Sandeep Mehta, J. - (1.) The petitioner Mohd. Irfan has approached this Court by way of the instant misc. petition seeking quashing of the FIR No.192/2015 registered at the Police Station Nayashahar, District Bikaner for the offences under Sections 420 and 376 IPC. He is a physically challenged man suffering from residual polio causing 60% permanent disability in his left lower limb.
(2.) The complainant Respondent No.2 Mst. M aged 30 years submitted a written report at the Police Station Nayashahar on 22.5.2015 with the following allegations: ...[VERNACULAR TEXT OMITTED]... 3. On the basis of the above report, an FIR No.192/2015 was registered against the petitioner at the Police Station Nayashahar for the above offences. The complainant during the course of investigation was examined under Section 161 Cr.P.C. as well as under Section 164 Cr.P.C. and more or less, she repeated the allegations set out in the FIR. It appears that arising from the dispute of purchase of a plot which the complainant herself has stated in her FIR, the petitioner's father Mohd. Sadiq had earlier filed an FIR No.191/2015 against the complainant at the Police Station Nayashahar for the offences under Sections 385 and 504 IPC. 4. During investigation of the FIR No.192/2015, the complainant executed an affidavit of compromise with the petitioner, wherein it was affirmed on oath that the petitioner never forced her into having sexual relations. It has also been brought on record during the course of investigation that the complainant herself was pursuing law degree before filing the FIR and completed the course during the pendency of the investigation. The complainant's statement was once again recorded under Section 161 Cr.P.C. in relation to the compromise affidavit executed by her. In such statement, she stated that the stamp of the compromise document had been purchased by her. However, she stated that some unknown lady got her to sign the said affidavit under misconception. She denied entering into any compromise with the petitioner. However, this Court vide order dated 28.8.2015 passed in S.B.Criminal Misc. Bail Application No.5530/2015 (Mohammad Irfan v. State) granted anticipatory bail to the petitioner relying on the said affidavit executed by the complainant. Now, the petitioner has approached this Court by way of this misc. petition seeking quashing of the FIR No.192/2015 registered against him at the Police Station Nayashahar for the offences under Sections 420 and 376 IPC. 5. As per the factual report submitted by on record, the Investigating Officer has omitted the offence under Section 420 IPC and proposes to proceed against the petitioner for the offence under Section 376 IPC only. 6. Ms. Vandana Bhansali, learned counsel for the petitioner submitted that though the allegations levelled in the FIR are absurd and unbelievable but still, even if admitted to be true at their highest, then also it is clearly a case of consensual sexual relations between two major persons and as such, no prima-facie offence under Section 376 IPC can be said to be made out against the petitioner. She thus, urged that the impugned FIR deserves to be quashed. 7. Per contra, learned Public Prosecutor Shri Rajesh Bhati and learned counsel representing the complainant respondent No.2 Shri SK Verma vehemently opposed the submissions advanced by the learned counsel for the petitioner. They urged that it is clearly a case wherein, keeping the victim under the misconception of promise of marriage, the accused took undue advantage and subjected her to sexual relations against her desire. As such, they urged that it would be premature and unjustified for this Court to hold that the relations between the complainant and the accused were consensual and thus, as per them, there exist no just reasons to quash the FIR on the basis of such an assumption. 8. I have heard the arguments advanced by the learned counsel for the parties and have gone through the impugned FIR as well as the case diary. 9. The facts enumerated herein-below are admitted as per material available on record:- 1. The prosecutrix is a 30 years old lady and was pursuing law degree when she filed the FIR. 2. It was the prosecutrix, who first approached the accused under the pretext of purchasing a plot. Thereafter, intimate relations developed between both of them. 3. She frequently accompanied the accused in his car and went to secluded spots and there, sexual relations were established between both of them. 4. The complainant clearly stated in her FIR that she established physical relations with the accused owing to love and affection. 5. She also stated that the accused applied blood in her forehead and thereby claimed to have married her. 6. The complainant admittedly failed to make payment of the instalments of the land which she had purchased from the accused. 7. Some of witnesses examined by the Investigating Officer, during investigation reveal that the complainant was heard giving threats to the accused that she would implicate him in a case of rape. 8. The stamp on which the complainant executed the affidavit of compromise was purchased by her. 9. The accused is a polio-stricken man and therefore, there could not have been compulsion for the complainant to have accompanied him to secluded spots in the car of the accused. She could have left the company of the accused at any time if she was not desirous of establishing relations with him. 10. The Investigating Officer has himself not found the offence under Section 420 IPC made out against the petitioner. 10. The Hon'ble Supreme Court examined a similar set of facts in the case of Prashant Bharti v. State of NCT of Delhi reported in AIR 2013 SC 2753 and held that a consensual physical relationship between two adults without any assurance could not substantiate the offence under Section 376 IPC and quashed the charge framed against the accused for the said offence. The complainant in Prashant Bharti's case had set up a story that she was administered something intoxicating in soft drink and thereafter, under effect of intoxication, the accused subjected her to sexual intercourse against her wishes. In the case at hand, the facts starkly speak against the conduct of the complainant and in favour of the accused. The complainant herself, in the typed complaint clearly asserted that she established physical relations with the accused as she was in love with him. She used to frequently accompany the accused in his car and both went to secluded places where consensual sexual relations were established. As noticed above, the accused is a physically challenged man with 60% disability in the lower limb. Thus, the possibility of his forcing the complainant to go to a secluded place for subjecting her to sexual intercourse against her desire is virtually non-existent. In this background, there is not even a faintest of doubt in the mind of the Court that the allegation set up by the complainant in the impugned FIR that physical relations were established between her and the accused under a false promise of marriage cannot be accepted even for a moment. It is a fit case wherein the Court is fully convinced that the relations, if any, established between the petitioner and the complainant were wholly consensual and were not established under any misconception or fraud. The complainant being a 30 years old mature woman was fully aware of the nature and consequences of the relationship being established between herself and the accused. 11. As a result of the above discussion, this Court has no hesitation in concluding that the impugned FIR and further investigation/proceedings sought to be taken thereunder against the petitioner for the offences under Sections 376 and 420 IPC are misconceived and are nothing short of a gross abuse of process of criminal law. 12. Accordingly, the misc. petition deserves to be and is hereby allowed. The impugned FIR No.192/2015 registered at the Police Station Nayashahar, District Bikaner and all further investigation/proceedings sought to be taken thereunder are hereby quashed. Stay petition is also disposed of. Petition allowed. ;