Bombay High Court
Vishwanath Anna Karnar vs The State Of Mah. (At The Instance ... on 23 August, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
2023:BHC-NAG:12535-DB
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL WRIT PETITION NO.551 OF 2022
1. Vishwanath Anna Karnar, Aged about 24
years, Occupation Service, Residing at
Village Dahegaon, Post Vadali Budruk,
Taluka Nandgaon, District Nashik.
Presently posted at CISF Unit, ONGC"
Hazira, Surat, Gujrat State.
... PETITIONER.
VERSUS
1. The State of Maharashtra (at the
instance of Assistant Commissioner
of Police, Rajapeth Police Station,
vide C.R. No. II-308 of 2022)
2. XYZ, C.R. No.308 of 2022
Rajapeth Police Station Amravati.
... RESPONDENTS.
_____________________________________________________________
Shri J.R. Avhad, Advocate a/w Shri P.B. Kolhare, Advocate for the
petitioner.
Shri V.Thakare, A.P.P. for the respondent/State.
Ms. Anushree Pande, Advocate for respondent no.2.
______________________________________________________________
CORAM : VINAY JOSHI AND VALMIKI SA MENEZES, JJ.
CLOSED FOR JUDGMENT ON : 02.08.2023.
JUDGMENT PRONOUNCED ON : 23/08/2023.
ORAL JUDGMENT : (Per : Vinay Joshi, J.)
RULE. Rule made returnable forthwith.
2. Heard finally by consent of learned Counsel appearing for
the parties.
3. This is a petition under Section 482 of the Code of Criminal
Procedure seeking to quash the First Information Report in Crime
No.308 of 2022 registered with the Rajapeth Police Station, Amravati
City for the offence punishable under Sections 376, 417, 504 of the
Indian Penal Code and Section 3(2)(va) of the Scheduled Caste and
Scheduled Tribe (Prevention of Atrocities) Act, 1989, on account of
settlement as well as on merits.
4. The facts in brief are that the informant lady aged 22 years
was undergoing Nursing Education. In the month of May 2021, she got
befriended with the petitioner through Facebook. Both started to
exchange messages and were chatting with each other. On 03.11.2021,
the petitioner came to Amravati to meet the informant. On the
following day, they met in the temple premises. Thereafter, the
informant took the petitioner to the room of her friend. Both
chit-chatted with each other and finally the petitioner expressed his
love, intention to marry and had sexual relations. After few months, the
informant's father called the petitioner for the purpose of marital talks
on which later refused, hence the report.
5. Learned Counsel appearing for the petitioner would submit
that the prosecution case even if accepted at its face value, it does not
make out the ingredients to constitute an offence of rape. The
informant-lady was well educated, undergoing nursing court and the
relations if any, would be purely consensual one. Moreover, the
informant got married elsewhere and she do not wish to prosecute the
criminal case. The informant lady has filed a Pursis stating about her
non-inclination to go on with the prosecution. The respondent/State
resisted this petition by pointing towards the seriousness of the offence.
Learned A.P.P. also took us through the informant's statement recorded
by the Magistrate in terms of Section 164 of the Code of Criminal
Procedure.
6. Learned Counsel appearing for the petitioner by placing
reliance on the decision of this Court in Criminal Application (APL)
No.48 of 2021 (Nikhil s/o Sudhakar Jichkar vs. State of Maharashtra
and anr.) and with connected one decided on 03.04.2023 would submit
that under similar circumstances, this Court has quashed the
proceedings. It is submitted that the informant was well aware about
the consequences of the act, still she indulged into the sexual relations.
According to the petitioner, the police papers does not reveal that the
informant has submitted herself only because she was assured for
marriage, but out of love and passion they had sexual relations.
7. In order to appreciate the submission one has to see the
facts of the case without getting influenced by the section invoked. In
this regard, reliance is placed on the decision of the Supreme Court in
case of Narinder Singh & ors. Vs. State of Punjab and anr., AIR 2014
SCW 2065. In the said case, relating to the offence punishable under
Section 307 of the Indian Penal Code, it is expressed that despite
invoking the particular section, the High Court has to examine whether
prima facie offence is made out under said section. The learned counsel
for petitioner further relied on the decision of this Court in case of Amit
Kumar Arun Kumar Singh Vs. State of Maharashtra & anr. 2016 ALL
MR (Crim) 1553, wherein this Court on facts, held that though the
offence is about rape, however, it was in between two adults having the
age of understanding. In the situation, this Court has quashed the FIR
on account of settlement.
8. The learned counsel appearing for the petitioner has
submitted that, if apart from settlement, the emerging facts are clear
enough to convey that it is a case of consensual relation, the proceeding
can be quashed. In this regard, reliance is placed on the decision of the
Supreme Court in case of Pramod Suryabhan Pawar Vs. State of
Maharashtra and anr. (2019) 9 SCC 608 wherein the Supreme Court
took review of earlier decisions and summarized the legal position in
para 18 which reads as below:-
"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."
9. On the similar line, reliance is placed on the decision of the
Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar Vs. State of
Maharashtra & ors, 2019 AIR (SC) 327. In the said case, the Supreme
Court has once again highlighted the distinction in between mere
breach of promise and false promise. The relevant observation made in
para 20 are as follows:
"20. Thus, there is a clear distinction
between rape and consensual sex. The court, in such
cases, must very carefully examine whether the
complainant had actually 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 later 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 despite having every
intention to do. Such cases must be treated differently. If
the complainant had any mala fide intention and if he
had clandestine motives, it is a clear case of rape. The
acknowledge consensual physical relationship between
the parties would not constitute an offence under
Section 376 of the IPC."
10. In view of the legal position, we have re-examined the
police papers. Pertinent to note that at the relevant time, the petitioner
stayed in the lodging house, never called the informant at his place, but
the informant herself took him to her friend's room, where the alleged
act was done. The informant stated that the accused expressed love but
she never stated that because of assurance of marriage, she had
indulged into the sexual activities. The informant in her statement
recorded under Section 164 of the Code of Criminal Procedure, stated
about the love relationship in between the both. There may be variety
of reasons for non materialization of marriage. However in order to
establish the offence, there has to be deceitful intention since inception.
11. By the time, the informant got married with someone else
and she had also given no objection for grant of pre-arrest bail. Perusal
of police papers does not indicate prima facie material to constitute the
offence alleged. Moreover, the parties have mutually resolved the
dispute, meaning thereby the chances of conviction are remote and
bleak. In view of the peculiar facts of this case, continuation of
prosecution is an exercise in futility. Therefore, to secure the ends of
justice, we deem it appropriate to invoke our inherent powers to quash
the proceedings. Hence the following order :
(a) The writ petition is allowed.
(b) We hereby quash and set aside the First Information Report
in Crime No.308 of 2022 registered with the Rajapeth Police
Station, Amravati City for the offence punishable under
Sections 376, 417, 504 of the Indian Penal Code and Section
3(2)(va) of the Scheduled Caste and Scheduled Tribe
(Prevention of Atrocities) Act, 1989.
12. The petition stands disposed of accordingly.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Trupti
Signed by: Trupti D. Agrawal
Designation: PA To Honourable Judge
Date: 23/08/2023 17:42:34
