ALOK KUMAR Vs. STATE

JUDGEMENT

(1.) THE present petition has been filed by the petitioner under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973 for setting aside the order on charge dated 06.08.2009 and charge framed on the same date by the learned Additional Sessions Judge u/s 376/420 IPC in case FIR No. 63/08 registered with Police Station Connaught Place.

(2.) PROSECUTION case in nut shell is that the complainant is a divorcee who got divorce in the year 2004 and is having a 12 years old child. She met the petitioner in the year 2002 and they started meeting quite often in Delhi. In the month of March, 2003, the complainant went to Germany where the petitioner had come to meet her and they spent time together. Thereafter they met several times in Delhi and became close to each other. In July, 2003, the complainant came to know from the mother of the petitioner that the petitioner is already married and when the complainant confronted the petitioner, he told her that his marriage lasted for two months and that his divorce case is pending. In the month of September, 2004, he invited the complainant to visit him in London and arranged for her to and fro ticket and also gave her some money for her personal use in London. During their stay in London the complainant and the petitioner became intimate with each other and also had physical relations but only after the petitioner promised and assured her that he would marry her after his divorce from his first wife from whom he had a son. Thereafter they kept on having intimate relationship and had a live -in relationship. It is further alleged that on 18th October, 2007, when the petitioner was returning back to London from Delhi, the complainant went to the IGI Airport at around 11:00 -11:30 AM and found the petitioner holding the hands of a lady whose name she came to know later as Amrita Das. The petitioner misbehaved and physically assaulted the complainant for which she got an FIR registered u/s 354/506 IPC at Police Station IGI Airport. Ultimately, the petitioner did not marry the complainant and got married to the lady who was with him at the Airport. Hence this case was got registered.

(3.) IT is further submitted that the first FIR was quashed by this Court vide order dated 9th August, 2010 wherein the facts of the present case were also considered. That being so, after the quashing of the first FIR, this FIR does not survive and is liable to be quashed. The Court in exercise of its power u/s 428 Cr.P.C. has the power to quash the FIR while quashing the order on charge. It is further submitted that the averments made in the FIR itself reflects that the parties were known to each other for a substantial period and were having live -in relationship. There cannot be misconception of fact that the petitioner had physical relation with the complainant on the promise of marriage, inasmuch as, both the parties were already married having children. As per the allegations, the parties were known to each other since the year 2002. The divorce of complainant took place in the year 2004 only whereas the petitioner was also married and his divorce had not taken place. That being so, it cannot be said that there was any promise of marriage in order to bring the case within the meaning of misconception of facts. Reliance was placed on the following judgments for submitting that present is a glaring case of abuse of process of law and while setting aside the order on charge, the FIR itself be quashed: -