Bombay High Court
Parag S/O. Digambar Raut vs State Of Maharashtra Thr. Police … on 20 February, 2018
Bench: Ravi K. Deshpande
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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                               NAGPUR BENCH, NAGPUR



              CRIMINAL APPLICATION (APL) NO.160 OF 2017



  Parag s/o. Digambar Raut,
  Aged 25 years, Occ. Student,
  r/o. Chulezari, Laxmi Nagar,
  Nagbhid, District Chandrapur.           ..........      APPLICANT



          // VERSUS //



  1.State of Maharashtra,
     Through Police Station Officer,
     Police Station, Gittikhadan,
     Distt. Nagpur.

  2.Sanchita Sanjiv Kasturwar,
     Aged 25 years, Occ. Private,
     r/o. Pannase Layout, Flat
     No.89, Gajraj Heights, Perfect
     Co-op. Housing Society,
     Gittikhadan, Nagpur, Tq.
     and Distt. Nagpur.                     ..........       RESPONDENTS




::: Uploaded on - 22/02/2018                   ::: Downloaded on - 24/02/2018 01:40:05 :::
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  ____________________________________________________________  
              Mr.Ankit S. Ambatkar, Advocate for the Applicant.
         Mrs.K.R.Deshpande, A.P.P. for Respondent No.1/State.
               Mr.A.Z.Mirza, Advocate for Respondent No.2.
  ____________________________________________________________



                                               CORAM     :  R.K.DESHPANDE 
                                                                    AND
                                                                    M.G.GIRATKAR, JJ.

DATED : 20th February, 2018.

ORAL JUDGMENT (Per M.G.Giratkar, J) :

1. The Criminal Application is admitted and heard finally with the consent of learned Counsel for the respective parties.

2. The applicant has challenged the action of respondent no.1 Police Station Officer, Gittikhadan Police Station, Nagpur for registration of Crime No.216 of 2016 on the basis of report lodged by respondent no.2, for the offence punishable under Section 376 (2)

(n) of the Indian Penal Code.

3. The case of applicant, in short, is as under :

3 apl160.17.odt On 29.6.2016, respondent no.2 lodged report at Police Station, Dhantoli. Crime No.0435/2016 was registered for the offence punishable under Sections 341504 and 506 of the Indian Penal Code. In the said complaint, it was alleged by the complainant/respondent no.2 that she is knowing the applicant since last five years. On 28.5.2016, there was a quarrel between the applicant and respondent no.2. It was alleged that, on 17.6.2016, when she was passing from Rahate Colony near Mundle High School, two unknown persons came there and threatened her saying that if she will try to contact the applicant, they will kill her and her family members.

4. On 1.7.2016, again respondent no.2 lodged report in Police Station, Gittikhadan alleging that she was in love with the applicant since the last five years. On several occasions, he established physical relations with her. It was alleged that, on 28.5.2016, at 12.30 p.m., applicant called her at his room and committed forcible intercourse with her. It was alleged that the said incident was reported by her to mother of applicant at Nagbhid. On the basis of said report, offence was registered against the applicant 4 apl160.17.odt for the offence punishable under Section 376(2)(n) of the Indian Penal Code.

5. It is submitted that, from the perusal of allegations in the F.I.R., it can be seen that the allegations made in the report are improbable. There is no sufficient ground for proceeding against the applicant. The First Information Report is wrongly registered against the applicant. Even the contents of F.I.R. if taken at their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the applicant.

6. On 31.5.2016, respondent no.2 threatened the mother of applicant that if they protest her marriage with applicant, she would implicate all the family members in a false case. Mother of applicant lodged report at Police Station, Nagbhid on 3.6.2016. N.C. was registered against respondent no.2 for the offence punishable under Section 506 of the Indian Penal Code. On 12.6.2016, respondent no.2 made a phone call to the mother of applicant in filthy language. Said incident was also reported at Police Station, Nagbhid on 12.6.2016 and N.C. was registered to that effect. The respondent no.2 threatened the father of applicant on 29.6.2016 when he had 5 apl160.17.odt been to Nagpur. Respondent No.2 demanded money from the father of applicant. The applicant and the respondent no.2 were directed to appear before N.G.O. namely Olava Mahila Bahuuddeshiya Seva Sanstha, Nagpur, where respondent no.2 demanded Rs.2,00,000/- from the applicant. Since the money was not given to respondent no.2, she lodged false report against him. At last, prayed to quash and set aside the F.I.R. registered against the applicant vide Crime No.216 of 2016 for the offence punishable under Section 376(2)(n) of the Indian Penal Code.

7. Heard Mr.A.S.Ambatkar, learned Counsel for the applicant. He has pointed out report lodged by the mother of applicant. He has pointed out the report lodged by respondent no.2 dt.29.6.2016. Learned Counsel has pointed out the report dt.1.7.2016. He has pointed out that, for the first time, in the report dt.1.7.2016, respondent no.2 made allegations about forcible sexual intercourse with her. He has submitted that respondent no.2 is aged about 25 years. As per her contention, she was in love with the applicant since last five years before the report. Even if the allegations in the report are taken as it is, then also offence alleged against the applicant cannot be established.

6 apl160.17.odt

8. Heard Mrs.K.R.Deshpande, learned A.P.P. for respondent/State and Mr.A.Z.Mirza, learned Counsel for respondent no.2. They have supported the action of respondent no.1. Learned Counsel Shri. Ambatkar has pointed out the order passed by J.M.F.C. Court No.9, Nagpur and submitted that the applicant is discharged for the offences punishable under Sections 341506 (b), 109 of the Indian Penal Code for the crime registered by Police Station, Dhantoli on the report of respondent no.2, dt.17.6.2016. Certified copy of order is marked ‘X’.

9. From the perusal of report lodged by respondent no.2, dt.29.6.2016, she had nowhere alleged about forcible sexual intercourse dt.28.5.2016 as alleged in the report dt.1.7.2016. Before the report of respondent no.2, mother of applicant lodged report against the respondent no.2 dt.3.6.2016 and 12.6.2016. Both the reports were registered as N.C.

10. It was alleged by mother of the applicant that respondent no.2 quarreled with her stating that she had love affair with the applicant since last five years. It was alleged by mother of 7 apl160.17.odt applicant against respondent no.2 that respondent no.2 abused her in filthy language and threatened to implicate them in false case.

11. In the report dt.29.6.2016, respondent no.2 made allegation that, on 28.5.2016 there was a quarrel with the applicant. On 17.6.2016, she was going from Rahate Colony. When she reached near Mundle High School, two unknown persons came to her on bullet. She was stopped. They threatened her that if she makes any allegation against the applicant, she will be killed. Both of them threatened her. She lodged report in Police Station, Dhantoli on 29.6.2016.

12. Charge sheet was filed before the Judicial Magistrate, First Class, Nagpur vide Regular Criminal Case No.3070 of 2017. Applicant moved application for discharge. Learned Judicial Magistrate, First Class passed the order below Exh.12 (discharge application). Learned J.M.F.C. recorded it’s finding that the Investigating Officer could not collect any evidence at all to connect the applicant (accused) with the incident alleged against him. Therefore, applicant came to be discharged. (copy of order is marked as ‘ Annexure-X’).

8 apl160.17.odt

13. In the report dt.1.7.2016, respondent no.2 alleged that, in the year 2011, she started love relationship with the applicant. Between the period from 2012 to 2016, she had sexual relations with the applicant. Sexual relations were with her consent. Applicant promised to marry her. She had sexual relations with the applicant for several times. It is alleged by her in the report that, on 28.5.2016, in the afternoon, at about 12.30 applicant called her at his room. Applicant forced her for sexual intercourse. Applicant did forcible sexual intercourse with her. Applicant refused to marry with her. On 17.6.2016, two unknown persons threatened her stating that she should not file any complaint against the applicant. Therefore, she lodged report against the applicant.

14. In the report, she has stated the incident dt.28.5.2016 about forcible sexual intercourse with her by the applicant. The said report is dt.1.7.2016 alleging commission of rape by the applicant. Before the report dt.1.7.2016, applicant lodged report on 29.6.2016. But, in the said report, she did not disclose about the incident of 28.5.2016.

9 apl160.17.odt

15. From the perusal of reports dt.3.6.2016 and 12.6.2016 lodged by the mother of the applicant, it is clear that respondent no.2 threatened the mother of applicant.

16. The police had filed charge sheet against the applicant on the basis of report dt.29.6.2016. Learned Judicial Magistrate, First Class passed order below Exh.12 and discharged the applicant in Criminal Case No.1370 of 2017.

17. From the face value of report dt.1.7.2016, it is clear that the applicant was in love since 2012. Applicant had sexual relations with respondent no.2 several times during the period of five years. She had no complaint. In the last para of report, she has stated that, on 17.6.2016, two unknown persons obstructed her and threatened her. Therefore, she lodged report on 1.7.2016.

18. Learned Counsel Mr.Ambatkar has pointed out Judgment of Division Bench of this Court in Criminal Application No.111 of 2017, to which one of us (M.G.Giratkar, J) was the party. This Court has quashed and set aside the F.I.R. for the offence punishable under Section 376 of the Indian Penal Code.

10 apl160.17.odt

19. From the face value of report lodged by respondent no.2, it is clear that the offence punishable u/s.376(2)(n) of the Indian Penal Code is not made out. Hence, in view of Judgment of Hon’ble Apex Court in the case of 1992 Supp (1) SCC 335, State of Haryana .vs. Bhajan Lal, the crime registered by respondent no.1 for the offence punishable under Section 376(2)(n) of the Indian Penal Code is liable to be quashed and set aside. Hence, we pass the following order :

//ORDER// Application is allowed in terms of prayer clause (i).

We quash and set aside the First Information Report No.216 of 2016 registered by respondent no.1 Police Station, Gittikhadan against the applicant for the offence punishable under Section 376(2)(n) of the Indian Penal Code on the basis of report lodged by respondent no.2, dt.1.7.2016.

                                      JUDGE                           JUDGE
   
  [jaiswal]



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