Bharat @ Pawan S/O Shrikrishna ... vs State Of Mha. Thr. Pso Ps Yavamtal ...
2023 Latest Caselaw 2431 Bom

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

        CRIMINAL APPLICATION (APL) NO. 1601 OF 2022

        Mr. Bharat @ Pawan s/o Shrikrishna
        Rajurkar, Age About 25 yers, Occupation
        - Private, R/o Chondhi, Babulgaon,
        District - Yavatmal.
                                                  ... APPLICANT
                             VERSUS
   1.   State of Maharashtra, through Police
        Station Officer, Police Station,
        Yavatmal City, District Yavatmal.

   2.   XYZ, Victim In Crime No.148/2022
        Police Station Yavatmal - City,
        District Yavatmal.

                                               ... NON-APPLICANTS

_____________________________________________________________
       Shri S.R. Kadam, Advocate for the applicant.
       Shri A.M. Kadukar, A.P.P. for the non-applicant/State.
______________________________________________________________


          CORAM : VINAY JOSHI AND BHARAT P. DESHPANDE, JJ.

DATED : 14/03/2023.

ORAL JUDGMENT : (Per : Vinay Joshi, J.)

Heard. ADMIT.

2. The matter is taken up for final hearing by consent of

learned Counsel appearing for the respective parties.

3. Registration of Crime No.148 of 2022 with the Yavatmal

City Police Station District Nagpur, for the offence punishable under

Section 376 of the Indian Penal Code, caused the applicant to invoke

inherent jurisdiction of this Court. It is the applicant's contention that

the First Information Report coupled with the material collected during

the investigation do no disclose the commission of offence, therefore, it

is liable to be quashed.

4. The crime was registered at the instance of the report dated

06.03.2022 lodged by a lady aged 21 years. It is the informant's case

that in the month of January 2020, she went to reside with her

maternal aunt, where she got acquainted with the applicant/accused.

Their casual acquaintance turned into love relationship. When the love

affair was exposed to the family members, the informant was asked by

her father to leave the house. For some days, the informant adopted

shelter of her relative and then along with the applicant/accused,

started to reside at the applicant's relative's house. The applicant

expressed that he would marry with her. Then both of them took a

rented room and resided together for the period of more than one year.

They have shifted to another rented room for some days. They were

living like husband and wife. During that period, they had sexual

relations. Later on, the informant learnt that the applicant was about to

marry with somebody else, therefore she inquired with him. The

applicant refused for marriage, which caused her to lodged the police

report.

5. The crucial issue which is to be considered is whether the

allegations indicate that the applicant had given a promise to the

informant to marry, which at the inception was false and on the basis of

which the informant was induced into a sexual relationship. Reading of

First Information Report (FIR) indicates that there was love affair in

between two adults. Both of them left their respective houses and lived

for the period of more than one year in rented premises. The informant

never stated that under the promise to marry, the applicant demanded

for sexual relations, and on believing such promise she surrendered

herself. It is apparent that everything was smooth for the period more

than one yer, but when the applicant refused to marry, the report has

been lodged.

6. Learned A.P.P. appearing for the non-applicant/State would

submit that the contents of FIR constitutes the offence of rape as the

consent was obtained by deceitful means. By relying on the decision of

the Supreme Court in case of Anurag Soni vs. State of Chhattisgarh AIR

2019 SC 1857, it is submitted that, if the consent was given by relying

upon the false promise of marriage, then such consent vitiates and the

act amounts to rape. There is no dispute about said proposition of law,

however it is a factual aspect to see whether the accused had deceitful

intention from the beginning and the prosecutrix gave her consent only

because she was promised for marriage.

7. At the inception, we may refer the decision of the Hon'ble

Supreme Court in case of Deepak Gulati vs. State of Haryana (2013) 7

SCC 675, with a specific emphasis on paragraph 21 of the judgment,

which reads as follows :

"21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused 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 latter falls within the ambit of cheating or deception. 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 mis- representation 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives."

8. Undoubtedly, there is distinction between "rape" and

"consensual sex". The Court shall examine all the facts to conclude that

sexual intercourse was on account of relationship or her consent was

solely due to misrepresentation made by the accused. Likewise, it is

also to be seen whether though accused genuinely desired to marry,

but, the circumstances which could not have foreseen or beyond his

control were such that they could not marry.

9. On the same line, we may refer another decision of the

Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar vs. State of

Maharashtra and ors. (2019) 18 SCC 191 with emphasis on paragraph

23 of the decision, which reads as below :

"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 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 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 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 acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC."

10. In said case the Supreme Court has considered its earlier

pronouncement in case of Uday .vrs. State of Karnataka - [2003] 4

SCC 46, case of Deepak Gulati [supra], and reiterated the principle that

there is a clear distinction between rape and consensual sex. It was

considered that there can 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 misconception created by the

accused or the circumstances are beyond his control. It is expressed

that the Court shall very carefully examine all the aspects in like cases.

11. It emerges from the above exposition of law that "consent"

of a woman must involve an active and reasoned deliberation towards

the proposed act to attract the penal consequence. The promise of

marriage must have been a false promise, given in bad faith and with

no intention to adhere the promise.

12. Section 90 of the Indian Penal Code defines "consent

known to be given under fear or misconception", which reads as

below :

"Section 90 - Consent known to be given under fear of misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or"

Section 90 of the Code, though does not define the

term 'consent', but, in negative manner it describes what does not

amount to consent. True, consent may be express or implied, must

actuated, obtained through deceit or fraud. If the consent is given

under misconception of fact, it vitiates. In order to come out from the

clutches of Section 375 of the Indian Penal Code, the consent requires

voluntary participation and not on some deceitful misrepresentation.

In case at hand undoubtedly there was no resistance for physical

intercourse but, as per the victims case there was love relationship.

13. It necessitate careful examination of facts and relevant

circumstances to find out whether in given case the consent was

actuated by fraud amounting to absence of consent. Taking the

allegations in the report as well as charge-sheet, it is impossible to find

the essential ingredients of an offence punishable under Section 376 of

the Indian Penal Code. The crucial ingredients of the offence are

missing. The relationship was purely of consensual one. It reveals from

some of the statement that the victim took initiative for renting the

house and posed the applicant as her brother to the landlady. It appears

that a young couple ran away from the house and stayed for longer

period, during which they had sexual relations. The reading of entire

material, nowhere discloses that only because the applicant assured for

marriage, she has surrendered herself. Continuation of such

prosecution amounts to abuse of process of court. The case squarely

falls in the criteria (1) and (3) laid down by the Supreme Court in case

of State of Haryana vs. Bhajan Lal AIR 1992 SC 604 . In order to secure

the ends of justice the proceeding needs to be quashed by invoking

inherent powers.

14. The application is allowed. We hereby quashed and set

aside the First Information Report No.148 of 2022 registered with the

Yavatmal City Police Station District Nagpur for the offence punishable

under Section 376 of the Indian Penal Code and the related charge-

sheet No.335 of 2022 pending on the file of the Chief Judicial

Magistrate, Yavatmal.

15. The application stands disposed of accordingly. No order as

to costs.

                                   (BHARAT P. DESHPANDE, J.)             (VINAY JOSHI, J.)



                       Trupti




TRUPTI SANTOSHJI AGRAWAL

16.03.2023 16:32