False rape case quashed: Delhi High Court 2017

The stand of respondent No.2 in the present petition is that after grant
of bail, the petitioner refused to marry her. This cannot be ground to reject
the petition filed by the petitioner if on undisputed facts and material
collected during investigation, no case is made out against the petitioner to
proceed further in the charge-sheet filed. it is a fit case where the FIR and the
proceedings pursuant thereto are liable to be quashed to prevent the misuse
of the criminal justice system and also to prevent the abuse of the process of
the Court

 

* IN THE HIGH COURT OF DELHI AT NEW DELHI

% Reserved on: 20th March, 2017
Decided on: 24th March, 2017
+ CRL.M.C. 2454/2016 & Crl.M.A. 10521/2016 (stay)
MOHIT NAGAR ….. Petitioner
Represented by: Mr.Parth Goswami with
Mr.Hemant Raj, Advs.
versus
STATE & ANR ….. Respondents
Represented by: Mr.Ravi Nayak, APP for State.
Mr.Shrey Sharawat with
Ms.Kanishk Singh, Advs. for
respondent No.2.
Inspector Anil Malik, PS
Greater Kailash.
CORAM:
HON’BLE MS. JUSTICE MUKTA GUPTA
1. By the present petition the petitioner seeks quashing of FIR No.
135/2016 under Sections 376/506 IPC registered at PS Greater Kailash-I on
the complaint of respondent No.2 and the consequent proceedings thereto
including the charge-sheet filed.
2. The grounds pressed for quashing of the FIR and the proceedings
pursuant thereto are that the respondent No.2 has lodged similar FIRs against
other persons on the same modus-operandi, FIR was lodged malafidely with
an intention to extort money and since at the time of registration of abovenoted
FIR the respondent No.2 was married as per her own showing there
could be no promise to marry her and on the said pretext the petitioner could
not have established physical relationship. It is further contended that the
CRL.M.C. 2454/2016 Page 2 of 12
respondent No.2 being an educated lady, mother of an eight year old
daughter, married twice with a subsisting marriage, the allegations that
sexual acts with the petitioner were on a false promise of marriage are belied
on the face of it.
3. Before dealing with the facts of the present case it would be
appropriate to note the law laid down by the Supreme Court in the decision
reported as (2013) 3 SCC 330 Rajiv Thapar & Ors. Vs. Madan Lal Kapoor
while laying down the guidelines for quashing of a FIR and the proceedings
pursuant thereto in exercise of its power under Section 482 Cr.P.C. by the
High Court, the Supreme Court delineated the steps to be taken to determine
the veracity of prayer as under:
“29. The issue being examined in the instant case is the
jurisdiction of the High Court under Section 482 CrPC, if it
chooses to quash the initiation of the prosecution against an
accused at the stage of issuing process, or at the stage of
committal, or even at the stage of framing of charges. These are
all stages before the commencement of the actual trial. The
same parameters would naturally be available for later stages
as well. The power vested in the High Court under Section 482
CrPC, at the stages referred to hereinabove, would have farreaching
consequences inasmuch as it would negate the
prosecution’s/complainant’s case without allowing the
prosecution/complainant to lead evidence. Such a determination
must always be rendered with caution, care and
circumspection. To invoke its inherent jurisdiction under
Section 482 CrPC the High Court has to be fully satisfied that
the material produced by the accused is such that would lead to
the conclusion that his/their defence is based on sound,
reasonable, and indubitable facts; the material produced is
such as would rule out and displace the assertions contained in
the charges levelled against the accused; and the material
produced is such as would clearly reject and overrule the
veracity of the allegations contained in the accusations levelled
CRL.M.C. 2454/2016 Page 3 of 12
by the prosecution/complainant. It should be sufficient to rule
out, reject and discard the accusations levelled by the
prosecution/complainant, without the necessity of recording any
evidence. For this the material relied upon by the defence
should not have been refuted, or alternatively, cannot be
justifiably refuted, being material of sterling and impeccable
quality. The material relied upon by the accused should be such
as would persuade a reasonable person to dismiss and condemn
the actual basis of the accusations as false. In such a situation,
the judicial conscience of the High Court would persuade it to
exercise its power under Section 482 CrPC to quash such
criminal proceedings, for that would prevent abuse of process
of the court, and secure the ends of justice.
30. Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashment raised by an
accused by invoking the power vested in the High Court under
Section 482 CrPC:
30.1. Step one: whether the material relied upon by the
accused is sound, reasonable, and indubitable i.e. the material
is of sterling and impeccable quality?
30.2. Step two: whether the material relied upon by the
accused would rule out the assertions contained in the charges
levelled against the accused i.e. the material is sufficient to
reject and overrule the factual assertions contained in the
complaint i.e. the material is such as would persuade a
reasonable person to dismiss and condemn the factual basis of
the accusations as false?
30.3. Step three: whether the material relied upon by the
accused has not been refuted by the prosecution/complainant;
and/or the material is such that it cannot be justifiably refuted
by the prosecution/complainant?
30.4. Step four: whether proceeding with the trial would result
in an abuse of process of the court, and would not serve the
ends of justice?
CRL.M.C. 2454/2016 Page 4 of 12
30.5. If the answer to all the steps is in the affirmative, the
judicial conscience of the High Court should persuade it to
quash such criminal proceedings in exercise of power vested in
it under Section 482 CrPC. Such exercise of power, besides
doing justice to the accused, would save precious court time,
which would otherwise be wasted in holding such a trial (as
well as proceedings arising therefrom) specially when it is clear
that the same would not conclude in the conviction of the
accused.”
4. Following the decision in Rajiv Thapar (supra) Supreme Court in the
decision reported as (2013) 9 SCC 293 Prashant Bharti Vs. State (NCT of
Delhi) dealing with a similar fact situation noting the facts of the complaint
therein, material collected in investigation and placed by the accused therein
quashed the FIR as under:
“23. The details in respect of each aspect of the matter,
arising out of the complaints made by Priya on 16-2-2007 and
21-2-2007 have been examined in extensive detail in the
foregoing paragraphs. We shall now determine whether the
steps noticed by this Court in the judgment extracted
hereinabove can be stated to have been satisfied. Insofar as the
instant aspect of the matter is concerned, the factual details
referred to in the foregoing paragraphs are being summarised
hereafter:
23.1. Firstly, the appellant-accused was in Sector 37, Noida in
the State of Uttar Pradesh on 15-2-2007. He was at Noida
before 7.55 p.m. He, thereafter, remained at different places
within Noida and then at Shakarpur, Ghaziabad, Patparganj,
Jorbagh, etc. From 9.15 p.m. to 11.30 p.m. on 15-2-2007, he
remained present at a marriage anniversary function celebrated
at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to
the aforesaid effect filed by the appellant-accused was found to
be correct by the investigating officer on the basis of his mobile
phone call details. The accused was therefore not at the place of
occurrence, as alleged in the complaint dated 16-2-2007.
CRL.M.C. 2454/2016 Page 5 of 12
23.2. Secondly, verification of the mobile phone call details of
the complainant/prosecutrix Priya revealed, that on 15-2-2007,
no calls were made by the appellant-accused to the
complainant/prosecutrix, and that, it was the
complainant/prosecutrix who had made calls to him.
23.3. Thirdly, the complainant/prosecutrix, on and around the
time referred to in the complaint dated 16-2-2007, was at
different places of New Delhi i.e. in Defence Colony, Greater
Kailash, Andrews Ganj and finally at Tughlaqabad Extension,
as per the verification of the investigating officer on the basis of
her mobile phone call details. The complainant was also not at
the place of occurrence, as she herself alleged in the complaint
dated 16-2-2007.
23.4. Fourthly, at the time when the complainant/prosecutrix
alleged that the appellant-accused had misbehaved with her
and had outraged her modesty on 15-2-2007 (as per her
complaint dated 16-2-2007), she was actually in conversation
with her friends (as per the verification made by the
investigating officer on the basis of her mobile phone call
details).
23.5. Fifthly, even though the complainant/prosecutrix had
merely alleged in her complaint dated 16-2-2007 that the
accused had outraged her modesty by touching her breasts, she
had subsequently through a supplementary statement (made on
21-2-2007), levelled allegations against the accused for the
offence of rape.
23.6. Sixthly, even though the complainant/prosecutrix was
married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as
indicated in an affidavit appended to the Delhi Police format
for information of tenants and duly verified by the investigating
officer, wherein she had described herself as married), in the
complaint made to the police (on 16-2-2007 and 21-2-2007),
she had suggested that she was unmarried.
23.7. Seventhly, as per the judgment and decree of the Civil
Judge (Senior Division), Kanpur (Rural) dated 23-9-2008, the
complainant was married to Lalji Porwal on 14-6-2003. The
aforesaid marriage subsisted till 23-9-2008. The allegations
CRL.M.C. 2454/2016 Page 6 of 12
made by the complainant dated 16-2-2007 and 21-2-2007
pertain to occurrences of 23-12-2006, 25-12-2006, 1-1-2007
and 15-2-2007 i.e. positively during the subsistence of her
marriage with Lalji Porwal. Thereafter, the complainant Priya
married another man Manoj on 30-9-2008. This is evidenced by
a “certificate of marriage” dated 30-9-2008. In view of the
aforesaid, it is apparent that the complainant could not have
been induced into a physical relationship based on an
assurance of marriage.
23.8. Eighthly, the physical relationship between the
complainant and the accused was admittedly consensual. In her
complaints Priya had however asserted, that her consent was
based on a false assurance of marriage by the accused. Since
the aspect of assurance stands falsified, the acknowledged
consensual physical relationship between the parties would not
constitute an offence under Section 376 IPC. Especially because
the complainant was a major on the date of occurrences, which
fact emerges from the “certificate of marriage” dated 30-9-
2008, indicating her date of birth as 17-7-1986.
23.9. Ninthly, as per the medical report recorded
by AIIMS dated 16-2-2007, the examination of the complainant
did not evidence her having been poisoned. The instant
allegation made by the complainant cannot now be established
because even in the medical report dated 16-2-2007 it was
observed that blood samples could not be sent for examination
because of the intervening delay. For the same reason even the
allegations levelled by the accused of having been administered
some intoxicant in a cold drink (Pepsi) cannot now be
established by cogent evidence.
23.10.Tenthly, the factual position indicated in the charge-sheet
dated 28-6-2007, that despite best efforts made by the
investigating officer, the police could not recover the container
of the cold drink (Pepsi) or the glass from which the
complainant had consumed the same. The allegations made by
the complainant could not be verified even by the police from
any direct or scientific evidence, is apparent from a perusal of
the charge-sheet dated 28-6-2007.
CRL.M.C. 2454/2016 Page 7 of 12
23.11.Eleventhly, as per the medical report recorded
by AIIMS dated 21-2-2007 the assertions made by the
complainant that the accused had physical relations with her on
23-12-2006, 25-12-2006 and 1-1-2007, cannot likewise be
verified as opined in the medical report, on account of delay
between the dates of occurrences and her eventual medical
examination on 21-2-2007. It was for this reason, that neither
the vaginal smear was taken, nor her clothes were sent for
forensic examination.
24. Most importantly, as against the aforesaid allegations, no
pleadings whatsoever have been filed by the complainant. Even
during the course of hearing, the material relied upon by the
accused was not refuted. As a matter of fact, the
complainant/prosecutrix had herself approached the High
Court, with the prayer that the first information lodged by her,
be quashed. It would therefore be legitimate to conclude, in the
facts and circumstances of this case, that the material relied
upon by the accused has not been refuted by the
complainant/prosecutrix. Even in the charge-sheet dated 28-6-
2007, (extracted above) the investigating officer has
acknowledged, that he could not find any proof to substantiate
the charges. The charge-sheet had been filed only on the basis
of the statement of the complainant/prosecutrix under Section
164 CrPC.
25. Based on the holistic consideration of the facts and
circumstances summarised in the foregoing two paragraphs; we
are satisfied, that all the steps delineated by this Court in Rajiv
Thapar case [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3
SCC 330 : (2013) 3 SCC (Cri) 158] stand satisfied. All the steps
can only be answered in the affirmative. We therefore have no
hesitation whatsoever in concluding, that judicial conscience of
the High Court ought to have persuaded it, on the basis of the
material available before it, while passing the impugned order,
to quash the criminal proceedings initiated against the
appellant-accused, in exercise of the inherent powers vested
with it under Section 482 CrPC. Accordingly, based on the
conclusions drawn hereinabove, we are satisfied that the first
information report registered under Sections 328, 354 and 376
CRL.M.C. 2454/2016 Page 8 of 12
of the Penal Code against the appellant-accused, and the
consequential charge-sheet dated 28-6-2007, as also the
framing of charges by the Additional Sessions Judge, New Delhi
on 1-12-2008, deserves to be quashed. The same are
accordingly quashed.”
5. The allegations of the respondent No.2 whose identity has been
concealed in FIR No.135/2016 are:
“Complaint against Mohit Nagar of Rape. Respected Sir, This
is to bring to your kind notice that I ‘GB’ D/o ‘B’ currently
residing at GK-I S-331 2nd Floor New Delhi. I am a divorcee
and a single mother of 8 years old daughter since I got divorced
in 2012. I was looking to get settled again to provide a better
life to me and my daughter. I met one Mohit Nagar at
Shaadi.com on 8th of December 2015 at Defence Colony
Market, New Delhi. On 20th/21st December, 2015 he came to
my place at Kailash Colony and proposed to marry me. He also
insisted on getting physically involved with me. I asked him to
wait till we get married but he assured me that he will marry me
soon. On such assurance and inducement and his promise to
marry me, I agreed to have sexual intercourse with him. In the
month of January, I asked him to marry me soon but on some
pretend or other he kept on ignoring my requests. Mohit Nagar
was frequently visiting my house and continued to have sexual
intercourse with me while promising that he will marry me
soon. It was in February 2016, he started ignoring me. And
that is when I started pressurizing him to marry me because it
had been two months now and he had been delaying it on some
pretext or the other. On Sunday 3rd April, 2016, liked by my
repeated request he threatened to kill my daughter and also
refuse to marry me. He said that if I insist on marriage he will
get my daughter killed. Since then he has been telling me that I
am a useless person and I should go and commit suicide. On 4th
April he threatened to put my number to various pimps. I feel
very threatened for my daughter safety and my life along with
the life of my daughter is under threat. He has committed rape
on me by falsely promising to marry me and thereby inducing
CRL.M.C. 2454/2016 Page 9 of 12
me to have sexual intercourse with me multiple times. I request
you to kindly take strict action against him and initiate the
relevant criminal proceedings in the interest of justice.”
6. FIR No.135/2016 under Section 376/506 was lodged on 6th April,
2016. The petitioner has placed on record copy of FIR No.208/2015 lodged
by respondent No.2 against one Naveen on 11th February, 2015 at PS New
Ashok Nagar which reads as under:
“Sub: Regarding Sexual Harassment. Sir, Myself, ‘GB’ D/o ‘B’
Indirapuram, Ghaziabad. My age is 30 yrs. I am working in an
educational institute. Through Shadi.com I came across
Naveen Kumar Gautam S/o Bheem Raj Gautam resident of
Chirag Delhi, 221 building, 2nd Floor, Near Darga. We started
talking with each other and after that the person Naveen
proposed me for marriage. In the 1st week of December 2014
Naveen asked me to come to New Ashok Nagar Metro Station
from there he picked me and took me to an unknown flat in BBlock,
New Ashok Nagar and there forcefully on the pretext of
marriage he developed physical relation with me. When I
scolded him for this act he gave assurance of marriage to me.
After that he developed physical relation with me in my house
also and also assurance for marriage. But now Naveen denied
for marriage saying that he didn’t want to marry me now. And
he just used me. Kindly take legal action against Naveen.”
7. The petitioner has also placed on record copy of petition for
dissolution of marriage between Naveen and ‘GB’ being HMA No.244/16
dated 4th March, 2016. In the said petition under Section 13 B(1) of Hindu
Marriage Act, 1955 (in short HM Act) for dissolution of marriage by mutual
consent, the learned Principal Judge, Family Court, South, Saket after
recording the statement of both Naveen and ‘GB’ noted that the marriage
between the two was solemnized on 14th February, 2015 as per Hindu Rites
and Customs and the parties are living separately since 20th February 2015
CRL.M.C. 2454/2016 Page 10 of 12
due to temperamental differences. As per the settlement Naveen agreed to
pay a sum of ₹3 lakhs to ‘GB’ in full and final settlement of all her claims
out of which ‘GB’ has received ₹2 lakhs and the balance amount of ₹1 lakh
was to be paid at the time of recording of statement in second motion
petition. Thus, on 9th March, 2016 only statement for first motion for
divorce by mutual consent between Naveen and ‘GB’ was recorded and
since no statement for second motion has been recorded till date, the
marriage between Naveen and ‘GB’ subsists legally.
8. In the reply affidavit filed to the present petition by respondent No.2
the documents placed on record in the form of FIR No.138/2015 at New
Ashok Nagar against Naveen and certified copy of the order dated 9th March,
2016 passed in HMA No. 244/16 are not disputed. Though orally stated by
learned counsel for the respondent No.2 that the respondent No.2 came to
know that Naveen was already married when he performed marriage with
her and thus her marriage with Naveen was a nullity, however no such fact
has been stated in the reply affidavit.
9. The whole basis of FIR No.135/2016 registered against the petitioner
by the respondent No.2 is that on 8th December, 2015 they interacted at
shadi.com and where after they met each other at Defence Colony market
and the petitioner proposed to marry her and insisted on getting physically
involved with her. It is the case of respondent No.2 that on the assurance,
inducement and promise of marriage she agreed to have sexual intercourse
with him. Admittedly, the marriage of respondent No.2 with Naveen had not
been dissolved by decree of divorce nor was it declared a nullity when the
alleged offence took place from December 2015 till 3rd April, 2016 where
after the respondent No.2 lodged the above-noted FIR on 6th April, 2016.
CRL.M.C. 2454/2016 Page 11 of 12
When respondent No.2 could not have lawfully married the petitioner on 3rd
April, 2016 her allegations that the petitioner played fraud on her in
receiving her consent for marriage are unfounded. Thus, even taking the
allegations on the face of it on the basis of documents of impeccable
character in the form of FIR No.138/2015 lodged at New Ashok Nagar and
order dated 9th March, 2016 passed in (HMA No.244/16) the ingredients of
offence punishable under Section 376 IPC are not made out.
10. On the facts noted above which are not disputed by the respondent
No.2 it is evident that:
“i) As per statement under Section 164 Cr.P.C. of the
respondent No.2 recorded, her education qualification is MBA
and she is doing the job of Government liaison. She has a
daughter aged 8 years old.
ii) The allegations in FIR No.135/2016 registered at PS
Greater Kailash-I against the petitioner relate to the period end
of December 2015 to 4th April, 2016.
iii) Respondent No.2 had lodged FIR No.208/2015 against
one Naveen on 11th February, 2015. After registration of FIR
No.208/2015 against Naveen she married him on 14th February,
2015 and last resided with him on 20th February, 2015.
iv) The statement for first motion for grant of divorce by
mutual consent and the order thereon was passed by the
Principal Judge, Family Courts, South, Saket on 9th March,
2016 wherein in the statement of respondent No.2 there is an
admission of marriage subsisting. Thus from end of December,
2015 till 4th April, 2016 even as per the respondent No.2 she
had a valid subsisting marriage with Naveen.
v) Once as per the own showing respondent No.2 was
having a subsisting marriage with Naveen at the time of alleged
offence, she cannot claim that she was forced into sexual
relationship on the pretext of marrying and her allegation stands
falsified.
CRL.M.C. 2454/2016 Page 12 of 12
vi) In the statement recorded under Section 164 Cr.P.C. of
the respondent No.2, the respondent No.2 categorically stated “I
do not want to pursue with the case because the
misunderstanding with the accused had been sorted out and we
are going to get married very soon”.
vii) This statement of respondent No.2 was not recorded by
the learned MM on 7th April, 2016 and recorded on 8th April,
2016 giving the respondent No.2 sufficient time to reflect and
after assuring that she was under no pressure or threat.
viii) Allegations in respect of offence punishable under
Section 506 IPC are vague and general in nature.”
11. The stand of respondent No.2 in the present petition is that after grant
of bail, the petitioner refused to marry her. This cannot be ground to reject
the petition filed by the petitioner if on undisputed facts and material
collected during investigation, no case is made out against the petitioner to
proceed further in the charge-sheet filed. Applying the test laid down by the
Supreme Court in Rajiv Thapar (supra) it is a fit case where the FIR and the
proceedings pursuant thereto are liable to be quashed to prevent the misuse
of the criminal justice system and also to prevent the abuse of the process of
the Court.
12. Consequently, FIR No. 135/2016 under Sections 376/506 IPC
registered at PS Greater Kailash-I, Delhi and proceedings pursuant thereto
are hereby quashed.
13. Petition and application are disposed of. Order dasti.
(MUKTA GUPTA)
JUDGE
MARCH 24, 2017
‘ga’