Bombay High Court
Atish Pankaj Sarkar vs The State Of Maharashtra Thr. Ps ... on 13 October, 2025
2025:BHC-NAG:10731-DB
J-APL 1500-2024.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL)NO.1500/2024
Atish Pankaj Sarkar,
Aged about 27 years, Occ.: Doctor,
R/o Korachi, Tah. Korachi, Dist.
Gadchiroli.
... APPLICANT
...VERSUS...
1. State of Maharashtra,
Through Police Station Officer,
P.S. Gadchiroli.
2. X.Y.Z. vide crime crime No 576/24
through P.S.O. Gadchiroli,
Dist. - Gadchiroli
...NON-APPLICANTS
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Shri A.M. Chandekar, Advocate for applicant
Ms S.S. Dhote, APP for non-applicant No.1/State
Ms Jayanti Deshpande, Advocate for non-applicant No.2
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 30.09.2025
PRONOUNCED ON : 13.10.2025
JUDGMENT (PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned
Counsel for both the parties.
2. The applicant has approached this Court by filing the present
application under Section 482 of the Criminal Procedure Code, for
quashing of the First Information Report bearing No. 0576/2024,
dated 07.08.2024, registered with non-applicant No.1/Police
Station Gadchiroli, for the offence punishable under Sections 376,
376(2)(n), of the Indian Penal Code. He has also prayed for setting
aside the charge-sheet bearing No. 210/2024, registered with Police
Station Gadchiroli for the offence punishable under Sections 376,
376(2)(n), and Section 417 of the Indian Penal Code.
3. As per the case of the non-applicant No.2 and as reflected in
the First Information Report, it was lodged in the month of August,
2023. In the said First Information Report, the non-applicant No.2
alleged that she and the applicant came in contact through a social
media platform "Instagram". Thereafter, they began communicating
with each other and gradually developed an acquaintance that later
blossomed into a romantic relationship. They started meeting
frequently and in the Month of August, 2023, the applicant
proposed the non-applicant No.2 for marriage. Although the non-
applicant No.2, initially was reluctant and declined the proposal,
she subsequently accepted the same after discussing with the
parents of the applicant.
4. It is further stated in the said First Information Report that in
November, 2023, the applicant took the non-applicant No.2 to
Janasewa Lodge, Dhanora Road, Gadchiroli, and established
physical relationship with her. The non-applicant No.2, initially
resisted but later consented after the applicant assured her that they
would solemnize the marriage soon.
5. Again in January, 2024, the applicant and the non-applicant
No.2 met and stayed together for three days at the Primary Health
Center Quarters Kotgul, which is the place where the applicant was
serving. During this period of three days also they established
physical relations with each other. It is further stated when the non-
applicant No.2 inquired about their marriage, the applicant assured
that he would solemnize it after the completion of construction of
his clinic. On the strength of this assurance, the non-applicant No.2,
agreed and continued to maintain physical relationship with the
applicant. However, since the applicant refused to marry the non-
applicant No.2, allegedly on the refusal of his parents, the non-
applicant No.2 lodged a report with the non-applicant No.1. It is
this First Information Report and the consequent charge-sheet
which is challenged in the present application.
6. We have heard Shri A.M. Chandekar, learned Counsel for the
applicant and Ms S.S. Dhote, learned Additional Public Prosecutor
for the non-applicant No.1/State, as also, Ms Jayanti Deshpande,
learned Counsel for the non-applicant No.2.
7. Learned Counsel for the applicant states that meaningful
reading of the First Information Report would reveal that no offence
is made out under the sections as mentioned in the First
Information Report. It is his submission that if the averments about
the relationship is considered to be true, the said was entirely
consensual and not forced, as both of them are major, and
therefore, the offence under Section 376 is not made out. It is
further submitted by the learned Counsel for the applicant that if
the complaint filed by the non-applicant No.2, is perused in its
entirety, it does not make out a case of forced relationship. He
further submits that the non-applicant No.2 has recorded a
statement on oath as per Section 183 of the Bhartiya Nagrik
Suraksha Sanhita, in which, she has clearly stated that the
accusations against the applicant are not truth and only because he
has refused to marry her, she has lodged the report.
8. On the other hand, learned Additional Public Prosecutor has
vehemently opposed the submissions of the learned Counsel for the
applicant. She submits that it was a physical relationship on false
promise of marriage and the intention to deceive was from the
initiation of the said relationship. Learned Counsel for the non-
applicant No.2 however, admits that the victim has given a
confession under Section 183 of the Bhartiya Nagrik Suraksha
Sanhita. However, she has refused to file an affidavit about the
same.
9. In view of these facts, we have perused the First Information
Report and the consequent charge-sheet. As can be seen from the
said documents, the First Information Report in question is lodged
by the non-applicant No.2, who at the time of lodging report was
22 years of age, while the applicant is 27 years of age. Thus, both of
them are educated, adult, and major and able to understand the
consequences of any act or omission to be done by them. The
controversy in the present matter has to be adjudicated in the
backdrop of these facts.
10. In the celebrated judgment of Pramod Suryabhan Pawar Vs.
State of Maharashtra and another, (2019) 9 SCC 608 , wherein it is
held as under :
"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 for her choosing to engage in the said act. In
Deepak Gulati this Court observed:(SCC pp. 682-684,
paras 21 & 24)
"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;
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.
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the
initial stage itself, the accused had no intention
whatsoever, of keeping his promise to marry the victim.
There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the
victim owing to various unavoidable circumstances. The
"failure to keep a promise made with respect to a future
uncertain date, due to reasons that are not very clear
from the evidence available, does not always amount to
misconception of fact. In order to come within the
meaning of the term "misconception of fact", the fact
must have an immediate relevance". Section 90 I.P.C.
cannot be called into aid in such a situation, to pardon
the act of a girl in entirety, and fasten criminal liability
on the other, unless the court is assured of the fact that
from the very beginning, the accused had never really
intended to marry her."
11. In the backdrop of these facts, it is the dictum of the Hon'ble
Apex Court that the consent of a woman with respect to Section
respect to 375 must involve an active and reasoned deliberation of
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 its athearance. Further the false promise must be of immediate
relevance and bear a direct nexus to the woman's decision to
engage in the sexual act.
12. From the averments in the First Information Report and the
charge-sheet, and more particularly the statement of the non-
applicant No.2, she states that the applicant has refused to marry
her under the pressure of his parents. It therefore, cannot be said
that there was intention to deceive from its inception which is a
sine qua non for such offences. She also states that she and the
applicant were in live-in relationship since last more than a years
and she had full consent for the same. She further states that the
applicant never forced himself on her, and she never expected that
the First Information Report would be lodged against the applicant
and he would have to face arrest in the same. It is thus clear that
even though an affidavit is not filed in the present matter, the
statement referred above which is not contraverted can be taken
into consideration while deciding the controversy involved in the
present matter. Section 183 of the Bhartiya Nagarik Suraksha
Sanhita, 2023, speaks about recording of confession and statements
and is in pari materia with Section 164 of the Criminal Procedure
Code. It provides that any Magistrate of the District may whether or
not he has jurisdiction in the case record any confession or
statement made to him in the course of investigation or at any time
afterwards. Thus, the statement can be taken into consideration.
13. In view of these facts and after a meaningful reading of the
First Information Report, as also, the material collected during the
investigation, we are of the view that the relationship between two
adults, major persons, was of consensual nature and therefore no
offence is made out under Section 376 of the Indian Penal Code.
Even offence punishable under Section 417 of the Indian Penal
Code, which provides punishment for cheating is not attracted since
there is no deception for delivery of any property as contemplated
under Section 415 of the Indian Penal Code.
14. It is thus clear that no offence as alleged in the First
Information Report, as also, the charge-sheet are made out against
the present applicant.
15. The non-applicant No.2 has voluntarily accorded her consent
for the relationship out of her own free will and volition.
16. The Hon'ble Apex Court in the case of Gian Singh Vs. State of
Punjab, (2012) 10 SCC 303, wherein, the Hon'ble Apex Court has
observed that "where the High Court quashes a criminal proceeding
having regard to the fact that dispute between the offender and the
victim has been settled, although the offences are not
compoundable, it does so as in its opinion, continuation of criminal
proceedings will be an exercise in futility and justice in the case
demands that the dispute between the parties is put to an end and
peace is restored, securing the ends of justice being the ultimate
guiding factor."
17. The Hon'ble Supreme Court had stated that even a non
compoundable offence can be quashed under the inherent powers
of the High Court under Section 482 of the Criminal Procedure
Code, in the contingencies mentioned therein.
18. In view of the facts, we are of the view that it would
therefore be an exercise in futility to continue the proceedings
against the applicant since the same would amount to abuse of the
process of Court. Hence, we proceed to pass following order :
ORDER
i) The application is allowed.
ii) The First Information Report bearing No. 0576/2024, dated
07.08.2024, registered with non-applicant No.1/Police Station
Gadchiroli, for the offence punishable under Sections 376, 376(2)
(n), of the Indian Penal Code, as also, the charge-sheet bearing No.
210/2024, registered with Police Station Gadchiroli for the offence
punishable under Sections 376, 376(2)(n), and Section 417 of the
Indian Penal Code, are hereby quashed and set aside
19. The application is disposed of accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)
Jayashree..
