1 Appln No.366/11 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.366 of 2011 David Peters Junior and others ... Applicants versus 1) Anita Shivappa Salian 2) State of Maharashtra ... Respondents ... Mr.Ganesh Gole i/b Rashmi Gagwani for the applicants Smt.V.R. Bhosale, APP for State – respondent no.2. Mrs.Prabha Badadare for respondent no.1. CORAM : V.M.KANADE AND A.M.THIPSAY, JJ DATED : 25th August 2011 P.C. 1. Heard learned counsel appearing on behalf of the petitioner and learned APP for the State and learned counsel appearing on behalf of respondent no.1. 2. This application is filed for quashing C.R. No.92 of 2011 dated 4th March 2011 which was registered at Pawai police station for the offences punishable under section 376, 324, 354, 509 r/w section 114 of the IPC. 3. The prosecution case in brief is that the prosecutrix – respondent no.1 herein met the petitioner no.1 in a bar and 2 Appln No.366/11 thereafter they exchanged their mobile phone numbers and were in touch on the mobile phone and on the internet and intimacy developed between them. According to the prosecutrix, thereafter, the petitioner no.1 gave an assurance that he would marry her and in view of that assurance, the respondent no.1 permitted the petitioner no.1 to have sexual relations with her. This went on for quite some time and thereafter, the respondent no.1 realised one day that she had become pregnant. According to the complainant when she enquired with the petitioner no.1 about the assurance given by him to marry her, he did not respond favourably and asker her to abort the child. According to the complainant, thereafter, petitioner nos.2 and 3 on one occasion threatened her when she was travelling in the car along with petitioner no.1 and after petitioner no.1 got down from the car, petitioner nos.2 and 3 molested her and also threatened her. She therefore filed a police complaint which was registered vide C.R.No. 92 of 2011 at the Powai police station. The investigation is over and charge-sheet has been filed. The respondent no.1 however, has now filed an affidavit in reply and has stated that the differences between petitioner no.1 and respondent no.1 have been resolved and therefore she does not wish to prosecute the petitioner no.1 4. On the last date, however, the Division Bench of this Court be their order dated 12th August 2011 have observed that since charge- sheet has been submitted by the Investigating Officer in the Court of Learned Metropolitan Magistrate, Railway Mobile Court, Andheri the matter would have to be decided on merits. Hence, Rule. Rule is made returnable forthwith by consent of the parties. 3 Appln No.366/11 5. Learned counsel appearing on behalf of petitioner no.1 has submitted that in view of the affidavit in reply filed by respondent no.1 and since the differences between the petitioner no.1 and respondent no.1 are resolved, in view of the various judgments of the Supreme Court, this court may be pleased to quash the FIR and the charge-sheet which has been filed as a result of investigation which was carried out on the basis of the FIR. He submitted that even if the allegations which are made in the FIR and the statements which are recorded by the police are accepted at their face value, no offence is made out and therefore, the FIR is liable to be quashed. Learned APP however, submitted that so far as the allegations of molestation are concerned, the said allegation constitute an offence punishable under section 354 r/w section 504 of the IPC. The respondent no.1 is represented by an advocate and she is also present in the court. We have interviewed her and she has reiterated the statements which she has made in her affidavit in reply. 6. In our view, so far as offence punishable under section 376 of the IPC is concerned, even if the averments which are made in the FIR are accepted at its face value, the said offence punishable under section 376 is not spelled out since in the complaint itself, the respondent no.1 has stated that some intimacy was developed between the two and she used to visit the house of petitioner no.1. Mere assurance to marry by itself cannot be said to be an act which has induced the prosecutrix to have sexual relations with the petitioner no.1 and therefore, it cannot be said that the petitioner 4 Appln No.366/11 had sexual relations without her consent or with consent as defined in section 375 thirdly, fourthly and fifthly. Moreover, the respondent no.1 has now stated that she has filed a complaint without knowing the consequences of the complaint, without knowing the seriousness of the allegations made by her against the petitioner no.1. Hence, in our view, the offence which is registered against the petitioners under section 376 and 420 of the IPC may be quashed and set aside. The Apex Court in a recent judgment has also held that in such cases an offence under section 376 and/or 420 of the IPC is not made out. However, so far as offences punishable under section 324, 354, 509 r/w section 114 of the IPC are concerned, in our view, the averments made in the complaint do disclose the commission of the said offences and therefore, it would not be possible for this court to quash those offences. In any case, the said offences are compoundable and the applicants may approach the learned Magistrate for the purpose by filing an application for compounding in view of the consent which is given by the prosecutrix. In the result, Criminal Application is partly allowed. The offences punishable under section 376 and 420 r/w section 34 of the IPC are hereby quashed against the petitioners. 7. Criminal Application is allowed in the aforesaid terms. Liberty is granted to the petitioners to approach the learned Magistrate. (V.M.KANADE, J) (A.M.THIPSAY, J)