High Court quashes FIR against Sanjeev Hans, no relief for Gulab Yadav, Lalit in Advocate Gayatri Kumari rape case, matter also pending in Supreme Court

"I am of the view that further proceeding with the case i.e. F.I.R. will result in an abuse of the process of the Court and will not serve the ends of justice. Considering the entire circumstances, I am of the view that no offence including the offence of rape is made out against the petitioner, inasmuch as, the complaint/F.I.R. has been lodged after a great delay and from reading of the complaint / F.I.R. the story propounded by the complainant/informant appears to be a false and fabricated one", observed Justice Sandeep Kumar of the Patna High Court in his order dated August 6, 2024. 

Justice Kumar concluded: "this criminal writ petition is allowed. Accordingly, the F.I.R. vide Rupaspur P.S. Case No.18 of 2023 registered for the offence under sections 323, 341, 376, 376-D, 420, 313, 120-B, 504 and 506/34 of the Indian Penal Code and under section 67 of the Information Technology Act and all the consequential proceedings arising out of the aforesaid F.I.R. including the order dated 06.01.2023 passed by the learned Magistrate are hereby quashed so far as the present petitioner is concerned." Sanjeev Hans is the present petitioner. 

There are five respondents in the writ filed by Sanjeev Hans namely, Director General of Police (DGP), Bihar, Senior Superintendent of Police (SP), Patna, Station House Officer (SHO), Rupaspur Police Station, Patna and Gayatri Kumari, Kataiya, Jamhur, Aurangabad. Ritika Rani was the Advocate for both the State of Bihar and Gayatri Kumari. Gayatri Kumari is the complainant/informant.  

The order of Justice Kumar dated June 21, 2024 revealed that the writ of Sanjeev Hans was heard with the writ of Gayatri Kumari. The nine respondents in the writ filed by Gayatri Kumar are: the State of Bihar through its Chief Secretary, DGP, Bihar,  SP, Patna, SHO, Rupaspur, Patna, Gulab Yadav, Sanjeev Hans, Lalit Civil Surgeon-cum-Chief Medical Officer, Sub-Division Sadar Hospital, Danapur, and Incharge Medical Officer, Sub-Division Sadar Hospital, Danapur.  It emerges that the case against Gulab Yadav, Lalit and government officials persists.  

The order has recorded that "From reading of the F.I.R., it appears that the complainant/informant has made allegation against two persons i.e. Gulab Yadav and the present petitioner. The date of occurrence mentioned in the complaint/F.I.R. is from February, 2016 to the date of filing of the complaint petition i.e. 16.11.2021. Initially, the allegations are levelled against Gulab Yadav who is said to have committed rape with the complainant/informant. The name of the petitioner is mentioned for an occurrence which is said to have taken place on 08.07.2017 at a Hotel in Pune alleging that the complainant was sexually assaulted by both the accused persons and Gulab Yadav made a video of the same and thereafter threatened her of making the video viral." 

Justice Sandeep Kumar observed: "I am of the view that the present case is squarely covered with the guidelines provided by the Rajiv Thapar and Others. vs. Madan Lal Kapoor (supra) as the material relied upon by the petitioner is sound and reasonable i.e. the material is of sterling and impeccable quality. Thematerials is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. Further, the complainant / informant in her pleadings has not denied the factual aspects which have been found by the Police during enquiry before registration of the F.I.R. and it cannot be justifiably refuted by the complainant/informant. Therefore, I am of the view that further proceeding with the case i.e. F.I.R. will result in an abuse of the process of the Court and will not serve the ends of justice. Considering the entire circumstances, I am of the view that no offence including the offence of rape is made out against the petitioner, inasmuch as, the complaint / F.I.R. has been lodged after a great delay and from reading of the complaint / F.I.R. the story propounded by the complainant/informant appears to be a false and fabricated one."

The order observes: "The complainant has waited for five years to file the complaint and there is no satisfactory explanation for the delayed filing of the complaint petition." The Court examined the non-compliance of Section 154(3) of the Cr.P.C.  It relied on Supreme Court's decision in the case of Naim Ahamed vs. State (NCT of Delhi) reported as 2023 LiveLaw (SC) 55 while dealing with a similar case of a married grown-up woman, who had made allegation of rape against a person. 

The Supreme Court has held “21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as ‘rape’ by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr.P.C. had stated that she had filed the complaint as he refused to fulfill her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC.” 

The High Court inferred that "In the present case also, the petitioner herself is a grown-up woman, who is practicing Law and as per her own statement she was in a relationship with Gulab Yadav." It observed: "The complainant was matured and intelligent enough to understand the significance and consequences of the acts of which she was a consenting party. She had consented to have sexual intercourse with Gulab Yadav since 2016 and had a child with him but has subsequently filed the present complaint/F.I.R. making the petitioner as an accused and making allegation against the petitioner that he also committed rape with the complainant/informant."

Notably, the High Court's order records: "it has been argued by the petitioner that he has never been involved with the complainant/informant, but even if he had any sexual intercourse with the complainant/informant, it must have been consensual as the complainant /informant has never made any complaint to any authority and after more than five years of the alleged rape, she has filed the present complaint / FIR in which she has made general allegations against the petitioner without disclosing the details as and when she was raped by the petitioner."

The respondent's counsel submitted that the petitioner knowingly and deliberately concealed / suppressed about the order dated September 22, 2023 passed by the Supreme Court in Sanjeev Has Vs. State of Bihar, S.L.P. (Cr.) No.012280 of 2023 preferred by him, whereby the order dated December 12, 2022 passed by a coordinate Bench of the High Court in Cr.W.J.C. No.1271 of 2022 was stayed by the Supreme Court's bench of Justices A.S. Bopanna and M.M. Sundresh. In its order, the Court has condoned the delay and issued notice to the respondents. The order reads: "In the meanwhile, there shall be interim stay of the further proceedings." The respondent's counsel submitted that the petitioner "is guilty of suppressing the material fact in judicial proceeding in order to obtained favourable order" from the High Court.

The August 6, 2024 order of the Patna High commits two proofing errors in paragraph 12. It refers to Diary Number 19079 of 2023 of the case as SLP (Cr.) No. 012280. It does not mention the name of the case, which is pending in the Supreme Court. It was filed on May 4, 2023. It was verified on September 18, 2023 and registered on September 23, 2023. It was last listed on September 22, 2023. The State of Bihar, Gayatri Kumari, SHO, Gulab Yadav and Lalit are respondents in the case. It refers to earlier case detail as order passed by Justice Rajeev Ranjan Prasad of Patna High Court in CRWJC No. 1271 of 2022 on December 12, 2022. 

Justice Sandeep Kumar dealt with the aspect of concealment/ suppression of the Supreme Court's order by Sanjeev Hans. He observed: "33. After the hearing was concluded, the learned counsel for the respondent no.5 (informant) has filed an application under section 340 of the Cr.P.C. on 17.05.2024 and has submitted that the proceeding against the petitioner be initiated for suppression of material facts. The main contention of the respondent no.5 (informant) is that against the order dated 12.12.2022 passed in Cr.W.J.C. No.1271 of 2022, the petitioner had moved before the Hon’ble Supreme Court by way of filing an S.L.P. and the Hon’ble Supreme Court vide order dated 22.09.2023 has stayed the order of this Court passed in Cr.W.J.C. No.1271 of 2022, but this fact has not been brought to the notice of this Court in this petition." He recorded that the counsel for the petitioner has submitted that the petitioner had moved before the Supreme Court against the order dated 12.12.2022 passed in Cr.W.J.C. No.1271 of 2022 on various grounds. The present application has been filed by the petitioner for quashing the F.I.R. and for quashing the order dated of the learned Magistrate by which the Magistrate has directed for registration of the F.I.R. and therefore, the petitioner has different cause of action and there is no requirement for mentioning the same in this proceeding. He concluded: "35. In my opinion, no case for initiation of proceeding under section 340 of the Cr.P.C. is made out and therefore, Interlocutory Application no. 02 of 2024 is dismissed." Justice Kumar's order dated June 20, 2024 had recorded that after "the hearing is concluded and today the matter has come for dictating the judgment." The counsel of Gayatri Kumari informed that he "has filed an application under Section 340 of the Cr.P.C."

It was submitted by the counsel of the Gayatri Kumari that the Magistrate vide order dated January 6, 2023 allowed the prayer of the petitioner to send the complaint petition under section 156(3) of the Cr.P.C. to the Police for registration of the F.I.R and accordingly, the present F.I.R. has been lodged. The Investigating Officer of the case has filed an application in the Court of learned A.C.J.M.-1, Danapur for deputing a Magistrate so that blood sample of Gulab Yadav, the son of the Gayatri Kumari and the petitioner be collected for DNA test but the learned Magistrate vide order dated March 6, 2023 has rejected the prayer of the Investigating Officer by holding that he has no jurisdiction to pass an order for DNA test. Her counsel submitted that Gulab Yadav and Sanjeev Hans, the petitioner used to commit rape with her. Since Gulab Yadav has undergone vasectomy, the presumption goes to establish that the petitioner is the biological father of the son of Gayatri Kumari, the respondent no.5. Thus, the DNA test of the petitioner and the son of the respondent no.5 is required in order to determine the biological father of the son of Gayatri Kumari, the respondent no.5.

The Court's order recorded the submission of the petitioner. It was submitted that the complaint petition has been filed without compliance of statutory provision of 154 (1) of the Cr.P.C. and 154(3) of the Cr.P.C. The trial court below mechanically sent the aforesaid complaint petition for lodging the FIR under section 156(3) of the Cr.P.C. without taking note of the fact that complainant has not complied with the mandatory provisions as laid down by the apex court in the case of Priyanka Srivastava and Anr. vs. Uttar Pradesh and Ors. reported in 2015 6 SCC 287. It is evident from the complaint filed by the complainant. The order reads: "during the pendency of the case, no coercive steps shall be taken against the petitioner in the aforesaid case in connection with Rupaspur P.S. Case No. 18/2023 dated 09.01.2023 registered under sections 321, 341, 37, 376D, 420, 313, 120B, 504, 506, 34 of the IPC, 1860 and section 67 of the Information Technology Act, 2000." The petitioner prayed for quashing the order dated January 6, 2023 passed by the Additional Chief Judicial Magistrate, 1st, Danapur in Complaint Case No.1122 (c) of 2021, whereby the Magistrate passed the order under section 156(3) of the Cr.P.C. for registration of the F.I.R.

Gayatri Kumari, the complainant is a practicing advocate in Allahabad High Court. She was practicing in Patna High Court from 2009 to 2015. In the month of February, 2016 while the complainant was staying at the residence of Senior Advocate Gajendra Prasad Yadav situated at Golden Plaza Apartment, Chitkohra for getting her case mentioned, a junior advocate namely, Shiv Nandan Bharti introduced her to Gulab Yadav, who was an M.L.A. It has also been alleged that said Gulab Yadav lured her by saying that he will get make her member of Women Commission and asked her to come to meet him along with her bio-data at his residence situated at Flat No.401, Bindeshwari Apartment. It is alleged that when the Complainant reached the house of said Gulab Yadav, he raped her at gun point and when the complainant was going to register F.I.R. then Gulab Yadav asked his servant Lalit to bring vermilion and put the same on the forehead of the complainant and said that they were married and they will get their marriage registered and asked for some time to get divorce from his first wife.

It has been alleged that Gulab Yadav called the complainant to Pune to show the papers of the Court, by which divorce has been granted. On 08.07.2017 when the complainant reached Hotel Bestil then Gulab Yadav introduced her to Sanjeev Hans (petitioner) and both raped her after mixing some intoxicating substance in her food. When the complainant regained her consciousness, Gulab Yadav showed her the video of her rape and sent the same on her mobile and threatened her to make the video viral. The complainant got scared and started to live in Allahabad and when she missed her periods, she informed Gulab Yadav about the same but Gulab Yadav asked her to take medicine for abortion which she consumed, however, she had to get admitted in hospital due to medical condition. Thereafter, Gulab Yadav got the complainant admitted in Rahul Judicial Classes, Delhi and arranged for her stay in a hostel in Mukhergi Nagar, Delhi.

It has also been alleged that Gulab Yadav used to call the complainant at different hotels and raped her where Sanjeev Hans (petitioner) also used to accompany Gulab Yadav. It has also been alleged that on 13.02.2018 at Ashoka hotel, on 14.02.2018 at Park Avenue hotel and on 27.03.2018 at Le’ Meriden hotel, she was gang raped and resultantly she conceived and when she informed the accused about this, the accused persons threatened her. Out of fear, the complainant vacated her hostel and started living in Shalimar Bagh, Delhi where she gave birth to a male child on October 25, 2018 and when she informed this fact to Gulab Yadav, he told that it can not be his child as he has undergone vasectomy and said that the child is of Sanjeev Hans. When the complainant tried to contact Sanjeev Hans, he did not speak with her and since then the complainant is hiding from the accused persons as they are quite influential. It has further been alleged that the complainant went to Rupaspur Police Station for registering the F.I.R., but the
Police did not register the F.I.R. by saying that the accused persons are quite influential and then the complainant sent the complaint to Superintendent of Police, Patna on October 28, 2021, however no action was taken in this regard. The complaint case No.1122 (C) of 2021 was filed by the complainant before the Additional Chief Judicial Magistrate (ACJM), Danapur, Patna for lodging the F.I.R. The Magistrate vide order dated September 20, 2022 dismissed the complaint case under Section 203 of the Cr.P.C. 

The complainant approached the High Court by way of filing Cr.W.J.C. No.1271 of 2022. The Court vide order dated December 12, 2022 disposed of the said petition with certain directions. The High Court set aside the part of the order dated May 12, 2022 by which the application of the petitioner was taken as a private complaint on the records of the ACJM and then the High Court further set aside the order dated September 20, 2022 by which the same was dismissed in purported exercise of power under Section 203 Cr.P.C. Thereafter, the Magistrate vide order dated January 6, 2023 directed for registration of the F.I.R. under section 156(3) of the Cr.P.C. The F.I.R. was lodged against the petitioner and other accused persons.

Sanjeev Hans had filed the criminal writ in the High Court for the quashing of the FIR on February 3, 2023 through his Advocate Rana Vikram Singh. It was registered on February 16, 2023. Justice Prabhat Kumar Singh had passed  the first order in the case on February 25, 2023. The petitioner's counsel had submitted that the complainant is a practicing lawyer since 2009 but she filed the complaint under Section 200 Cr.P.C. for the first time after 5 years of the alleged incident. It is hard to believe that a criminal lawyer whose standing is of more than 14 years in the Bar had chosen to file a complaint after 5 years of the alleged incident without annexing any proof and without any satisfactory explanation for the said delay. He submitted that the High Court in catena of judgments has held that if delay in lodging FIR is not satisfactorily explained then that delay often results in embellishment, which is a creature of afterthought and such FIR should be quashed. He relied on decisions of the Supreme Court in Priyanka Srivastava & Anr. vs. State of U.P. & Ors. reported as AIR 2015 SC 1758; Babu Venkatesh and Ors. vs. State of Karnataka and Ors. reported as (2022) 5 SCC 639; Ramesh Kumar Bung & Ors. vs. State of Telangana & Anr. SLP (Criminal) No.13762 of 2023; Mahmood Ali vs. State of U.P. reported as 2023 SCC OnLine SC 950; Prashant Bharti vs. State (NCT of Delhi) reported as (2013) 9 SCC 293; Rajiv Thapar and Ors. vs. Madan Lal Kappor reported as (2013) 3 SCC 330; State of Haryana and Ors. vs. Ch. Bhajan Lal and Ors. reported as AIR 1992 SC 604. The Supreme Court has held in State of Haryana case that where the criminal proceeding is manifestly attended with malafide and/or the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance, the F.I.R. should be quashed.