SHAMBHU KHARWAR versus STATE OF UTTAR PRADESH & ANR.

Citation: [2022] 7 S.C.R. 156 · Decided: 12-08-2022 · Supreme Court of India · Bench: D.Y. CHANDRACHUD · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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156
SUPREME COURT REPORTS
[2022] 7 S.C.R.
SHAMBHU KHARWAR
v.
STATE OF UTTAR PRADESH & ANR.
(Criminal Appeal No. 1231 of 2022)
AUGUST 12, 2022
[DR DHANANJAYA Y CHANDRACHUD AND
A S BOPANNA, JJ.]
Penal Code 1860: ss. 376, 375 – Punishment for rape –
Necessary ingredients of s. 375 – On facts, accusation of rape by
the second respondent-women against the appellant-man on the
pretext of marriage – Application by appellant seeking quashing of
criminal case registered for an offence punishable u/s. 376 –
Dismissed by the High Court – On appeal, held: Relationship
between the parties-appellant and the second respondent purely
consensual in nature – They are both educated adults – Relationship
of the second respondent with the appellant was in existence prior
to the marriage of the second respondent and continued to subsist
during the term of the marriage and after the second respondent
was granted a divorce by mutual consent – Thus, the essential
ingredients of an offence u/s. 376 not made out – Order passed by
the High Court set aside and the application u/s. 482 CrPC allowed.
Allowing the appeal, the Court
HELD: 1.1 In the instant case, admittedly, the appellant
and the second respondent were in a consensual relationship from
2013 until December 2017. They are both educated adults. The
second respondent, during the course of this period, got married
on 12 June 2014 to someone else. The marriage ended in a decree
of divorce by mutual consent on 17 September 2017. In this
backdrop and taking the allegations in the complaint as they stand,
it is impossible to find in the FIR or in the charge-sheet, the
essential ingredients of an offence under Section 376 IPC. As
regards, the issue whether the allegations indicate that the
appellant had given a promise to the second respondent to marry
which at the inception was false and on the basis of which the
second respondent was induced into a sexual relationship. Taking
[2022] 7 S.C.R. 156
156
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the allegations in the FIR and the charge-sheet as they stand,
the crucial ingredients of the offence under Section 375 IPC are
absent. The relationship between the parties was purely of a
consensual nature. The relationship, was in existence prior to
the marriage of the second respondent and continued to subsist
during the term of the marriage and after the second respondent
was granted a divorce by mutual consent. [Paras 12, 13][163-C-
D, F-G]
1.2 The High Court merely observed that the dispute raises
a question of fact which cannot be considered in an application
under Section 482 CrPC. The facts would indicate that the
ingredients of the offence under Section 376 IPC were not
established. Thus, the High Court proceeded to dismiss the
application under Section 482 CrPC on a completely
misconceived basis. The impugned judgment and order of the
High Court in application u/s 482 is set aside. The application
under Section 482 CrPC shall accordingly stand allowed. [Paras
14, 15][163-G-H; 164-A-C]
Neeharika Infrastructure v. State of Maharashtra (2021)
SCC OnLine SC 315; R.P. Kapur v. State of Punjab
AIR 1960 SC 866 : [1960] SCR 388; State of Haryana
v. Bhajan Lal (1992) 1 Suppl. SCC 335 : [1990] 3 Suppl.
SCR 259; Dhruvaram Murlidhar Sonar v. State of
Maharashtra (2019) 18 SCC 191; Pramod Suryabhan
Pawar v. State of Maharashtra (2019) 9 SCC 608 :
[2019] 11 SCR 423; Sonu @ Subhash Kumar v. State
of Uttar Pradesh (2021) SCC OnLine SC 181 –
referred to.
Case Law Reference
[1960] SCR 388
referred to
Para 7
[1990] 3 Suppl. SCR 259
referred to
Para 7
(2019) 18 SCC 191
referred to
Para 9
[2019] 11 SCR 423
referred to
Para 11
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1231 of 2022.
SHAMBHU KHARWAR v. STATE OF UTTAR PRADESH &
ANR.
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158
SUPREME COURT REPORTS
[2022] 7 S.C.R.
From the Judgment and Orders dated 05.10.2018 of the High
Court of Judicature at Allahabad in Application u/s 482 No. 33999 of
2018.
Ramjee Pandey, Uday Prakash, Raghvendra Shukla, Advs. for
the Appellant.
Mohit D. Ram, Ms. Monisha Handa, Rajul Shrivastav, Anubhav
Sharma, Ms. Srishti Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Delay condoned.
2. Leave granted.
3. The appeal arises from a judgment dated 5 October 2018 of a
Single Judge of the High Court of Judicature at Allahabad. The High
Court dismissed an application instituted by the appellant under Section
482 of the Code of Criminal Procedure 19731 for qua
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