Bombay High Court: In the present case, an application was filed under Section 4821 of the Criminal Procedure Code, 1973 (‘CrPC’), whereby applicant seeks quashing of FIR registered originally with the Powai Police Station lodged by Respondent 2, the complainant against him, for the offences punishable under Sections 3762, 4203, and 5064 of the Penal Code, 1860 (‘IPC’) and subsequently transferred to Mulund Police Station, Mumbai for further investigation.
The Division Bench of A.S. Gadkari and Dr. Neela Gokhale*, JJ., stated that in the past 31 years, there were many opportunities for the complainant to break away and lodge a complaint against applicant. The Court stated that the physical relationship between the complainant and applicant could not be said to be against her will and without her consent and thus, no case of rape or cheating was made out. Therefore, FIR originally registered with the Powai Police Station and subsequently transferred to the Mulund Police Station was quashed.
Background
The complainant after completing class 12, took up a job in applicant’s company, where there were 10-12 other employees working in the company. In 1987, on a holiday, applicant directed the complainant to come to the office to prepare some bills for audit purposes. Since applicant was her employer, she came to the office and while she was working, applicant came to her, and forcibly established sexual relations with her. Thereafter, applicant threatened to defame her if she complained about this.
The complainant stated that she was very scared and hence did not complain to anybody. Thereafter, between 1987 and 2017, applicant raped her by taking her to various hotels. He promised to marry her and told her that she was his second wife, and he would look after her. In 1993, he put a gold Mangalsutra in her neck and declared her to be his second wife and assured her that, he would give her the status of a wife.
The complainant stated that applicant did not permit her to be married to anybody else but threatened to defame her if she did so. In 1996, he suffered a heart attack and during that period, she looked after the company and managed the affairs. In 2017, her mother suffered from cancer, and she had to take leave of absence from her job and when she resumed service, she found the office closed and there was lock on the company ga. She tried to contact applicant, but he was unreachable.
In 2017, the complainant went to applicant’s house and revealed the fact about their relationship to his wife. However, applicant’s wife did not take any action. Thus, the complainant stated that applicant had cheated her by establishing a sexual relationship with her on assurance of marriage and thus she filed the present FIR.
Analysis, Law, and Decision
The Court stated that the contents of the FIR clearly indicated a consensual relationship, and the parties were indulging in sexual relationship for as many as 31 years. The complainant had never breathed a word about her alleged objection to the relationship and the contents of FIR were completely silent regarding any explanation for delayed FIR and it was only in the arguments that her counsel attempted to offer an explanation.
The Court observed that the FIR indicated that the complainant was aware that applicant was married and despite this knowledge, she continued to believe his assurance regarding marriage. She was adult enough to know that the law forbids a second marriage and there was no allegation in the complaint that applicant promised to divorce his first wife and then marry her. The Court stated that in the past 31 years, there were many opportunities for the complainant to break away and lodge a complaint against applicant.
The Court stated that in 1996 when applicant suffered a heart attack, there was no reason for the complainant to look after the affairs of the company in applicant’s absence and she could have easily sought the assistance of the police. However, she chose not to and supported the defense of applicant that the relationship was consensual. In the past 31 years, she has willingly and knowingly participated in the relationship with applicant.
The Court stated that only when the Company had shut down and applicant refused to hand over documents relating to purchase of medical shop etc. that the complainant approached the police. The Court also stated that the present case was a classic case of the relationship between the parties turning sour and thereafter the complainant lodging a police complaint.
The Court relied on State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 (‘Bhajan Lal Case’), wherein the Supreme Court set out in detail the scope of exercise of power under Section 482 of CrPC and the categories of cases where the High Court might exercise its power under it relating to cognizable offences to prevent abuse of process of any Court or otherwise to secure the ends of justice and the Supreme Court added a caution that the power should be exercised sparingly and that too in rarest of rare cases.
The Supreme Court in Bhajan Lal Case (supra) indicated some illustrative categories as, (1) where the allegations made in FIR 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 made in 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; (3) 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.
The Court stated that the physical relationship between the complainant and applicant could not be said to be against her will and without her consent and thus, no case of rape or cheating was made out. The Court stated that the present case falls under the categories stated by the Supreme Court in Bhajan Lal Case (supra). Therefore, FIR originally registered with the Powai Police Station and subsequently transferred to the Mulund Police Station was quashed.
[Lalchand Sirumal Bhojwani v. State of Maharashtra, 2024 SCC OnLine Bom 2439, decided on 31-07-2024]
*Judgment authored by: Justice Dr. Neela Gokhale
Advocates who appeared in this case :
For the Applicant: Hitesh G. Ramchandani with G. J. Ramchandani; A. S. Shalgaonkar, APP
For the Respondents: Ninand Muzumdar with Ameya Khot, i/b. Advocate Kenny V. Thakkar
Buy Penal Code, 1860 HERE
Buy Code of Criminal Procedure, 1973 HERE
1. Corresponding Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023
2. Corresponding Section 64 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’)
