Bombay High Court
Jitendra S/O Shivaji Salve vs The State Of Maharashtra Thr. Pso Ps ... on 3 October, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:11259-DB
Judgment apl617.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NO. 617 OF 2024.
Jitendra s/o Shivaji Salve,
Aged 35 years, Occupation -
Business, Resident of Shyam Colony,
Deulgaon Raja, District Buldhana. ... APPLICANT.
VERSUS
1.State of Maharashtra,
through Police Station Officer,
Police Station Deulgaon Raja,
District Buldhana.
2.XYZ,
In Crime No.89/2024
through Police Station Officer,
Police Station Deulgaon Raja,
District Buldhana. .. NON-APPLICANTS.
---------------------------------
Mr. A.V. Band, Advocate for the Applicant.
Mr. A.B. Badar, A.P.P. for Non-applicant No.1.
Ms P.R. Arbat, Advocate (Appointed) for Non-applicant No.2.
----------------------------------
CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : OCTOBER 03, 2024.
Rgd.
Judgment apl617.24
2
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard. Admit. By consent of the learned Counsel for the
parties, the matter is taken up for final disposal.
2. This is an application under Section 482 of the Code of
Criminal Procedure seeking to quash the first information report
bearing Crime No.89/2024 registered with Deulgaon Raja Police
Station, District Buldhana for the offence punishable under Sections
376[2][n], 504 and 506 of the Indian Penal Code.
3. The informant lady aged 28 years has lodged the report on
05.03.2024, which led to registration of the aforesaid crime. The
informant has imparted her studies in Master in Business
Administration in the year 2017. While the informant was taking
education at Aurangabad, she came in contact with the applicant and
then they befriended with each other.
4. On valentine day i.e. 14.02.2019, the applicant expressed
his love and proposed for marriage. On that day itself, he forcibly
Rgd.
Judgment apl617.24
established sexual relation, despite resistance of the informant. He
also took her obscene photographs and threatened to make them viral.
Time and again the applicant used to meet her at Aurangabad and on
every occasion by giving promise to marry had enjoyed sexual
relations. Some time they stayed at hotel, where relations were
continued. It is the case of the informant that particularly in Star
Night Hotel at Aurangabad they had physical relations on 15-20
occasion. The applicant used to threaten her to make her photographs
viral. The informant realized that the applicant was not intending to
marry, therefore, the report.
5. The learned Counsel appearing for the applicant would
submit that contents of the first information report are totally false. It
is purely a case of consensual relations between two educated adults.
The applicant has produced several whatsapp chat printouts to
substantiate his stand that it was a consensual relationship. Moreover,
it is argued that the applicant was willing to marry, however, the
informant herself denied to marry, but, was interested to keep mere
relationship.
Rgd.
Judgment apl617.24
6. The learned A.P.P. as well as the learned Counsel
appointed for the non-applicant no.2/informant would submit that
the allegations made in the first information report contains the
ingredients to constitute the offence of rape.
7. The learned Counsel for the applicant took us through
various whatsapp communications, which we have gone through with
the assistance of both sides. Pertinent to note that the informant has
not denied the said whatsapp chat, therefore, we find no difficulty to
go through the same.
8. The informant has stated that first time on 14.02.2019, the
applicant has forcibly established physical relationship. In that
context, whatsapp communication dated 18.04.2019, has been
produced. The said communication indicates that the applicant
expressed to marry, however, the informant replied that her family
members are not ready for marriage, as family desires a bridegroom
having government job. Our attention has been invited to some more
communications wherein the applicant informed that he is about to
Rgd.
Judgment apl617.24
marry, on which the informant has replied that she would not forget
him, but, they would maintain their friendly relations. Certain other
communications have been brought to our notice wherein the
informant insisted the applicant to meet at Aurangabad and to book
lodging house for them. All these communications in unequivocal
terms indicate that the informant was quite interested to maintain
physical relations. Rather it falsifies her story that under pretext of
marriage, and by giving threat, she has been sexually exploited.
9. In the decision of the Supreme Court in case of Deepak
Gulati [supra] specific emphasis is laid on paragraph No. 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
Rgd.
Judgment apl617.24
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 misrepresentation 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."
10. 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.
Rgd.
Judgment apl617.24
11. 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
Rgd.
Judgment apl617.24
would not constitute an offence under Section 376 of
the IPC."
12. In said case the Supreme Court has considered its earlier
pronouncements in cases of Uday .vrs. State of Karnataka - [2003] 4
SCC 46 and 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.
13. 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.
14. Section 90 of the Indian Penal Code defines "consent
Rgd.
Judgment apl617.24
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 'consent',
but, in negative terms 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.
15. In case of Pramod Suryabhan Pawar .vrs. State of
Maharashtra and others - [2019] 9 SCC 608, once again the Supreme
Rgd.
Judgment apl617.24
Court has summarized the position in paragraph No. 22, which reads
as below :
"22. 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."
16. Bearing in mind the test which has been enunciated in
above decisions, it is evident that since the year 2019, both were in the
relationship. The informant herself made it clear that the marriage is
not possible, since the applicant does not have government job. Some
communication indicates that she took leading part and insisted the
applicant to book lodging house to satisfy their desire. The informant
is a well educated lady, she is Master in Business Administration, thus
she is ably understandable person, still she has continued the
Rgd.
Judgment apl617.24
relationship for long three years. In the circumstances, it is evident
that the case squarely falls in the criteria (5) and (7) laid down by the
Supreme Court in case of State of Haryana .vrs. Ch. Bhajan Lal and
others -AIR 1992 SC 604. Moreover, reliance is placed by the
learned Counsel for the applicant on the judgment delivered by the
Supreme Court in case of Ms. X... .vrs. Mr.A and others - 2024 SCC
Online SC 316 which would squarely apply to present case.
17. In view of above discussion, continuation of prosecution
amounts to an abuse of the process of the Court. In the result
Criminal Application is allowed and disposed of.
The First Information Report bearing Crime No.89/2024
registered with Deulgaon Raja Police Station, District Buldhana for
the offence punishable under Sections 376[2][n], 504 and 506 of the
Indian Penal Code, is hereby quashed and set aside.
Fees of the appointed Counsel for non-applicant no.2 be
determined as per Rules.
JUDGE J UDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 09/10/2024 16:49:17
