HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL PETITION No.10050 OF 2022
ORDER:
1. This Criminal Petition is filed to quash the proceedings against the petitioner/Accused in F.I.R.No.92 of 2021 on the file of P.S.,Thungathurthy, Suryapet District.
2. The petitioner is accused of cheating and committing rape on the 2nd respondent. On the basis of the complaint filed on 02.08.2021, FIR was registered for the offences under Section 417, 420, 376(2)(n), 506 r/w 34 of IPC. It is alleged in the complaint that while the 2nd respondent was studying at Dilsukhnagar, she got acquainted with the petitioner herein and they fell in love. For three years they went around and the petitioner also took her to her aunt's place at Uppal and she believed that the petitioner would marry her. With such belief, they had physical relation. Many a times, petitioner took the 2nd respondent to functions in the family and introduced to his relatives as his would be wife. The father of the 2nd respondent was looking for alliance to get the 2nd respondent married, however, the petitioner called her father and insisted not to look for any 2 alliance and that he was going to marry her. Thereafter, the father of the 2nd respondent and relatives went to the house of the petitioner for discussing about the marriage. However, the family members stated that they were not interested in their alliance for the reason of both belonging to different castes. Further, the petitioner and others threatened that they would kill family members of 2nd respondent if they insist for marriage. Thereafter complaint was filed against the petitioner and other family members of the petitioner. According to the petitioner and the learned Public Prosecutor, investigation is still pending before the concerned police.
3. Learned counsel for the petitioner and the 2nd respondent/victim would submit that with the intervention of elders, petitioner and the 2nd respondent had married on 27.12.2021 and a child was also born. They are now living together as husband and wife with the child separately and they do not intend to continue with the case.
4. Learned counsel for the petitioner relied on the judgments of Hon'ble Supreme Court in support of his contention that in the event of the parties settling issues 3 and the facts of the case not making out an offence of rape, though alleged in the FIR or charge sheet the same can be quashed. He relied on the following judgments; i) Sonu alias Subhash Kumar v. State of Uttar Pradesh [AIR 2021 Supreme Court 1405]; ii) Pramod Suryabhan Pawar v. State of Maharashtra [(2019) 9 Supreme Court Cases 608];
iii) Dr.Dhruvaram Murlidhar Sonar v. State of Maharashtra [(2019) 18 Supreme Court Cases 191]; iv) Deepak Gulati v. State of Haryana [(2013) 7 Supreme Court Cases 675] and v) Gian Singh v. State of Punjab and another[ (2012) 10 Supreme Court Cases 303].
5. On the other hand, Sri S.Sudershan, learned Additional Public Prosecutor opposed the intervention of this court in quashing the proceedings under Section 482 of Cr.P.C on the ground of compromise when there are serious allegations of rape. The Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Laxmi Narayan and others [(2019) 5 Supreme Court Cases 688] case, held that in case of serious offences such as rape or offence against society, High Court under inherent powers cannot quash the proceedings. In view of the judgment of the Hon'ble 4 Supreme Court in Laxmi Narayana's case and also in view of the heinous nature of offence alleged, the petition has to be dismissed.
6. Admittedly, the investigation is still pending and during the pendency of investigation, the petitioner and 2nd respondent have married and now they have a child.
7. As seen from the complaint, the allegation of the 2nd respondent is that she was acquainted with the petitioner and they have gone to various places over a period of three years and petitioner has also taken the 2nd respondent to various functions and introduced to his relatives as his would be wife. However, there is an allegation that they had sexual relation and the 2nd respondent was under the belief that the petitioner would marry her.
8. The offence of rape would arise when a victim involved in a sexual relation was in any manner forced to have such sexual relation under threat, coercion or false promise deliberately made. Admittedly, both are adults and have consented to have physical intimacy in the back ground of knowing one another over a period of three years. 5
9. It has to be ascertained from the facts of the case whether physical relation amounts to rape or sex between consenting adults. If the accused had made a false promise in order to satisfy his sexual desire, it would amount to an offence of cheating though both consent for physical intimacy. However, subsequent breach of promise to marry will not amount to an offence of cheating if such intention was not entertained by the accused from the inception. In the present case, even according to the 2nd respondent, the petitioner had taken the 2nd respondent to various family functions and also introduced her to his relatives stating that she was his would be wife. Apparently, the petitioner had intention to marry her, failing which, he would not have ventured into taking her to his family functions. In the present case it cannot be said that petitioner had any criminal intention of having sexual intimacy with the 2nd respondent by making false promises. The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra(supra) held as follows:
"16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be 6 said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:
"21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence.There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently."
18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
10. Thereafter, the Hon'ble Supreme Court relying on Pramod Suryabhan Pawar's case quashed the proceedings under Section 376 IPC in Sonu alias Subhash Kumar's case (supra) finding that on facts when there was no allegation to the effect that the promise to marry was made with false intention from the inception, would not give rise to an offence of cheating and rape. Accordingly, the proceedings therein were quashed.
11. In the present case, applying the observations of the Hon'ble Supreme Court in the judgments cited by the learned counsel for the petitioner, on facts, as discussed in the preceding paragraphs, there was no fraudulent intention 7 on the part of the petitioner in having sexual relation with the 2nd respondent. Further, the physical relation was between consenting adults and subsequently, the marriage proposal being refused based on caste issues, will not in any manner attract an offence of either cheating or rape.
12. Keeping in view the circumstances of the present case, compounding of the offence is permitted. Further on facts, no case is made out for the offence under Section 420 and 376 of IPC.
13. In the result, the proceedings against petitioner/Accused in F.I.R.No.92 of 2021 on the file of P.S.,Thungathurthy, Suryapet District, are hereby quashed.
14. Accordingly, the Criminal Petition is allowed.
_________________ K.SURENDER, J Date: 18.01.2023 kvs 8 THE HON'BLE SRI JUSTICE K.SURENDER Crl.P.No.10050 of 2022 Dated: 18.01.2023 kvs