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2023 DIGILAW 207 (UTT)

Utkarsh Bharadwaj v. State of Uttarakhand

2023-02-28

RAVINDRA MAITHANI

body2023
JUDGMENT : The petitioner seeks quashing of FIR No. 42 of 2023, under Section 376 IPC, Police Station Rajpur, District Dehradun 2. Heard learned counsel for the parties and perused the record. 3. According to the FIR, the petitioner established physical relations with the informant for two years preceding filing of the FIR under the assurance that he would marry her. Thereafter, the petitioner continued establishing relations on multiple occasions. But, now he is not responding. 4. Learned counsel for the petitioner would submit that a bare perusal of FIR does not reveal any offence as such. It is a case fit for quashing of the FIR. He would submit that the principle of law, as laid down in the case of State of Haryana and Others Vs. Bhajan Lal and Others, 1992 Supp (1) SCC 335, also mandates quashing of this FIR because even if the contents of the FIR are accepted to be true, no offence is made out. In addition to it, it is argued that the principles of law, as laid down in the case of Promod Suryabhan Pawar Vs. State of Maharashtra and another, (2019) 9 SCC 608 , are also applicable in this case. In the instant case, consent has not been obtained under any misconception of fact. Therefore, FIR deserves to be quashed 5. It is a petition under Article 226 of the Constitution of India. If an FIR discloses commission of offence, generally no interference is warranted. It is the domain of the Investigating Officer to ascertain the truthfulness or credibility of the FIR. 6. In the State of Haryana Vs. Bhajan Lal, the Hon’ble Supreme Court, illustratively gave the circumstances, under which this jurisdiction may be exercised and in para 102 observed as hereunder:- “102. It is the domain of the Investigating Officer to ascertain the truthfulness or credibility of the FIR. 6. In the State of Haryana Vs. Bhajan Lal, the Hon’ble Supreme Court, illustratively gave the circumstances, under which this jurisdiction may be exercised and in para 102 observed as hereunder:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (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. (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. (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. (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. (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. (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. (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. (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. 7. In the case of Promod Suryabhan Pawar (supra), the question for determination was as to whether the consent of the victim was obtained voluntarily or not? After discussing the law, the Hon’ble Supreme Court observed as hereunder:- “14. In the present case, the “misconception of fact” alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC 509, this Court held : (SCC para 12) “12. In Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC 509, this Court held : (SCC para 12) “12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 IPC and can be convicted for the offence under Section 376 IPC.” Similar observations were made by this Court in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660 (Deepak Gulati) : (SCC p. 682, para 21) “21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused;” 8. In the case of Promod Suryabhan Pawar (supra), the Hon’ble Supreme Court further held that “where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman's “consent”.” 9. The opening lines of FIR in the instant case reveals the preceding two years of filing of the FIR, the petitioner had been establishing physical relations with the victim under the assurance that he would marry her. Had the petitioner no intention to marry the victim when he established physical relations with her? Or is it a case of breach of promise made in good faith, but subsequently, not fulfilled. These are factual aspects which would be unearthed by the Investigating Officer during investigation. The FIR in the instant case discloses of commission of an offence. 10. Having considered, this Court does not see any reason to make any interference. Or is it a case of breach of promise made in good faith, but subsequently, not fulfilled. These are factual aspects which would be unearthed by the Investigating Officer during investigation. The FIR in the instant case discloses of commission of an offence. 10. Having considered, this Court does not see any reason to make any interference. Accordingly, the petition deserves to be dismissed at the admission stage. 11. The writ petition is dismissed in limine.