Bombay High Court
Ayush S/O Rakesh Jain vs The State Of Maharashtra Thr. Pso Ps ... on 9 October, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:11572-DB
Judgment apl553.24
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NO. 553 OF 2024.
Aayush s/o Rakesh Jain,
Aged 31 years, Occupation - Private,
Resident of 20, Ashoka Enclave,
Dayalbag, Agra,
Uttar Pradesh. ... APPLICANT.
VERSUS
1.State of Maharashtra,
through Police Station Officer,
Police Station Hudkehwar,
District Nagpur.
2.XYZ
In Crime No.1/2024,
through Police Station Officer,
Police Station Hudkehwar,
District Nagpur. .. NON-APPLICANTS.
---------------------------------
Mr. A.V. Band, Advocate for the Applicant.
Mr. U. Phasate, A.P.P. for Non-applicant No.1.
Mr. A.K. Bhangde, Advocate for Non-applicant No.2.
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Rgd.
Judgment apl553.24
2
CORAM : VINAY JOSHI AND
SANJAY A. DESHMUKH, JJ.
DATE : OCTOBER 09, 2024.
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. By this application, the applicant is seeking to quash the
criminal prosecution bearing Special Case No.126/2024 pending
with the District Judge-8 and Additional Sessions Judge, Nagpur
arising out of Crime No.1/2024 registered with Hudkeshwar Police
Station, Nagpur for the offence punishable under Section 376[2][n] of
the Indian Penal Code and Sections 3[1][w][i], 3[1][w][ii], 3[2][va] of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
3. The informant lady aged 31 years has lodged the report on
01.01.2024 on the basis of which the aforesaid crime came to be
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registered. The informant lady is well educated, serving as H.R in a
Company. She has sent a friend request to the applicant, who is
resident of Agra, Uttar Pradesh, which the later accepted. The
friendship was developed and on 28.02.2020 they met at Bangalore in
a cafe. While the informant was serving at Bangalore, in the month of
October, 2021 they have performed marriage ceremony at home.
After marriage they went for outing to Ooty. On 11.12.2021, the
applicant came to Nagpur and stayed in the house of the informant.
They had physical relationship on various occasions.
4. In the month of December, both started to stay together at
Bangalore as husband and wife, and they stayed as such for a period of
one year. On 28.02.2022, they intended to again perform marriage in
presence of family members. However, later the applicant refused,
therefore the report.
5. The learned Counsel appearing for the applicant would
submit that both are well educated and were in a relationship for a
period of more than two years. They were in live-in-relationship for a
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period of more than one year and stayed together at Bangalore. Even
they had undergone marriage ceremony, but, later on due to
differences both mutually decided to separate, however, a false report
has been lodged.
6. The learned Counsel for the applicant relied on the
decision of Supreme Court in case of Shajan Skaria .vrs. The State of
Kerala and another - Criminal Appeal No.2622/2024 decided on
23.08.2024, to contend that the provisions of Atrocities Act would
not apply since there is no material to indicate that the offence was
committed only because the victim belongs to Scheduled Caste or
Scheduled Tribe. As a matter of fact, there is no material to constitute
the principal offence, therefore, the provisions of Atrocities Act would
not apply.
7. The learned A.P.P. and the learned Counsel appearing for
the non-applicant no.2 resisted the application by contending that the
contents of police paper makes out a prima facie case.
8. In the decision of the Supreme Court in case of Deepak
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Gulati .vrs. State of Haryana - [2013] 7 SCC 675 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
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
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conclusion that the intention of the accused was mala
fide, and that he had clandestine motives."
9. 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.
10. 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
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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."
11. 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
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accused or the circumstances are beyond his control. It is expressed
that the Court shall very carefully examine all the aspects in like cases.
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.
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 '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
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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 case of Pramod Suryabhan Pawar .vrs. State of
Maharashtra and others - [2019] 9 SCC 608, once again the Supreme
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."
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15. In view of above settled position, it is necessary to examine
the facts and relevant circumstances of the case to find out whether in
given case, failure to perform marriage was actuated by fraud
amounting to absence of consent. With the assistance of both sides, we
have examined the first information report, as well as related
statements.
16. By applying the above principles, it is evident that the
informant is well educated lady, serving in a company. Both were in
relationship for a period of more than two years. The informant
herself has admitted that they had undergone marriage ceremony and
stayed for one year at Bangalore. The applicant has produced several
whatsapp chat showing that they were in intimate relationship and
lived together. The investigation paper discloses that they have visited
several places like Ooty, Munnar, Coimbatore and even abroad to
Bali. Most of the messages have been pointed out to show that both
of them took decision to separate from each other. In the
circumstances, it is quite evident that out of love, intimacy and passion
the relations had developed. There is absolutely no material to infer
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that on the pretext of false promise, the applicant has sexually
exploited the informant.
17. The case squarely falls in the criteria (1) and (3) laid down
by the Supreme Court in case of State of Haryana .vrs. Ch. Bhajan Lal
and others -AIR 1992 SC 604. In the circumstances continuation of
trial would amount to abuse of the process of the Court. Hence, we
proceed to pass the following order.
18. Criminal Application is allowed and disposed of.
The Criminal prosecution bearing Special Case
No.126/2024 pending with the District Judge-8 and Additional
Sessions Judge, Nagpur arising out of Crime No.1/2024 registered
with Hudkeshwar Police Station, Nagpur for the offence punishable
under Section 376[2][n] of the Indian Penal Code and Sections 3[1]
[w][i], 3[1][w][ii], 3[2][va] of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989 is hereby quashed and set
aside.
JUDGE J UDGE
Rgd.
Signed by: R.G. Dhuriya (RGD)
Designation: PS To Honourable Judge
Date: 16/10/2024 15:27:30
