[Cites 14, Cited by 0]
Bombay High Court
Mah. State Handlooms Corporation Ltd. ... vs Dy. Regional Director, Employees State ... on 22 December, 2025
2025:BHC-NAG:14957-DB
1 6.APL.935-2021..JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 935 OF 2021
1. Raju Namdeo Wankhede,
Aged about 45 Yrs., Occ: Business,
R/o. Ganesh Peth, Washim,
Tq. & Distt. Washim.
2. Shobha w/o Raju Wankhede,
Aged about 40 Yrs., Occ: Household,
R/o. Ganesh Peth, Washim,
Tq. & Distt. Washim. APPLICANTS
Versus
1. State of Maharashtra,
through its Police Station Officer,
Police Station Washim (City),
Tq. & Distt. Washim.
2. Vandana Namdeo Kharatkar,
Aged about 45 Yrs., Occ. Household,
R/o. Shukrawar Peth, Near Rajani
Well, Washim. NON-APPLICANTS
-----------------------------------------------
Mr. R.S. Kurekar, Advocate for the Applicants.
Mr. A.G. Mate APP for the Non-applicant No.1/State.
Ms. Ragini Swami, Advocate Appointed for the Non-applicant
No.2.
-----------------------------------------------
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CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
DATED : 22nd DECEMBER, 2025.
ORAL JUDGMENT :- (PER : NANDESH S. DESHPANDE, J.)
1. Heard finally by the consent of learned Counsel for
the respective parties.
2. This is an application filed under Section 482 of the
Code of Criminal Procedure challenging the FIR/Crime
No.3/2016 and consequent charge-sheet No.96/2017 dated
15.07.2017 for the offence punishable under Sections 323, 376,
504, 506 of the Indian Penal Code and Section 67 of the
Information Technology Act and consequent proceedings arising
out of the same bearing Sessions Trial No. 42/2019.
3. As per the said FIR lodged by the Non-applicant
No.2 i.e. the first Informant, the Applicant No.1 was contesting
elections in the year 2007 for Washim Nagar Parishad. During
the course of canvassing, the Applicant No.1 and Non-applicant
No.2 came in contact with each other. Thereafter, there were
elections in the year 2011 also, wherein the Applicant No.1
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requested the Non-applicant No.2 to canvass for his
candidature. Thus, both the parties were acquainted with each
other.
4. It is further alleged in the FIR that, in the month of
September 2013, at about 07.30 p.m. the Applicant No.1 asked
the Non-applicant No.2 that there is a meeting with relation to
the elections and she was called for meeting. However, the
Applicant No.1 made indecent advances to the Non-applicant
No.2 and without her consent established physical relations
with her. The Non-applicant No.2 resisted and protested loudly,
however since, according to her, television was on, her lauds
and cries could not be heard.
5. It is further alleged in the FIR that, the Applicant
No.1 continued to establish physical relations with her without
her consent thereafter also. It is further stated that, on
02.10.2015 at about 07.00 p.m. in the evening, the Applicant
No.1 again called the Non-applicant No.2 at his office at Patni
Chowk and established physical relations with her. It is further
stated in the FIR that, on 28.12.2015, when the Non-applicant
No.2 confronted the Applicant No.1 with this fact, the Applicant
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No.2 who happens to be the wife of the Applicant No.1, abused
her in a filthy language. It is therefore stated that, the
Applicants have committed offences as mentioned in the FIR.
6. The FIR and the statements leading to the lodging of
the FIR reproduces the text messages sent by the Applicant No.1
to the Non-applicant No.2. It is on these allegations, the FIR in
question was lodged. The Investigating Agency investigated the
matter and the charge-sheet is filed. It is this FIR and the
consequent charge-sheet which is challenged in the present
Application on the grounds as raised in the Application.
7. Heard Mr. Kurekar, learned Counsel for the
Applicants, Mr. Mate, learned APP for the Non-applicant
No.1/State and Ms. Swami, learned Appointed Counsel for the
Non-applicant No.2.
8. The learned Counsel for the Applicants by taking us
through the various statements and documents filed with the
charge-sheet submits that, the relationship was purely
consensual in nature, which can be seen from the various
messages exchanged in between the Applicant No.1 and Non-
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applicant No.2. He points out that, the last incident happened in
the year 2013 and while the FIR is lodged on 01.01.2016 i.e.
almost about three years from the date of incident. He
submitted that, the delay caused in lodging the FIR is pointing
out the fact that the relationship is purely consensual, and
therefore, no offence is made out.
9. Learned APP while vehemently opposing the
contentions advanced by the learned Counsel for the Applicants
states that, even though there is some delay, the relationship
between the parties continued for a long period of time, and
therefore, offence is squarely made out. He submitted that, a
prima facie case being made out against the Applicants and the
matter would require full fledge trial, and therefore, there is no
case made out for interference in inherent jurisdiction.
10. Learned Appointed Counsel for the Non-applicant
No.2 while submitting the contentions advanced by the learned
APP that, the Applicant No.1 being the influential person, the
Non-applicant No.2 could not make any grievance. She points
out the fact that, the Applicant No.1 was the member of
Municipal Council at the relevant time, and therefore, being
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influential person the Non-applicant No.2 could not ventilate
her grievances earlier. She therefore prays that, a triable case is
made out against the Applicants, and therefore, the Application
deserves to be rejected.
11. We have considered the contentions advanced by
the learned Counsel for the respective parties. At the outset, it is
relevant to point out that, the age of the Non-applicant No.2 is
45 years and the age of the Applicant No.1 is also shown to be
45 years. It is thus clear that, both the Applicant No.1 and Non-
applicant No.2 are adult, major and are able to understand the
repercussions of initiation and the continuation of a live-in-
relationship. The controversy in the present matter has to be
adjudicated in the backdrop of these facts. While going through
the FIR and the consequent charge-sheet on record, one glaring
fact is to be noted is the various messages exchanged between
the parties which unequivocally points out to the fact that it was
a consensual relationship and there was a love affair between
them. Even though the FIR and the charge-sheet reproduces the
messages in question in verbatim, no material has been placed
on record to show that in fact the messages were sent from the
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mobile phone of the Applicant No.1 and were in fact delivered
to the phone of the Non-applicant No.2. Even though the
statement of the Non-applicant No.2 alleges that the said
messages have been saved in her mobile phone, we could not
see any material on record to show that in fact these messages
were sent by the Applicant No.1 to the Non-applicant No.2.
While being confronted, the learned Counsel for the Non-
applicant No.2 also could not point out such messages being
sent by the Applicant No.1 to the Non-applicant No.2.
12. The learned Counsel for the Applicants has rightly
relied on the judgment of this Court in the case of Pravesh Vs.
State of Maharashtra, 2025 SCC OnLine Bom 4299 , wherein we
have exhaustively discussed about the concept of consent under
misconception and difference between the consent and mere
breach of promise. In the above said judgment, we have relied
upon the reported judgment of Pramod Suryabhan Pawar Vs.
State of Maharashtra, (2019) 9 SCC 608, wherein the Hon'ble
Apex Court while enunciating the law on subject has stated as
under:
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"12. This Court has repeatedly held that consent with
respect to Section 375 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. In Dhruvaram Sonar which was a case involving the
invoking of the jurisdiction under Section 482, this Court
observed: (SCC para 15)
"15.... An inference as to consent can be drawn if only based
on evidence or probabilities of the case. "Consent" is also
stated to be an act of reason coupled with deliberation. It
denotes an active will in mind of a person to permit the
doing of the act complained of." This understanding was
also emphasised in the decision of this Court in Kaini Rajan
v. State of Kerala: (SCC p. 118, para 12)
"12.... "Consent", for the purpose of Section 375, requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance of
the moral quality of the act but after having fully exercised
the choice between resistance and assent. Whether there
was consent or not, is to be ascertained only on a careful
study of all relevant circumstances."
13. This understanding of consent has also been set out in
Explanation 2 of Section 375 (reproduced above). Section
3(1)(w) of the SC/ST Act also incorporates this concept of
consent:
3(1)(w)(i) intentionally touches a woman belonging to a
Scheduled Caste or a Scheduled Tribe, knowing that she
belongs to a Scheduled Caste or a Scheduled Tribe, when
such act of touching is of a sexual nature and is without the
recipient's consent;
Explanation - For the purposes of sub-clause (i), the
expression "consent" means an unequivocal voluntary
agreement when the person by words, gestures, or any form
of non-verbal communication, communicates willingness to
participate in the specific act:
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Provided that a woman belonging to a Scheduled Caste or a
Scheduled Tribe who does not offer physical resistance to
any act of a sexual nature is not by reason only of that fact,
is to be regarded as consenting to the sexual activity:
Provided further that a woman's sexual history, including
with the offender shall not imply consent or mitigate the
offence;"
14. In the present case, the "misconception of fact" alleged
by the complainant is the appellant's promise to marry her.
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. In Anurag Soni
v. State of Chhattisgarh, this Court held: (SCC para 12)
"12. The sum and substance of the aforesaid decisions
would be that if it is established and proved that from the
inception the accused who gave the promise to the
prosecutrix to marry, did not have any intention to marry
and the prosecutrix gave the consent for sexual intercourse
on such an assurance by the accused that he would marry
her, such a consent can be said to be a consent obtained on
a misconception of fact as per Section 90 IPC and, in such a
case, such a consent would not excuse the offender and
such an offender can be said to have committed the rape as
defined under Sections 375 IPC and can be convicted for
the offence under Section 376 IPC."
Similar observations were made by this Court in Deepak
Gulati v. State of Haryanas (Deepak Gulati): (SCC p. 682,
para 21)
"21.... 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;""
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13. In that view of matter, we are of the considered
opinion that the relation between the Applicant No.1 and the
Non-applicant No.2 was purely consensual in nature, and
therefore, cannot be said to be an offence punishable under
Section 376 of IPC.
14. Further, as far as the Applicant No.2 is concerned,
who happens to be the wife of the Applicant No.1, the only
allegation against her is that she had caused grievous hurt to
the Non-applicant No.2. However, no material has been placed
on record in support of the said plea. Thus, offences punishable
under Sections 323 and 506 of IPC is also not made out against
the Applicant No.2. Thus, it would be a fit case to exercise
inherent jurisdiction under Section 482 of the Code of Criminal
Procedure.
15. The present situation is squarely lies within the
parameters law laid down in the case of State of Haryana &
Ors. Vs. Bhajan Lal & Ors., 1992 Supp.(1) SCC 335 , wherein
following principles / guidelines are laid down by the Hon'ble
Apex Court for consideration of the application under Section
482 of Cr.P.C.
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"(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their face
value and accepted in their entirety do not prima facie
constitute any offence or make out a case against the
accused.
(2) .......
(3) Where the uncontroverted allegations made in the FIR
or complaint and the evidence collected in support of the
same do not disclose the commission of any offence and
make out a case against the accused.
(4) .......
(5) .......
(6) .......
(7) Where a criminal proceeding is manifestly attended
with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to private
and personal grudge."
16. In view of the above observations, the Application
deserves to be allowed. Accordingly, we proceed to pass the
following order.
ORDER
i. The Criminal Application is allowed.
ii. The FIR/Crime No.3/2016 and consequent charge-
sheet No.96/2017 dated 15.07.2017 for the offence
punishable under Sections 323, 376, 504 and 506 of
the Indian Penal Code and Section 67 of the
Information Technology Act and consequent
proceeding arising out of the same bearing Sessions
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Trial No. 42/2019 pending before the Additional
Sessions Judge, Washim, is hereby quashed and set
aside to the extent of the present Applicants.
iii. Fees of the Appointed Counsel be paid as per rules.
17. Pending application/s, if any, shall stand disposed of
accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 24/12/2025 13:00:52
