(1) The applicant/accused has preferred this petition under Section 482 of CR.P.C. for quashing the FIR bearing crime No.1329/2018, registered at
Police Station-Banganga, District-Indore for the offence punishable under Section 376(2) and 506 of I.P.C.
(2). The facts of the case are that prosecutrix made a complaint on 04.12.2018 against the applicant/ accused alleging that she is doing job in private
company. She came to contact with the applicant through Facebook. After that they talk each other on telephone. Thereafter, they started to meet
each other. After sometime, applicant proposed that he wanted to marry with the prosecutrix. She informed him that she is divorcee, then
applicant/accused told that he has no objection. Thereafter he used to come her house No.15/1, Lavkush Colony, Arvindo, Indore and he made several
time physical relationship with her. Latter on he has refused to marry her telling that he is already married. He threatened to tranish her reputation and
kill her. On the basis of the aforesaid complainant, police registered the FIR bearing crime No.1329/2018 for the offence punishable under Section
376(2) and 506 of I.P.C. against the applicant/accused.
(3). Learned counsel for the applicant has submitted that prosecutrix is a major lady. The applicant/accused and prosecutrix doing the business in
partnership. All of sudden the prosecutrix expressed her wish that she did not continue business with him and she demanded money with the applicant.
When applicant did not pay the amount, then prosecutrix started sending various message to the applicant through Whatsapp in which she threatened
that if the money is not paid, she will kidnap the daughter of applicant and will implicate him in a false case of rape. Then applicant made complainant
through online against the prosecutrix, therefore, it is clear that applicant has been falsely implicated in the present crime by the prosecutrix . He
further submits that in the instant case the process of court is sought to be abused by the prosecutrix with oblique motive. The criminal proceedings is
manifestly intended with mala fides and the proceeding is maliciously instituted with an ulterior motive. It is further submitted that the prosecutrix
wanted to recover his money from the applicant, therefore, she made false complaint against the applicant. It is also submitted that even if the entire
allegation made in the complainant are taken at their face value and accepted in its entirety, such allegation do not constitute any offence.
(4). On the other hand learned counsel for the respondent/state as well as complainant has submitted that the applicant has made physical relationship
with the prosecutrix on the false promise of marriage and thereafter he refused to marry her, therefore, offence under Section 376 (2) is made against
the applicant and at this stage defence of the applicant cannot be considered. Hence, they prayed for rejection of the petition.
(5). Having heard learned counsel for the parties and perused the records.
(6). Before I enter into the facts of the present case, it is necessary to consider the ambit and scope of jurisdiction under Section 482 of Cr.P.C.
vested in the High Court. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to
any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
(7). The Apex Court, time and again, has examined scope of jurisdiction of High Court under Section 482 Cr.P.C., and laid down several principles
which govern the exercise of jurisdiction of High Court under Section 482 Cr.P.C. A three-Judge Bench of the Apex Court inS tate of Karnataka Vs.
I. Muniswamy and others, 1977 (2) SCC 699, held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of process of the Court or that the ends of justice require that the proceeding ought to be quashed. In
paragraph 7 of the judgment following has been stated:-
“In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The
saving of the High Courts inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court
proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame
prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the
proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to
laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of
the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to
appreciate the width and contours of that salient jurisdiction.â€
(8). The Hon'ble the Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others â€" AIR 1992 SC 604, has held thus :-
“In following categories of cases, the High Court may in exercise of powers under Art. 226 or under S. 482 of the Cr.P.C. may interfere in
proceedings relating to cognizable offences to prevent abuse of the process of any Court or otherwise to secure the ends of justice. However, power
should be exercises sparingly and that too in the rarest of rare cases.
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7) Where a criminal proceeding is manifestly attended with mala fiide 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.â€
(9). It is established principle of law that for the purpose of quashing the FIR, it is necessary to consider whether the allegations in the FIR prima facie
make out an offence or not. It is not necessary to scrutinise the allegations for the purpose of deciding whether such allegations are likely to be upheld
in the trial. Any action by way of quashing the FIR is an action to be taken at the threshold before evidence are led in support of the case. For
quashing the FIR by way of action at the threshold, it is, therefore, necessary to consider whether on the face of the allegations, a criminal offence is
constituted or not. Whether the offence of rape is constituted or not. This court look to Section 375 for finding out whether the offence of rape had
been committed and secondly Section 90 of IPC the belief that the promise of marriage was meant to be fulfilled or not a misconception of fact. The
question of misconception of fact will arise only if the act consented to, is believed by the person consenting to be something else and on that pretext
sexual intercourse is committed.
(10). From perusal of the averments made in the FIR, it reveals that applicant came to the contact of the prosecutrix through facebook and after that
they met each other and on promise, applicant would marry her, committed sexual intercourse with her. It is pertinent to note that the prosecutrix is a
major and mature lady aged about 29 years and as per contents of FIR she is divorcee, she made physical relation with the applicant with her own
will.
(11). In the recent judgment of the of the Apex Court in Criminal Appeal No.1443/2018 in the matter of Dr. Dhruvaram Murlidhar Sonar Vs. State of
Maharashtra & others disposed of on 22.11.2018 has held that there is a clear distinction between rape and consensual sex. The court, in such cases,
must very carefully examine whether the complainant had actually wanted to marry the victim or had malafide motives and had made a false promise
to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a
promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and
passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which
he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be
treated differently. If the accused had any malafide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged
consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.
(12). In the present case, applicant is a building contractor whereas the prosecutrix is engaged in the business of labour supply. In the month of April
2018 they met in the office of the applicant, during meeting prosecutrix expressed her wish to start business with the applicant but due to some
reasons partnership could not be materialized. One Pawan Prajapati (Brother of the prosecutrix) advanced some amount to the applicant,however, he
could not repay the said amount. In the month of June 2018, the prosecutrix made pressure to the applicant for payment of the amount which he has
received from her brother and to compel him to pay the payment she threatened him by sending Whatsapp message that if he will not pay the amount
then she will lodge complaint against him regarding commission of rape. When applicant did not pay the amount then the prosecutrix registered FIR
against him for the offence under Section 376(2) and 506 of I.P.C. To substantiate the aforesaid fact, the applicant filed the screenshot of whatsaap
message sending by the prosecutrix to the applicant and from the perusal of message texted on 26.08.2018, it is transpired that prosecutrix threatened
the applicant that section 376 is enough for compelling him for payment. Counsel for the prosecutrix has not disputed the said chatting taken place
between the parties, which clearly indicates that the prosecutrix lodge false FIR against the applicant regarding commission of rape so that she can
force him to pay the amount which is due towards him. In these circumstances the continuation of the prosecution of the applicant will amount to be
misuse of process of law.
(13). In the result, present application filed by the applicant succeeded and is allowed, the First Information report lodged by the prosecutrix bearing
crime No.1329/2018, registered at Police Station-Banganga, District Indore for the offence under Section 376(2) and 506 of I.P.C. is hereby quashed.
