Dismissed

Naushad v. State of U.P.and Another

Allahabad HC15 May 2023A482/36795/2016

Case brief

AI extract

What is this about?

The Court dismissed a petition under Section 482 Cr.P.C. seeking to quash criminal proceedings for rape and other offences. The High Court held that the impugned order was not an abuse of process of law and noted well-settled law that not all witnesses need be examined prior to summoning an accused in cases triable by the Sessions Court.

What did the court decide?

Petition under Section 482 Cr.P.C. dismissing the application and maintaining criminal proceedings.

Naushad Vs State of U.P.and Another — Criminal Trial and Appeal | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:106069 RESERVED ON - 20/03/2023 DELIVERED ON - 15/052023

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Court No. - 68

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Case :- APPLICATION U/S 482 No. - 36795 of 2016

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Applicant :- Naushad Opposite Party :- State Of U.P.And Another Counsel for Applicant :- Mohammad Waseem,Mohd. Abrar Khan,Mohd. Ishraque Farooqui Counsel for Opposite Party :- G.A.,Amit Kumar Pandey

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Hon'ble Mrs. Manju Rani Chauhan,J.

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Heard Mr. Mohd. Abrar Khan, learned counsel for the applicant, Mr. M.I. Farooqui, learned counsel for the opposite party and Mr. K.P. Pathak, learned AGA for the State.

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Brief facts of the case are that an application u/s 156 (3) Cr.P.C. was filed by opposite party no. 2 against the applicant with the allegations that the applicant established physical relationship on pretext of promise to marry her. It has been further alleged that she was physically exploited on 21.06.2015 and the aforesaid attempt was made on 12.07.2015 at night when the applicant touched her body while she was sleeping and caught hold of her, when objection was raised by her, the applicant using abusive language, passes a remark that she is a lady of easy virtues and no person would be ready to marry her.

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The aforesaid application was treated as complaint case by order dated 20.01.2016. After recording the statements under section 200 and 202 Cr.P.C. as required, the applicants have been summoned u/s 376, 504, 506 IPC.

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Being aggrieved by the summoning order a revision was preferred on the ground that the summoning order was nothing but an abuse of process of law as the statements of the prosecutrix and the witnesses were contrary. The aforesaid revision has been rejected by the order dated 13.10.2016 hence the present petition was filed by the applicant.

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Learned counsel for the applicant submits that opposite party no. 2 had strained relationship with the family of the applicant, who happened to be son of Jeth of the sister of opposite party no. 2, therefore, the present complaint has been filed with false and frivolous allegations. He further submits that opposite party no. 2 is a major lady and physical relationship was established with her consent, therefore, the same would not amount to commission of rape, hence no offence under relevant section is made out. He further submits that there are variations in the statements of prosecutrix and the witnesses which have not been appreciated by the concerned court while summoning the applicant. There is no exact date of incident mentioned in the complaint as well as statement available on record.

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The proceedings of the present case have been challenged on three grounds. Firstly, the applicant has been falsely implicated in the aforesaid case due to strained relationship. Secondly, no offence under section 376 IPC is made out as the opposite party no. 2, is a major lady, who has married twice and if any physical relationship was established by the applicant it was with her consent. It has also been emphasized that the allegations regarding establishment of physical relationship on pretext of promise to marry cannot be believed as there was no possibility of marrying opposite party no. 2 as her second marriage still subsisted. Thirdly, a legal submission has been raised wherein it has been stated that the impugned orders

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have been passed ignoring the provision of section 202(2) Cr.P.C. wherein it has been stated that in case the Magistrate finds that the case exclusively triable by court of session then prior to summon of the accused, all the witnesses of the complainant should be examined.

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Learned counsel for the applicant placing reliance upon the judgment of Hon’ble Apex Court in case of Pramod Suryabhan Pawar Vs. The State of Maharastra and another passed in Criminal Appeal No. 1165 of 2019 (@SLP(Crl.) No. 2712 of 2019) submits that the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. In the present case the relation between the applicant and opposite party no. 2 having established with consent without the intention to cheat. Therefore, the offence under relevant sections is not made out. Relying upon another judgment of Hon’ble Apex Court in Case of Prashant Bharti Vs. State (NCT of Delhi) repoted in (2013) 9 Supreme Court Cases 293 , the counsel for the applicant submits that the consent of the applicant was not based on any false assurance of marriage and the consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Therefore, the continuance of proceedings amounts to abuse of process of law hence is liable to be quashed.

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Learned counsel for the opposite party as well as learned AGA on the other hand submit that any consent for physical relationship given under fear of injury or under a misconception of

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fact and any physical relationship without consent of a woman, constitute an offence, therefore, considering the said aspect and relying upon the statement of the victim, who in the present case has not given her consent as is evident from her statement recorded u/s 200 Cr.P.C. A presumption can be drawn under Section 114-A of the Indian Evidence Act, 1872 that the victim had not given any consent for establishing physical relationship. It is next contended that on one hand marriage between the two (applicant and the victim) could not take place as the victim was already married and her second marriage still subsists, and the other in respect to establishing any relationship under false promise with the assurance of marriage, stating that the physical relationship was established with the consent of victim; both stands cannot sustain together as also from the version in the first information report as well as statement of the victim, it is clear that physical relationship was established under a misconception. Hence, the offence under relevant sections is made out.

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Learned counsel for the opposite party no. 2 relying upon the judgement of Hon’ble Apex Court in Case of Anurage Soni Vs. State of Chhatisgarh reported in 2019 0 Supreme(SC) 445 states that the Courts have been carefully drawing clear distinction between rape and consensual sex while elaborating the meaning of consent. In facts of the present case, physical relationship so established by the applicant cannot be said to be with consent of the victim. Relying upon another judgment of Hon’ble Apex Court in Case of State of U.P. Vs. Naushad 2013 0 Supreme(SC) 1043 , learned AGA as well as learned counsel for the opposite party no. 2 submit that six descriptions of an offence of rape have been enumerated in the aforesaid judgement. The present case also falls in one of those categories where physical relationships have been

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established with a false promise to marry, hence under such misconception, the presumption has to be drawn in favour of the victim who has supported the version of prosecution by her statements.

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With respect to the last submission made by learned counsel for the applicant regarding examination of all witnesses prior to summon the applicant, it is well settled that in several cases including the case of Vijay Dhanuka Etc vs Najima Mamtaj Etc, 2014 (14) SCC 638 that there is no need to examine all the witnesses before issuing the process. The said judgement has been followed in the cases of Abhijit Pawar Vs. Hemant Maudhukar Nimbalkar and Another, 2017 (3) SCC 528 , Shivjee Singh vs. Nagendra Tiwary and others, 2010 (7) SCC 578, Chandra Deo Singh vs Prokash Chandra Bose alias Chabi Bose & Anr, AIR 1963 SC 1430, Kewal Krishan Vs. Suraj Bhan and another, AIR 1980 SC 1780 and Mohinder Singh vs Gulwant Singh And Others, 1992 (2) SCC 213 .

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In view of the aforesaid, no interference is required in this case.

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Accordingly, the present petition is dismissed .

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Order Date :- 15/05/2023 Arti

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Digitally signed by :- ARTI SHARMA High Court of Judicature at Allahabad

Naushad v. State of U.P.and Another

Case brief

What is this about?

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Naushad v. State of U.P.and Another

Case brief

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