Bhagwan S/O Bhanudas Khatke R/O ... vs State Of Mah, Thr P.So. Shegaon Tq. ...
2022 Latest Caselaw 2737 Bom

                                                   1                  Cri.APL-400.19.odt


   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                 NAGPUR BENCH, NAGPUR


           CRIMINAL APPLICATION (APL) NO. 400 OF 2019


1. Bhagwan s/o. Bhanudas Khatke,
   Aged 24, Occ. Student.

2. Krushna Ramdas Gawade,
   Age 39 Yrs., Occ. Agriculturist.

3. Arjun s/o. Ramdas Gawade,
   Age 36 Yrs. Occ. Agriculturist.

4. Bhanudas Shaligram Khatke,
   Aged 42 Yrs., Occ. Agriculturist.

5. Sau. Lata w/o. Bhanudas Khatke,
   Age 40 Yrs. Occ. Agriculturist.

6. Shaligram s/o. Shrirang Khatke,
   Age 65 Yrs. Occ. Agriculturist.

    All residents of Pala, P. S. Hiwarkhed,
    Tq. Khamgaon, Distt. Buldana.                            ---APPLICANTS

           ---VERSUS---

1. State of Maharashtra,
   through P. S. O. Shegaon,
   Tq. Shegaon, Distt. Buldana.

2. Ku. Pooja d/o. Anil Wayse,
   Aged 22 Yrs. Occ. Student,
   R/o. Shirala, Tq. Khamgaon,
   Distt. Buldana.                                           ---NON-APPLICANTS

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Mr. Abhay Bhide, Advocate for the Applicants.
Mr. M. K. Pathan, Additional Public Prosecutor for the Non-applicant/State.
Mrs. Prajakta Chaudhari, Advocate for the Non-applicant No.2.
-------------------------------------------------------------------------------------------
                                       2             Cri.APL-400.19.odt


          CORAM :      V. M. DESHPANDE AND
                       AMIT BORKAR, JJ.

          DATE     :   22.03.2022.


JUDGMENT : (PER - AMIT BORKAR, J.)


1.        Heard.

2. Rule. Rule made returnable forthwith.

3. By this application under Section 482 of the Code of

Criminal Procedure, the applicants are challenging registration of

First Information Report bearing No.118/2019 dated 13.03.2019

registered with non-applicant No.1 - Police Station for the

offences punishable under Sections 376, 376(2)(n), 323, 500,

504, 506 read with Section 34 of the Indian Penal Code.

4. The First Information Report came to be registered

against the applicants with the accusations that Non-applicant

No.2 was in love relationship with the applicant No.1. It is alleged

that by promising marriage, the applicant No.1 took the non-

applicant No.2 to Gulmandi, Aurangabad on 2 to 3 occasions and

had forcible sexual intercourse. It is alleged that the applicant

Nos. 2 and 3 disapproved the said relationship of the applicant

No.1 with the non-applicant No.2. It is alleged that the applicant

Nos. 4 and 5 were mounting pressure on the non-applicant No.2

and giving threats to her and her parents. It is alleged that 3 Cri.APL-400.19.odt

applicant Nos. 5 and 6 had spread rumors about the abortion of

the non-applicant No.2 and defamed her.

5. The applicants have therefore challenged registration of

the First Information Report by way of filing present application.

This Court on 18/04/2019 issued notice to the non-applicants and

by way of interim order, directed not to file charge-sheet without

leave of this Court.

6. The non-applicant No.1 - Investigating Agency filed

reply stating that the material collected by the Investigating

Agency shows that the applicant No.1 developed sexual relations

with the non-applicant No.2 on false promise of marriage and the

applicants made demand of Rs.8,00,000/- to harass the non-

applicant No.2. It is stated that the Investigating Agency has

ample material to show the involvement of the applicants in the

present offence.

7. The non-applicant No.2 also filed her reply giving details

of her relationship with the applicant No.1. It is stated that she

was in relationship with the applicant No.1 from 2017 till the

registration of the First Information Report. She stated that there

is sufficient material on record to show the involvement of the

applicants in the offence alleged against the applicants.

4 Cri.APL-400.19.odt

8. Mr. Abhay Bhide, learned Advocate appearing for the

applicants relied upon the judgment of Hon'ble Apex Court in the

case of Pramod Suryabhan Pawar vs State of Maharashtra and

another reported in (2019) 9 SCC 608 to submit that the

relationship between the applicant No.1 and non-applicant No.2

was consensual in nature. He submitted that a bare reading of the

First Information Report would indicate that there was absolutely

no intention on the part of the applicant No.1 when he entered

into the relationship not to marry with non-applicant No.2 nor can

it be even suggested that the promise to marry was false. Hence,

he submitted that the ingredients of the offence alleged against

the applicants are not fulfilled, even if, they are taken on their

face value.

9. On the other hand, Mrs. Prajakta Chaudhari, learned

Advocate appearing for the non-applicant No.2 and Mr. M. K.

Pathan, learned A.P. P. for the State supported the continuation of

prosecution stating that the First Information Report would

indicate that the relationship was on the basis of false promise to

marriage.

10. On the basis of the rival submissions and with the

assistance of the learned Advocates for the parties, we have

perused the First Information Report and replies filed by the non-

5 Cri.APL-400.19.odt

applicants. The First Information Report specifically records that

the applicant No.1 had developed friendship with the non-

applicant No.2 and then he assured that he would marry her. The

First Information Report then records that the applicant No.1 and

non-applicant No.2 developed a physical relationship which was

spread over for 1 ½ years i.e. from 01.11.2017 till 13.03.2019.

11. The contents of the First Information Report as well as

replies filed by the non-applicants, leave no manner of doubt on

the basis of allegations as they stand three important features

emerged :

i] The relationship between the applicant No.1 and the non-applicant No.2 was of a consensual nature,

ii] The applicant No.1 and the non-applicant No.2 were in relationship for about more than 1 ½ years and,

iii] Subsequently, the applicant No.1 had expressed disinclination to marry non-applicant No.2 which led to the registration of the First Information Report.

12. In the case of Pramod Suryabhan Pawar (supra), while

dealing with similar situation, the principles of law which must

govern a situation like the present application were enunciated in

the following observations.

6 Cri.APL-400.19.odt

"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..."

Further, the Supreme Court has observed:

"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."

13. Bearing in mind the tests, which have been enunciated

above decision, we are of the view that even assuming that all

allegations in the First Information Report are correct for the

purpose of considering the application for quashing under Section

482 of the Code of Criminal Procedure, no offence has been

established. There is no allegation to the effect that promise to

marry given to the non-applicant No.2 was false at the inception.

7 Cri.APL-400.19.odt

On the contrary, it appears from the contents of the First

Information Report that there was a subsequent refusal on the

part of applicant No.1 to marry non-applicant No.2 which gave

rise to the registration of the First Information report.

14. In so far as the allegations against the rest of the

applicants are concerned, those allegations are not sufficient to

fulfill essential ingredients of the offences alleged against them.

15. For the above reasons, we are satisfied that the

continuation of proceeding would amount to abuse of process of

the Court.

16. We therefore pass following order :

17. The First Information Report bearing No.118/2019

dated 13.03.2019 registered with non-applicant No.1 - Police

Station against the applicants for the offences punishable under

Sections 376, 376(2)(n), 323, 500, 504, 506 read with Section 34

of the Indian Penal Code is quashed and set aside.

18. Rule is made absolute in the above terms. Pending

application(s), if any, stand(s) disposed of.

Digitally signed byRANJANA
MANOJ MANDADE
Signing Date:24.03.2022
16:59                                     JUDGE                                          JUDGE
          RGurnule