Bombay High Court
Akshay S/O Bhagwat Thakare vs The State Of Mah. Thr. Pso Ps Kapil Nagar ... on 29 November, 2023
Author: Vinay Joshi
Bench: Vinay Joshi, M. W. Chandwani
2023:BHC-NAG:16676-DB
Judgment 902 apl 787.22
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APL) NO. 787/2022
Akshay s/o. Bhagwat Thakare,
aged 26 yrs., Occ. Service,
R/o. at Supkhela, Post Kalamba
Mahali, Dist. Washim
.... APPLICANT
VERSUS
1. The State of Maharashtra,
through Police Station Officer,
Police Station Kapil Nagar,
Dist. Nagpur (City).
2. XYZ,
through Police Station Officer,
Police Station Kapil Nagar,
Dist. Nagpur (City) in
Crime No. 135/2022
... NON-APPLICANTS
---------------------------------
Mr. A.R. Prasad, Advocate for applicant.
Mr. M.K.Pathan, APP for non-applicant No.1.
Mr. Anirudh Ananthakrishnan, Advocate for non-applicant No.2.
----------------------------------
CORAM : VINAY JOSHI AND
M. W. CHANDWANI, JJ.
DATE : 29.11.2023.
Judgment 902 apl 787.22
2
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard.
2. Admit.
3. By this application under Section 482 of the Code of
Criminal Procedure ('Code'), the applicant is seeking for quashing
First Information Report ('FIR') vide crime No. 135/2022 registered
with Police Station Kapil Nagar, Nagpur (City) for the offence
punishable under Sections 376(2)(n) of the Indian Penal Code. The
quashing is sought on account of settlement as well as on merits.
4. Primly, it has been contended that the contents of FIR
clearly discloses that it is a case of consensual relationship in
between the two adults which cannot be termed as an offence of
rape. The victim aged about 22 years has appeared and filed her
reply stating that out of misunderstanding, she has lodged report.
According to her, relationship was consensual and therefore, she
requested to quash FIR.
5. The facts in brief are that the victim aged 22 years stated
that she got acquainted with the applicant through Instagram. Both
Judgment 902 apl 787.22
were frequenting through social media. It is her case that the
applicant was saying that he would marry with her. On such
assurance, the victim gives consent and had sexual relationship with
him. She stated that on 13.03.2022, she denied for sexual
relationship as she felt that the applicant would not marry. He had
established physical relation by force. The informant stated that
twice she remained pregnant, but got aborted. The informant felt
that the applicant would not marry and therefore, the report.
6. Learned counsel appearing for applicant would submit
that the entire episode discloses that it was a love relationship in
between two youngsters. The victim never gave her consent for
sexual relationship. On account of her own violation of mind, she
maintained relations which were for two years. He would submit
that it is not a case of false promise to marry, but the facts are
indicative of consensual sex on account of love relation.
7. In order to impress the submission that one has to see the
facts of the case without getting influenced by the section invoked,
Judgment 902 apl 787.22
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.
8. 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
Judgment 902 apl 787.22
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 same line, reliance is placed on the decision of the
Supreme Court in case of Sonu @ Subhash Kumar Vs. State of Uttar
Pradesh and anr., AIR 2021 SC 1405, whereby it has been observed
that in absence of allegation that promise to marry was false at
inception, the offence of rape has not been made out.
10. In the case of Dr. Dhruvaram Murlidhar Sonar Vrs. State of
Maharashtra and others, reported in (2019) 18 SCC 191 the facts are
somewhat similar as in that case also, the adults were in relations for
several years. In that context, it has been observed in Paragraph
Judgment 902 apl 787.22
No.23 as under :-
"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 IPC."
Judgment 902 apl 787.22
11. In the decision of the Supreme Court in case of Deepak
Gulati vs. State of Haryana (2013) 7 SCC 675, specific emphasis is
laid 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
Judgment 902 apl 787.22
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."
12. 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.
13. Section 90 of the Indian Penal Code defines "consent
known to be given under fear or misconception", 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
Judgment 902 apl 787.22
'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.
14. In view of above settled position, we have examined the
contents of FIR. Undeniably the victim was well grown up lady aged
22 years old. She had acquainted with the applicant since last two
years and were in taking terms. She never stated that since
beginning, the applicant was intending to chit and thus, his
assurance for marriage was false. Though it alleges that on
13.03.2022, there were forcible relation, however she has not lodged
report.
Judgment 902 apl 787.22
15. The victim never stated the specific instance or details
about the occurrence. The entire reading of FIR nowhere gives
impression that since inception, there was intention to chit, rather it
appears that through social media they got acquainted and
maintained relationship for long two years. Moreover, despite her
intuition that the applicant would not marry, she still continued
relation and did not ventilate grievance for considerable period.
16. Beside that the victim in her reply stated that the relation
was consensual. There was misunderstanding which resulted into
filing of FIR. The victim specifically stated that by the time, she got
married and pendecy of criminal case may put hurdle in her smooth
marital life. Apart from settlement, we have examined case on merit
and unable to find the essential to hold that on account of false
promise that too from inception, the applicant has obtained consent
of victim for sexual relation. Long standing relationship in between
two adults gives impression that it was a consensual relationship
between them. Continuation of the prosecution amounts to abuse of
the process of the Court.
Judgment 902 apl 787.22
17. In view of above, application is allowed. We hereby quash
and set aside FIR vide crime No. 135/2022 registered with Police
Station Kapil Nagar, Nagpur (City) for the offence punishable under
Sections 376(2)(n) of the Indian Penal Code on account of
settlement as well as on merits.
18. Application stand disposed of in above terms.
(M. W. CHANDWANI, J.) (VINAY JOSHI, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PA To Honourable Judge
Date: 07/12/2023 15:57:37
