Bombay High Court
Adithya Krishnan vs State Of Maharashtra And Anr on 7 October, 2024
Author: Neela Gokhale
Bench: A. S. Gadkari, Neela Gokhale
2024:BHC-AS:39482-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO. 4009 OF 2024
Mr. Adithya Krishnan,
Age 27 years, Indian Inhabitant,
Occ.: Service, Res. At - M 12/103,
Hills & Dales, Phase-III,
Undri, Pune - 411 060. .....Petitioner
Vs.
1. The State of Maharashtra
2. XYZ .....Respondents
Mr. Sahim D. Ansari for the Petitioner.
Ms. Mahalakshmi Ganapathy, A.P.P. for Respondent No. 1-State.
CORAM : A. S. GADKARI AND
DR. NEELA GOKHALE, JJ.
RESERVED ON : 24th SEPTEMBER, 2024.
PRONOUNCED ON : 7th OCTOBER, 2024.
JUDGMENT (Per Dr. Neela Gokhale, J.) :
1) The Petitioner seeks to quash Special Case No. 441 of 2024
pending on the file of Special Sessions Court, Shivaji Nagar, Pune, arising
out of FIR No. 135 of 2024 dated 8 th February 2024 registered with
Kondhwa Police Station, District-Pune for the offenses punishable under
Sections 376(2)(n) & 420 read with 34 of the Indian Penal Code and
Section 3(2)(5) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989.
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2) Facts of the case in brief are as under :
2.1) In the year 2022, while the Respondent No. 2 was working in a
IT Company named Publicis, Mumbai, she became acquainted with the
Petitioner as a co-worker. The relationship grew into friendship and
thereafter he proposed marriage to her. The Petitioner also met the
Respondent No. 2's parents.
2.2) On 12th December 2022, the Petitioner's parents had gone to
Mumbai. The Petitioner repeatedly called the Respondent No. 2 to his
house and on 14th December 2022, he took her to home and despite her
resistance, established sexual relationship with her. It is alleged that, the
Petitioner raped her. She had specifically and expressly refused to consent
to the sexual relationship,
2.3) In February 2023, the parties decided to get married with the
consent of their respective parents. The Petitioner's parents were aware
that, the Respondent No. 2 belongs to the Scheduled Caste Community and
knowing this, they performed engagement ceremony on 23 rd June 2023 at
Ramkrishna Hall, Camp, Pune. The entire expenditure of the ceremony was
borne by the Respondent No. 2's parents. Her father also gave Rs.
2,00,000/- in cash to the Petitioner. His mother repeatedly told her that,
despite her being of Scheduled Caste Community, they had accepted her
since the Respondent No. 2 was good looking and had a job which paid
good salary.
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2.4) The Petitioner used to always take her to the Residency
Business Hotel, Koregaon Park and forcibly rape her. When she resisted, he
assured that he would marry her. Later, he insisted that, the entire
expenses of the marriage to the tune of Rs. 4,00,000/- shall be borne by the
Respondent No. 2's parents. The Petitioner and his parents also demanded
that the Respondent No. 2's parents shall gift expensive sarees, 8 tolas gold
etc. for the marriage. They bought a mangalsutra of 8 grams gold and
demanded that her parents pay Rs. 30,000/- for the same. Further
unreasonable demands in respect of dowry etc. were made.
2.5) Quarrels ensued between the parties regarding the demands of
dowry and the Petitioner also dug up quarrels with her on petty issues.
Ultimately on 12th January 2024, the Petitioner messaged her that he was
unable to marry her. The Respondent No. 2 and her parents tried to
convince him otherwise but he refused to even speak to them. Finally on
14th January 2024, the Petitioner called the Respondent No. 2 and her
family members to Empress Gardens, Wanorie. His parents told them that,
the Petitioner would not marry her. The Petitioner himself also refused to
marry her and said that, she can do what she likes but he would never
marry her. The Respondent No. 2 was aggrieved that, she was compelled to
have sexual relationship with the Petitioner on an assurance of marriage
when all along the Petitioner had no intention to keep the promise. Thus
the Respondent No. 2 filed the impugned FIR.
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3) Mr. Sahim Ansari, learned counsel appears for the Petitioner
and Ms. Mahalakshmi Ganapathy, learned A.P.P. represents the State.
4) Mr. Ansari submits that, the present case is fit to be
compounded and no useful purpose will be served to continue prosecution.
He contends that, there was a consensual relationship between the parties
and no offence is made out. The parties are adults in a love relationship
and were to marry. It was only because of certain issues between them that
he was compelled to call off the marriage. He submits that, there is no
intention to cheat and the Respondent No. 2 was of an understanding age
and was well aware of the consequences of consenting to the relationship.
Mr. Ansari also drew our attention to the whats-app chats on record
indicating a consensual relationship. He thus submits that, the FIR is only a
tool to blackmail him and extort money from him. He thus urged the Court
to quash the criminal proceedings.
5) Per contra Ms. Ganapathy, learned A.P.P. took us through the
investigation record. She read out the statement of witnesses including that
of the Respondent No. 2 herself, her siblings namely sister Ganga and
brother Raju amongst others. According to her, all the witnesses have
corroborated the story of Respondent No. 2. Ms. Ganapathy also took us
through the whats-app chats between the parties. The statement of Hotel
Manager in which the Petitioner had taken the Respondent No. 2 is also on
record. She thus submits that, the record of investigation clearly indicates
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the relationship between the parties but it is also evident that, the same was
on the assurance of the Petitioner and his parents that the Petitioner will
marry her. Ms. Ganapathy thus urged the Court to dismiss the Petition.
6) We have heard the counsels and perused the record with their
assistance.
7) The thrust of the arguments advanced by Mr. Ansari appears to
be that, the Petitioner fully intended to marry the Respondent No. 2 and it
is only because of quarrels between them that he had second thoughts and
finally broke the relationship. Thus Mr. Ansari attempts to establish that,
this is a case of a mere breach of promise and not that of giving a false
promise to marry. We have carefully read the FIR and prima facie
appreciated the purport of the statement of witnesses. It is evident from
the statements of the Respondent No. 2 herself and her siblings that there
were demands of dowry and valuable ornaments and gifts to be given to the
Petitioner and his parents at the time of marriage and it was this inability of
the Respondent No. 2 that led the Petitioner to call off the marriage. The
whats-app chats between the parties also reveal that, the Respondent No. 2
is desperate to convince him to marry her as it was on this basis and
promise that she had physical relationship with him, albeit absolutely
against her consent and wishes. This itself evinces confidence in the story
of the Respondent No. 2.
8) It is evident from the contents of the FIR that, the sexual
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relationship was purely on the assurance of the Petitioner to marry the
Respondent No. 2. Mr. Ansari however requires us to test his defence that,
he fully intended to marry her when they had sexual relationship but only
because of her quarrelsome nature that he was compelled to call off the
marriage. We cannot at this stage analyse the defence of the Petitioner but
are required to look into only the averments in the FIR and ascertain prima
facie whether the alleged offence is disclosed from its bare reading. We
cannot proceed to appreciate the evidence of the parties to establish intent
of mala fide and conduct a mini trial at this stage.
9) Admittedly, there existed a physical intimate relationship
between the parties. As per the statement of the Respondent No. 2, she
resisted the sexual relationship but did not complain of the forcible actions
of the Petitioner simply because he had promised to marry her. From the
very outset, the Petitioner and his parents were aware of the caste of the
Respondent No. 2 as well as her financial status and agreed for the
marriage. It is only on the ground of non-fulfillment of demands of dowry
that the marriage was called off. This is nothing but constructive cheating
by the Petitioner and his parents as against a breach of promise on a flimsy
ground of quarrelsome nature of the Respondent No. 2. Right from the
beginning, the Petitioner had no intention to marry her.
10) In the case of Shambhu Kharwar Vs. The State of Uttar Pradesh
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and Another1, the Supreme Court has explained the concept of the word
'consent' relatable to the commission of the said offence as under :
"10. An offence is punishable under Section 376 of the IPC if
the offence of rape is established in terms of Section 375 which
sets out the ingredients of the offence. In the present case, the
second description of Section 375 along with Section 90 of the
IPC is relevant which is set out below.
375. Rape - A man is said to commit "rape" if he -
[...]
under the circumstances falling under any of the following seven
descriptions
Firstly ...
Secondly. - Without her consent.
[...]
Explanation 2. - Consent means an unequivocal voluntary
agreement when the woman by words, gestures or any form of
verbal or non-verbal communication, communicates willingness
to participate in the specific sexual act:
Provided that a woman who does not physically resist to the act
of penetration shall not by the reason only of that fact, be
regarded as consenting to the sexual activity.
xxx
90. Consent known to be given under fear or 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
1. (2022) SCC OnLine SC 1032.
Gitalaxmi 5-wp-4009-2024-J.doc
consequence of such fear or misconception; or..."
11) The Supreme Court held in the case of Sonu @ Subhash Kumar
Vs. The State of Uttar Pradesh and Another2 observed that :
"12. This Court has repeatedly held that consent with respect to
Section 375 of the IPC involves an active understanding of the
circumstances, actions and consequences of the proposed act. An
individual who makes a reasoned choice to act after evaluating
various alternative actions (or inaction) as well as the various
possible consequences flowing from such action or inaction,
consents to such action...
[...]
14. [...] Specifically in the context of a promise to marry, this
Court has observed that there is a distinction between a false
promise given on the understanding by the maker that it will be
broken, and the breach of a promise which is made in good faith
but subsequently not fulfilled...
[...]
16. Where the promise to marry is false and the intention of the
maker at the time of making the promise itself was not to abide
by it but to deceive the woman to convince her to engage in
sexual relations, there is a "misconception of fact" that vitiates
the woman's "consent". On the other hand, a breach of a
promise cannot be said to be a false promise. To establish a false
promise, the maker of the promise should have had no intention
of upholding his word at the time of giving it. The "consent" of a
woman under Section 375 is vitiated on the ground of a
"misconception of fact" where such misconception was the basis
2. 2021 SCC OnLine SC 181.
Gitalaxmi 5-wp-4009-2024-J.doc
for her choosing to engage in the said act...
[...]
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.
(emphasis supplied)"
12) The present case is not one of those cases where there is a
bona fide intent of the Petitioner to marry the Respondent No. 2 and on
that assurance, the parties enjoyed intimate relationship but unfortunately
the same did not fructify in a marital tie. It is in such type of cases that, the
Apex Court has distinguished between giving a false promise to marry and
committing a breach of promise to marry. The former invites prosecution
while the latter may result in acquittal or quashing. We are of the
considered opinion that, the facts in the present case are quite distinct from
the case of a mere breach of promise to marry. The consent of the
Respondent No. 2 to the sexual relationship, even if presumed to be given,
is vitiated by the 'misconception of the fact' which was that the Respondent
No. 2 believed that the Petitioner would marry her.
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13) Mr. Ansari sought to argue that the Court cannot rely upon
only on the statement of Respondent No. 2 and must also consider the
defence of the Petitioner. This contention of the Petitioner is stated here
only to be rejected. It is settled law that in its extra ordinary jurisdiction
under Article 226 of the Constitution of India, the High Court is not
justified in embarking upon an enquiry as to the reliability or genuineness
or otherwise of the allegations made in the FIR or the complaint and that
inherent powers of this Court do not confer an arbitrary jurisdiction on the
Court.
14) The Supreme Court in the case of Priyanka Jaiswal V/s. The
State of Jharkhand and Others3, while dealing with the similar issue, has
held as follows :
"13. ...This Court in catena of judgments has consistently held
that at the time of examining the prayer for quashing of the
criminal proceedings, the Court exercising extra-ordinary
jurisdiction can neither undertake to conduct a mini-trial, nor
enter into appreciation of evidence of a particular case. The
correctness or otherwise of the allegations made in the
complaint cannot be examined on the touchstone of probable
defence that the accused may raise to stave off the prosecution
and any such misadventure by the Courts resulting in
proceedings being quashed would be set aside..."
15) In the case of Bharwada Bhoginbhai Hirjibhai Vs. The State of
3. Criminal Appeal No. 2344 of 2024 dated 30th April 2024 (neutral citation 2024 INSC 357).
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Gujarat4, the Apex Court has observed as under :
"In the Indian setting, refusal to act on the testimony of a victim
of sexual assault in the absence of corroboration as a rule, is
adding insult to injury. Viewing the evidence of the girl or the
women, who complains of rape or sexual molestation with the
aid of spectacles fitted with the lenses tinged with doubt,
disbelief or suspicion, is to justify the charge of male chauvinism
in a male dominated society."
16) Considering the circumstances in the case, the allegations in
the FIR and the settled legal position, we find no justification to quash the
FIR impugned herein.
16.1) In view thereof, the Petition is dismissed.
(DR. NEELA GOKHALE, J.) (A. S. GADKARI, J.)
GITALAXMI KRISHNA
KRISHNA KOTAWADEKAR
KOTAWADEKAR Date:
2024.10.07
19:01:28 +0530
4. 1983 SCC (3) 217.
