Dinesh Kumar Singh, J. - (1.) This Misc. application has been moved under section 482 of the Criminal Procedure Code with a prayer to drop the entire proceedings of case No. 4911 of 2017, State vs Mohit Kumar Goel, pertaining to crime No. 191 of 2017 under sections 498 A, 323, 504, 506 and 376 IPC, PS Mahila Thana, pending in the Court of ACJM Court No. VIII, Ghaziabad.
(2.) The contention of the learned counsel for the applicant Shri Rajesh Kumar Sharma as contained in the affidavit as well as in oral arguments, is that the opposite party No. 2 has falsely implicated the applicant in the above-mentioned case by lodging an F.I.R. on 13/05/2017 against him as well as her entire family, in which after investigation the other family members have been exonerated by police, but has filed charge sheet against him under the aforementioned sections after conducting the investigation in a superficial manner ignoring the evidence on record and drawing biased inferences from it. The opposite party No. 2 and the applicant were studying in LL.B. course together where opposite party No. 2 fell in love with the applicant, which was not taken seriously by the applicant nor was he aware of her sentiments and continued to maintain relations with her as a friend. He never solemnised marriage with her nor is there any witness of the marriage. The police had interrogated the neighbours of the applicant who denied the averments made in the F.I.R.. The investigating officer did not verify the fact of their marriage, as the same had never been solemnised. A Cr. Misc. Writ Petition No. 9545 of 2017 was filed by the applicant on 29/05/2007 seeking quashing of F.I.R. which was dismissed against him, whereafter the applicant surrendered and was bailed out. The charge sheet appears to be illegal because, even if prosecution version be taken to be true, even then offence under section 376 IPC is not made out nor was there any allegation of rape against the applicant. If an offence under section 376 IPC be held made out, then there would be no question of accused committing an offence under section 498 A IPC, both being contradictory to each other, which makes it evident that the investigating officer was negligent to the core in making investigation. The infatuation of the opposite party No. 2 towards the applicant was one-sided but it never crossed the limit of friendship. He is the sole bread earner of the family. His father has retired from a private job; has undergone bypass surgery in Delhi and is presently confined to bed. The present proceedings are an abuse of process of Court, hence they need to be dropped. The reliance is placed by the learned counsel for the applicant on the Nitin verses Rekha, 2017 LawSuit(Bom) 102 and has underlined in his argument that the prosecution has failed to prove the solemnisation of marriage between the opposite party No. 2 and the applicant in terms of section 7 of the Hindu Marriage Act as well as the necessary ceremonies essential for solemnisation of marriage as per the customs of either side. As regards the offence of rape it was further alleged that in modern society when two educated person of opposite sex, after having attained age of majority, knowingly establish physical relationship with each other, the same would fall in the category of consensual sexual activity and not rape, which has been held in a No. of rulings of not only the Apex Court but of several High Courts as well.
(3.) In rebuttal, the learned counsel for the opposite party No. 2 Shri Satyendra Narain Singh has contended in counter affidavit as well as orally that the marriage of the applicant with the opposite party was solemnised in Vaisno Mata Temple, Rakesh Marg, Ghaziabad on 20/06/2013, in which common friends of both the sides namely, Ajay Pratap Singh, Sushil Sharma and Smt. Durgesh Sharma had participated and on the basis of their statements, the investigating officer has filed charge sheet. The applicant earns a handsome amount, who trapped opposite party No. 2 in a web of love and thereafter on 20/06/2013 solemnised marriage with her in a temple taking 7 steps around 'Shivling' clandestinely without any witness, which could be verified from the common friends in the form of three witnesses. It was clearly mentioned in the F.I.R. that due to demand of dowry the opposite party No. 2 was not allowed to live with the applicant and was thrown out of her matrimonial home. The investigating officer after making the investigation properly has filed charge sheet and thereafter cognizance has been taken on 25/11/2017 in this case. The case of the opposite party No. 2 was covered under clause IV of section 375 IPC, which states "Fourthly - with 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." It is a specific case of the opposite party No. 2 that she stayed with the applicant in his house and the opposite party No. 2 was thrown out of her matrimonial home because there were coming many proposals of higher dowry, applicant being a handsome earning person. In a statement under section 164 Cr. P.C., the opposite party No. 2 has clearly stated that the marriage between them was solemnised in a temple and there after physical relationship was made between them. The opposite party No. 2 was being pressurised by the applicant and his family members to withdraw the said case under threat on several occasions, regarding which applications were given to authorities by her on 5/6/2017, 18/8/2017, 5/9/2017, 8/9/2017 and 19/1/2018, which have been annexed.;