Bombay High Court
Vijay Shriram Bali vs The State Of Maharashtra Pso Ps Tq. ... on 23 June, 2025
Author: Anil S. Kilor
Bench: Anil S. Kilor
2025:BHC-NAG:6124-DB
1/9
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 971 OF 2021
Vijay Shriram Bali, Aged about 41
years, Occup.Business, r/o Civil Lines,
Ward No.8, Malegaon, Tq. Malegaon Applicant
and Dist.Washim.
-Versus-
1. State of Maharashtra, Through Police
Station Officer, Police Station
Tq.Malegaon and Dist.Washim.
2. Satyam Madhukar Karle, aged about
26 years, Occu. B.D.S Student, R/o
Non- applicants.
Cidco Mahanagar,1, Tq. & Dist.
Aurangabad.
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Mr.Anand Deshpande, Advocate for the applicant.
Mr.I.J.Damle, APP for the non-applicant No.1-State.
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CORAM : ANIL S. KILOR AND
MRS.VRUSHALI V. JOSHI, JJ.
DATE : 23rd June, 2025
JUDGMENT (Per : Vrushali V.Joshi, J.)
1) Heard.
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2) RULE. Rule made returnable forthwith. The criminal
application is heard finally with the consent of the learned counsel
appearing for the parties.
3) This is an application to quash the charge-sheet bearing
No. 117 of 2020 arising out of First Information Report No.0299
of 2020 registered with Police Station Malegaon District Washim
for the offences punishable under Sections 376,357,323,504 and
506 of the Indian Penal Code.
4) It is the case of the prosecution that the victim, who is the
student of B.D.S (Bachelor of Dental Surgery) and staying at
Parbhani, came across with the applicant in College function.
Thereafter, they started talking. One day, the applicant called her
in cafe and thereafter, he took her to Malegaon and from there to
Shegaon. There, he took her in rented flat of his friend and there,
he had sexual relations with her under the assurance of marriage.
After that, he used to call her and used to have sexual relations. He
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asked her to stop going to College and also used to send the car to
Parbhani and said car was used to bring her to Malegaon and there,
he had sexual relations with her. Since 2013, they had relations.
She was not aware that he was already married and having two kids.
In the year 2015, she came to know from his friend that he is
married. When she questioned, he quarrelled with her and gave
threats, and continued sexual relations with her. Because of
applicant, the marriage of victim, which was settled with third
person was broken. Thereafter, she performed marriage with one
person and because of the applicant, it was not successful and now
it is on the way of divorce. It is alleged that by giving threats that he
will circulate her private photographs, he had sexual relations with
her.
5) The learned counsel appearing for the applicant has stated
that the relations with the informant were consensual. She never
denied it. Whenever the applicant called her, she used to go with
him and had sexual relations. The victim and applicant were in
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relation for five years. After five years and after getting married
with somebody else, after filing the divorce petition, she had lodged
this complaint about rape. No offence is made out hence, prayed
to quash and set aside the First Information Report and the
Charge-sheet filed against the applicant.
6) Learned Assistant Public Prosecutor opposed the
application stating that the victim has specifically stated that the
applicant kept relations with her by giving the assurance that he
will perform marriage with her. He was already married and having
two kids. He cheated her and had sexual relations with her. He had
committed the offence under Section 376 (2)(n) of the Indian
Penal Code. Hence, the trial is necessary to prove the offence.
Hence, prayed to reject the criminal application.
7) Heard the learned counsel appearing for the applicant
and the learned Assistant Public Prosecutor appearing for the State.
On perusal of First Information Report, it appears that the
applicant and victim had sexual relations for five years. She has not
lodged any complaint anywhere, though she has stated that it was
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under the assurance of marriage. She was aware about his marriage
from year 2015. Even thereafter, she continued to stay with him
and had sexual relations.
8) While considering the allegations about sexual relations
under misconception the Hon'ble Apex Court, in case of
Dr.Dhruvaram Murlidhar Sonar .vrs. State of Maharashtra and others
- [2019] 18 SCC 191, observed that sexual intercourse without any
misconception created by the accused does not constitute an offence
of rape. Particularly it is observed in paragraph no.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
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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."
9) In said case the Supreme Court has considered its earlier
pronouncement in case of Uday .vrs. State of Karnataka - [2003] 4
SCC 46, 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 when the
circumstances are beyond his control. It is expressed that the Court
shall very carefully examine all the aspects in like cases. Here in the
case in hand the victim used to travel from Parbhani to Malegaon on
call of applicant only to satisfy the sexual desire even after she came
to know about his marriage, she continued it without any hesitation
then as per the view taken by the Hon'ble Apex Court in the case of
Dr.Dhruvaram Murlidhar Sonar .vrs. State of Maharashtra and others
(supra), it would not constitute an offence under Section 376 of the
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Indian Penal Code.
10) It is also observed by the Hon'ble Apex Court in case of
Pramod Suryabhan Pawar .vrs. State of Maharashtra and another -
[2019] 9 SCC 608, wherein the Supreme Court took a review of
earlier decisions and summarized the legal position in paragraph
no.18, which reads as below :
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."
11) It is the case of consensual relationship. The victim is
25 years of age. She is mature to know about the consequences of
keeping the relation though she has stated about unawareness of
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the marital status of applicant. It appears that the relations were
with consent and she continued it. It was not the grievance of the
victim that he concealed his marriage as the victim had also
performed marriage with somebody else even before that, she had
not lodged any complaint against the applicant. After filing the
divorce proceedings, she has lodged the complaint against this
applicant. On perusal of Medical papers filed along with charge-
sheet it reveals that in medical history, the victim has stated that she
is not staying with her husband and is going to take divorce,
however, she has stated about last sexual relation before a day with
her husband, which creates doubt about her entire story. Though
she has stated about the first intercourse under the assurance of
marriage and thereafter getting threats, it appears that whenever the
applicant called her she went there willingly. She could have lodged
a complaint at that time only, when the threats were given and she
came to know about his marriage. Prima facie, it shows that there is
no substance in the First Information Report, hence, it required to
be quashed and set aside.
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12) In view of above, the criminal application is allowed.
13) Charge-sheet bearing No.117 of 2020 arising out of First
Information Report No.0299 of 2020 registered with Police
Station Malegaon, District Washim, for the offences punishable
under Sections 376, 357, 323, 504 and 506 of the Indian Penal
Code is hereby quashed and set aside.
14) Criminal Application stands disposed of.
(MRS.VRUSHALI V. JOSHI, J) (ANIL S.KILOR, J)
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Signed by: Kavita P Tayade
Designation: PS To Honourable Judge
Date: 01/07/2025 17:41:11
