Bombay High Court
Harshal Rajendra Dakore vs The State Of Maharashtra Through Pso Ps ... on 7 August, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:8752-DB
901 apl 1040-2024.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) NO.1040/2024
Harshal Rajendra Dakore,
Aged about 31 years, R/o Ward No.2,
Loni, Tq. Loni, Dist. Amravati.
....APPLICANT
...VERSUS...
1. State of Maharashtra, through
Police Station Officer,
Police Station Sadar,
Tq. Dist. Nagpur.
2. Bhagyashree Rajesh Saneshwar
Aged about 33 years
R/o Block no.8, Juna
Mangadwari, Gangabai Ghat
Road Mantagpura, Near Boudh
Vihar, Lakadganj
Tq. And Dist. Nagpur
...NON-APPLICANTS
----------------------------------------------------------------------------------
Shri S.P. Bhandarkar, Advocate for applicant
Ms S.S. Jachak, Addl.P.P. for respondent No.1
Shri Yash Bhelande, Advocate for respondent No.2
----------------------------------------------------------------------------------
CORAM : VINAY JOSHI AND
MRS. VRUSHALI V. JOSHI, JJ..
DATED : 07/08/2024
ORAL JUDGMENT (PER : VINAY JOSHI, J.)
Heard.
2. Rule. Rule made returnable forthwith. Heard finally by
consent of learned Counsel for both the parties.
3. This is an application seeking to quash criminal
prosecution case (Special Case No.393/2024) arising out of Crime
No.289/024 registered with Police Station Sadar, Nagpur for the
offences punishable under Sections 376 (2)(n) and 417 of the
Indian Penal Code and Section 3(1) (w)(i)(ii), 3 (2)(v) of the
Prevention of Atrocities Act, 1989 on merits as well as due to
settlement. It is informed that yet the learned Trial Court has not
framed the charges.
4. At the instance of informant lady, aged 33 years, the
crime has been registered. The informant got married in the year
2015 with someone else and she had a son from said wedlock.
Since informant's marriage does not run smoothly, she started to
reside separately from the year 2021 and obtained a divorce in the
month of May 2024.
5. It is informant's contention that somewhere in the
month of October 2021, she got acquainted with the applicant
through facebook. Both were frequenting with each other on
social media and then developed love relationship. In the month
of October, 2022, the applicant took her at his room and by giving
promise to marry had sexually exploited. Later on, the things
were repeated on an often, they also visited lodging houses where
they had established sexual relations. Finally in the month of
April, 2024, the applicant denied for marriage and, therefore, the
report. The police have completed investigation and filed
chargesheet.
6. The learned Counsel appearing for applicant would
submit that it is a case of consensual relation in between two
adults. It is argued that the informant was well matured lady and
with her own volition of mind, she maintained the relationship
with the applicant and thus it is not a case of false promise to
marry.
7. We have gone through the First Information Report
from which it is evident that informant is aged 33 years, having a
son aged 8 years. It reveals that during subsistence of her first
marriage, she has developed a love relationship with the applicant
and also during existence of first marriage, she had established
sexual relations with the applicant. Not only that they were
intermittently establishing relations for the period of 2 years at
different places and sometimes at lodging houses. Pertinent to
note that the alleged occurrence first time took place in the month
of October, 2022, the informant did not raise any grievance, but
submitted herself for next 2 years. It reveals that both had
developed intimacy and as they were planning to marry, the
relationship developed.
8. Learned Counsel appearing for applicant relied on the
following decisions:
1) Rahulsingh s/o Balbirsingh Sengar Vs. State of Maharashtra
and another, 2014 ALL MR (Cri.) 2889
2) Mr. Binoy Kodiyeri Vs. State of Maharashtra and Ors. In
Criminal Writ Petition No.3670/2019
3) Prathamesh Surendra Sohale Vs. State of Maharashtra and
Ors. In Criminal Application (APL) No.480/2023
4) Kapil Gupta Vs. State of NCT of Delhi and Anr. 2022 (8)
W.L.C. 587
5) Pramod Suryabhan Pawar Vs. The State of Maharashtra
and Anr. 2019 (4) J.K.J. 233, to contend that it is a case of love
relationship, which does not have an element of deception.
Particularly we have adverted to the observations made by the
Hon'ble Supreme Court in case of Pramod Pawar (supra) of
which paragraph 18 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. Likewise in case of Dhruvaram Murlidhar Sonar V.
State of Maharashtra, 2019(1) RCR (Criminal) 674, it has been
explained that the promise to marry must have been a false
promise, given in bad faith with no intention to perform. The
penal provision would attract if since inception, there was
intention to deceive and the lady has given consent only because
she relied on the promise. Taking overall view of the matter, it
reveals that it is a case of relationship with consent.
10. Apart from that, the informant herself has appeared
before us and reiterated that it was consensual relationship and
out of misconception, she has lodged the report. She has also filed
an affidavit stating the said fact. Learned Counsel for applicant
would submit that the applicant is ready to deposit sum of
Rs.20,000/- towards costs as the police machinery has been
rotated.
11. The First Information Report and the material collected
during the course of investigation, does not make out a prima facie
case to constitute the offence alleged. In the circumstances,
continuation of prosecution would amount to abuse of the process
of Court. In view of that we pass the following order:
ORDER
i) The Criminal Application is allowed.
ii) We hereby quashed and set aside the Criminal prosecution
case i.e. Special Case No.393/2024, pending on the file of learned
Additional Sessions Judge, Nagpur arising out of Crime
No.289/024 registered with Police Station Sadar, Nagpur for the
offences punishable under Sections 376 (2)(n) and 417 of the
Indian Penal Code and Section 3(1) (w)(i)(ii), 3 (2)(v) of the
Prevention of Atrocities Act, 1989.
iii) The applicant shall deposit costs of Rs.20,000/- with
Government Pleader Library within one week from today.
12. List the matter on 19/08/2024 for reporting
compliance.
13. Rule is made absolute in above terms. No costs.
JUDGE JUDGE
R.S. Sahare
Signed by: Mrs. Ranjana Sahare
Designation: PA To Honourable Judge
Date: 09/08/2024 17:16:03
