Bombay High Court
Ganesh Arjun Suryawanshi vs The State Of Maharashtra And ... on 21 January, 2022
Bench: V.K. Jadhav, Sandipkumar Chandrabhan More
1 951 application 2053-20
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
951 CRIMINAL APPLICATION NO. 2053 OF 2020
GANESH ARJUN SURYAWANSHI
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
....
Advocate for Applicant : Mr. A. N. Kakade
APP for Respondent nos. 1 & 2 : Ms. P. V. Diggikar
Advocate for Respondent no.3 : Mr. R. V. Gore
....
CORAM : V. K. JADHAV AND
SANDIPKUMAR C. MORE, JJ.
DATED : 21st JANUARY, 2022.
....
ORDER : (Per Sandipkumar C. More, J.) :-
1. By consent of the parties, heard fnally at the stage of
admission.
2. The applicant wants to quash the proceeding of Special Case
No. 235 of 2020 pending before the learned Additional Sessions
Judge, Aurangabad arising out of Crime No. 0048 of 2020,
registered with Osmanpura Police Station, Aurangabad for the
offence punishable under Section 376, 376(2)(n) of the Indian Penal
Code and under Section 3(2)(va) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act 1989.
2 951 application 2053-20
3. The FIR in this matter recites that the informant-respondent
no.3 got acquainted with the present applicant on Instagram and
they started talking to each other. After one month, the applicant
told her that he liked her and wanted to meet her. Initially,
respondent no.3 refused to meet the applicant but on his
persuasion, she met him around 22/23 December, 2019 at about
5.00 to 6.00 p.m. at Aurangabad. Then respondent no.3 went with
the applicant in his Breeza car to have an ice-cream. The applicant
at that time told her that he liked her and also expressed his wish
to marry with her. Thereafter the applicant asked respondent no.3
-informant to meet him at some isolated place. Accordingly,
respondent no.3 agreed to meet the applicant at place of her friend
Sandhya at Aurangabad in TV Center area. When Sandhya
provided them one room from her house, the applicant committed
sexual intercourse with respondent no.3 on the promise of
marriage. Thereafter, the applicant and respondent no.3 engaged
in sexual relationship from time to time. When respondent no.3
asked the applicant about marriage as promised by him on phone,
he on 13/03/2020 refused for the same. The applicant allegedly
refused to marry with respondent no.3 on account of they being of
different caste.
3 951 application 2053-20
4. The learned counsel for the applicant submits that there was
consensual sexual relationship between the applicant and
respondent no.3 since December, 2019 till March, 2020 and
therefore, it cannot be said that the sexual relationship between
the applicant and respondent no.3 amounts to commission of
offence under Section 376 of IPC. The learned counsel for the
applicant relied upon various judgments as mentioned below :
I) Pramod Pawar Vs. The State of Maharashtra and
another, in Criminal Appeal No. 1165 of 2019;
II) Kaini Rajan vs. State of Kerala, 2013(9)CPSC53 ;
III) Uday vs. State of Karnataka, 2003 (2)CPSC165
and
IV) Dhruvaram Murlidhar Sonar vs. The State of
Maharashtra and others, MUNU/SC/1518/2018.
5. Thus, the learned counsel for the applicant relying on the
observations in the aforesaid judgments submitted that consensual
relationship between the applicant and respondent no.3 does not
attract any offence as alleged by the prosecution even on the
promise of marriage.
6. The learned counsel for respondent no.3 strongly opposed the
submission on behalf of the applicant and submitted that though
the sexual relationship between the applicant and respondent no.3
4 951 application 2053-20
lasted for about four months, but it was based on false promise of
marriage given by the applicant to respondent no.3. Learned
counsel further submits that respondent no.3 had already made
aware about her different caste to the applicant before indulging in
to sexual relations and therefore, the refusal by the applicant for
performance of marriage with her on the said reason, defnitely
amounts to false promise. Thus, learned counsel for respondent
no.3 prayed for rejection of the application.
7. On the other hand, learned APP has also strongly opposed
the application and submitted that there are direct allegations
against the applicant about such serious offence of rape and
therefore, this is not a ft case for quashing of the proceedings.
8. Admittedly, from the FIR, it is evident that respondent no.3
was in friendship of the applicant and thereafter, they engaged in
sexual relationship for about four months on so many occasions.
However, according to respondent no.3 the applicant committed
sexual intercourse with her on false promise of marriage and
therefore, she had consented for the same. Learned counsel for the
applicant heavily relied on the judgments above. We have carefully
gone through those judgments and also police papers and charge
sheet on record. The Supreme Court in the case of Pramod Pawar
5 951 application 2053-20
Vs. State of Maharashtra in Criminal Appeal No. 1165 of 2019
arising out of SLP (Cri) No. 2712 of 2019 has discussed the consent
given by the victim or prosecutrix in the light of promise to
marriage given by the accused. The Supreme Court in the said
judgment has also referred the remaining judgments at Serial
Nos.2 to 4 and therefore, we fnd that the judgment in case of
Pramod (supra) is useful for our discussion in the present matter.
9. On one hand, respondent no.3-informant is claiming that her
consent was on the false promise of marriage given to her by the
applicant and on the other hand, the applicant is claiming that as
respondent no.3 was in consensual relationship with him, no
offence as contemplated in Section 375 of IPC is attracted. On
careful reading of the observations of Hon'ble Supreme Court in
the frst judgment i.e. in case of Pramod (supra), it reveals that the
Supreme Court after considering various earlier judgments in
respect of consent in the light of promise of marriage, has
summarized the legal position in para no.18 as below :
"18. To summarise the legal position that
emerges from the above cases, the "consent" of
a woman with respect of Section 375 must
involve an active and reasoned deliberation
towards the proposed act. To establish whether
"consent" was vitiated by a "misconception of
6 951 application 2053-20
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. It is quite signifcant to note that the Supreme Court in the
said judgment had in fact quashed the FIR with similar allegation
as that of this case. But on careful reading of the facts in that
case, it is evident that in that case the complainant and accused
knew each other for about six years and were intimate during the
said period. Further, they engaged in sexual intercourse over a
period of fve years even after the appellant accused disclosed to
the complainant that he was not ready to marry with her. Thus,
even after such disclosure, the complainant in that case had
engaged in sexual intercourse with the appellant accused and
therefore, the Supreme Court in light of those facts had quashed
the FIR in that case.
11. However, if we go through the legal position summarized by
the Supreme Court in the said judgment as mentioned above in
para no.18, there are two propositions laid down by the Supreme
7 951 application 2053-20
Supreme Court, which must be established to arrive at a
conclusion whether the consent was vitiated by a misconception of
fact arising out of a promise to marry. The frst is promise of
marriage must have been a false promise and second is such false
promise itself must be of immediate relevance or bear a direct
nexus to the woman's decision to engage in the sexual act. In the
instant matter, the applicant appears to be engaged in sexual
relationship with respondent no.3 on the promise of marriage and
respondent no.3 also on many occasions consented for the same
due to that reason only. However, the FIR clearly indicates that
respondent no.3 had already told her caste to the applicant before
engaging into sexual relationship. Therefore, the refusal from the
applicant for performance of marriage with her on the basis of they
belong to different castes, prima facie appears a false promise.
After such refusal, there was no physical relationship between the
applicant and respondent no.3 further. Thus, the facts of this case
clearly indicate that whatever acts of sexual intercourse between
the applicant and respondent no.3 were because of a clear-cut false
promise of marriage given by the applicant to respondent no.3.
Thus, the legal position summarized by the Supreme Court in the
aforesaid judgment is in fact helpful to respondent no.3 and not to
the applicant in the light of facts of the present case. Therefore, we
8 951 application 2053-20
are not inclined to quash the proceedings as prayed by the
applicant. Hence, we pass the following order.
ORDER
I) Criminal application is hereby dismissed.
II) Criminal Application is accordingly disposed
of.
(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)
vsm/-
