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Offence of rape shall be made once it is established that the promise of marriage was made to make relationship: Allahabad High court

The Allahabad High Court has dismissed an application in the light of the judgement of Apex Court that has held that once it is established that the promise of marriage under the garb of which the accused had made relationship with the victim was false from its inception and on such promise if the accused has induced the victim into a sexual relationship, then, the offence of rape shall be made out.

A Single Bench of Justice Anish Kumar Gupta passed this order while hearing an application under section 482 filed by Anshul Kumar.

The application under Section 482 Cr.P.C has been filed seeking quashing of the charge-sheet dated 25.05.2023 as well as the cognizance order dated 05.06.2023 and entire criminal proceedings in Criminal Case under section 376, 377, 393, 504, 506, 323, 427 I.P.C, P.S- Madhuban Bapudham, District- Ghaziabad, pending in the court of the Additional Chief Judicial Magistrate.

The facts of the case are that the opposite party no 2, Shivani Dube, was previously married with one Prashant Sharma. She obtained divorce by mutual consent from Prashant Sharma on 22.09.2020. Subsequently, the opposite party no 2 had lodged an F.I.R under Sections 507, 376, 504, 508, 420 and 406 I.P.C being Case on 22.01.2022.

In the said F.I.R which was registered by the opposite party no 2 against the said Jishan Hashim, the applicant herein was the Investigation Officer (IO). During the investigation of the said F.I.R against Jishan Hashim, the opposite party no 2 came in contact with the applicant herein. In the meantime on 27.03.2022 the applicant herein has prepared the charge-sheet against the said Jishan Hashim, which was forwarded on 19.04.2022.

Subsequently, on 26.04.2022, the opposite party no 2 lodged an N.C.R against (Amita Rani) the wife of the applicant, her brother and her two sisters.

Subsequently, on 13.06.2022, the opposite party no 2 allegedly submitted an application to the Station House Officer (S.H.O), P.S – Link Road, District- Ghaziabad, stating that she doesn’t want any action on the N.C.R dated 26.04.2022, registered by her against Amita Rani and her other relatives.

Since, the opposite party no 2 used to visit the house of the applicant herein in connection of her case against Jishan Hashim, the said Amita Rani had developed suspicion over her and there was some altercation with Amita Rani and she has further stated in her application that she had filed this N.C.R to create a pressure on the applicant herein, so that the applicant may take stringent action in the F.I.R registered against Jishan Hashim. In the said case, Jishan Hashim was granted bail on 11.07.2022.

Thereafter, on 15.10.2022, the opposite party no 2 herein had lodged an F.I.R being Case against the applicant herein, alleging that when the applicant herein was the Beat Incharge at Surya Nagar, Ghaziabad, she came in his contact in connection to her case wherein the applicant was the IO. During the investigation, the applicant had proposed to her to which the opposite party no 2 did not agree and on 05.01.2022, she had made a call to the Women Cell and complained about the applicant.

She further stated that on the promise of marriage, the applicant had made physical relations with her at Hotel Country Inn Red – Kvelvet, Ghaziabad, due to which she became pregnant and after the confirmation of pregnancy at Max Hospital, Vaishali. Subsequently, her pregnancy was aborted between 24-27, March.

On the basis of such statement under Section 164 Cr.P.C, the final report in Case was submitted by the Investigation Officer in the case on 02.12.2022 and order dated 12.12.2022, the said final report was accepted by the court below as same was admitted by the applicant herself before the court.

Subsequent thereto, the opposite party no 2 filed an application under Section 156 (3) Cr.P.C alleging that earlier she had lodged an F.I.R being Case against the applicant herein, wherein, the entire details have been given.

Subsequent to lodging of the said F.I.R, the applicant herein had another chance to correct his mistake and as per the promise he again assured the opposite party no 2 that he will take divorce from his wife and will marry her.

The said application under Section 156(3) Cr.P.C, was dismissed with the observation that opposite party no 2 should approach at the first instance to the senior police officials and thereupon if no action is taken then she can again approach the court.

In pursuance thereof, she approached the higher police official and thereupon on 28.03.2023, the F.I.R, was registered being Case under Sections 376, 377, 493, 504, 506, 323, 427 I.P.C.

The Court observed that,

Having heard the submissions made by the counsels for the parties, the Court has carefully gone through the record of the case. In Vinod Kumar (supra), the Apex Court having regard to the facts of that case wherein the victim was fully aware that the relationship of marriage, which she has performed with the accused in that case was a nullity and continued with such relations and had physical relationship with the accused.

In that circumstances, the Apex Court has held that such consensual relationship would not amount to rape, as the victim was fully aware about such relationship.

In Shambhu Kharwar(supra), the Apex Court has held that once it is established that the promise of marriage under the garb of which the accused had made relationship with the victim was false from its inception and on such promise if the accused has induced the victim into a sexual relationship, then, the offence of rape shall be made out. If initially the promise of marriage was made in good faith and the parties have entered into a consensual physical relationship and on subsequent breach of such promise, no offence of rape shall be made out.

In Vineet Kumar (supra), the Apex Court having found that the prosecution of the accused by the victim was a malicious prosecution, has allowed the appeal and quashed criminal proceedings against the accused persons. Therefore, the criminal proceedings were quashed.

In the case from the statement as made under Section 164 Cr.P.C, it is clear that in the first instance the applicant herein has raped the opposite party no 2 by making her to consume a contaminated cold-drinks, thereby, making her unconscious. Therefore, it was prima facie an act of force without consent. Thereafter, looking at the authority of the applicant, she could not resist such a relationship. Subsequently, the applicant had established the physical relationship with the opposite party no 2 under the garb of promise to marry her by divorcing his previous wife. However, from the allegation it is crystal clear that the applicant herein knew that such a promise which was made by the applicant was nothing but a false promise and he had no intention to marry the opposite party no 2. When the opposite party no 2 herein had tried to create pressure on the opposite party no 2 to keep his promise and divorce his wife and marry the opposite party no 2, then, the applicant as being a Police Officer filed an Application under Section 156(3) Cr.P.C, upon which an F.I.R was registered under the provisions of the S.C/S.T Act through his mother. The Police Officers are duty bound to protect the victims.

The Court further observed that,

However, in the case, as per the allegations made, the applicant herein appears to have misutilized his position and has exploited the opposite party no 2. Therefore, in the considered opinion of the Court a prima facie case has been established against the applicant from the charge-sheet as well as statement under Section 164 Cr.P.C of the opposite party no 2 in the case. With regard to the previous F.I.R and the final report submitted in the previous F.I.R, the opposite party no 2 has categorically explained her conduct as to under what circumstances and on the pressure created by the applicant, the opposite party no 2 did not make true statement under Section 164 Cr.P.C and did not oppose the final report as the applicant herein was continuously making false promise of marriage and continuing his relationship with opposite party no 2.

Therefore, all the allegations made in the case are subject to evidence during the trial in the case. Since, a prima facie case has been found against the applicant, therefore, the Court does not find any good ground to interfere in the charge-sheet or in the order taking cognizance against the applicant herein.

Accordingly, the Court dismissed the application in the light of the judgments of Apex Court.

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