Disposed

Anurag Kumar Kushwaha and Another v. State of U.P. Thru. Addl. Chief Secy. Deptt. of Home Lko. and Another

Allahabad HC21 Feb 2024A482/1465/2024

Case brief

AI extract

What is this about?

In this Section 482 Cr.P.C. petition, the High Court required the State to file a counter affidavit within four weeks while recording counsel arguments regarding false implication and consensual relations. The Court stayed coercive steps pending the next hearing.

What did the court decide?

Notice to opposite party No.2 to file counter affidavit; no coercive steps against applicants till next listing.

Anurag Kumar Kushwaha and Another vs State of… — Criminal Trial and Appeal | Allahabad HC (2024)

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Court No. - 11

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Case :- APPLICATION U/S 482 No. - 1465 of 2024

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Applicant :- Anurag Kumar Kushwaha And Another Opposite Party :- State Of U.P. Thru. Addl. Chief Secy. Deptt. Of Home Lko. And Another

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Counsel for Applicant :- Bharat Kumar Dixit,Anchal Verma Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Sri Vinod Kumar, Advocate holding brief of Sri Bharat Kumar Dixit, learned counsel for the petitioners and Sri Vishwanath Nishad, learned Additional Government Advocate for the State.

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2.Issue notice to opposite party No.2 returnable at an early date, for which, necessary steps be taken within a week.

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Office to proceed accordingly.

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By means of this petition filed under Section 482 Cr.P.C., the petitioners have prayed for the following relief:-

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"To pass an order thereby quashing the impugned order dated 19.01.2024 passed by the learned Additional District & Sessions Judge/ F.T.C.-II, Raebareli (Annexure No.1) by means of which the learned court has framed the charges under Sections 376, 504 & 506 I.P.C. against the petitioner No.1 (Sri Anurag Kushwaha) and under Sections 504 & 506 I.P.C. against the petitioner No.2 (Sri Prem Chandra Kushwaha) dated 19.01.2024 as well as entire proceedings of the Session Case No.457 of 2022 (State vs. Anurag Kumar Kushwaha and another), arising out of Case Crime No.35 of 2020, under Sections 376, 504 & 506 I.P.C., Police Station-Harchandpur, District-Raebareli."

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5. Learned counsel for the petitioners has submitted that the present petitioners have been falsely implicated in this case as they have not committed any offence as alleged in the F.I.R. and the charge-sheet. He has stated that in the F.I.R. itsel, it has been categorically alleged that physical relations between the petitioner No.1 and the victim was consensual, however, such relations were established on false promise of marriage. The aforesaid F.I.R. was lodged on 01.03.2020.

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6. Attention has been drawn towards Annexure No.7 of the petition whereby some correspondences of the victim with the Railway Department have been enclosed collectively. There is one letter dated 27.08.2019 preferred by the victim addressing to the Station Superintendent, Raebareli Railway Station, Raebareli apprising that she was known to the petitioners for

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quite sometime and both were agreed to get married just after marriage of elder brother of the petitioner No.1, however, they could not be married. In such application, she has categorically stated that the petitioner No.1 has not committed any illegal act with her, to be more precise the petitioner No.1 has not established any physical relation with her, therefore, she requested that no action be taken against the petitioner No.1 on her application dated 22.08.2019. One affidavit dated 27.08.2019 has also been enclosed wherein the victim/ prosecutrix has stated the same-thing which have been stated in the aforesaid application dated 27.08.2019.

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7. Learned counsel for the petitioners has filed one petition bearing Application (U/S 482 Cr.P.C.) No.1782 of 2020 (Anurag Kumar Kushwaha & another vs. State of U.P. & others) which was disposed of vide order dated 25.10.2021 giving liberty to the petitioners to appear before the court concerned by filing bail application. The petitioners appeared before the court concerned. Thereafter, the petitioner No.1 has been granted anticipatory bail by this Court vide order dated 04.04.2022. The petitioners have filed discharge application before the learned trial court but such discharge application has been rejected by the learned trial court on 05.12.2023 fixing the next date for 14.12.2023 for framing of the charges. The petitioners have also filed one application bearing Application (U/S 482 Cr.P.C.) No.12174 of 2023 (Anurag Kumar Kushwaha and another vs. State of U.P. and another) but the said application was dismissed being withdrawn on 14.12.2023 seeking liberty to file afresh.

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8. Learned Additional Government Advocate has stated that the Investigating Officer has erred in not considering the relevant aspect of Section 375 I.P.C. which defines the offence of rape wherein it has been indicated that to establish the offence of rape, the factum of consent must be missing. In the present case, even if any physical relation is established it was consensual, however, the petitioner No.1 has not established any physical relation with the victim/ prosecutrix.

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9. Further attention has been drawn towards the orders of Hon'ble Supreme Court passed on 12.08.2022 in the case is re: Shambhu Kharwar vs. State of Uttar Pradesh and another; Criminal Appeal No.1231 of 2022, Arising out of (SLP (Crl) No.7426 of 2022) (D No.16925 of 2019) and the order dated 21.08.2019 passed in the case in re: Pramod Suryabhan Pawar vs. The State of Maharashtra & another; Criminal Appeal No.1165 of 2019 (SLP (Crl) No.2712 of 2019) reported in 2019 (9) SCC 608, wherein the Apex Court has held that if the physical relations with two adult persons are established with

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the consent, the ingredients of Section 375 I.P.C. would not be attracted.

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10. The matter requires consideration.

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11. Let the counter affidavit be filed within a period of four weeks. Rejoinder affidavit, if any, may be filed within two weeks thereafter.

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12. List this case in the week commencing 08.04.2024.

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13. Till the next date of listing, no coercive steps shall be taken against the petitioners in pursuance of Session Case No.457 of 2022 (supra).

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[Rajesh Singh Chauhan,J.]