SC)/2020 (3) MLJ (Crl.)
609;

(ix) Rakesh Kumar Yadav Vs.
State of Chhattishgarh, reported in 2020 (2)
RCR (Crl.) 148;

(x) Sushil Sethi & Ors. Vs. State
of Arunachal Pradesh reported in 2020 (3)
SCC 240;

Santosh Prasad Vs. The State of
Bihar reported in 2020 (3) SCC 443;

(xi) In Re: Assessment of the
Criminal Justice System In Response to
Sexual Offences reported in 2020 (1) ALT
(Crl.) 1 (A.P.);

(xii) P. Gopalkrishnan Vs. State
of Keral & Others reported in 2019
(16)SCALE 752/AIR 2020 SC 1;

(xiii) Ganga Prasad Mahto Vs.
State of Bihar & Others reported in 2019
(5) SCALE 305.

X. Learned counsel for the
applicants has also placed reliance upon the
following judgments of this Court:

(i) Habiburrahaman Vs. State of
U.P. (Criminal Misc. Application U/S. 482
432 INDIAN LAW REPORTS ALLAHABAD SERIES
No. 1305 of 2018 decided on 9th January,
2019);

(ii) Laxman Prasad & Ors. Vs.
State of U.P. (Criminal Misc. Application
U/S. 482 No. 10821 of 2010 decided on
18th July, 2019); and

(iii) Akhilesh Mishra & Ors. Vs.
State of U.P. (Misc. Bench No. 29683 of
2017 decided on 16th November, 2018).

8. Per contra, Mr. Pankaj Srivastava,
learned A.G.A. for the State as well as Mr.
D.S. Mishra, learned counsel for opposite
party no.2 have opposed the prayer made
by the learned counsel for the applicants.

9. I. Learned A.G.A. submits that
applicant no.1 has committed rape upon the
victim/opposite party no.2 forcibly against
her wishes and thereafter the investigation
was concluded and charge-sheet has been
submitted against the applicants.

II.
Learned
A.G.A.
further
submits that the judgments relied upon by
the learned counsel for the applicants in the
cases of Parminder Kaur, Rakesh Kumar
Yadav, Santosh Prasad, In Re: Assessment
of the Criminal Justice System in Response
to Sexual Offences, P. Gopalkrishnan,
Ganga Prasad Mahto and S. Khusboo
(Supras) are either in appeals or against
conviction or in different footing having no
reliance to the person, as such the same are
not applicable in the facts of the present
case.

III. Learned A.G.A. further states
that the submission made by the learned
counsel for the applicant that in view of the
judgment of the Apex Court in the case of
Dhruvaram Murlidhar Sonar vs. State of
Maharashtra & Others reported in 2019 (1)
SCALE-64, Page-111-121, this Hon'ble
Court exercising its inherent power under
Section 482 Cr.P.C. may quash the chargesheet in such a heinous crime is liable to be
rejected, as the said judgment is not
applicable in the facts of the present case.
In the said case, the complainant has
forcibly raped the victim but in the present
case the applicant no.1/accused raped the
victim/informant not forcibly but against
her wishes by promising to marry her.

IV. Learned A.G.A. further states
that the judgment relied upon by the
learned counsel for the applicant in the case
of Pramod Surya Bhan Pawar Vs. The State
of Maharashtra will also not be applicable
in the facts of the present case because in
the aforesaid case the accused and the
victim lived in relation upto 12 year w.e.f.
2004 to 2016. They knew each other since
1998 and were intimated since 2004.
Further the judgment relied upon by the
learned counsel for the applicants in the
case of Ahmad Ali Quaraishi & Others Vs.
State of U.P. & Others is also not
applicable in the facts of the present case.
In the said case the Apex Court has
quashed the charge-sheet because civil
dispute was going on between the parties.

V. Lastly, the learned A.G.A.
states that this High Court may not quash
the entire criminal proceedings under
Section 482 Cr.P.C. for which he has relied
upon the judgment of the Apex Court in the
case of Mohd. Allauddin Khan Vs. The
State of Bihar & Others reported in 2019
0 Supreme (SC) 454, wherin the Apex
Court has held that the High Court had no
jurisdiction to appreciate the evidence of
the proceedings under Section 482 Cr.P.C.
because whether there are contradictions
or/and inconsistencies in the statements of
the witnesses is an essential issue relating
1 All. Arvind Kumar & Anr. Vs. State of U.P. & Anr.
433
to appreciation of evidence and the same
can be gone into by the Judicial Magistrate
during trial when the entire evidence is
adduced by the parties. However, in the
present case the said state is yet to come.

VI. Learned A.G.A. has further relied
upon the judgment of the Apex Court in the
case of Rajeev Kaurav Vs. Balasahab &
Others reported in 2020 0 Supreme (SC)
143, wherein the Apex Court has held that it
is no more res integra that exercise of power
under Section 482 CrPC to quash a criminal
proceeding is only when an allegation made
in the FIR or the charge sheet constitutes the
ingredients of the offence/offences alleged.
Interference by the High Court under
Section 482 CrPC is to prevent the abuse of
process of any law or Court or otherwise to
secure the ends of justice. It is settled law
that the evidence produced by the accused in
his defence cannot be looked into by the
Court,
except
in
very
exceptional
circumstances, at the initial stage of the
criminal proceedings. It is trite law that the
High Court cannot embark upon the
appreciation of evidence while considering
the petition filed under Section 482 CrPC
for quashing criminal proceedings. It is clear
from the law laid down by this Court that if
a prima facie case is made out disclosing the
ingredients of the offence alleged against the
accused, the Court cannot quash a criminal
proceeding.

VII. The learned A.G.A. further relied
upon the judgments of this Court in the cases
of V.K. Rai & Another Vs. State & Another
passed in Application U/S 482 No. 3707
2004, decided on 29th April, 2019 and Sri
Rudra Prakash Tiwari @ Raju Tiwari &
Another Vs. State of U.P. & Another passed
in Application U/S 482 No. 12608 of 2020
decided on 6th October, 2020.

VIII. On the cumulative strength of the
aforesaid submissions, learned A.G.A. states
that this Court may not exercise its inherent
power under Section 482 Cr.P.C. in the
present
case,
and
hence
the
present
application is liable to be rejected.

10. I. Mr. D.S. Pandey, learned
counsel for opposite party no.2 submits that
the submission made by the learned
counsel for the applicants that the criminal
proceedings initiated by opposite party no.2
against the applicants is a case of counter
blast to the criminal proceedings initiated
by applicant no.1 against opposite party
no.2 have no legs to stand on the ground
that opposite party no.2 has lodged the first
information report on 17th September,
2018 at 04:34 p.m, whereas applicant no.1
has lodged first information report against
opposite party no.2 along with her two
alleged colleagues on 25th September,
2018 at 22:31 p.m. under order of the
Additional Chief Judicial Magistrate-II,
Gautam
Budh
Nagar
dated
20th
September, 2018 in an application under
Section 156 (3) Cr.P.C. Apart from the
above, the submission of the learned
counsel for the applicants that for lodging
of the first information report, he has made
an application before the Station House
Officer, Police Station-Surajpur, DistrictGautambudh Nagar on 16th September,
2018, a copy of which has been enclosed at
page nos. 52 to 54 of the paper book, has
also no leg to stand, as the receipt of the
speed post from which the said application
has been sent is of dated 17th September,
2018. Learned counsel for opposite party
no.2 applicant, therefore, submits that from
the aforesaid it is clear that the criminal
proceedings initiated by applicant no.1
against opposite party no.2 and her two
colleagues are counter blast to the criminal
434 INDIAN LAW REPORTS ALLAHABAD SERIES
proceedings initiated by opposite party no.2
against the applicants.

II. Learned counsel for opposite party
no.2 further submits that the Investigating
Officer has investigated both the aforesaid
cases, but he has submitted the chargesheet against the applicants in the criminal
case which has been initiated by opposite
party no.2, whereas the Investigating
Officer has submitted final report in the
criminal case which has been initiated by
applicant no.1 against opposite party no.2
and her two colleagues. Learned counsel
for opposite party no.2, therefore, submits
that from the aforesaid, it is clear that the
allegations made by applicant no.1 against
opposite party no.2 and her two colleagues
have been found to be fake and false,
whereas the allegations made by opposite
party no.2 against the applicants have been
found to be correct and genuine.

III. Learned counsel for opposite
party
no.2
further
submits
that
the
submission of the learned counsel for the
applicants that applicant no.1 was only a
friend of opposite party no.2 and being
married person, he has never lived with
opposite party no.2 as her husband nor he
has established any physical relations with
her on the promise to marry her, is also
liable to be rejected. Initially, applicant
no.1 has concealed from opposite party
no.2 that he is already married having one
daughter. By concealing the said fact, he
lived with her as husband and established
physical relations with her on the promise
to marry her, which is a case of rape as the
same has committed against her wishes by
cheating and deception, which makes out
an offence under Section 376 I.P.C. against
him. As soon as opposite party no.2 came
to know that applicant no.1 was already
married, she used to exert pressure upon
him to marry with her but he again and
again
pretended
and
avoided
and
ultimately, opposite party no.2 was bound
to lodge first information report.

IV. Learned counsel for opposite
party no.2 further states that though
opposite party no.2 has refused to get
herself examined internally but from the
medical examination report of external part
of opposite party no.2, it is clear that
physical relation has been established
between opposite party no.2 and applicant
no.1 as husband and wife and the same has
been continued for more than two years as
she has believed that applicant no.1 would
marry her. On believing applicant no.1,
opposite party no.2 was giving her salary to
applicant no.1 for performing his business
of cybercafe in which they spent sometimes
and everybody knew that they were
husband and wife.

V. Learned counsel for opposite
party no.2 further states that it is heinous
offence, as applicant no.1 has raped her on
the promise to marry but against her
wishes. On asking of opposite party no.2 as
to when, he would perform marriage with
her, he always avoided saying that at the
earliest he would marry her but he has not
solemnized marriage with her and also
misbehaved and threatened her. Opposite
party no.2 being innocent lady has believed
the false promise of applicant no.1 and
started living with him as his wife but she
did not know that applicant no.1 was
cheating and committing rape behind the
false promise of marriage. It is not a case of
living relation but it is case of cheating and
deception by establishing physical relation
with the victim on the promise to marry her
but against her wishes. Since applicant no.1
has established physical relations with
opposite party no.2 since long on the
1 All. Arvind Kumar & Anr. Vs. State of U.P. & Anr.
435
promise to marry her but against her
wishes, case of rape i.e. offence under
Section 376 I.P.C. is made out against the
applicants.

VI. In view of the aforesaid
submissions, the learned counsel for
opposite party no.2, thus, submits that the
present application under Section 482
Cr.P.C. is liable to be rejected.

11. I have considered the submissions
made by the learned counsel for the parties
and gone through the records of the present
application.

12. The submission made by the
learned counsel for the applicants that
neither applicant no.1 has committed rape
upon the informant nor he has established
any physical relations with her on promise
to marry her or on deception that he is
already married, he was only his friend, is
liable to be rejected on the ground that the
said issue cannot be examined at this stage
because the trial has yet to come, in which
documentary as well as oral evidence shall
be led by the prosecution side as well as
defense side and thereafter on the basis of
the said evidence, the said issue can be
examined and decided.

13. At this stage, as per the case of the
prosecution, this Court comes on the issue
as to whether case for the alleged offence
under Section 376 I.P.C. is made out
against the applicants or not. The Apex
Court in the case of Anurag Soni Vs. State
of Chhattishgarh reported in (2019) 13
SCC 1, has observed that if prosecution
proves beyond reasonable doubt that
consent of prosecutrix was obtained by
accused on false promise to marry her,
through knowing well from very beginning
that he had no such intention, it cannot be
treated as consent but amounts to cheating
and consent given under "misconception of
fact" within the meaning of Section 90
I.P.C. In paragraph nos. 14 to 19 the Apex
Court has observed as follows:

"14. Considering the aforesaid
facts and circumstances of the case and the
evidence on record, the prosecution has
been successful in proving the case that
from the very beginning the accused never
intended to marry the prosecutrix; he gave
false promises/promise to the prosecutrix
to marry her and on such false promise he
had
a
physical
relation
with
the
prosecutrix;
the
prosecutrix
initially
resisted, however, gave the consent relying
upon the false promise of the accused that
he will marry her and, therefore, her
consent can be said to be a consent on
misconception of fact as per Section 90 of
the IPC and such a consent shall not
excuse the accused from the charge of
rape and offence under Section 375 of the
IPC.

15. Though, in Section 313
statement, the accused came up with a case
that the prosecutrix and his family
members were in knowledge that his
marriage was already fixed with Priyanka
Soni, even then, the prosecutrix and her
family members continued to pressurise the
accused to marry the prosecutrix, it is
required to be noted that first of all the
same is not proved by the accused. Even
otherwise, considering the circumstances
and evidence on record, referred to
hereinabove, such a story is not believable.
The prosecutrix, in the present case, was an
educated girl studying in B. Pharmacy.
Therefore, it is not believable that despite
having knowledge that that appellant's
marriage is fixed with another lady -
Priyanka Soni, she and her family members
436 INDIAN LAW REPORTS ALLAHABAD SERIES
would continue to pressurise the accused to
marry and the prosecutrix will give the
consent for physical relation.

16.
In
the
deposition,
the
prosecutrix specifically stated that initially
she did not give her consent for physical
relationship, however, on the appellant's
promise that he would marry her and relying
upon such promise, she consented for
physical relationship with the appellantaccused. Even considering Section 114-A of
the Indian Evidence Act, which has been
inserted subsequently, there is a presumption
and the court shall presume that she gave the
consent for the physical relationship with the
accused relying upon the promise by the
accused that he will marry her. As observed
hereinabove, from the very inception, the
promise given by the accused to marry the
prosecutrix was a false promise and from the
very beginning there was no intention of the
accused to marry the prosecutrix as his
marriage with Priyanka Soni was already
fixed long back and, despite the same, he
continued to give promise/false promise and
alluded the prosecutrix to give her consent
for the physical relationship.

17.