The Allahabad High Court has dismissed the petition filed by a Junior Engineer in the Border Road Organisation against the summon order issued by the court of Chief Judicial Magistrate, Shahjahanpur on December 22, 2020, in a criminal case registered under Section 376 of IPC at Police Station Roza, Shahjahanpur district.
A Single-Judge Bench of Justice Vivek Agarwal passed this order on September 11, while observing that it is evident that denial of marriage is on account of family tradition. A grown-up man working in the Border Road Organization that took on a responsible post of JE, is supposed to have knowledge of his family traditions, noted the High Court.
The plea, filed under Section 482 by Vipin Kumar alias Vikki, sought quashing of the summon order, as well as the charge sheet/Final Form and entire proceedings of the said case on the ground that in view of the contents of FIR, it was evident that the complainant/victim had consensual sex with the applicant and therefore, in the light of the law laid down by the Supreme Court in case of Pramod Suryabhan Pawar vs the State of Maharashtra and others, submitted that in case of consensual physical relationship, no element of criminality can be attached.
Placing reliance on these judgements, the Counsel for the applicant submitted that once the girl gives consent and surrenders to the physical moves of a person with whom she is deliberately in love, then later on that person resenting his offer of marriage cannot be said to have committed rape.
It is submitted that in the FIR itself, it is mentioned that the complainant and the accused belong to the same community. It said the applicant, who is working in BRO on the post of JE, had sent a request on Facebook. After some hesitation, when the victim came to know of the fact that the accused is known to her through a common acquaintance, she accepted his request and they started communicating.
Later on, under the garb of and in the name of contracting marriage, she was called to Hardoi, from where they travelled to Lucknow and in a hotel room, the accused established physical relationship with her, despite her reluctance and denial, promising her to marry her as soon as he resumes his vacation after joining at workplace.
Reading the FIR and the statement under Section 164 CrPC, it is submitted that no ground is made for continuing with the prosecution and in the light of the law laid down in the case of Pramod Suryabhan Pawar (supra), proceedings should be quashed.
He submitted that there are whatsapp messages, copy whereof has been to the affidavit accompanying the application, which reflect that it was the victim, who had called the accused on May 27, 2019, requesting him to call her urgently.
Vikas Goswami, Additional Government Advocate submitted that the accused/applicant had performed a ceremony, which is though symbolic, but has a lot of significance under the Indian Tradition and Customs- “Mangbharai ceremony”.
In the name of the ceremony, which is an important step under Hindu Traditions and Culture leading towards the marriage i.e. Saptpadi”, under a false promise a sort of consummation of marriage took place, which is itself indicative of applicant holding a false promise of marriage in as much as he had no intention of marrying the prosecutrix.
It is submitted that the parents of the accused refused to marry him with the complainant on the pretext that daughters from their family are married in the family of the complainant and therefore, they would not like to bring a girl from that family, where they have already given their daughters through alliance of marriage.
It is further submitted that this fact of family tradition cannot be said to be unknown to the accused. He knew it from the beginning about his family tradition and therefore, despite knowing this family tradition and when there was no suppression of the fact that complainant’s sister-in-law (bhabhi) is from the family of the accused and it was when within the knowledge of both the parties, the assurance given by the accused to obtain consent of the victim cannot be said to be a consent free of any blemishes.
The Court held, “In the case, when these judgements are examined in the factual backdrop, then it is evident that denial of marriage is on account of family tradition. A grown-up man working in the Border Road Organization who took on a responsible post of J.E., is supposed to have knowledge of his family traditions.
Therefore, the day when the applicant made a promise, he was aware of the fact that as per his family tradition, he will not be able to marry the girl with whom he is making a promise to marry for extracting a favour of physical relationship. Secondly, the act of the applicant of carrying out ceremony of “Mangbharai ” is another proof of the fact that he entered into a physical relationship on the solemn promise of entering into a wedlock, whereas from the beginning, the applicant was aware that as per his family traditions and customs, he will not be able to marry the girl in question.
The accused can be convicted for rape only if the Court reaches a conclusion that the intention of the accused was malafide, and that he had clandestine motives, the Court said.
“In the case, as far as intention and motives are concerned, they will be subject to final scrutiny during the trial, but prima facie, two facts namely, knowledge of family traditions of the applicant and another act of the applicant to smear head of the prosecutrix with vermilion, which is not only significant in the Hindu rituals and customs, but also a lot of significance as an intention to show that the person smearing the vermilion has accepted the other person as his spouse, are taken into consideration, then prima facie ratio of the judgements cited by the applicant appears to be not applicable at this stage and therefore, no case is made out for quashing of the charge sheet or the summoning order especially when at the stage of summoning, the court below would only be required to see a prima facie case rather than carrying a detailed scrutiny”, the Court observed while dismissing the petition.