# Dileep & Ors v. State of U.P. & Ors

- **Citation:** (2020) 1 ILRA 478
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-25
- **Case number:** Application U/S 482 Cr. P.C. No. 37082 of 2019
- **Bench:** Dinesh Kumar Singh-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dileep-ors-v-state-of-u-p-ors-45088
- **Pages:** 8

## Headnote

A. Application u/s 482 Cr.P.C. - Quashing
of entire proceedings on the basis of
1 All. Dileep & Ors. Vs. State of U.P. & Ors.
479
compromise between the parties -Since
the allegation made against the accusedapplicant no. 1 is that of committing rape
upon the victim as she being a minor and
any physical relationship with the victim
would fall in the category of rape in view
of law cited above in Independent
thought case- At this stage, it cannot be
said that no prima- facie offence is made
out against the accused-applicant no. 1Role of other co-accused was also to the
extent of having cooperated in the
commission of the said offence. No
interference under inherent jurisdiction
to quash the proceedings.

Criminal Misc. Application u/s 482 Cr.P.C.
rejected. (E-3)

List of cases cited: -

## Text

478 INDIAN LAW REPORTS ALLAHABAD SERIES
to provide for the file. When the deceased
stated the truth then the applicant started
badly humiliating the deceased which was
the cause of his depression and for taking
such extreme step. Allegations are to the
effect that the accused used to act in a very
calculative manner and is said to have
indulged
in
insalubrious
activity
of
displacing the file himself deliberately in
order to deprive certain accused of a given
case from obtaining bail. But in order to
keep his image clean he would make the
deceased an scapegoat putting the entire
blame on him for misplacing the file. We
also find from the record allegations
indicating that the misconduct of the
accused was deliberate and intensely
pungent showing no concern for his
subordinate's dignity which became too
much for the deceased to endure. On the
fateful day the sting of humiliation appear
to have proved to be the last straw on the
camel's back and the deceased buckled
under its pressure and put an end to his
life. From the material which has been
brought on record, it cannot be said that no
case is made out against the applicant.
However, argument on the point of charge
can be more elaborately addressed at the
time of framing of charge when it arrives.

12. The submissions made by the
applicant's
learned
counsel
call
for
adjudication on pure questions of fact
which may be adequately adjudicated
upon only by the trial court and while
doing so even the submissions made on
points
of
law
can
also
be
more
appropriately gone into by the trial court in
this case. This Court does not deem it
proper, and therefore cannot be persuaded
to have a pre-trial before the actual trial
begins. A threadbare discussion of various
facts and circumstances, as they emerge
from the allegations made against the
accused, is being purposely avoided by the
Court for the reason, lest the same might
cause any prejudice to either side during trial.
But it shall suffice to observe that the perusal
of the F.I.R. and the material collected by the
Investigating Officer on the basis of which
the charge sheet has been submitted makes
out a prima facie case against the accused at
this stage and there appear to be sufficient
ground for proceeding against the accused. I
do not find any justification to quash the
charge sheet or the proceedings against the
applicant arising out of them as the case does
not fall in any of the categories recognized by
the Apex Court which may justify their
quashing.

13. The prayer for quashing the same
is refused as I do not see any abuse of the
court's process either.

14. The application therefore cannot
be allowed and stands dismissed.
----------
(2020)1ILR 478

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.11.2019

BEFORE
THE HON'BLE DINESH KUMAR SINGH-I, J.

Application U/S 482 Cr. P.C. No. 37082 of 2019

Dileep & Ors. ...Applicants
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
Sri Rakesh Kumar Shukla

Counsel for the Opposite Parties:
A.G.A., Sri Rajendra Prasad

A. Application u/s 482 Cr.P.C. - Quashing
of entire proceedings on the basis of
1 All. Dileep & Ors. Vs. State of U.P. & Ors.
479
compromise between the parties -Since
the allegation made against the accusedapplicant no. 1 is that of committing rape
upon the victim as she being a minor and
any physical relationship with the victim
would fall in the category of rape in view
of law cited above in Independent
thought case- At this stage, it cannot be
said that no prima- facie offence is made
out against the accused-applicant no. 1Role of other co-accused was also to the
extent of having cooperated in the
commission of the said offence. No
interference under inherent jurisdiction
to quash the proceedings.

Criminal Misc. Application u/s 482 Cr.P.C.
rejected. (E-3)

List of cases cited: -

1. Ashiq Vs. St. of Kerala 2019 2 KLT 1130

2. Freddy @ Antony Francis & ors Vs. St. of
Ker. rep. by the Public Prosecutor & ors, 2018
1 KLD 558

3. Independent Thought Vs. UOI & anr, (2017)
10 SCC 800

(Delivered by Hon'ble Dinesh Kumar
Singh-I, J.)

1. Heard Sri Rakesh Kumar Shukla,
learned counsel for the applicants, Sri
Rajendra Prasad, learned counsel for
opposite party no.2, Sri G.P. Singh learned
A.G.A. appearing for the State and
perused the record.

2. This application under Section 482
Cr.P.C has been moved with a prayer to
quash the entire proceedings of Special
Case No. 85 of 2017 (State vs. Sitaram and
others) arising out of Case Crime No. 347
of 2016, under section 363, 366, 376 IPC
and section 3/4 of POCSO Act, P.S.
Samther, District Jhansi on the basis of
compromise arrived at between the parties
and also a prayer is made to stay the
proceedings in this case till the disposal of
this application.

3. From the side of the learned
counsel for the applicant it is mentioned in
the affidavit filed in support of the
application that the accused-applicant no.
1 and opposite party no. 3 were in love
with each other. The opposite party no. 3
is an illiterate lady and has never studied
in any school, however, as per her
personal knowledge, she was major in the
year 2016. The accused-applicant no.1 and
opposite party no. 3 would to solemnize
their marriage with each other after
consent of the family members but the
family members of opposite party no. 3
were not ready to solemnize the marriage,
hence the opposite party no. 3 left her
parents' house of her own free will, whereafter the opposite party no. 2 had lodged
FIR against the applicants on 21.10.2016
which has been registered as Case Crime
No. 347 of 2016 under section 363, 376,
506 IPC and section 8 of POCSO Act, P.S.
Samther, District Jhansi. Pursuant to the
said FIR, police recovered the opposite
party no. 3 on 26.10.2016 and was given
in custody of her parents and due to being
in custody of her parents, under coercion
of her parents, she has given statement
under section 164 Cr.P.C. against the
applicants but even in that statement she
has not made any allegation of rape
against the applicant. But despite that the
police has filed charge-sheet against the
applicant no.1 on 24.01.2017 and against
the accused applicant nos. 2 and 3 on
31.03.2017 under sections 363, 376 IPC
and section 8 POCSO Act. Later on in the
year 2018, the family members of the
applicants as well as the family members
of the opposite party nos. 2 and 3 were
ready to solemnize the marriage of the
480 INDIAN LAW REPORTS ALLAHABAD SERIES
opposite party no. 3 with the applicant
no.1 and accordingly, the same was
solemnized in Shiva Adarsh Vivah Samiti,
Rani Luxmi Bai Nagar on 12.4.2018,
regarding which marriage certificate has
been issued by the said institution on the
same day, which is annexed as Annexure4.Thereafter, the opposite party nos. 2 and
3 and the applicants entered into a
compromise on 09.07.2019 to the effect
that the opposite party nos. 2 and 3 do not
want to pursue the criminal case against
the applicants and would withdraw the
said case, a compromise deed dated
09.07.2019 is annexed as Annexure-6. The
trial court has taken cognizance over the
charge-sheet because offence has been
committed and bears Special Case No.85
of 2017 State vs. Sita Ram and others and
till date no witness has been examined,
which is revealed from the order sheet,
copy of which is annexed as Annexure-7.
Due to the compromise, there is no need to
proceed further in this case as the
applicant no. 1 and opposite party no. 3 are
living happily as husband and wife and
both the opposite party nos. 2 and 3 did
not want to contest this case and therefore
it was prayed that the proceedings of the
case should be quashed.

4. From the side of opposite party no.
2, short counter affidavit has been filed on
14.10.2019, in paragraph no. 6 of the said
affidavit, it has been mentioned by her that
keeping the wishes of her daughter i.e. the
opposite party no.3, the opposite party no.
2 later on became ready to solemnize the
marriage of opposite party no. 3 with the
accused-applicant no. 1 and with the
interference of some respective family
members of both the sides, marriage was
performed on 12.04.2018 and further it is
mentioned that she does not want to press
the Special Case No. 85 of 2017 which is
proceeding before the trial court under the
abovementioned sections. The opposite
party no. 3 has also filed short counter
affidavit dated 14.10.2019 in which she
has stated that the opposite party no. 3 is
her mother and that due to being in love
with the accused-applicant no. 1, she
wanted to solemnize the marriage with
him but the same was being opposed by
the opposite party no. 2. Thereafter,
opposite party no. 3 left her parental house
by which opposite party no. 2 became
annoyed and got the FIR registered against
the accused-applicant on 21.10.2016. Both
she as well as her mother have given
wrong statement before the court below
under section 164 Cr.P.C. Subsequently,
the opposite party no. 2 became ready to
solemnize her marriage with the accusedapplicant no.1. Pursuant to which their
marriage was performed on 12.04.2018
and now they are residing happily as
husband and wife. She as well as opposite
party
no.
2
have
entered
into
a
compromise
with
the
applicants
on
09.07.2019,
which
is
annexed
as
Annexure-1 to the short counter affidavit
and that she does not want to press the
Special Case No. 85 of 2017.

5. Learned counsel for the applicant
has relied upon the judgment of Keral
High Court passed in the case of Ashiq vs.
State of Kerala 2019 2 KLT 1130,
paragraph nos. 4 and 5 of this judgment
which are as follows:

"4. It is by now well settled that
grave and serious offences as the one
under Sec.376 (rape) of the I.P.C. cannot
be the subject matter of quashment of the
impugned criminal proceedings on the
ground of settlement between the accused
and the victim. (see Shimbhu v. State of
Haryana,
[(2014)
13
SCC
1 All. Dileep & Ors. Vs. State of U.P. & Ors.
481
318],Parbatbhai Aahir v. State of Gujarat,
[(2017) 9 SCC 641], Anita Maria Dias
v.State of Maharashtra, [(2018) 3 SCC
290], Sebastian @ Solly v. State of Kerala,
[(2015) 1 KLJ 384). However, this Court
has held in various decisions including the
one as inFreddy @ Antony Francis v.
State of Kerala, [2017 KHC 344 = 2018
(1) KLD 558) that the exception to the
above approach could be in cases where
the accused has married the defacto
complainant and they have decided to
settle all the disputes and for the
predominant purpose of the welfare of the
defacto complainant/victim, to ensure her
better future life, it is only just and proper
that this Court in exercise of the extra
ordinary inherent powers under Sec.482 of
the Cr.P.C. could quash the impugned
criminal proceedings on the ground of
settlement between the parties in cases
where the accused has married the defacto
complainant and the defacto complainant
is insisting for quashment of the impugned
criminal proceedings, etc."

"5. In the light of the abovesaid
aspects, more particularly in the light of
the
submission
made
by
the
2ndrespondent, this Court is inclined to
consider the plea for quashment of
impugned
criminal
proceedings
as
otherwise it will detrimentally affect the
family life of 2ndrespondent (victim), and
even the balance and harmony that could
be achieved by them in the resolution of
disputes that again be irrecoverably lost .
It is in the light of these aspects that all
further proceedings in the impugned
Anx.A-1 final report/charge sheet filed in
Crime No. 734/2014 of Binanipuram
Police Station, which has now led to the
institution of S.C. No. 533/2015 on the file
of the Addl. Sessions Court (For the trial
of cases relating to atrocities and sexual
violation against women and children),
Ernakulam, and all further proceedings
taken in pursuance thereof against the
petitioner (accused) will stand quashed.
The petitioner will produce a certified
copy of this order before the Sessions
Court
concerned
and
before
the
Investigating
Officer
concerned
for
necessary information."

6. Further, reliance has been placed
by the learned counsel for the applicants
on the judgment of Kerala High Court in
the case of Freddy @ Antony Francis
and
others
vs.
State
of
Kerala,
represented by the Public Prosecutor
and others, 2018 1 KLD 558, paragraph
nos. 7, 8 and 9 of which are as follows:

"7.The legal position with regard
to quashing of proceedings on the basis of
compromise between the parties is by now
well settled. It has been held that the
power of the High Court in quashing a
criminal proceeding or FIR or complaint
in exercise of its inherent jurisdiction is
distinct and different from the power given
to a criminal Court for compounding the
offences under S.320 of the Code. In what
cases power to quash the criminal
proceeding or complaint or FIR may be
exercised where the offender and victim
have settled their dispute would depend on
the facts and circumstances of each case
and no category can be prescribed.
However, before exercise of such power,
the Court will have to give due regard to
the nature and gravity of the crime. It is
also settled that heinous and serious
offences of mental depravity or offences
like murder, rape, dacoity, etc., cannot
quashed even though the victim or victim's
family and the offender have settled the
dispute. Such offenses are not private in
nature and have serious impact on society.
The directions of the Apex Court in Gian
482 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh v. State of Punjab [(2012) 10 SCC
303] and inNarinder Singh v. State of
Punjab[(2014) 6 SCC 466] serve as
guiding lights."

8. In so far as the offence of rape
is concerned, there cannot be any doubt
that the same cannot be settled on the
strength of a compromise arrived at
between the victim and the accused. The
Apex Court inState of M.P.v.Madan
Lal((2015) 7 SCC 681), relying on the
decision
inShimbhuv.State
of
Haryana((2014) 13 SCC 318) has clearly
reminded the Courts that rape is a noncompoundable offence and it is an offence
against the society and is not a matter to
be left for the parties to compromise and
settle. This was because of the fact that the
Court cannot always be assured that the
consent
given
by
the
victim
in
compromising the case is a genuine
consent. There is every chance that the
victim might have been pressurised by the
convicts or the trauma undergone by her
all the years might have compelled her to
opt for a compromise. In such cases, the
accused may use all his influence to
pressurise the victim for a compromise. It
was taking note of this aspect that it was
held that it would not be safe in
considering the compromise arrived at
between the parties in rape cases.
InMadan Lal(supra) the Apex Court was
hearing an appeal filed by the State
against the Judgement of the High Court
by which the conviction arrived at by the
Trial Court was set aside on the basis of a
compromise arrived at between the victim
and the accused."

"9.It is borne out from the
statement recorded by the Sub Inspector of
Police of the 2ndpetitioner that the parties
were in love and the Crime was registered
when the 2ndpetitioner was under the
impression that the 1stpetitioner would
resile from his earlier promise. However,
in view of the subsequent turn of events,
she has realized that her apprehension
was baseless. The parties are living
together as husband and wife. There is no
case for anyone that the dignity of the
2ndpetitioner was violated by a wanton act
of the 1stpetitioner. This is not one of
those cases wherein the allegations reek of
extreme depravity, perversity or cruelty. It
cannot be said that the offence in the
instant case would fall in the category of
offences that have a serious impact on
society. In the peculiar facts of the instant
case, grave hardship and inconvenience
will be caused to the 2ndpetitioner, if the
prosecution is permitted to continue. When
the 2ndpetitioner has asserted that she is
not desirous of prosecuting her husband
any further, the prospects of an ultimate
conviction is remote and bleak. Further
more, the 2ndpetitioner can continue with
her life with dignity and respect. Having
considered all the relevant circumstances,
I am of the considered view that this is a fit
case in which this Court will be well
justified in invoking its extra ordinary
powers under Section 482 of the Code to
quash the proceedings."

7. On the other hand, learned A.G.A.
has vehemently opposed the prayer for
quashing of the proceedings and has also
drawn the attention of the Court to the
judgment of Apex Court rendered in
Independent Thought vs. Union of India
and another, (2017) 10 SCC 800,
paragraph nos. 1 and 107 of which are as
under:

"1.The issue before us is a
limited but one of considerable public
importance ? whether sexual intercourse
between a man and his wife being a girl
between 15 and 18 years of age is rape?
1 All. Dileep & Ors. Vs. State of U.P. & Ors.
483
Exception 2 to Section 375 of the Penal
Code, 1860 (IPC) answers this in the
negative, but in our opinion sexual
intercourse with a girl below 18 years of
age is rape regardless of whether she is
married or not. The Exception carved out
in IPC creates an unnecessary and
artificial distinction between a married
girl child and an unmarried girl child and
has no rational nexus with any unclear
objective sought to be achieved. The
artificial distinction is arbitrary and
discriminatory and is definitely not in the
best interest of the girl child. The artificial
distinction is contrary to the philosophy
and ethos of Article 15(3) of the
Constitution as well as contrary to Article
21
of
the
Constitution
and
our
commitments in international conventions.
It is also contrary to the philosophy behind
some statutes, the bodily integrity of the
girl child and her reproductive choice.
What is equally dreadful, the artificial
distinction turns a blind eye to trafficking
of the girl child and surely each one of us
must discourage trafficking which is such
a horrible social evil."

"107. On a complete assessment
of the law and the documentary material, it
appears that there are really five options
before us: (i) To let the incongruity remain
as it is? This does not seem a viable option
to us, given that the lives of thousands of
young girls are at stake; (ii) To strike
down as unconstitutional Exception 2 to
Section 375 of the IPC? in the present case
W.P. (C) No. 382 of 2013 Page 68 this is
also not a viable option since this relief
was given up and no such issue was raised;
(iii) To reduce the age of consent from 18
years to 15 years ? this too is not a viable
option and would ultimately be for
Parliament to decide; (iv) To bring the
POCSO Act in consonance with Exception
2 to Section 375 of the IPC ? this is also
not a viable option since it would require
not only a retrograde amendment to the
POCSO Act but also to several other prochild statutes; (v) To read Exception 2 to
Section 375 of the IPC in a purposive
manner to make it in consonance with the
POCSO Act, the spirit of other pro-child
legislations and the human rights of a
married girl child. Being purposive and
harmonious constructionists, we are of
opinion that this is the only pragmatic
option available. Therefore, we are left
with absolutely no other option but to
harmonize the system of laws relating to
children and require Exception 2 to
Section 375 of the IPC to now be
meaningfully read as: "Sexual intercourse
or sexual acts by a man with his own wife,
the wife not being under eighteen years of
age, is not rape." It is only through this
reading that the intent of social justice to
the
married
girl
child
and
the
constitutional vision of the framers of our
Constitution
can
be
preserved
and
protected and perhaps given impetus."

8. It is also argued by the learned
A.G.A. that as per FIR, the victim is below
18 years of age and hence she would be
treated a child and therefore, the offence
under section 3⁄4 POCSO Act would stand
made out apart from offence under section
376 IPC in view of position of law.

9. It is further argued by the learned
A.G.A. that in the statement under section
164 Cr.P.C., which is annexed at page 28
of the paper book, she herself has stated
her age to be 16 years, hence admittedly
she was minor on the date of occurrence
and she has further stated therein that in
the night of 14.10.2016 at about 1.00-2.00
A.M. accused-applicant nos. 1, 2 and 3
came to her house and had forcibly taken
her away after shutting her sister in a room
484 INDIAN LAW REPORTS ALLAHABAD SERIES
and thereafter all of them had taken her to
the house of Nata where she was kept in a
room and she lived there for about 12
days. On 26.10.2016 the family members
of the accused-applicant no. 1 had taken
her away to Sharda temple, Moth and
when they all were standing near the said
temple, the police came there and took her
away along with her family members to
Police Station. Drawing the attention of
the said statement made under section 164
Cr.P.C., it is argued by the learned A.G.A.
that she has supported the prosecution
version
as
given
in
the FIR
and
subsequently it is admitted by the
applicants that she has married the
accused-applicant no. 1 which is not
permissible under law the victim being
minor.

10. As regards compromise for
offence under section 376 IPC, law laiddown by Supreme Court in Gian Singh vs.
State of Punjab and another, 2012(10)
SCC
303
specifically
bars
any
compromise even if the parties have
settled the matter, which is quoted herein
below.

"61. The position that emerges
from
the
above discussion
can
be
summarised thus: the power of the High
Court in quashing a criminal proceeding
or FIR or complaint in exercise of its
inherent
jurisdiction
is
distinct
and
different from the power given to a
criminal court for compounding the
offences under Section 320 of the Code.
Inherent power is of wide plenitude with
no statutory limitation but it has to be
exercised in accord with the guideline
engrafted in such power viz; (i) to secure
the ends of justice or (ii) to prevent abuse
of the process of any Court. In what cases
power to quash the criminal proceeding or
complaint or F.I.R may be exercised where
the offender and victim have settled their
dispute would depend on the facts and
circumstances of each case and no
category can be prescribed. However,
before exercise of such power, the High
Court must have due regard to the nature
and gravity of the crime. Heinous and
serious offences of mental depravity or
offences like murder, rape, dacoity, etc.
cannot be fittingly quashed even though
the victim or victim's family and the
offender have settled the dispute. Such
offences are not private in nature and have
serious impact on society. Similarly, any
compromise between the victim and
offender in relation to the offences under
special
statutes
like
Prevention
of
Corruption Act or the offences committed
by public servants while working in that
capacity etc; cannot provide for any basis
for
quashing
criminal
proceedings
involving such offences. But the criminal
cases having overwhelmingly and predominatingly
civil
flavour
stand
on
different footing for the purposes of
quashing, particularly the offences arising
from commercial, financial, mercantile,
civil, partnership or such like transactions
or the offences arising out of matrimony
relating to dowry, etc. or the family
disputes where the wrong is basically
private or personal in nature and the
parties have resolved their entire dispute.
In this category of cases, High Court may
quash criminal proceedings if in its view,
because of the compromise between the
offender and victim, the possibility of
conviction is remote and bleak and
continuation of criminal case would put
accused to great oppression and prejudice
and extreme injustice would be caused to
him by not quashing the criminal case
despite full and complete settlement and
compromise with the victim. In other
1 All. Anil @ Anil Kumar Vs. State of U.P. & Anr.
485
words, the High Court must consider whether it
would be unfair or contrary to the interest of
justice to continue with the criminal proceeding
or continuation of the criminal proceeding would
tantamount to abuse of process of law despite
settlement and compromise between the victim
and wrongdoer and whether to secure the ends of
justice, it is appropriate that criminal case is put
to an end and if the answer to the above
question(s) is in affirmative, the High Court shall
be well within its jurisdiction to quash the
criminal proceeding."

11. The benefit of Ashiq's case
(Supra), Freddy @ Antony Francis's
case (Supra) may not be given due to the
provisions of law cited above in Gian
Singh's case (Supra) and Independent
thought's case (Supra), which are the
judgments of Hon'ble Supreme Court.

12. In the present case, since the
allegation made against the accusedapplicant no. 1 is that of committing rape
upon the victim as she being a minor and
any physical relationship with the victim
would fall in the category of rape in view
of law cited above in Independent
thought case. At this stage, it cannot be
said that the offence alleged against the
accused-applicant no. 1 is not made out
prima-facie. The role of the other coaccused was also to the extent of having
cooperated in the commission of the said
offence. This Court does not deem it
proper to make any interference in this
case under inherent jurisdiction to quash
the proceedings.

13. In view of the above, the
application deserves to be dismissed and is
accordingly dismissed.

14. However, the applicant may
approach the trial court to seek discharge
at appropriate stage, if so advised, and
before the said forum, he may raise all the
pleas which have been taken by him here.
If such an application is moved, the same
shall be disposed of without being
influenced by the observation made by this
Court.

15. The applicant shall appear before
the court below within 30 days from today
and may move an application for bail. If
such an application is moved within the
said time limit, the same would be
disposed of in accordance with law. For a
period of 30 days, no coercive action shall
be taken against the accused-applicant in
the aforesaid case. But if the accused does
not appear before the court below, the
court below shall take coercive steps to
procure his attendance.
----------
(2020)1ILR 485

ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.11.2019

BEFORE
THE HON'BLE AJIT SINGH, J.

Application U/S 482 Cr. P.C. No. 39546 of 2019

Anil @ Anil Kumar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Vijay Kumar Dwivedi, Sri Surendra
Tiwari

Counsel for the Opposite Parties:
A.G.A.,
Sri
Akhilesh
Srivastava,
Sri
Saksham Srivastava

A. Code of Criminal Procedure - Section
319
-
Summoning
order-The
Investigating Officer found the accused
-applicant not present at the place of