Shivam Suraj Kapoor vs The State Of Mah. Thr. Pso Ps ...
2023 Latest Caselaw 3200 Bom

                                                  1               14apl1653.22.odt

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

                  CRIMINAL APPLICATION (APL) NO. 1653/2022

          Shivam Suraj Kapoor,
          Aged 23 yrs., Occ. Contractor,
          R/o. Binba Road, near Balaji
          Sabhagruha, Balaji Ward,
          Chandrapur, Dist. Chandrapur.

                                                                                      APPLICANT
                                                                                      (accused)

                                          VERSUS


 1.       The State of Maharashtra,
          through its Police Station Officer,
          Police Station, Durgapur,
          Dist. Chandrapur.

 2.       XYZ (Victim. Crime No. 386/2019)
          Police Station, Durgapur, Dist. Chandrapur.                   (Informant)

                                                                         NON-APPLICANTS

 -----------------------------------------------------------------------------------------------

Mr. A. A. Dhawas, Advocate for applicant.

Mr. N. R. Rode APP for non-applicant No.1/State. Mr. A. D. Ramteke, Advocate for non-applicant No.2.

                                CORAM            : VINAY JOSHI AND
                                                   BHARAT P. DESHPANDE JJ.
                      DATE OF JUDGMENT           : 30.03.2023


 ORAL JUDGMENT (PER VINAY JOSHI, J.)


                  Heard.

 2.               Admit.

3. This is an application seeking to quash First Inform

2 14apl1653.22.odt

Report ('FIR') in Crime No. 386/2019 for the offence punishable

under Sections 376(2)(n), 417, 507 of the Indian Penal Code

registered at Police Station Durgapur, Dist. Chandrapur and related

charge-sheet bearing Sessions Case No.69/2021 pending on the file

of District and Sessions Court, Chandrapur. The applicant seeks to

quash FIR on merits as well as on account of settlement in between

the parties.

4. It is applicant's contention that the FIR along with

investigation paper clearly discloses that it is a case of consensual

relationship in between two adults which cannot be termed as an

offence of rape. It is submitted that both were in long standing

relationships, enjoyed sexual relation as per their wish, but due to

misunderstanding, report has been lodged.

5. The facts in brief are that the victim aged 25 years

lodged report on 04.11.2019. It is her case that she got acquainted

with applicant (accused) in the year 2017. The accused expressed

his desire to marry, to which she agreed. In the month of January

2018, both of them went to the temple and completed the

formalities of marriage. In the month of February 2018, both of

them went to the lodge, where first time had sexual relation.

Thereafter, they went to Mumbai, Chikhaldara, and Nagpur lived

together and had sexual relations. It is victim's case that accused

3 14apl1653.22.odt

was saying that she is his wife and thus, established relationship.

She stated that finally in the month of October 2019, accused

refused to marry, therefore, the report.

6. The learned counsel appearing for the applicant would

submits that the entire episode discloses that it was a love

relationship in between two youngsters. The victim never gave her

consent for sexual relation on account of promise, but on her own

volition of mind, she kept the relation. It is submitted that there are

no allegations that by force or compulsion, the applicant has

established relationship. According to the applicant, the victim was

well educated grown up matured lady and therefore, the allegation

about sexual relation on account of false compromise are inherently

improbable.

7. The learned counsel appearing for the applicant has submitted

that it is not a case of false promise of marriage, but the facts are

indicative of consensual sex on account of love relation. For this

purpose, he relied on the decision of the Supreme Court in case of

Ananda D.V. Vs. State & anr. 2021 ALL SCR (Crl.) 1175 to contend that

in similar circumstances, on account of settlement, FIR relating to

offence of rape was quashed. In the said decision, both got married and

therefore, quashing was permitted. However, the facts herein being

distinct, said decision would not help. The learned counsel for applicant

4 14apl1653.22.odt

further relied on the decision of this Court in case of Shubham Ravindra

Kalbende & ors. Vs. State of Maharashtra, 2022 ALL MR(Cri) 3552 ,

wherein this Court has quashed the prosecution for the offence of rape

on account of settlement as well as merits. It is expressed that though

the offence was registered under Section 376 of the Indian Penal Code,

the Court has to examine the facts to find out whether the ingredients to

constitute offence are made out. Relevant observation made in para 7

reads as below:

"7. Insofar as the offence under Section 376 of the Indian Penal Code is concerned, though it is a serious offence, but at this stage it would be profitable to refer to the judgment of the Hon'ble Apex Court in the case of Narinder Singh & others Vs. State of Punjab & another reported in AIR 2014 SCW 2065. The decision of the Hon'ble Apex Court makes it clear that the Court cannot declare to quash the first information report merely because the first information report incorporates a particular provision which is a serious offence or an offence against the society. The Court has to make an endeavor to find out whether the first information report indeed discloses the ingredients of such offence and the Court can accept the statement and quash the first information report/charge-sheet after the Court is of the opinion that such an offence is unnecessarily incorporated in the first information report/charge- sheet. In the facts of the present case, though Section 376 of the Indian Penal Code is incorporated in the first

5 14apl1653.22.odt

information report, the essential ingredients of Section 376 of the Indian Penal Code are missing."

8. In order to impress the submission that one has to see the facts

of the case without getting influenced by the section invoked, 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 applicant 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 settlement.

9. The learned counsel appearing for the applicant has submitted

that apart from settlement, the emerging facts are clear enough to

convey that it is a case of consensual relation. 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.

In the said decision, the Supreme Court took review of earlier decision

and summarized the legal position in para 18 which reads as below:-

6 14apl1653.22.odt

"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."

10. 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

7 14apl1653.22.odt

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."

11. In said case, both victim and accused were well grown

up, fell in love and resided together for considerable period. The

relationship was for quite some time and enjoyed each others

company. When victim came to know that accused had married with

some other woman, she lodged report. The facts, in hand are similar

one as herein also the victim was well educated grown up lady. She

maintained relations with accused for considerable period. They had

enjoyed physical pleasures on various occasion at different places.

They went to different places, stayed together which conveys that the

victim's consent was not actuated by some promise, but it was her

desire.

8 14apl1653.22.odt

12. On Perusal of the Police paper and the material produced

in the form of charge-sheet, we are satisfied that the ingredients of

offence alleged are not fulfilled. Moreover, the parties have mutually

resolved the dispute therefore, the chances of conviction are remote

and bleak. The victim has also filed an additional affidavit stating

that under misconception, she has filed the report. In view of

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 proceeding.

We hereby allow the application and pass the following order:-

ORDER

FIR in Crime No. 386/2019 for the offence punishable

under Sections 376(2)(n), 417, 507 of the Indian Penal

Code registered at Police Station Durgapur, Dist.

Chandrapur and related charge-sheet bearing Sessions

Case No.69/2021 pending on the file of District and

Sessions Court, Chandrapur is hereby quashed and set

aside.

13. The matter be placed on 11.04.2023 for noting

compliance.

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