Judgment 1 J-APL No.1111.2025.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APL) NO. 1111 OF 2025 1) Nilesh Ashokrao Wankhade, Aged 34 years, Occ. : Service (Army), 2) Priyanka Nilesh Wankhade, Aged 29 years, Occ.- Household, Both R/o. Pawan Nagar, Navsari, Amravati, Tq. and Dist. Amravati. …. APPLICANTS // VERSUS // 1) State of Maharashtra, Through Police Station Officer, Police Station, Gadge Nagar, District Amravati. 2) XYZ (Victim), In Crime No.478/2025, Through Police Station Officer, Police Station Gadge Nagar, District Amravati. …. NON-APPLICANTS _____________________________________________________________ Mr. P. V. Navlani, Advocate for applicants. Mr. M. J. Khan, Assistant Public Prosecutor for non-applicant No.1/State. Mr. Kushal Jain, Advocate (appointed) for non-applicant No.2. _____________________________________________________________ CORAM : M.W. CHANDWANI, J. DATED : AUGUST 21, 2026 ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties. 2026:BHC-NAG:11122-DB Judgment 2 J-APL No.1111.2025.odt 2. The present application is filed for quashing of the First Information Report (FIR) No.478/2025, dated 19.06.2025, registered with Police Station, Gadge Nagar, Amravati City for the offences punishable under Sections 64(1), 79, 351(3) read with Section 3(5) of the Bhartiya Nyaya Sanhita, 2023 (for short the “BNS”) as well as consequent proceedings bearing Regular Criminal Case No.1883/2025, pending before learned Judicial Magistrate, First Class, Amravati. 3. The prosecution’s case in a nutshell is as under : Applicant No.1 was acquainted with non-applicant No.2. The applicants are neighbours of non-applicant No.2. Non-applicant No.2 is a married woman having two sons and she is working as a Tax Consultant. She owned flat No.305 at Devi Palace. Applicant No.1 was on visiting terms with non-applicant No.2. He had knowledge that the flat owned by non-applicant No.2 was available for rent. When applicant No.1 was on leave from December 2024 to Jan. 2025, he insisted non-applicant No.2 to show him her flat for renting it out for his friend. Therefore, on 22.01.2025, non-applicant No.2 took applicant No.1 to show her flat at Devi Palace Apartment, where applicant No.1 caught hold of non-applicant No.2 and established forceful physical relations with non-applicant No.2 against her will. He also threatened non-applicant No.2 not to disclose the said Judgment 3 J-APL No.1111.2025.odt incident to anyone. Applicant No.1 used to make voice calls as well as video calls to non-applicant No.2 and show obscene videos to her. Applicant No.1 blackmailed non-applicant No.2 by stating that he would show her photos to his friend. When the relationship between applicant No.1 and non-applicant No.2 came to the knowledge of the wife of applicant No.1 (present applicant No.2), on 03.06.2025, she went to the house of non-applicant No.2 and abused her in filthy language. Therefore, on the complaint of non-applicant No.2, the aforesaid offences came to be registered against the applicants. 4. Learned Counsel for the applicants vehemently submitted that there was consensual sexual intercourse between applicant No.1 and non-applicant No.2. According to him, non-applicant No.2 continued the relationship with applicant No.1 for a considerable period. When the relationship of applicant No.1 and non-applicant No.2 came to the knowledge of applicant No.2, on 03.06.2025, she went to the house of non-applicant No.2 and reprimanded her. Therefore, the present FIR came to be lodged by non-applicant No.2. Learned Counsel for the applicants further submitted that there is a delay of almost 5 months in lodging the FIR as the alleged incident of forceable sexual intercourse had occurred on 22.01.2025. According to him, non-applicant No.2 has a habit of lodging complaints against various persons. She had lodged FIR No.117/2024 with Police Judgment 4 J-APL No.1111.2025.odt Station, Gadge Nagar, Amravati against two other persons. According to him, no case is made out against the applicants and hence, he prayed for quashing of the FIR and consequent proceedings. 5. Per contra, learned Counsel for non-applicant No.2 assisting learned Assistant Public Prosecutor vehemently submitted that the allegations made in the FIR prima facie suggest that the offences under Sections 64(1) and 351(3) of the BNS are made out against applicant No.1 whereas, the offence under Sections 79 of the BNS is made out against applicant No.2. According to the learned Assistant Public Prosecutor, applicant No.1, on the pretext of taking the flat of non-applicant No.2 on rent, took her to the said flat and committed sexual intercourse. He thereafter threatened non-applicant No.2 with her life if she dares to reveal the said incident to anyone. Therefore, he sought rejection of the application. 6. Heard learned counsel for the applicants, learned Assistant Public Prosecutor for the State and learned counsel for non- applicant No.2. I have gone through the chargesheet. 7. It transpires from the chargesheet that non-applicant No.2 is a married woman having two major sons. She has worked as a ‘Tax Consultant’. The applicants are neighbours of non-applicant No.2 and they were on visiting terms with her. The allegation against applicant Judgment 5 J-APL No.1111.2025.odt No.1 is that on the pretext of renting out the flat for his friend, he committed sexual intercourse with non-applicant No.2 and threatened her. Thus, the allegation against applicant No.1 is that he committed forcible sexual intercourse. There is no material in the entire chargesheet to show that non-applicant No.2 protested to the said sexual intercourse. Rather, the FIR indicates that after the said incident, applicant No.1 and non-applicant No.2 were constantly in touch and they used to make video calls to each other. The statement of non-applicant No.2 reveals that on video call, applicant No.1 used to show obscene videos to her. As per the prosecution’s case, these activities continued from 22.01.2025 to 03.06.2025 without resistance on the part of non-applicant No.2. Rather, the FIR suggests that it is applicant No.1 who told non-applicant No.2 that he does not want to continue the relationship with her any further and she should not call or message him when applicant No.2 came to know about their relationship. It appears that on 03.06.2025, applicant No.2-the wife of applicant No.1 came to know about the relationship between applicant No.1 and non-applicant No.2 and she went to the house of non-applicant No.2, where she reprimanded her and also abused her. It appears that under the said anger, non-applicant No.2 had filed the complainant against both the applicants. Judgment 6 J-APL No.1111.2025.odt 8. All the material in the chargesheet indicates that non- applicant No.2 was a consenting party to the alleged sexual intercourse. Non-applicant No.2 is a mature married woman and a mother of two sons. After she was allegedly raped, she keep mum for 5 months. Rather, she was continuously in touch with applicant No.1. Therefore, there is substance in the argument of the learned counsel for the applicants that sexual intercourse between applicant No.1 and non-applicant No.2 was consensual and not a forcible act, more particularly, when she did not raise any alarm and did not disclose the alleged act of forcible rape even to her husband. A prudent man would not believe that the prosecutrix, who was raped by applicant No.1 forcibly can again be in touch with him. Therefore, no ingredients of Section 64(1) of the BNS are made out. FIR No.117/2024 registered with Police Station Gadge Nagar, Amravati also indicates that non-applicant No.2 had lodged the said FIR against two other persons for the charge of rape. Therefore, the story put up by non-applicant No.2 in the FIR appears to be absurd. In the background of these facts, the delay of 5 months in lodging the FIR also becomes significant. 9. As regards the allegation under Section 79 of the BNS is concerned, a balance must be struck when construing the intention of the accused in cases relating to the modesty of women. It will not be Judgment 7 J-APL No.1111.2025.odt appropriate to automatically presume the existence of intention, without thoroughly considering the multifaceted elements involved, including the circumstances in which the statement is made. Precise and context-specific assessment is required to ensure that justice is both fair and accurate. 10. Keeping this in mind, let us move to the allegations under Section 79 of the BNS. Applicant No.2 made remarks that non applicant no 2 is habitual in enticing married men and lures them into having a relationship with her. Applicant No.2 was naturally angry and upset with non applicant No.2 upon finding out that she was having a relationship with her husband. In a fit of anger, applicant No.2 may have uttered objectionable words but that does not necessarily suggest that applicant No.2 had the intention to insult the modesty of non applicant No.2. However, the said words were uttered by applicant No.2 in the heat of the moment and were reactionary in nature. The words uttered by applicant No.2 were incidental to the revelation of the love relationship between applicant No.1 and non applicant No.2. The response of applicant No.2 was purely reactionary in nature and therefore, it cannot be said that applicant No.2 had the intention to insult the modesty of non applicant no 2. Judgment 8 J-APL No.1111.2025.odt 11. So far as the allegations against applicant No.1 under Section 351(3) of the BNS are concerned, applicant No.1 threatened non-applicant No.2 that if she reveals the alleged incident dated 22.01.2025 to any person, he will kill the family members of non- applicant No.2 and commit suicide. However, it is pertinent to note that the said offence is non-cognizable in nature and therefore, the police could not have undertaken an investigation without obtaining a prior order from the jurisdictional Magistrate as contemplated under Section 155(2) of the Code of Criminal Procedure. Once, the offences under Sections 64(1) and 79 of the BNS are excluded, the FIR does not prima facie disclose any other cognizable offence. 12. At this stage, it would be appropriate to rely on the decision of the Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others, reported in 1992 Supp (1) SCC 335, wherein, in para 102 it has been observed as under : “102. In the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code of Criminal Procedure, the following categories of cases are given 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 guide- 7 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 Judgment 9 J-APL No.1111.2025.odt 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 F.I.R. 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; (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 institu- tion 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 and (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. Therefore, the present case is squarely covered by para 102 of the decision referred above. Judgment 10 J-APL No.1111.2025.odt 13. In view of the above, a case is made out for exercising the inherent powers of this Court under Section 528 of the Bhartiya Nagrik Suraksha Sanhita, 2023 to quash the FIR and consequent proceedings. Accordingly, I proceed to pass the following order : (i) The criminal application is allowed. (ii) FIR No.478/2025, dated 19.06.2025, registered with Police Station, Gadge Nagar, Amravati City for the offences punishable under Sections 64(1), 79, 351(3) read with Section 3(5) of the Bhartiya Nyaya Sanhita, 2023 as well as consequent proceedings bearing Regular Criminal Case No.1883/2025, pending before learned Judicial Magistrate, First Class, Amravati., against the applicants are hereby quashed and set aside. (iii) Fees of the learned Counsel appointed on behalf of non- applicant No.2 be quantified and paid as per the relevant rules. 14. The criminal application is disposed of. Rule is made absolute. (M.W. CHANDWANI, J.) Kirtak Signed by: Mr. B.J. Kirtak Designation: PA To Honourable Judge Date: 25/08/2026 20:15:35