Allowed

Rafi v. State of Uttarakhnad

Uttarakhand HC18 Oct 2021C482/289/2021

Case brief

AI extract

What is this about?

High Court of Uttarakhand allowed an application to quash criminal proceedings under Sections 376 and 506 IPC. The FIR was based on a misconception where the complainant alleged rape during a consensual relation that later culminated in solemn marriage and cohabitation.

What did the court decide?

Quashing of the entire criminal proceedings of Criminal Case No. 1019 of 2020 pending against the applicant.

Rafi Vs State of Uttarakhnad — Writ and Judicial Review | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application (C-482) No.289 of 2021

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Rafi …….Applicant Versus

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State of Uttarakhand & another .…Respondents

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Mr. Naveen Singh Bisht, learned counsel for the applicant.

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Mr. J.S. Virk, learned DAG for the State. Mr. Azmeen, learned counsel for the private respondent.

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Hon’ble R.C. Khulbe, J.

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By way of present application, moved under Section 482 of Cr.P.C., applicant seeks to quash the entire proceedings of Criminal Case No.1019 of 2020 “State Vs. Rafi”, under Sections 376 (2)(n) and 506 IPC pending in the Court of learned Addl. Chief Judicial Magistrate, Haldwani, Nainital.

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From the perusal of the record, the respondent no.2-Sahiba submitted an information with P.S. Banbhulpura on 11.12.2019; accordingly, FIR No. 0354 of 2019 was registered with P.S. After completion of the investigation charge sheet was submitted; accordingly, the concerned court took the cognizance on 28.01.2020 under Sections 376 (2)(n) and 506 IPC. Aggrieved by it the present application filed under Section 482 Cr.P.C. for quashing the entire proceedings.

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It is the only submission of learned counsel for the applicant that, the FIR was lodged by the respondent no.2 with the P.S. Banbhulpura under Sections 376 and 506 IPC on the basis of false pretext of the marriage against the applicant while the applicant had already solemnized the marriage with the informant and both the parties are living together as husband and wife for the last more than five months.

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Learned counsel for the private respondent fairly admitted this fact.

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Both the parties are present before this Court and the respondent no.2-Sahiba clearly submitted that there was a love affair between them; the applicant made physical relations with her; she was in the impression of that, the applicant will not solemnize the marriage with her; accordingly, she submitted an information with P.S. on 11.12.2019. After lodging the FIR the applicant solemnized the marriage with her on 16.05.2021; she is living with the applicant as a wife for the last five months; she was submitted an information against the applicant only on misconception of facts.

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Moreover, the Hon’ble Supreme Court in the case of State of Haryana and others v. Bhajan Lal & others , reported in 1992 Supp (1) SCC 335, have considered, in detail, the provisions of Section 482 Cr.P.C., and the power of the High Court to quash criminal proceedings or FIR. The Hon’ble Supreme Court summarized the legal position by laying the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: -

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1. “Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

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2. Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

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3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

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4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which, no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or, where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

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In the recent judgment, the aspect pertaining to the composition of offence and its ambit and amplitude came up for consideration, in the case of “Sonu @

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Subhash Kumar vs. State of Uttar Pradesh and

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another” , in 2021 SCC OnLine SC 181.

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From the perusal of the statements given by the informant, three important features emerge:

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(i) The relationship between the applicant and the respondent no. 2 was of a consensual nature.

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(ii) The parties were in the relationship for about a period of two years.

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(iii) Subsequently, the appellant had solemnized the marriage with the respondent (informant) according to their religion and both the parties are living as husband and wife for the last more than five months.

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In view of the ratio as laid by the Hon’ble Apex Court in the catena of decisions, cited hereinabove, the application filed under Section 482 Cr. P.C. by the applicant is allowed and the entire proceedings, mentioned hereinabove, pending between the parties are hereby quashed against the present applicant only.

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Pending applications, if any, also stand disposed of accordingly.

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18.10.2021 BS

Rafi v. State of Uttarakhnad

Case brief

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Rafi v. State of Uttarakhnad

Case brief

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