Bombay High Court
Mitesh S/O Sanjay Rewatkar vs The State Of Mah. Thr. Pso Ps M.I.D.C. ... on 3 January, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:130-DB
Judgment apl1391.23
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NO.1391/2023.
Mitesh s/o Sanjay Rewatkar,
Aged 28 years, Occupation - Private,
resident of Nagar Parishad Shala No.5,
Near Dodkipura, Katol - 441302,
Tahsil Katol, District Nagpur
(Maharashtra State)
Mobile No.9075959294. ... APPLICANT.
VERSUS
1.The State of Maharashtra,
through Police Station Officer,
Police Station M.I.D.C., Nagpur,
Tahsil and District Nagpur.
(Maharashtra State).
2.XYZ, Crime No.745/2023
Police Station MIDC,
Nagpur. ... NON-APPLICANTS.
---------------------------------
Ms A.H. Dangre, Advocate for the Applicant.
Mr. S.S. Doifode, A.P.P. for Non-applicant no.1- State.
Ms F. Badani, Advocate [Appointed] for Non-applicant No.2.
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Judgment apl1391.23
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CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : JANUARY 03, 2024.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard. Admit.
By consent of the learned Counsel appearing for
respective parties, the matter is taken up for final disposal.
2. By this application filed under Section 482 of the Code of
Criminal Procedure, the applicant/accused is seeking to quash the
charge sheet bearing Sessions Case No.554/2023 pending on the file
of District Judge 11 and Additional Sessions Judge, Nagpur arising
out of Crime No.745/2023 registered with MIDC Police Station,
Nagpur for the offence punishable under Section 376[2][n] of the
Indian Penal Code.
3. The learned Counsel appearing for the applicant would
submit that the material collected during the course of investigation
is totally inadequate to make out a prima facie case. Besides that it
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is submitted that the matter is amicably settled between the parties.
4. The facts in brief are that a lady, aged 23 years has
lodged a report on 31.07.2023, which led the police to register the
aforesaid crime and carry out investigation. It is informant's
[victim] case that she has completed engineering and was serving as
System Engineer with a private company. Since the year 2016, she
was acquainted with the applicant. They used to meet frequently
and thus love relationship developed. The applicant has expressed
his love which she approved. In the month of March, 2022 the
victim expressed her desire to meet the applicant by sending phone
message. On 05.03.2022, they met in a cafe and thereafter both
exchanged their willingness to marry. In the month of April, 2022
the applicant took the victim to a lodging house where by expressing
desire to marry had established sexual relation. The victim became
pregnant, however, the foetus aborted. Thereafter also they
continued to meet each other. They use to visit different lodging
houses were they had sexual relations. It is victim's case that each
time the applicant assured for marriage and enjoyed sexual
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relationship. Again in the month of July, 2023 she became pregnant
and therefore, insisted for marriage. Since the applicant denied for
marriage, she has lodged the report.
5. The learned Counsel appearing for the applicant would
submit that the victim was well educated, grown-up lady, and she
has consensually maintained sexual relations with the applicant. It
is submitted that they were in deep love from last 7-8 years. Though
both were desirous to marry and thus out of love and passion, they
had relations which are purely consensual one.
6. On the other hand the learned A.P.P. resisted the
application by submitting that the offence is of serious nature,
therefore, quashing is not permissible. He would submit that the
consent of victim was obtained under misconception of facts, and
thus, it is no consent in the eyes of law. He would submit that
samples were sent for DNA profiling and there is clinching material
against the applicant.
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7. The learned Counsel appearing for the applicant 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.
Moreover, our attention has been invited to the reply filed by the
victim stating that they were in love relationship and out of
misunderstanding she has lodged the report. The learned Counsel
has relied on the decision of Supreme Court in case of Kapil
Gupta .vrs. State of NCT of Delhi and another - Criminal Appeal
No.1217/2022 decided on 10.08.2022, wherein on account of
settlement the offence punishable under Section 376 of the Indian
Penal Code has been quashed by considering the non-inclination of
the victim to go on with the trial.
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 decisions and summarized the legal position in para
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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."
8. On similar line, reference can be made to the decision of
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 between
mere breach of promise and false promise. The relevant observation
made in para 20 are as follows:-
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"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
acknowledged consensual physical relationship
between the parties would not constitute an
offence under section 376 of the IPC."
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9. 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 near about six years. 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. Notably, though victim's child was aborted, still she
continued with the relationship.
10. From perusal of the Police paper and the material
collected during investigation, 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 reply stating that
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under misconception she has filed the report. In view of peculiar
facts of this case, continuation of prosecution would be an exercise in
futility. Therefore, to secure the ends of justice, we deem it
appropriate to invoke our inherent powers to quash the proceeding.
Hence, the following order:-
ORDER
(i) Criminal Application is allowed and disposed of.
(ii) The Sessions Case No.554/2023 pending on the file of
District Judge 11 and Additional Sessions Judge, Nagpur
arising out of Crime No.745/2023 registered with MIDC
Police Station, Nagpur for the offence punishable under
Section 376[2][n] of the Indian Penal Code is hereby
quashed and set aside.
(iii) Fees of the appointed Counsel be paid as per Rules.
JUDGE JUDGE
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Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 05/01/2024 11:19:03
