BALKRISHAN SINGHAL Vs. STATE OF MP

JUDGEMENT

(1.) This revision under Section 397 / 401 of CrPC has been filed against the order dated 01/02/2019 passed by Fifth Additional Sessions Judge/Special Judge (POCSO), Gwalior in ST No.02/2019, thereby rejecting the application filed by the applicant under Section 227 of CrPC.

(2.) The necessary facts for the disposal of the present revision in short are that the complainant/ prosecutrix lodged a report on 06/01/2018 that she is a resident of Gwalior. The applicant is the husband of her sister with whom the matrimonial dispute was going on. In order to resolve the dispute, the prosecutrix had gone to the house of the applicant at about six months back i.e. on 16th June, 2017 along with her sister. When the prosecutrix reached there, she was persuaded by the applicant that in fact, he was interested in marrying the prosecutrix and he still wants to marry her after giving divorce to her sister. The prosecutrix fell into the trap of the applicant and at the instance of the applicant, she started residing with him. On 16 th June, 2017 onwards, the applicant used to have sexual relations with her. On 21/12/2017, at about 10:00 pm when the prosecutrix insisted that the applicant should marry her, then the applicant refused to marry her and turned her out of his house. Thereafter, the the prosecutrix went to her house and informed the entire incident to her sister and accordingly, the FIR was lodged on 06/01/2018. The prosecutrix was sent for medical examination and the possibility of sexual intercourse with her was not ruled out.

(3.) Challenging the FIR lodged by the prosecutrix, it is submitted by the counsel for the applicant that in fact, the provisions of Section 90 of IPC would apply because once the prosecutrix was aware of the fact that the applicant is her brother-in-law whose family dispute with her sister is going on and since the marriage is not possible with him, therefore, if she had agreed for sexual relationship, then it cannot be said that her consent was obtained by misrepresentation of fact. To buttress his contention, the counsel for the applicant has relied upon the judgment passed by the Delhi High Court in the case of Manoj Bajpai vs. State of Delhi decided on 21 st May, 2015 in WP (Crl) 771 of 2014.