Bombay High Court
Girish S/O Raju Katakwar vs State Of Mah., Thr. P.S.O. Ps Dist ... on 27 September, 2024
Author: Vinay Joshi
Bench: Vinay Joshi
2024:BHC-NAG:10986-DB
Judgment apl1295.19
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION [APL] NO. 1295 OF 2019.
Girish s/o Raju Katakwar,
Aged about 30 years, Occupation -
Service, Resident of Near Sharda
Mata Mandir, Kasturba Gandhi
Ward, Bhandara - 441904. ... APPLICANT.
VERSUS
1.The State of Maharashtra,
through Police Station Officer,
Police Station Bhandara,
District Bhandara.
2.Trusha d/o Ashok Rodge,
Aged about 30 years, resident of
Lala Lajpatrai Ward,
Bhandara. .. NON-APPLICANTS.
---------------------------------
Mr. S.P. Sonwane, Advocate for the Applicant.
Mrs. K.H. Bhondge, A.P.P. for Non-applicant No.1.
Ms S.D. Paul, Advocate (Appointed) for Non-applicant No.2.
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Judgment apl1295.19
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CORAM : VINAY JOSHI AND
VRUSHALI V. JOSHI, JJ.
DATE : SEPTEMBER 27, 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. This is an application under Section 482 of the Code of
Criminal Procedure seeking to quash the first information report
bearing Crime No.738/2019 registered with Bhandara Police Station,
Bhandara for the offence punishable under Sections 376[2][n] and
506 of the Indian Penal Code. The informant lady aged 29 years has
lodged the report on 18.11.2019, which led to registration of the
aforesaid crime.
3. It is the case of the informant that in the year 2009 itself,
while she was studying in 12th standard at J.M. Patel College, she got
acquainted with the applicant, who was her fellow colleague. In the
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month of September, 2009 the applicant expressed his love, on which
they exchanged phone numbers and were frequenting with each other.
They also use to go for outing. In the year 2010, the informant took a
rented room at Sadak Arjuni, where the applicant was visiting for a
period of two years. In the year 2013, she took admission in B.A.
Course where also the applicant was meeting her. In the year 2013
itself, she got a job in a private company, where she used to commute
daily with the applicant on his motor cycle. In the year 2014, they
had a quarrel since the informant suspected that the applicant is
involved with some other lady.
4. It is the case of the informant that in the month of
December, 2018 again the difference were patched up and they
started meeting frequently. In the month of April, 2019, the
applicant came to her house and by putting her under threat, had
established sexual relations. Then always he used to visit at her house
and were maintaining relations. The informant stated that on
23.09.2019, the applicant came to her house, but, at that time brother
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of informant has seen both of them, on which brother insisted for
marriage, to which the applicant refused to marry in proximity, hence,
the report.
5. The learned Counsel appearing for the applicant would
submit that contents of the first information report even if taken at its
face value, it does not make out a case of false promise constituting the
offence of rape. It is argued that the case squarely falls in the arena of
voluntary sexual relations in between two adults. Learned Counsel for
the informant as well as learned Additional Public Prosecutor
appearing for the non-applicant/State resisted the application by
contenting that the informant has specifically stated about assurances
given by the applicant for marriage. It is submitted that since consent
was given by the informant on promise to marry, therefore, the
consent vitiates, amounting to offence of rape.
6. The learned Counsel for the applicant has submitted that
the facts are clear enough to convey that the consent was not given by
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the informant only on account of promise to marry, but, relations were
established due to love affair.
7. Reading of police papers indicates that there was love affair
and out of that they had relations. It is argued that the facts does not
discloses that it is a case of false promise vitiating the consent, but, at
the most, it can be termed as a breach of promise. In support of said
contention, learned Counsel for the applicant placed reliance on the
following decisions :
(i) State of Haryana .vrs. Ch. Bhajan Lal and others -AIR
1992 SC 604.
(ii) Deepak Gulati .vrs. State of Haryana - [2013] 7 SCC 675.
(iii) Pramod Suryabhan Pawar .vrs. State of Maharashtra and
others - [2019] 9 SCC 608.
(iv) Naim Ahamed .vrs. State (NCT of Delhi) - 2023 Livelaw
(SC) 66.
(v) Vaibhav Devidas Deshpande .vrs. State of Maharashtra
and another - 2024 All MR (Cri) 2002.
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We have gone through the above decisions of which we wish to refer
few as all decisions are on same line.
8. 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
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
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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."
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 :
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"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
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
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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.
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. The promise of
marriage must have been a false promise, given in bad faith and with
no intention to adhere the promise.
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
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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.
14. In case of Pramod Pawar (supra), 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
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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."
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, the consent 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. Bearing in mind the test which has been enunciated in
above decisions, it is evident that since the year 2009, both were in the
relationship. Though the informant tried to say that initially there
were no relations, but, admittedly continuously they used to meet and
love affair was going on. It is the contention of the informant that for
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the first time in the month of April, 2019 the applicant has forcible
physical relation, but, she never ventilated the grievance. Not only
when she stated that thereafter also frequently the applicant used to
visit her room, where they used to have relationship. It is pertinent to
note that on 23.09.2019, the younger brother of the informant has
seen both of them, which has triggered her to lodge the report. Thus,
it is clear that it is a case of consensual relationship. There is no
material to hold that her consent was obtained by deceitful means.
17. The case squarely falls in the criteria (1) and (3) laid down
by the Supreme Court in case of State of Haryana vs. Bhajan Lal
[supra]. In order to secure the ends of justice the proceeding needs to
be quashed by invoking inherent powers.
18. In view of that, the application is allowed and disposed of.
The First Information Report bearing Crime No.738/2019
registered with Bhandara Police Station, Bhandara for the offence
punishable under Sections 376[2][n] and 506 of the Indian Penal
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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: 03/10/2024 12:02:05
