The Gwalior Bench of the Madhya Pradesh High Court has declined to quash an FIR against an advocate accused of exploiting his professional relationship with a client and allegedly committing rape.

The Court observed that if the applicant had misused his position, the prosecutrix's consent could not be considered free. It further held that the prosecutrix's statement recorded under Section 164 of CrPC, in which she denied the allegation, cannot be given precedence over the FIR and her statement recorded under Section 161 of CrPC.

A single judge bench of Justice Gurpal Singh Ahluwalia observed, “The applicant is an Advocate by profession and was representing respondent No.2. If applicant has misused his position & committed rape on the prosecutrix, who was his client, then it cannot be said that consent of prosecutrix was free consent…Considering the fact that applicant, who is an Advocate by profession, has allegedly misused his professional relationship with the prosecutrix and committed rape on her by extending threats that he would otherwise ensure that the case is lost by her, this Court is of considered opinion that no case is made out warranting quashment of FIR or the criminal prosecution.”

The petition, filed under Section 482 of CrPC, sought the quashing of an FIR registered under Section 376(2)(n) of the Indian Penal Code, 1860. The applicant is a practicing advocate.

According to the FIR lodged by the prosecutrix, the applicant, who was representing her in a divorce case, visited her home and informed her that the pending case was baseless. However, he assured her that he would still secure a favorable outcome, provided she followed all his instructions. Subsequently, the applicant engaged in a physical relationship with her and allegedly threatened to defame her in society if she disclosed the incident, warning that it would ruin both her and her children's future.

The prosecutrix further stated that she had already paid the full legal fees, yet the applicant exploited her vulnerable situation and repeatedly raped her, leading to the registration of the FIR.

The applicant's counsel argued that in her statement recorded under Section 164 of CrPC, the prosecutrix did not support the rape allegations. Instead, she claimed that a dispute had arisen between her and the applicant regarding the advocate’s fee. It was further contended that the applicant had not committed rape but had merely issued threats concerning his fees. Therefore, the counsel asserted that, based on the prosecutrix’s statement under Section 164 of CrPC, it was evident that the applicant had been falsely implicated. Additionally, it was argued that the prosecutrix was a consenting party.

The Court observed that the prosecutrix, respondent no. 2, is a married woman with a pending divorce case in which the applicant was representing her. It was noted that the applicant had assured her of a favorable outcome in the case and, under this pretext, allegedly raped her on multiple occasions. The Court further highlighted that the prosecutrix specifically claimed her consent was obtained through coercion and undue pressure.

The Court further observed that the prosecutrix’s divorce case was pending at the relevant time. It opined that if the applicant had misused his position and committed rape on his client, her consent could not be considered free. Regarding the prosecutrix’s statement recorded under Section 164 of CrPC, the Court held that it cannot be given precedence over the FIR and her statement recorded under Section 161 of CrPC.

“The statement recorded under Sections 164 as well as 161 of CrPC can be used for omission and contradiction purposes, but the statement of the prosecutrix recorded under Section 161 of CrPC cannot be ignored merely on the ground that she has not supported her allegations in her statement recorded under section 164 of Cr.P.C.”, the Court said.

In view of the same, the Court dismissed the present application.

Case Title: Munshilal Dhakad Versus The State Of Madhya Pradesh And Others, Misc.

Criminal Case No. 23671 Of 2024

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