Bombay High Court
Shivraj S/O. Nagnath Hale vs State Of Maharashtra Thr. P.S.O., ... on 20 August, 2022
Bench: Manish Pitale, G. A. Sanap
901.apl.961.2018.odt
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 961 OF 2018
Shivraj s/o. Nagnath Hale
-Vs.-
State of Maharashtra and Anr.
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Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders.
or directions and Registrar's orders.
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Mr P. D. Sharma, counsel for the applicant
Mr. S. S. Doifode, APP for the State/non-applicant No.1
Mr D. R. Rupnarayan, counsel for non-applicant No.2
CORAM : MANISH PITALE AND
G. A. SANAP, JJ.
DATE : 20.08.2022
1. By this application the applicant has
approached this Court seeking quashing of FIR dated
30.10.2017, bearing No. 685/2018, registered at
Police Station Gadchiroli, Distt. Gadchiroli for offences
punishable under Sections 376 and 417 of the Indian
Penal Code (For short "IPC").
2. The non-applicant No.2 i.e. the original
informant submitted an oral report on 30.10.2017,
before the aforesaid police station stating that she and
the applicant were introduced to each other on social
media and thereafter, they met each other and upon
intimacy developing between them, the applicant
proposed her for marriage and thereafter, they met on
few more occasions. It is alleged that by giving false
promise of marriage, on a particular day, the
901.apl.961.2018.odt
applicant had physical intimacy and sexual
intercourse with the non-applicant No.2. It is then
alleged that thereafter, the applicant blocked her
number and started avoiding her. Thereafter, she
pursued the matter but to no avail and eventually she
was constrained to approach the police station.
3. On the basis of the contents of the said oral
report, the FIR stood registered and investigation was
initiated.
4. On the applicant filing the present application,
notice was issued on 22.11.2018 and it was directed
that although the investigation may go on, the charge
sheet shall not be filed until further orders. As a
consequences, we are informed that investigation is
almost complete but charge sheet could not be filed.
5. Mr. P. D. Sharma, learned counsel appearing
for the applicant took us through the oral report,
leading to registration of the FIR and he submitted
that even if the contents of same were taken to be
true, not even a prima facie case is made out for the
aforesaid offences against the applicant. It was
submitted that in such cases, where it is alleged that
the informant/complainant was cheated into giving
consent for sexual intercourse, the Hon'ble Supreme
Court has considered various aspects of the matter
and in the case of Pramod Suryabhan Pawar .v/s.
901.apl.961.2018.odt
State of Maharashtra and Anr.1, specific principles
have been laid down as to in which cases such FIR
ought to be quashed at the outset. It is submitted that
the case of the applicant is covered under the
aforesaid Judgment, which has been further followed
in the Judgment in the case of Sonu @ Subhash
Kumar .v/s. State of Uttar Pradesh and Anr.
(Judgment and Order dated 01.03.2021 passed in
Criminal Appeal No. 233 of 2021) . On this basis, it is
submitted that the FIR deserves to be quashed.
6. On the other hand, Mr. Doifode, learned APP
appearing on behalf of the non-applicant No.1/State
submitted that the material that has emerged during
the investigation sufficiently indicates a strong prima
facie case against the applicant, particularly in the
light of the interaction that the applicant and non-
applicant No. 2 had through whatsapp chats and other
interactions. It is submitted that in the facts of the
present case this Court ought not to interfere at this
stage and the matter ought to proceed further against
the applicant.
7. Mr. Rupnarayan, learned counsel appearing
for the non-applicant No.2 submitted that the
contents of the oral report itself would indicate a
strong prima facie case against the applicant for the
reason that details of the manner in which the non-
1 (2019) 9 SCC 408
901.apl.961.2018.odt
applicant No. 2 was lured into having intimacy with
the applicant has been divulged. The material on
record clearly indicates that the applicant has held out
a false promise of marriage, only with the intention to
have sexual intercourse with the non-applicant No.2
and that therefore, she was clearly under
misconception of fact as recognized in the aforesaid
Judgment of the Supreme Court in the case of
Pramod Suryabhan Pawar .v/s. State of Maharashtra
and Anr. (supra) . On this basis it is submitted that the
application deserves to be dismissed.
8. Heard learned counsel for the rival parties.
Perused the material on record. Such cases where the
informant/complainant essentially urges that she was
under misconception of fact while giving consent for
sexual intercourse, the Supreme Court has analyzed
numerous earlier precedents and then has held in the
case of Pramod Suryabhan Pawar .v/s. State of
Maharashtra and Anr. (supra) 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 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
Section 375 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:
901.apl.961.2018.odt
"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.
24. Hence, it is evident that there must be
adequate evidence to show that at the
relevant time i.e. at the initial stage itself,
the accused had no intention whatsoever,
of keeping his promise to marry the victim.
There may, of course, be circumstances,
when a person having the best of
intentions is unable to marry the victim
owing to various unavoidable
circumstances. The "failure to keep a
promise made with respect to a future
uncertain date, due to reasons that are not
very clear from the evidence available,
does not always amount to misconception
of fact. In order to come within the
meaning of the term "misconception of
fact", the fact must have an immediate
relevance". Section 90 IPC cannot be called
into aid in such a situation, to pardon the
act of a girl in entirety, and fasten criminal
liability on the other, unless the court is
assured of the fact that from the very
beginning, the accused had never really
intended to marry her."
901.apl.961.2018.odt
9. In fact, the learned counsel appearing for the
applicant relied upon the above quoted paragraph
from the said judgment. It has been followed in the
subsequent judgment in the case of Sonu @ Subhash
Kumar .v/s. State of Uttar Pradesh and Anr. (Supra).
After analyzing the facts of that particular case the
Supreme Court followed the dictum laid down in the
case of Pramod Suryabhan Pawar .v/s. State of
Maharashtra and Anr. (supra), to hold in favour of the
accused.
10. We are of the opinion that the position of law
as clarified in the aforesaid judgments makes it clear
that in order to quash FIR in such cases where
informant/complainant alleges being under
misconception of fact due to false promise of
marriage, the material has to be examined in order to
reach a prima facie conclusion as to whether it could
be termed as a case of breach of promise or a case of
false promise.
11. Applying the aforesaid principle to the facts of
the present case, we find that in the oral report
leading to the registration of FIR, the non-applicant
No.2 has specifically urged as to the manner in which
she developed contact with the applicant, as also the
manner in which promises of marriage were held out
leading to the non-applicant No.2 consenting to
physical intimacy and sexual intercourse. It is also
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specifically alleged that thereafter, the applicant
blocked her number and started avoiding her
completely. Alongwith the application, we find that
there is reference of certain whatsaap chats between
the parties, one of which shows that the applicant
clearly held out a proposal of marriage to the non-
applicant No.2.
12. There is not even a shred of material at
present to indicate that there were supervening
circumstances due to which the applicant was unable
to give finality to his proposal to marry non-applicant
No.2. It was not as if the parties were in consensual
relationship for a long period of time and then they
fell out due to certain circumstances. As per the
allegations made by the non-applicant No.2 it is not
possible for us to give a prima facie conclusion at this
stage that no ingredients of the offences alleged are
made out. In fact, the material on record prima facie
indicates that even applying the principles of law laid
down by the Supreme Court in the case of Pramod
Suryabhan Pawar .v/s. State of Maharashtra and Anr.
(supra), the case for investigation and further
proceedings is indeed made out against the applicant.
13. Once we have reached the aforesaid
conclusion, it would not be possible to favourably
consider present application and accordingly it
deserves to be dismissed. Needless to say, the
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observations made herein above are limited to
examining as to whether the criminal proceedings
initiated by non-applicant No.2 deserve to be nipped
in the bud or that investigation and further
proceedings are warranted. We have found that the
present case does not deserve to be terminated at this
stage and that the matter deserves to go further in
terms of completion of investigation and further steps
in the matter.
14. In view of above, we find that there is no
merit in the present application and accordingly it is
dismissed.
JUDGE JUDGE
Namrata
Signed By:NAMRATA YOGESH
DHARKAR
P. A.
High Court Nagpur
Signing Date:23.08.2022 12:20
