APHC010247622020 IN THE HIGH COURT OF ANDHRA (Special Original Jurisdiction) MONDAY,THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 3842/2020 Between: Land Raja Sekhar The State Of Ap and Others Counsel for the Petitioner/accused: 1. P L NARASIMHA RAO Counsel for the Respondent/complainant(S): 1. PUBLIC PROSECUTOR (AP) IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3333] MONDAY,THE SEVENTEENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 3842/2020 ...PETITIONER/ACCUSED AND The State Of Ap and ...RESPONDENT/COMPLAINANT(S) Counsel for the Petitioner/accused: P L NARASIMHA RAO Respondent/complainant(S): PUBLIC PROSECUTOR (AP) [3333] MONDAY,THE SEVENTEENTH DAY OF FEBRUARY ...PETITIONER/ACCUSED ...RESPONDENT/COMPLAINANT(S) 2 VS,J CRLP_3842_2020 THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 3842/2020 The Court made the following Order: This criminal petition is filed under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”) seeking to quash the proceedings initiated against the petitioner/A.1 in Crime No.189 of 2019 registered by the Muvvalavanipalem Police Station, Visakhapatnam District, for the offences punishable under Sections376, 417, 420, 506 of the Indian Penal Code. 2. The facts that led to the present criminal petition are that the petitioner is A.1 and the 2nd respondent is the de facto complainant. She lodged a complaint on 02.05.2019 before the police, alleging that her marriage took place about 10 years ago and due to some disputes with her husband, she came to her parent’s house and was living there along with her daughter. During that deserted life, the petitioner/A.1 got acquainted with the 2nd respondent/complainant and made her believe that he would take her responsibility and as well as her daughter and that he would marry her after she obtaining divorce from her husband and accordingly, she started live-in-relationship with the petitioner/A.1. On the pretext that he would marry her, the 3 VS,J CRLP_3842_2020 petitioner/A.1 participated in sexual intercourse with the 2nd respondent/complainant on several times and got the complainant pregnant and later the complainant underwent miscarriage due to her ill-health. It is alleged that while the things stood thus, on the night of Ugadi festival, the petitioner/A.1 made a phone call and told that his parents are searching for marriage alliance and asked her to come to their house. On the next day, the petitioner/A.1 called her and informed her not to come. Thereafter, the petitioner/A.1 stopped making phone calls and sending messages. On enquiry, the 2nd respondent came to know that the marriage of the petitioner/A.1 was fixed to be performed on 29.05.2019 with his sister-in-law Karri Tejswani and engagement was fixed on 14.05.2019. When she questioned the petitioner/A.1, he replied that even after his marriage, he would continue relation with her and he would not leave her. On 09.04.2019, the 2nd respondent/complainant went to his house to intimate about their affair, but there was no response from his parents. It is further alleged that again on 15.04.2019, the de- facto complainant went to the house of A.1, then the family members of the petitioner/A.1 obtained her signatures on some white paper forcibly and threatened her with dire consequences. 4 VS,J CRLP_3842_2020 Thereafter, the 2nd respondent lodged a complaint before the police. Basing on the said complaint, the present crime has been registered. 3. Heard the learned counsel for the petitioner and the learned Additional Public Prosecutor for the respondents. 4. Learned counsel for the petitioner, while reiterating the contents of the criminal petition, mainly contends that the petitioner has been falsely implicated in the alleged offences with which he has been charged and there is no incriminating material to connect the petitioner with the alleged offences. He submits that as per the complaint, the offence took place on 15.04.2019, but the 2nd respondent made the complaint before the police on 02.05.2019 at Kancharapalem Police Station, which was later transferred to Muvvalavanipalem Police Station on 14.06.2019 and that there is delay of 16 days in lodging the complaint and no explanation for such delay is forthcoming. He further submits that the petitioner is a social service activist and established a society in the name and style of “We for You Welfare Society” and the complainant had voluntarily joined in the society as volunteer and got acquaintance with the petitioner and fell in love with him. He further submits that the complainant was very conscious of the 5 VS,J CRLP_3842_2020 fact that she was a married woman and got one female child and the marriage between herself and the petitioner/A.1 may not take place at all and knowing the said fact, the 2nd respondent freely, voluntarily and consciously consented herself to have sexual intercourse with the petitioner and her consent does not amount to misconception of fact. He further submits that having continued live-in-relationship with the petitioner for about four years and on knowing the fact of fixation of marriage of the petitioner with his sister-in-law, the 2nd respondent intentionally and deliberately lodged the present complaint against the petitioner with false, frivolous and baseless allegations. He further submits that the husband of the complainant filed F.C.O.P.No.1183 of 2016 before the Court of Judge, Family Court, Visakhapatnam seeking decree of divorce by dissolving their marriage on the ground of cruelty, wherein, the 2nd respondent/ complainant filed a counter affidavit stating that she is willing to join with her husband. He further submits that since the marriage of the petitioner was fixed with her sister-in-law, in order to wreck vengeance, the 2nd respondent/complainant lodged the present complaint. He further submits that since there is no substantial material against the petitioner/A.1, except bald allegations, continuation of criminal 6 VS,J CRLP_3842_2020 proceedings against the petitioner/A.1 is nothing but an abuse of process of court, and hence, sought for quashing the proceedings. 5. On the other hand, the learned Assistant Public Prosecutor submits that there are serious allegations leveled against the petitioner and the alleged offences are serious and grievous in nature, the truth otherwise of which will be determined by a competent criminal court in a full-fledged trial and this Court, in exercise of jurisdiction under Section 482 Cr.P.C, cannot determine the same and hence, he sought for dismissal of the criminal petition. 6. Having heard the submissions made by the learned counsel for the parties and on perusal of the material available on record, the point that arises for consideration is: “Whether the proceedings initiated against the petitioners/A.1 in Crime No.189of 2019 on the file of Muvvalavanipalem Police Station, Visakhapatnam District, are liable to be quashed by exercising jurisdiction under Section 482 of Cr.P.C.?” 7. Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give 7 VS,J CRLP_3842_2020 effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice. 8. Time and again, the scope of powers of this Court under Section 482 of Cr.P.C. were highlighted by the Apex Court in long line of perspective pronouncements, which are as follows: 8 VS,J CRLP_3842_2020 9. In “R.P. Kapur v. State of Punjab1”, the Apex Court laid down the following principles: “(i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, e.g. want of sanction; (iii) where the allegations in the First Information Report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge.” 10. Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent power to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate, it is open to the High Court 1AIR 1960 SC 866 9 VS,J CRLP_3842_2020 to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not. The complaint has to be read as a whole. If it appears on a consideration of the allegations, in the light of the statement on oath of the complainant that ingredients of the offence/offences are disclosed, and there is no material to show that the complaint is mala fide, frivolous or vexatious. In that event, there would be no justification for interference by the High Court as held by the Apex Court in “Mrs.Dhanalakshmi v. R.Prasanna Kumar2” 11. In “State of Haryana v. Bhajan Lal 3” the Apex Court considered in detail the powers of High Court under Section 482 and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint: “(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and 2 AIR 1990 SC 494 3 1992 Supp (1) SCC 335 10 VS,J CRLP_3842_2020 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 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. (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.” 11 VS,J CRLP_3842_2020 12. Keeping in view the above principles, I would like to examine the case on hand. 13. Coming to the facts of the case on hand, the allegations set out in the present criminal petition are that the petitioner, taking advantage of live-in-relationship with the complainant for about 4 years and making her believe that he fell in love with her and he would marry her by convincing his family members after her divorce from her husband, participated in sexual intercourse with the complainant on several times and got the complainant pregnant and underwent miscarriage due to her ill-health and thereby, cheated the complainant. The main offence alleged against the petitioner is under Section 376 IPC which deals with punishment of Rape. The term Rape is defined under Section 375 of IPC and the term Consent is defined under Section 90 of IPC. For better appreciation of facts and circumstances, it is relevant to refer to the provisions of Section 375 and Section 90 IPC, which are reads as under: Section 375 Rape: A man is said to commit "rape" if he— (a)penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or 12 VS,J CRLP_3842_2020 (b)inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c)manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d)applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person under the circumstances falling under any of the following seven descriptions:— (First.)— Against her will, (Secondly.) — Without her consent, (Thirdly.) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, (Fourthly.) — With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. (Fifthly.) — With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. (Sixthly.) — With or without her consent, when she is under eighteen years of age. (Seventhly.) — When she is unable to communicate consent. Explanation 1.— For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.— Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1.— A medical procedure or intervention shall not constitute rape. 13 VS,J CRLP_3842_2020 Exception 2.— Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. Section 90: A consent is not such a consent as it intended by any section of this Code , if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person:— if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child:— unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. 14. Keeping in view the provisions extracted above, I would like to examine the contents of the complaint. On a though reading of the contents of the complaint and the FIR, it is evident that the marriage of the 2nd respondent/ complainant took place 10 years ago and due to some dispute arose between herself and her husband, she came to her parents house and started living there, during which period, the petitioner/accused showing compassion towards her, took her responsibility and believing his words that he would marry her after divorce from her husband, they started live-in-relationship 14 VS,J CRLP_3842_2020 in which, there was a sexual relationship as evidenced by multiple period of co-habitation, visits and lack of resistance or complaint by the complainant and the said physical relationship had developed with the consent of the complainant, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any point of time despite the fact that she had been in live-in-relationship with the petitioner for almost four years and had travelled with him from one place to another. 15. Assuming for a moment, that the consent of the complainant was given under misconception of fact that the petitioner/accused promised to marry her after divorce from her husband, it is clearly evident from the contents of the complaint that the complainant, believing the words of the petitioner, had participated in a sexual intercourse with him several times. In this regard, it is to be noted that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specifically sexual act. 15 VS,J CRLP_3842_2020 16. In the present case on hand, misconception of fact as alleged by the complainant is that the petitioner promised to marry her and believing his words, she participated in the sexual intercourse with him on several times. As per the contents of the complaint and the FIR, it is an undisputed fact that the complainant was a married women having a female child and she had passion towards the petitioner/accused believing his words that he would marry her after divorce, she started live-in- relationship with the petitioner and had travelled with him from one place to another, during which relationship, the complainant participated in a sexual intercourse with him. It is the contention of the complainant that the consent given by the complainant for sexual intercourse with the petitioner was under a misconception of fact of false promise to marry her. The question that is involved herein is whether the consent given by the complainant was under misconception of fact on account of false promise to marry her or by force. 17. Undisputedly, the complainant was a married woman having a female child. It is also undisputed fact that the petitioner/accused is a social service activist and established a society “We for U Welfare Society” and that the complainant had 16 VS,J CRLP_3842_2020 voluntarily joined in the society as volunteer and she fell in love with the petitioner, having aware of the fact that she was a married woman, particularly, she was very conscious of the fact that her marriage cannot be performed with the petitioner. Having aware of the fact that her marriage may not take place with the petitioner at all, out of love and affection, she had voluntarily and consciously consented to have sexual intercourse with the petitioner and the said consent was not at all in consequence of any misconception of fact, as there was neither a case of resistance nor had she raised any complaint anywhere at any point of time despite the fact that she was in live in relationship with the petitioner for the past four years and had travelled with him from one place to another. 18. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide intentions, and had made a false promise to this effect only to satisfy his lust. 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 mis-representation made to her by the accused, or where an 17 VS,J CRLP_3842_2020 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 so. Such cases may be treated differently. The court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act is conscious of the fact or should have reason to believe that but for the fear or misconception, the consent would not have been given. 19. As already stated, there was neither a case of resistance nor had the complainant raised any complaint anywhere at any point of time despite the fact that she had been live-in-relationship with the petitioner for four years and had travelled with him from one place to another and in view of the same, an inference can be drawn that she had sexual intercourse giving voluntarily consent in view of their live-in-relationship and having passion against him, out of love and affection, despite the fact that she was a married woman and their marriage cannot be performed with the petitioner herein. Further, the complainant had never obtained divorce from her husband and in fact, in the divorce case, the complainant had voluntarily given her willingness to join 18 VS,J CRLP_3842_2020 with her husband and that the relationship between the petitioner and the complainant is a consensual relationship in which relationship, the sexual inter course does not amount to offence of rape and the same cannot be considered to be under misconception of fact. Since the charge leveled against the petitioner under Section 375 IPC is bereft of any evidence, continuation of criminal proceedings against the petitioner/accused is an abuse of process of law. 20. Insofar as the offence under section 417, 420 and 506 IPC, is concerned though there are bald allegations against the petitioner, there is absolutely no material available on record for the same. In the absence of substantial material on record, continuation of proceedings against the petitioner is nothing but abuse of process of court and the same are liable to be quashed. Accordingly, the criminal petition is allowed and the proceedings initiated against the petitioner/accused No.1 in FIR No.189 of 2019 registered for the offences punishable under Sections 376, 417, 420, 506 of the Indian Penal Code on the file of Muvvalavanipalem Police Station, Visakhapatnam District, are hereby quashed. 19 VS,J CRLP_3842_2020 Consequently, miscellaneous applications pending if any, shall stand dismissed. __________________ JUSTICE V.SUJATHA Date: 17.02.2025 KKV 20 VS,J CRLP_3842_2020 THE HONOURABLE SMT JUSTICE V.SUJATHA CRIMINAL PETITION NO: 3842/2020 Date: 17.02.2024 KKV