Braj Bhushan Pande And Others vs The State Of Maharashtra And Anr
2021 Latest Caselaw 2103 Bom

                                      (1)                     cri appl.2040-19

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD


                     CRIMINAL APPLICATION NO. 2040 OF 2019

1.    Braj Bhushan Pande
      Age: Major, Occupation- Service

2.    Ranjana Kumari W/o Braj Bhushan Pande
      Age: Major, , Occ. Household

3.    Shruti D/o Braj Bhushan Pande
      Age: 30 years, Occ. Service,
      House of late P.N. Trivedi,
      Road No.1, North Patel Nagar,
      Near Ravi Chowk, P.O. Kesari Nagar,
      Patna - 800024 (Bihar)                            ...        Applicants

               Versus

1.    State of Maharashtra
      Through In charge Police Inspector
      Shivaji Nagar Police Station, Latur,
      Tq. & Dist. Latur.

2.    Neha D/o. Abhaykumar Suri,
      Age: 29 years, Occ. Private Service,
      Permanent Address : Vijayshri Complex,
      Near Magdh University, Kakad Bagh,
      Main Road, Patana State Bihar.
      Present Address: Bliss Apartment,
      Juna Ausa, Near Shivaji School,
      Tq. & Dist. Latur.                                ...        Respondents


                                     WITH
                     CRIMINAL APPLICATION NO. 3781 OF 2019




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                                            (2)                       cri appl.2040-19

      Ashish s/o Bruj Bhushan Pande
      Age: 30 years, Occupation- Service
      R/o House of late P.N. Trivedi,
      Road No.1, North Patel Nagar,
      Near Ravi Chowk, P.O. Kesari Nagar,
      Patna - 800024 (Bihar)                                   ...        Applicant

               Versus

1.    State of Maharashtra
      Through In charge Police Inspector
      Shivaji Nagar Police Station, Latur,
      Tq. & Dist. Latur.

2.    Neha D/o. Abhaykumar Suri,
      Age: 29 years, Occ. Private Service,
      Permanent Address : Vijayshri Complex,
      Near Magdh University, Kakad Bagh,
      Main Road, Patana State Bihar.
      Present Address: Bliss Apartment,
      Juna Ausa, Near Shivaji School,
      Tq. & Dist. Latur.                                       ...        Respondents

                                         ...
                Advocate for Applicants : Mr. Prashant M. Nagargoje
                 APP for Respondent / State: Mr. G.O. Wattamwar
                   Advocate for Respondent No.2: Mr. V.B. Patil
                                         ...

                                    CORAM :      T.V. NALAWADE &
                                                 M.G. SEWLIKAR, JJ.

DATE : 02.02.2021

JUDGMENT : (Per: M.G. Sewlikar, J.)

Rule. Rule is made returnable forthwith. Learned A.P.P. and the

learned advocate for the respondent no.2 waive service. With the consent of

the parties both the matters are heard finally at the stage of admission.

(3) cri appl.2040-19

2. Both these applications are being disposed of by common

judgment as they arise out of the same crime.

3. Factual matrix involved in these two applications can be briefly

stated as under.

4. The informant was working in Ericsson Company, Kolkata since

18.12.20212. She got acquainted with applicant in application no.3781/19

(hereinafter referred to as 'A'). Applicant nos.1 and 2 in application

no.2040/19 are the parents of 'A' and applicant no.3 in application

no.2040/19 is the sister of 'A'. (Applicant nos.1, 2 and 3 in application

no.2040/19 are hereinafter referred to as father, mother and sister

respectively).

5. It is further alleged in the FIR that the informant got acquainted

with the 'A'. 'A' used to visit her house on one or the other pretext. On

14.02.2013 'A' proposed the informant. In the month of March-2013 the

informant went to Delhi as 'A' had called her at Delhi and had purchased an air

ticket for her. Both of them had gone to Shimla for sight seeing / picnic. At

that time, both of them had stayed in one room. 'A' asked for sexual favour.

She refused as both of them were not married to each other. 'A' put a ring into

(4) cri appl.2040-19

her finger and took her to a temple at Shimla and after chanting of mantras by

the priest applied vermilion (kunku) on her forehead and declared that they

were married. Thereafter, he had sexual intercourse with her. Thereafter, 'A'

avoided to marry her on the ground that he would marry her after the

marriage of his elder sister. He always treated her as his wife. In the

marriage of his elder sister, she was treated like a family member. She had

financially helped 'A' in the marriage of his elder sister. Her father met the

parents of 'A' but the mother refused to get her married to 'A' on the ground

that she belongs to a low caste and that she should pay Rupees Fifty Lakhs if

at all she wanted to marry 'A'. When she had gone to meet the parents of 'A',

parents of 'A' and his sister abused and turned her out of the house. During the

period from 03.01.2019 to 07.01.2019 she was called by 'A' to his house at

Ausa Road, Latur and had sexual intercourse with her. On 22.03.2019, she

had been to Latur as 'A' was posted there. When she opened the subject of

marriage, 'A' asked her to wait till 24.03.2019. On 24.03.2019 he refused to

marry her and beat her on the road, therefore she lodged this complaint on

25.03.2019 against the applicants in both the applications on the basis of

which FIR came to be registered under Section 376, 323, 506 read with

Section 34 of the I.P.C. against the applicants in both the applications. After

the investigation charge-sheet came to be filed. The applicants in both the

(5) cri appl.2040-19

applications have sought quashing of the charge-sheet under Section 482 of

the Cr.P.C. in these two applications.

6. Heard Shri Prashant Nagargopje learned counsel for the

applicants in both the applications, Shri G.O. Wattamwar learned APP for the

State and Shri V.B. Patil learned counsel for the respondent no.2.

7. Shri Nagargoje submitted that on perusal of entire FIR, it is clear

that sexual intercourse was with the consent of the informant. He submitted

that there is no evidence to show that 'A' had the intention to deceive the

informant or that he had the intention of not marrying her right from the

begining. He further submitted that the informant did not submit herself for

medical examination as she feared that truth would come out. He submitted

that the contents of the FIR show that the parents of 'A' were against the

marriage of 'A' with informant. Despite being aware of the opposition of the

parents of 'A', she continued physical relations with 'A'. He submitted that the

informant kept the physical relations with 'A' knowing full well about the

consequence of her act. He submitted that the informant is major and is

capable of understanding the consequences of her act. He further submitted

that 'A' had submitted an application before the concerned police station

stating therein that the informant was blackmailing 'A' feigning pregnancy. 'A'

(6) cri appl.2040-19

has stated in the said application that the informant was not pregnant but to

pressurise 'A' she is making a false claim that she was pregnant. The document

placed on record clearly shows that the informant was not at all pregnant.

This document coupled with the fact that the informant refused to undergo

medical examination clearly shows that she was not pregnant and she is

making false claim just to pressurise 'A' to marry the informant. The consent

of the informant was a free consent. Therefore, offence under Section 376 of

the I.P.C. is not made out. He, therefore, prayed for quashing of the charge-

sheet. He placed reliance on the following cases:

1) Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr.;

(2019) 9 SCC 608.

2) Vineet Kumar and Ors. V/s. State of Uttar Pradesh and Anr.;

(2017) 13 SCC 369.

3) Dr. Dhruvaram Murlidhar Sonar V/s. State of Maharashtra and Ors.;

(2019) 18 Supreme Court Cases 191.

4)    Prashant Bharti Vs. State (NCT of Delhi);

      (2013) 9 Supreme Court Cases 293.

5)    Shivashankar @ Shiva Vs. State of Karnataka & Anr. Criminal Appeal

No.504 of 2018 (Arising out of SLP (Cri.) No.454 of 2017)

(7) cri appl.2040-19

8. Shri Wattamwar learned APP for the State argued that the

consent was vitiated on account of the fact that 'A' kept on giving her promises

that he would marry her and ultimately resiled from his promise and therefore

offence under Section 376 of the I.P.C. is clearly made out.

9. The Hon'ble Supreme Court has examined the scope of

jurisdiction of the High Court under Section 482 of the Cr.P.C. and laid down

several principles which govern the exercise of jurisdiction of the High Court

under Section 482 of the Cr.P.C. In the case of State of Karnataka V/s. L.

Muniswamy; (1977) 2 SCC 699, a three Judge bench of the Hon'ble Apex

Court held that the High Court can quash the proceedings if it comes to the

conclusion that allowing the proceeding to continue would be an abuse of the

process of the court or that the ends of justice require that the proceeding

ought to be quashed. In the case of State of Haryana V/s. Bhajan Lal; 1992

SCC (Cri) 426, the Hon'ble Apex Court has enumerated seven categories of

cases where power under Section 482 can be exercised. They are as under:

1] Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any ofence or make out a case against the accused.

2] Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable ofence, justifying an

(8) cri appl.2040-19

investigation by police ofcers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155 (2) of the Code.

3] Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any ofence and make out a case against the accused.

4] Where, the allegations in the F.I.R. do not constitute a cognizable ofence but constitute only a non-cognizable ofence, no investigation is permitted by a police ofcer without an order of a Magistrate as contemplated under Section 155 (2) of the Code.

5] Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufcient ground for proceeding against the accused.

6] Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specifc provision in the Code or the concerned Act, providing efcacious redress for the grievance of the aggrieved party.

7] Where a criminal proceeding is manifestly attended with mala fde and / or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

10. Thus, FIR can be quashed if it is found that allegations as made in

the FIR are accepted at their face value in their entirety do not make out any

cognizable offence and that continuation of prosecution would be an abuse of

process of law.

(9) cri appl.2040-19

11. In the case at hand, it is the allegation of the informant that 'A'

had physical relations with her on the false promise of marriage. It is not

seriously disputed that 'A' had physical relations with the informant. The only

rider is that the said relations were with the consent of the informant. It is

evident from paras 11 and 12 of the application of 'A'. They read as under:-

            "11. The          applicant        respectfully           submit         that,

            after      reading        of    F.I.R.       without      admitting          the

            same prima facie case appears to be of consensual

relationship. And non committal promise to marry.

            12.     The       applicant        respectfully           submit         that,

            there      is     long     period       of    relationship          and      co-

            habitation for period in between 2012 to 2019.

            So     there         is    no      question        of     cheating           the

            informant.                Even     as        per   the       version          of

            complainant in F.I.R. she visited the house of

            the applicant in between 2015 to 2019 at Patna

            for     requesting          the    marriage        of    applicant           and

            informant.               Inspite    of    refusal       by    applicant's

father still informant had continued relationshp

with the applicant till 2019 at her will."

This shows that 'A' admits physical relations with the informant.

( 10 ) cri appl.2040-19

12. The question is whether the consent was free consent or it was

obtianed out of misconception of fact. Section 90 of the I.P.C. defines consent

as under:

Section 90- Consent known to be given under fear or misconception. ... --if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent;

13. In the case of Kaini Rajan V/s. State of Kerala; (2013) 9 SCC 113,

the Hon'ble Apex Court has observed thus:

"12. ... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."

14. In the case of Anurag Soni Vs. State of Chhattisgarh; (2019) 13

SCC 1, it is observed as under:

"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtianed on a misconception of act as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC."

( 11 ) cri appl.2040-19

15. In the case of Deepak Gulati V/s. State of Haryana (2013) 7 SCC

675, the Hon'ble Apex Court has observed as under:

"21. ... There is a distinction between the mere breach of a promise, and not fulfiling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused;"

16. In the case of Pramod Suryabhan Pawar cited (supra) the Hon'ble

Supreme court has summarised the legal position as under:

"18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 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."

17. On the basis of these settled principles it will have to be examined

whether the consent was vitiated as it was given out of misconception of fact.

In the case at hand, the informant has alleged that 'A' got acquainted with

each other in Ericsson Company, Kolkata. The contents of the FIR show that

he had sexual intercourse with her on the false promise of marriage. The

contents of the FIR further show that she had refused to consent for the

physical relations and that 'A' applied vermilion powder (kunku) and got

married with her in the temple. Then she consented for sexual intercourse.

( 12 ) cri appl.2040-19

At that time, he did not make her aware of the obstacles that could be created

by her parents. He projected before the informant that he was ready to marry

her and actually got married to her in the temple and put his ring into her

fingers. Thereafter, the informant submitted herself to the desire of 'A'. If 'A'

had made known to the informant that his parents would not consent for their

marriage, the informant would not have submitted herself for the desire of 'A'

to have physical relations with 'A'. This clealry indicates that he concealed this

fact from the informant and obtained her consent projecting as if the parents

would not go against his wish. 'A' did not let her know that her low caste

would also be an obstacle for their marriage. When the parents of the

informant met the parents of 'A', the informant was told that parents of 'A' were

against the marriage of the 'A' with the informant. These factual aspects

clealry demonstrate that the consent was obtained by misconception of fact.

'A' had no intention to marry the informant right from the inception. Even

thereafter 'A' kept on promising her that he would marry her. Therefore, the

informant believed him. The position would have been different if 'A' had

made it clear to the informant that the parents might not give consent for

their marriage and still the informant had submitted to the desire of 'A'. But

this is not the factual situation. It is true that the informant refused to submit

herself for medical examination. However, simply on that count it cannot be

( 13 ) cri appl.2040-19

infered that there were no physical relations with 'A' and informant, especially

when it is alleged by 'A' that the said physical relations were with the consent

of the informant. When the physical relations are admitted, refusal by the

informant to consent for medical examination is of least significance.

18. In the case of Pramod Suryabhan Pawar cited (supra) the victim

was aware that there existed obstacle for marrying. Despite that she

continued to engage in sexual relations. This is not the fact situation in the

case at hand. In the case of Dr. Dhruvaram Murlidhar Sonar cited (supra) the

facts were that the victim was in love with the appellant as she needed a

companion being a widow. The appellant was serving as a Medical Officer in

the Primary Health Centre and the victim was working as an Assistant Nurse

in the said centre. The victim had alleged that the appellant had informed her

that he is a married man and had differences with his wife and that they

belong to different communities. It was further alleged that she had fallen in

love with the appellant and that she needed a companion as she was a widow.

On this basis, the Hon'ble Supreme Court observed that she had taken a

conscious decision after active application of mind to the things that had

happened. It is not a case of a passive submission in the face of any

psychological pressure exerted and there was a tacit consent and the tacit

( 14 ) cri appl.2040-19

consent given by her was not the result of a misconception created in her

mind. The Hon'ble Supreme Court in para 23 has observed as under:

"23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actualy wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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 depsite having every intention to do. Such cases must be treated differentluy. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC."

In the case at hand no circumstances are brought on record to

show that because of some unforeseen circumstances he could not marry the

informant. It cannot be believed that 'A' was not aware that his parents would

oppose the marriage of the informant with 'A' on the ground of her low caste.

( 15 ) cri appl.2040-19

19. In the case of Prashant Bharti cited (supra) the victim was a

married woman on the date when the accused gave the promise of marriage.

Since she was married and the marriage subsisted even at the time of the

alleged physical relations, the Hon'ble Supreme Court observed that the

allegations that the accused had promised to marry her and on that count she

had physical relations with her appears to be per se false. In the case at hand

this is not the factual situation. 'A' concealed the fact from the informant

victim that his parents would not consent for their marriage. As stated herein-

above, if 'A' had made the informant aware of this fact she would not have

consented for sexual relations.

20. Having regard to what is stated herein-above, it is evident that

the alleged consent for sexual intercourse was obtained out of misconception

of fact and therefore it cannot be said that no cognizable offence is made out

against 'A'.

21. So far as applicant nos.1 to 3 in application no.2040/19 are

concerned no allegations are made against them except that they refused to

give consent for the marriage of 'A' with the informant. It is not the allegation

of the informant that at the time of alleged sexual intercourse the applicant's

parents and sister had assured that they would consent for the marriage and

( 16 ) cri appl.2040-19

later on they resiled from their promise. Therefore, no case is made out

against the applicants in application no.2040/19. In view of this, we are

inclined to allow application of parents and sister only. Hence the following

order is passed:

ORDER I) Criminal Application No.2040 of 2019 is allowed. II) Relief is granted in terms of prayer clause-A and the prayer of quashing of the case is also granted. Rule made absolute in those terms.

III) Criminal Application No.3781 of 2019 stands dismissed. IV) Observations in this order are made only for the disposal of these applications. Trial Court shall not get influenced by these observations and can come to its indepedent conclusion.

      [M.G. SEWLIKAR, J.]                            [T.V. NALAWADE, J.]




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