# Arvind Kumar Pathak v. State Of U.P. & Anr

- **Citation:** (2016) 5 ILRA 931
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-30
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/arvind-kumar-pathak-v-state-of-u-p-anr-44007
- **Pages:** 7

## Headnote

Criminal Procedure Code, 1973 - Criminal Procedure Code, 1973 - Summoning order - Scope of
interference at stage of summoning - FIR alleging offences under Sections 323, 504, 376 IPC - Closure
report submitted by Investigating Officer - Protest petition - Rejection of closure report - Summoning
under Section 190(1)(b) Cr.P.C. - Revision dismissed - Consent obtained by fraud and misconception -
Promise of marriage - Regular physical relationship - False promise - Distinction between breach of
promise and false promise - Consent under misconception of fact - Sections 375, 376 IPC - Section 90 and
Section 114-A of the Evidence Act - Statements under Sections 161 and 164 Cr.P.C. - Medical report -
Forensic laboratory report - Mobile data record - Compact disc (C.D.) containing voice recording - Prima
facie satisfaction - Question of fact to be decided at trial - No interference under Article 226/227 of the
Constitution of India or Section 482 Cr.P.C. - Writ petition dismissed.

## Text

5 All. Arvind Kumar Pathak Vs State Of U.P. & Anr.

931
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Criminal Misc. Writ Petition No.- 10625 Of 2014

Arvind Kumar Pathak ...Petitioner
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Ajatshatru Pandey, Gopal S. Chaturvedi

Counsel for the Respondents:
Govt. Advocate, Anup Kumar Upadhyay, Dhirendra Kumar Dwivedi

Criminal Procedure Code, 1973 - Criminal Procedure Code, 1973 - Summoning order - Scope of
interference at stage of summoning - FIR alleging offences under Sections 323, 504, 376 IPC - Closure
report submitted by Investigating Officer - Protest petition - Rejection of closure report - Summoning
under Section 190(1)(b) Cr.P.C. - Revision dismissed - Consent obtained by fraud and misconception -
Promise of marriage - Regular physical relationship - False promise - Distinction between breach of
promise and false promise - Consent under misconception of fact - Sections 375, 376 IPC - Section 90 and
Section 114-A of the Evidence Act - Statements under Sections 161 and 164 Cr.P.C. - Medical report -
Forensic laboratory report - Mobile data record - Compact disc (C.D.) containing voice recording - Prima
facie satisfaction - Question of fact to be decided at trial - No interference under Article 226/227 of the
Constitution of India or Section 482 Cr.P.C. - Writ petition dismissed.

1. The facts briefly for the purposes of decision is that the informant-opposite party no. 2 lodged an F.I.R.
against the petitioner for the offences under Sections 498A, 323, 504, 376 IPC. The Investigating Officer upon
investigation submitted closure report contending therein that from the evidences, statement of the witnesses
and other material, offence is not made out against the petitioner. The informant filed a protest petition, the
learned Magistrate rejected the closure report and was of the opinion that the material and evidence available
on record disclose the commission of offence under Section 376, 323, 504 IPC, therefore, under Section 190
(1) (b) Cr.P.C., summoned the petitioner to face trial. The summoning order was assailed in revision, the
revisional court by the impugned order rejected the revision affirming the order passed by the learned
Magistrate.(Para-2)

2. The scope of interference in criminal proceeding at the stage of summoning is limited. In the facts of the
present case, criminal process was set in motion on filing a police case. The allegation made in the complaint
was that the informant met the petitioner for the first time in 2007 in a coaching institute, both were students
preparing for competitive exams. The petitioner since inception tried making advances towards informant,
which she resisted, however, upon assurance given by the petitioner that he would marry her, and to
substantiate his promise and commitment petitioner took the informant on 30 May 2009 to a temple, and in
presence of the deity accepted her as his woman by putting vermilion on her forehead. Thereafter, the
petitioner took her to his rented room and since thereon they continued to have regular physical relationship.
932 INDIAN LAW REPORTS ALLAHABAD SERIES
The petitioner assured the informant that he would, upon being employed, perform ceremony of marriage for
social acceptance. Petitioner subsequently qualified the competitive examination in 2012, however, during
training got entangled with a colleague, and thereafter started avoiding the informant. On 31 January 2013 at
3:00 P.M. informant visited the room of the petitioner on his invitation, where, she is alleged to have been
criminally assaulted and raped. On the following day, medical examination was conducted and first
information report was lodged. Statement of informant was recorded under Section 161 and under Section
164 Cr.P.C. reiterating the facts narrated in the first information report. Learned Magistrate recorded in the
summoning order that the informant in her protest petition would allege that the petitioner upon being
selected in the Provincial Civil Services and on having been appointed Trade Tax Officer exercised his
influence, thereupon, persuading the Investigating Officer to close the case, however, the evidence available
on record would clearly make out the ingredients of the offence under Sections 376, 323 & 504 IPC. The
revisional court recorded that perusal of the statement under Section 161/164 Cr.P.C., medical report, forensic
lab report, letters exchanged by the petitioner, mobile data record and compact disc (C.D.) containing voice
recording which are part of investigation and case diary would, prima facie, make out the offence against the
petitioner.(Para 5)

Held:(Paras 8, 15-16)

1. This Court at this stage need not critically dwell upon the material and evidence brought on record. I have
though gone through the entire evidence and material. It would suffice to note that the revisional court has
taken notice of all the material and evidence that was collected during investigation. Statement of the victim
under Section 164 Cr.P.C. ultimately would indicate commission of the offence. Her statement recorded under
Section 161 Cr.P.C., correspondence between the petitioner and victim, forensic lab report, the record of
mobile messages and conversation of the petitioner and victim recorded on compact disc (C.D.) is available on
record. The plea as to whether the consent was voluntary or obtained by misconception or fraud is a question
of fact which cannot be gone into in writ jurisdiction under Article 226/227 of Constitution of India or under
Section 482 Cr.P.C.

(1) The overwhelming material and evidence brought on record do create, prima facie, a strong suspicion
regarding commission of the offence, therefore, it would be in the interest of justice that the petitioner be put
to trial and to hold otherwise, as vehemently persuaded by the learned Senior Counsel, would not be in the
interest of the society or the victim. This Court at this stage declines to interfere with the impugned
summoning order. For the reasons indicated herein above, I am of the view that the writ petition would have
to be dismissed. The writ petition is, accordingly, dismissed.

Case Law discussed:

Deelip Singh @ Dilip Kumar v. State of Bihar, (2005) 1 SCC 88 :2005 SCC (Cri) 253-Para 10-12
Uday v. State of Karnataka, (2003) 4 SCC 46 - Para 10
Karthi @ Karthick v. State rep. by Inspector of Police,Tamil Nadu,2013(3)JIC 228(SC) -Para 10
 Deepak Gulati v. State of Haryana, (2013) 7 SCC 675- Para 13
Tilak Raj v. State of H.P., 2016 (93) ACC 454 - Para 13
Amrawati and another v. State of U.P., 2004 (57) ALR 290 - Para 18
Lal Kamlendra Pratap Singh v. State of U.P., 2009 (3) ADJ 322 (SC) - Para 18

(Delivered by Hon'ble Suneet Kumar, J.)

1. The writ petition is directed against the order dated 2 July 2014 passed by the revisional
court/Additional District and Sessions Judge, Court No.5, Allahabad in Revision No.106 of 2014
5 All. Arvind Kumar Pathak Vs State Of U.P. & Anr.

933
(Arvind Kumar Pathak v. State of U.P. and another) affirming the summoning order dated 3 March
2014 passed by the Special Chief Judicial Magistrate, Allahabad, further, seeking quashing of the
entire proceeding of Case No.523 of 2013 (Suman Gupta v. Arvind Kumar Pathak) arising out of
Case Crime No.94 of 2013, under Sections 323, 504, 376 IPC, P.S. Colonelganj, District
Allahabad.

2. The facts briefly for the purposes of decision is that the informant-opposite party no. 2
lodged an F.I.R. against the petitioner for the offences under Sections 498A, 323, 504, 376 IPC.
The Investigating Officer upon investigation submitted closure report contending therein that from
the evidences, statement of the witnesses and other material, offence is not made out against the
petitioner. The informant filed a protest petition, the learned Magistrate rejected the closure report
and was of the opinion that the material and evidence available on record disclose the commission
of offence under Section 376, 323, 504 IPC, therefore, under Section 190 (1) (b) Cr.P.C.,
summoned the petitioner to face trial. The summoning order was assailed in revision, the revisional
court by the impugned order rejected the revision affirming the order passed by the learned
Magistrate.

3. Sri Gopal S. Chaturvedi, learned Senior Advocate would submit that on perusal of the
evidence collected during investigation would not disclose the ingredients of the offence, hence,
would submit that the entire proceeding be quashed against the petitioner/accused.

4. Per contra, Sri Shashaank Mishra, learned counsel appearing for the opposite party No. 2
and the learned Additional Government Advocate would submit that the summoning order is lawful
and legal, there is sufficient material and evidence available on record to put the petitioner to trial,
as such, petition is liable to be dismissed.

5. The scope of interference in criminal proceeding at the stage of summoning is limited. In
the facts of the present case, criminal process was set in motion on filing a police case. The
allegation made in the complaint was that the informant met the petitioner for the first time in 2007
in a coaching institute, both were students preparing for competitive exams. The petitioner since
inception tried making advances towards informant, which she resisted, however, upon assurance
given by the petitioner that he would marry her, and to substantiate his promise and commitment
petitioner took the informant on 30 May 2009 to a temple, and in presence of the deity accepted her
as his woman by putting vermilion on her forehead. Thereafter, the petitioner took her to his rented
room and since thereon they continued to have regular physical relationship. The petitioner assured
the informant that he would, upon being employed, perform ceremony of marriage for social
acceptance. Petitioner subsequently qualified the competitive examination in 2012, however,
during training got entangled with a colleague, and thereafter started avoiding the informant. On 31
January 2013 at 3:00 P.M. informant visited the room of the petitioner on his invitation, where, she
is alleged to have been criminally assaulted and raped. On the following day, medical examination
was conducted and first information report was lodged. Statement of informant was recorded under
Section 161 and under Section 164 Cr.P.C. reiterating the facts narrated in the first information
report. Learned Magistrate recorded in the summoning order that the informant in her protest
934 INDIAN LAW REPORTS ALLAHABAD SERIES
petition would allege that the petitioner upon being selected in the Provincial Civil Services and on
having been appointed Trade Tax Officer exercised his influence, thereupon, persuading the
Investigating Officer to close the case, however, the evidence available on record would clearly
make out the ingredients of the offence under Sections 376, 323 & 504 IPC. The revisional court
recorded that perusal of the statement under Section 161/164 Cr.P.C., medical report, forensic lab
report, letters exchanged by the petitioner, mobile data record and compact disc (C.D.) containing
voice recording which are part of investigation and case diary would, prima facie, make out the
offence against the petitioner.

6. Learned Senior Counsel with aid of his oratory and advocacy made best effort to
impress upon the Court that taking all material and evidence on face value would not make out an
offence under Section 376 IPC against the petitioner. It is sought to be urged that it is admitted by
the informant that petitioner was known to her since 2007 and as per her own version since 2009
they are having regular physical relationship which being voluntary and having consent of the
informant. To establish his bonafide intention and commitment, petitioner assured the victim by
taking her to a temple, where he accepted the victim as his woman before the deity. At the best, it
is urged, to be a case of failed promise of marriage which would, therefore, not constitute an
offence under Section 376 IPC, there being no fraud or misconception in obtaining the consent of
the victim.

7. Per contra, learned counsel appearing for the opposite party would submit that the
summoning order is lawful and legal, there is sufficient evidence and material on record that would
justify the summoning order. The consent of the victim was obtained by fraud and misconception
by assuring her of marriage which the petitioner never intended to fulfill.

8. This Court at this stage need not critically dwell upon the material and evidence brought
on record. I have though gone through the entire evidence and material. It would suffice to note that
the revisional court has taken notice of all the material and evidence that was collected during
investigation. Statement of the victim under Section 164 Cr.P.C. ultimately would indicate
commission of the offence. Her statement recorded under Section 161 Cr.P.C., correspondence
between the petitioner and victim, forensic lab report, the record of mobile messages and
conversation of the petitioner and victim recorded on compact disc (C.D.) is available on record.
The plea as to whether the consent was voluntary or obtained by misconception or fraud is a
question of fact which cannot be gone into in writ jurisdiction under Article 226/227 of
Constitution of India or under Section 482 Cr.P.C..

9. Rape is the most morally and physically reprehensible crime in a society, as it is an
assault on the body, mind and privacy of the victim. 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, and therefore a rape victim is
placed on a higher pedestal than an injured witness. 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
5 All. Arvind Kumar Pathak Vs State Of U.P. & Anr.

935
blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes
psychological and physical harm to the victim, leaving upon her indelible marks.

10. Consent may be express or implied, coerced or misguided, obtained willingly or
through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in
a balance, the good and evil on each side. There is a difference between consent and submission
and every consent involves submission but the converse does not follow and a mere act of
submission does not involve consent. There is a clear distinction between rape and consensual sex
and in a case like this, the court must very carefully examine whether the accused had actually
wanted to marry the victim, or had malafide motives, and had made a false promise to this effect
only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is a
distinction between mere breach of a promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a false promise of marriage by the
accused; and whether the consent involved was given after wholly, understanding the nature and
consequences of sexual indulgence. 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
misrepresentation made to her by the 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 so. Such cases must be treated differently. An accused can be
convicted for rape only if the court reaches a conclusion that the intention of the accused was
malafide, and that he had clandestine motives. [Refer: Deelip Singh @ Dilip Kumar v. State of
Bihar : (2005) 1 SCC 88; Uday v. State of Karnataka : (2003) 4 SCC 46; Karthi @ Karthick v.
State Rep. By Inspector of Police,Tamil Nadu : 2013 (3) JIC 228 (SC).]

11. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act
1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court
shall presume that she did not in fact, give such consent.

12. The facts of the instant case whether would warrant that the provisions of Section 114A of the Act 1872 be pressed into service. The Court at this stage declines to comment lest it may
have bearing upon the merits of trial. Whether her consent had been obtained on the false promise
of marriage, the provisions of Section 417, 375 and 376 IPC have to be taken into consideration,
alongwith the provisions of Section 90 of the Act 1872. Section 90 of the Act 1872 provides, that
any consent given under a misconception of fact, would not be considered as valid consent, so far
as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would
tantamount to committing rape.

13. In Deelip Singh v. State of Bihar, (2005) 1 SCC 88 :2005 SCC (Cri) 253, it has been
observed:

"20. The factors set out in the first part of Section 90 are from the point of view of
the victim. The second part of Section 90 enacts the corresponding provision from the point of view
of the accused. It envisages that the accused too has knowledge or has reason to believe that the
936 INDIAN LAW REPORTS ALLAHABAD SERIES
consent was given by the victim in consequence of fear of injury or misconception of fact. Thus,
the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the
tainted consent. The requirements of both the parts should be cumulatively satisfied. In other
words, the court has to see whether the person giving the consent had given it under fear of injury
or misconception of fact and the court should also be satisfied that the person doing the act i.e. the
alleged offender, is conscious of the fact or should have reason to think that but for the fear or
misconception, the consent would not have been given. This is the scheme of Section 90 which is
couched in negative terminology."

14. There must be adequate evidence to show that at the relevant time, i.e. at initial stage
itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. In order
to come within the meaning of the term misconception of fact, the fact must have an immediate
relevance. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in
entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from
the very beginning, the accused had never really intended to marry her. [Ref: Deepak Gulati v.
State of Haryana (2013) 7 SCC 675, and Tilak Raj v. State of H.P. : 2016 (93) ACC 454.]

15. Whether the material and evidence is believable or reliable to sustain the allegations
against the petitioner or whether there was fraudulent or dishonest inducement of the prosecutrix by
the petitioner are questions to be gone into in trial.

16. The overwhelming material and evidence brought on record do create, prima facie, a
strong suspicion regarding commission of the offence, therefore, it would be in the interest of
justice that the petitioner be put to trial and to hold otherwise, as vehemently persuaded by the
learned Senior Counsel, would not be in the interest of the society or the victim. This Court at this
stage declines to interfere with the impugned summoning order.

17. For the reasons indicated herein above, I am of the view that the writ petition would
have to be dismissed. The writ petition is, accordingly, dismissed.

18. It is made clear that the observations made hereinabove is confined to the rival
contentions made by the parties and not on merit of the case. The trial court shall proceed with the
trial without being influenced by the observations made in the order.

19. However, it is provided that the petitioner shall surrender before the concerned court
within four weeks from today and apply for bail, his prayer for bail shall be considered and decided
in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P.
reported in 2004 (57) ALR 290, as well as, judgement passed by Hon'ble Apex Court reported in
Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).

20. For a period of 30 days from today or till the disposal of the application for grant of
bail whichever is earlier, no coercive action shall be taken against the petitioner.
5 All. Rajesh Gandhi & Ors. Vs State Of U.P. & Anr.

937
21. However, in case, the petitioner does not appear before the Court below within the
aforesaid period, coercive action shall be taken against him as per law.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2016

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Criminal Misc. Writ Petition No.- 17783 Of 2010

Rajesh Gandhi & Ors. ...Petitioners
Versus
State Of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Santosh Srivastava, Karuna Srivastava

Counsel for the Respondents:
Govt. Advocate, Devendra Saini

Criminal proceedings - Complaint case -Family settlement - Disputed property - Ancestral property -
Co-owner - Co-sharer - Registered power of attorney - Complaint case - Sections 468, 506 IPC -
Application under Section 156(3) Cr.P.C. - Civil suit - Permanent injunction - Dispute primarily civil in
nature - Forgery - False document - Section 464 IPC - Ingredients of offence - Abuse of process of court
- Jurisdiction under Section 482 Cr.P.C. - Quashing of complaint and summoning order.

1. The complainant is brother of applicant no. 1, whereas, applicant no. 2 is mother and applicant no. 3, 4, 5
and 6 are sisters of applicant no. 1 and complainant. The dispute, inter se, parties pertains to family
settlement pertaining to the disputed property. The applicants are assailing the order dated 6 September 2010
passed by the revisional court/Additional Sessions Judge Court No. 3, Saharanpur in Criminal Revision No. 309
of 2010 (Rajesh Gandhi and other vs. State of U.P. and others) affirming the order passed by the Chief
Judicial Magistrate, Saharanpur, in Complaint Case no. 589 of 2010 ( Rohit Gandhi vs. Rajesh Gandhi),
whereby, the applicants have been summoned in a complaint case for offence under Section 468, 506
IPC.The complainant/opposite party no. 2, filed an application under Section 156(3) Cr.P.C. for offence under
Sections 420, 467, 468, 471, 506 IPC which, the learned Magistrate treated as a complaint; upon recording
statements under Section 200 Cr.P.C. and examining witnesses under Section 202, Magistrate summoned the
petitioners herein, for offence under Section 468 and 506.In revision, the order of the Magistrate has been
affirmed.(Para 2-3)

2. The allegations against the petitioners is that on the strength of a registered power of attorney executed by
the mother and her daughters (petitioners no. 2 to 6) in favour of her son/brother (petitioner no. 1) in respect
of a property being plot no. 2 situated at Jai Prabha Nagar, Village Manakmau, Saharanpur, was being
attempted to be sold, despite the petitioners having knowledge that the complainant is a co-owner. It is
alleged that father of complainant died in 2003, the property in dispute being ancestral property, not yet
partioned, therefore, the complainant is having a share, which fact is in the knowledge of the other
petitioners.(Para 4)