Bombay High Court
Mahesh S/O. Ramesh Gujarkar vs State Of Mah. Thr. Pso Padoli Ps Tq. And … on 25 August, 2025
Author: Anil L. Pansare
Bench: Anil L. Pansare
2025:BHC-NAG:8344-DB
Judgment 950-Cr.APL-99-2023
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NO. 99 of 2023
...
Mahesh S/o Ramesh Gujarkar,
Age about 35 years, Occu: Govt. Service,
R/o Matte Lay-out, Padoli,
Tq & Dist : Chandrapur.
... APPLICANT
--VERSUS--
1] State of Maharashtra,
Through P.S.O. Padoli Police Station,
Tq. & Dist. Chandrapur.
2] X.Y.Z.
Crime No.165/2022,
P.S. Padoli, Dist. Chandrapur.
... NON-APPLICANTS
-------------------------------------------------------------------------------------
Mr. A.G. Hunge, Advocate for the Applicant.
Mr. N.H. Joshi, A.P.P. for the Non-Applicant No.1/State.
Mr. A.A. Dhawas, Advocate for the Non-Applicant No.2.
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CORAM : ANIL L. PANSARE AND
M. M. NERLIKAR, JJ
DATE : AUGUST 25, 2025.
PIYUSH MAHAJAN
Judgment 950-Cr.APL-99-2023
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ORAL JUDGMENT (Per M.M. NERLIKAR, J.) :
Rule. Rule made returnable forthwith. Shri Nikhil Joshi,
learned A.P.P. waives service for non-applicant no.1-State and Mr.
A.A. Dhawas, learned counsel waives service for non-applicant no.2.
With consent of learned Counsel for the parties, the application is
taken up for final hearing.
2. The application is being filed for quashing and setting
aside the charge-sheet in First Information Report No.0165/2022,
registered for the offences punishable under Sections 323, 363,
376(2)(n), 376(3), 417 and 506 of the Indian Penal Code, 1860, and
under Sections 4 and 6 of the Protection of Children from Sexual
Offences Act, 2012 (herein after referred to as the “POCSO Act“),
registered with Police Station Padoli, Taluka & District Chandrapur
and the Special case No.11/2024, pending before the Extra Joint
District Judge and Additional Sessions Judge, Chandrapur. Initially,
the applicant had only prayed for quashing and setting aside of the
First Information Report. However, amendment was carried out as
per the orders dated 04/01/2024 and 05/02/2024 and accordingly
the challenge is also raised to the charge-sheet and the Special Case.
PIYUSH MAHAJAN
Judgment 950-Cr.APL-99-2023
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3. The First Information Report No.165/2022 was registered
by the non-applicant No.2 alleging that the informant and non-
applicant no.2 are acquainted with each other since 2016. When the
non-applicant no.2 used to go to school, the applicant used to talk to
her, and they both fell in love. It is further alleged that after some
days, the applicant insisted for physical relations with her in the
premises of Zopla Maroti Temple situated at Mhada Colony,
Chinchpalli Forest. However, Non-applicant No. 2 refused, but the
applicant stated that they were going to get married and on that
pretext he subjected her to forceful sexual intercourse. It is further
alleged that the non-applicant No.2 has been insisting for marriage
since 2018. However, in the year 2019, the applicant got engaged to
another girl. When this fact came to the knowledge of the non-
applicant No.2, she again insisted the applicant to marry her. The
applicant, however, stated that he was marrying the other girl at the
insistence of his parents. However, applicant promised Non-
Applicant No. 2 that he would continue the relationship with her
even after his marriage.
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Judgment 950-Cr.APL-99-2023
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4. In the year 2019, the applicant married the other girl
namely, Vaishnavi, and they got blessed with one daughter.
Thereafter, the non-applicant No.2 denied to keep relations with the
applicant saying that he is now married and having one daughter,
however, at that time, the applicant threatened to disclose
everything to her brother and therefore continued with the physical
relations till 2022. On 13/10/2022, applicant went to the room of
non-applicant No.2 and in the night they had sexual intercourse,
however, on the next day i.e. on 14/10/2022, the applicant
quarreled with the non-applicant no.2 and assaulted her. The
brother of the non-applicant no.2 noticed that the non-applicant
no.2 was in depression, and therefore, checked her mobile phone,
wherein, he found that the non-applicant no.2 is having love affair
with the applicant. Pursuant to the same, non-applicant no.2
disclosed about the relationship and thereafter on 02/11/2022 non-
applicant no.2 along with her brother went to the house of the
applicant in order to question him, however, applicant was not
found at the house. Again, the family members of the non-applicant
no.2 went at 2:30 p.m. on the same day and questioned the
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Judgment 950-Cr.APL-99-2023
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applicant about the relationship, however, the applicant quarreled
with them and went away. Thereafter, they went to the Police
Station and lodged the complaint. Accordingly, the police has
registered First Information Report for the offences as stated above.
Investigation was conducted, charge-sheet came to be filed. It was
numbered as Special POCSO Case No.11/2024 which is pending
with the Extra Joint District Judge and Additional Sessions Judge,
Chandrapur.
5. We have heard Mr. Hunge, the learned counsel for the
applicant, Mr. Joshi, the learned Additional Public Prosecutor for the
State and Mr. Dhawas, the learned counsel for the non-applicant
No.2.
6. Mr. Hunge, the learned counsel for the applicant submits
that First Information Report was filed by way of an afterthought. He
further submits that in order to bring the case under the provisions
of POCSO, the non-applicant no.2 narrated the incident of 2016 and
in the entire charge-sheet, there is no evidence in order to attract the
provisions of the POCSO, nor the ingredients of Section 376 are
PIYUSH MAHAJAN
Judgment 950-Cr.APL-99-2023
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attracted in the present facts of the case. The First Information
Report was registered by the informant when she turned major,
alleging that the incident occurred when she was minor. There is
nothing in the charge-sheet to attract the provisions as lodged in the
charge-sheet and the First Information Report, and therefore, he has
prayed to quash the Special POCSO case No.11/2024. The learned
counsel relied on the Judgment of the Hon’ble Supreme Court in the
case of Kunal Chatterjee Vs The State of West Bengal & Ors. (Special
Leave Petition (CRL.) No. 7004/2025) and submitted that while
dealing with identical facts the Hon’ble Supreme Court quashed the
criminal proceedings.
7. On the other hand, the learned Additional Public
Prosecutor and the learned counsel for the non-applicant no.2
vehemently opposed these submission by submitting that the consent
obtained by the applicant is no consent in the eye of law as the
alleged incident narrated by the non-applicant no.2 is of the year
2016 and at that time victim was 16 years of age. Prima facie, the
applicant has taken undue advantage of the non-applicant no.2, as
PIYUSH MAHAJAN
Judgment 950-Cr.APL-99-2023
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she was not having any understanding being minor of what she was
doing. The consent was obtained under the false promise of
marriage. It was since inception that the applicant was not intending
to marry the non-applicant No.2. It is further submitted that the
relationship was continued under the threats of the applicant, and
therefore, there is sufficient material against the applicant.
8. We have gone through the material and given our
thoughtful consideration to the arguments advanced by the parties.
We find the First Information Report admittedly was lodged on
03/11/2022 when the non-applicant No.2 was of 22 years of age.
We find that there is no material to indicate that there was
relationship between the applicant and the non-applicant no.2 in the
year 2016 except as mentioned in the F.I.R. It is further to be noted
that the relationship between the applicant and the non-applicant
no.2 continued even thereafter till 2022. In the intervening period,
the Applicant got married to a girl namely, Vaishnavi, in the year
2019, and they are blessed with one daughter from that marriage.
However, even thereafter the non-applicant No.2 continued her
relationship with the applicant. Though, it is stated that under
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Judgment 950-Cr.APL-99-2023
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threat, the applicant has forcefully subjected her to sexual
intercourse.
9. In identical set of facts, the Hon’ble Supreme Court in the
case of Kunal Chatterjee (supra) had an occasion to consider the
allegations which are similar to the present case. The Hon’ble
Supreme Court while quashing the proceedings has observed that
“In our considered opinion, as regarding the rape being committed
by the appellant when the prosecutrix was a minor, there is
absolutely no evidence, and definitely no forensic evidence with the
prosecution. It is only an allegation in the FIR after more than 03
years, in order to make out a case under the POCSO Act, that such
an act of rape was committed three years back when she was a
minor. She also categorically states that she consented to the act as
there was a promise of marriage by the appellant”.
10. The Supreme Court also held that in the Kunal Chatterjee
(supra) by relying on the Judgments in Prithivirajan VS. State. 2025
SCC OnLine SC 696, Pramod Suryabhan Pawar VS. State of
Maharashtra, (2019) 9 SCC 608, Maheshwar Tigga VS. State of
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Judgment 950-Cr.APL-99-2023
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Jharkhand, (2020) 10 SCC 108 that promise to marriage and the
subsequent physical relationship between the two with the consent
would not amount to rape.
11. Therefore, similarly in the present case also the First
Information Report indicates that it was lodged only after attaining
majority by the non-applicant no.2 and the incident alleged is when
she was a minor and was of the age 16. The First Information
Report was lodged in the year 2022 and the incident was shown of
2016 i.e. 6 years back. The applicant and the non-applicant no.2
had a consensual relationship even after attaining majority, and
therefore, it is very difficult to accept the version of the prosecutrix
when there is absolutely no evidence, more so, forensic evidence or
the medical evidence in order to connect the applicant with the
offence of rape. It would be noteworthy to mention at this juncture
that in the case of Kunal Chatterjee (supra), the Hon’ble Supreme
Court further observed that “Under the present facts and
circumstances of the case and the nature of the evidence with the
prosecution, particularly the long delay in lodging the FIR itself
suggest that the present criminal proceedings lodged against the
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Judgment 950-Cr.APL-99-2023
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appellant are nothing but an abuse of the process of law and the
High Court ought to have invoked its inherent jurisdiction in the
case of the appellant as well as it did while quashing the proceedings
for the remaining accused”. Therefore, considering the observations
of the Hon’ble Supreme Court, we are of the considered view that
there is no evidence or material to attract Sections 4 and 6 of the
Protection of Children from Sexual Offences Act, 2012, so also,
Sections 376(2)(n) and 376(3) of the Indian Penal Code, 1860.
12. We are surprised that the charge-sheet was filed for the
offences punishable under Sections 363 and 366 of the Indian Penal
Code as absolutely there are no allegations of kidnapping, abducting
or inducing women to compel her marriage, etc. There are no
allegations even to connect the applicant, so far as Section 417, is
concerned. In this view of the matter and considering the law laid
down by the Hon’ble Supreme Court in the case of Kunal Chatterjee
(supra), we are of the opinion that this is a fit case to invoke the
inherent jurisdiction under Section 482 of Cr.P.C. in order to prevent
the abuse of process of law and to secure the ends of justice. Hence,
the following order:-
PIYUSH MAHAJAN
Judgment 950-Cr.APL-99-202311
ORDER
(i) The Criminal Application is allowed.
(ii) We quash and set aside the charge-sheet in
Crime No.165/2022 registered for the offences
punishable under Sections 323, 363, 376(2)(n), 376(3),
417 and 506 of the Indian Penal Code, 1860 and under
Sections 4 and 6 of the Protection of Children from
Sexual Offences Act, 2012 registered with Police Station
Padoli, Taluka & District Chandrapur and the Special
case No.11/2024.
(iii) Rule is made absolute in above terms. [ M. M. NERLIKAR, J ] [ ANIL L. PANSARE, J ] PIYUSH MAHAJAN