Bombay High Court
Pradip S/O Ajabrao Mahalle vs State Of Mah. Thr. Pso Ps Nandgaon Peth ... on 11 September, 2025
2025:BHC-NAG:8947-DB
J-apl950.22.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL) No.950 OF 2022
Pradip s/o. Ajabrao Mahalle,
Aged about 57 years,
Occupation : Government Job,
R/o. Shegaon Road,
Padamsaurabh Colony,
V.M.V. Amravati,
Tah. & Distt.Amravati : APPLICANT
...VERSUS...
1. State of Maharashtra,
Through P.S.O.,
Police Station Nandgaon Peth,
Amravati.
2. XYZ, the complainant in Crime
No.485/2021, (FIR) Registered
at Police Station Nandgaon Peth,
Amravati City, Amravati. : NON-APPLICANTS
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Mr. V.S. Mishra, Advocate for Applicant.
Mr. N.H.Joshi, Addl. Public Prosecutor for Non-applicant No.1.
Ms. Chaitali S. Bhute, Advocate for Non-applicant No.2.
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 04th SEPTEMBER, 2025.
PRONOUNCED ON : 11th SEPTEMBER, 2025.
JUDGMENT :
(Per : Nandesh S. Deshpande)
1. Heard. Admit. Heard finally by consent of learned
counsel appearing for the parties.
2. This is an application seeking quashment and setting
aside of charge-sheet/final report dated 25.02.2022, filed in Crime
No.485/2021, registered by the non-applicant No.1 for the offence
punishable under Sections 376(2/n), 506(2), 417 of the Indian
Penal Code read with Section 3(1)(w), 3(1)(i), 3(1)(w)(ii), 3(2)
(va), 3(2), 3(v) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. The said charge-sheet is filed
against the present applicant in pursuance to First Information
Report lodged by the non-applicant No.2 with the non-applicant
No.1 on 25.12.2021. As per the said F.I.R. the first informant is 42
years of age and is a widow having 20 years old son. Her husband
expired in the year 2019 due to cardiac arrest and, therefore, she
was residing on rent in Sundar Nagar area. It is further alleged that
during the period of residence she came in contact with the present
applicant, who allegedly stated that he was unmarried and
developed physical relations with her by threatening her and her
son of life.
3. On registration of the F.I.R. apprehending arrest the
applicant herein moved the Sessions Judge, Amravati by filing
Criminal Bail Application bearing No.1551/2021 praying for
anticipatory bail. The said application was however rejected by the
Court on 03.01.2022.
4. Thereafter, the applicant herein filed an appeal under
Section 14A of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 before this Court bearing
Criminal Appeal No.13/2022.
5. The said appeal was allowed by this Court vide order
dated 01.04.2022.
6. The applicant thereafter filed an application under
Section 482 of the Criminal Procedure Code for quashing of said
First Information Report. However, since during the pendency of
the said proceeding the Investigating Agency filed a charge-sheet,
the said criminal application bearing Criminal Application (APL)
No.648/2022 was withdrawn on 04.05.2022 with liberty to file a
fresh application challenging the charge-sheet.
7. In the backdrop of these admitted facts the present
application challenging the charge-sheet is filed.
8. We have heard Mr. V.S. Mishra, learned counsel for the
applicant, Mr.N.H. Joshi, learned Additional Public Prosecutor for
the non-applicant No.1 and Ms. Chaitali S. Bhute, who was
appointed to represent for non-applicant No.2 by this Court vide
order dated 26.09.2024.
9. Mr. V.S. Mishra learned counsel for the
applicant/original accused has submitted that the entire
relationship between the applicant and non-applicant No.2 was
consensual and there was no iota of concealment or
misrepresentation as to the fact of the applicant being married. He
has taken us through the report lodged by the non-applicant No.2
with non-applicant No.1 on 25.12.2021. As per the said report the
illegitimate physical relationship was firstly established on
26.01.2020 and thereafter continued from time to time. It is
further stated in the said report that when the first informant used
to ask the applicant regarding his marital status he was evading the
query. However, in March 2021 she came to realize that he was
married and has two daughters. It is, however, further stated that
even after realizing the said fact physical relationship continued
thereafter also.
10. The allegations made in the complaint seems to be
unconscionable inasmuch as lady like first informant, who even
after realizing the fact that the applicant/accused is married
consented for continuing physical relationship. This fact needs us
to draw the conclusion that the relationship was consensual.
11. We have also perused the statement of the witnesses one
Harshal Bhatwalkar, who happens to be the son of the first
informant and supports the version of the first informant. The next
statement of Rajesh Satyaprakash Rathod, who is landlord of the
first informant. He also corroborates the statement but their is
nothing substantial in the statement of both the witnesses
incriminating the applicant.
12. Mr. N.H. Joshi, learned Additional Public Prosecutor for
the non-applicant No.1 has strongly opposed the contentions of the
applicant and stated that the prosecution agency was right in
registering offence punishable under Section 376(2/n), 506(2), 417
of the Indian Penal Code read with Section 3(1)(w), 3(1)(i), 3(1)
(w)(ii), 3(2)(va), 3(2), 3(v) of the Scheduled Castes and Scheduled
Tribes (Prevention of Atrocities) Act, 1989. The counsel for
respondent No.2 reiterates the contents of the learned Additional
Public Prosecutor and opposed the contentions made in the
application.
13. In the conspectus of these admitted facts we have
perused the material on record. It is a matter of fact that both the
applicant as well as non-applicant No.2 are major and matured
persons to understand the seriousness of the situation. One glaring
fact which needs to be stated is about an agreement entered into
between the parties i.e. applicant and non-applicant No.2 herein.
On 22.06.2021. This is a document which is a compromise deed
between the parties in which the non-applicant No.2 has clearly
stated that she was aware that the applicant was married and it was
her who used to call the applicant at her home and that the
applicant never forced himself on her. It is further stated in the
said compromise deed that the report was lodged by her due to
pressure of the public and the relationship between her and the
applicant was consensual and with free consent. The said
compromise deed bears the signature of the non-applicant No.2 and
two witnesses.
14. In the Judgment of State of Haryana and others Vs. Ch.
Bhajan Lal and others, reported in AIR 1992 SC 604, the Hon'ble
Apex Court, in para 105 following parameters are laid down to
exercise powers under 482 while quashing the proceedings. The
said para is reproduced as under :
105. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extra-ordinary
power under Article 226 or the inherent powers
Under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the process
of any Court or otherwise to secure the ends of
justice, though it may not be possible to lay
down any precise, clearly defined and
sufficiently channelised and inflexible guidelines
or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power
should be exercised.
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. Where the allegations in the First
Information Report and other materials, if any,
accompanying the F.I.R. do not disclose a
cognizable offence, justifying an investigation by
police officers under Section 156(1) of the Code
except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations
made in the F.I.R. 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. Where, the allegations in the F.I.R. do
not constitute a cognizable offence but
constitute only a non-cognizab le offence, no
investigation is permitted by a Police Officer
without an order of a Magistrate as
contemplated Under Section 155(2) of the Code.
5. Where the allegations made in the
F.I.R. or complaint are so absurd and inherently
improbable on the basis of wich no prudent
person can ever reach a just conclusion that
there is sufficient ground for proceeding against
the accused."
15. The question of voluntary consent or consent under
misconception of fact has been settled in various judgments such as
Uday Vs. State of Karnataka, reported in (2003) 4 SCC 46 and
thereafter again in Dilip Singh alias Dilip Kumar Vs. State of Bihar,
reported in (2005) 1 SCC 88. Furthermore in Deepak Gulati Vs.
State of Haryana, reported in (2013) 7 SCC 675 and identical
question came up for consideration. Thereafter, in the celebrated
judgment of Pramod Suryabhan Pawar Vs. State of Maharashtra
and another, reported in (2019) 9 SCC 608, the Hon'ble Apex Court
held in paras 8,10 and 13 as under :
"8. In deciding whether to exercise its jurisdiction
under Section 482, the Court does not adjudicate upon
the veracity of the facts alleged or enter into an
appreciation of competing evidence presented. The
limited question is whether on the face of the FIR, the
allegations constitute a cognizable offence. As this
Court noted in Dhruvaram Murlidhar Sonar v State of
Maharashtra, ("Dhruvaram Sonar") :
"13. It is clear that for quashing proceedings,
meticulous analysis of factum of taking
cognizance of an offence by the Magistrate is
not called for. Appreciation of evidence is
also not permissible in exercise of inherent
powers. If the allegations set out in the
complaint do not constitute the offence of
which cognizance has been taken, it is open
to the High Court to quash the same in
exercise of its inherent powers."
10. Where a woman does not "consent" to the sexual
acts described in the main body of Section 375, the
offence of rape has occurred. While Section 90 does not
define the term "consent", a "consent" based on a
"misconception of fact" is not consent in the eyes of the
law.
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:
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;"
Furthermore, in the same judgment in para 16 the
Hon'ble Apex Court 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. 682-84,
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 IPC 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."
(Emphasis supplied)"
In para 18 of the said judgment the Hon'ble Apex Court
summarized the legal position as under :
"18. 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."
16. The allegations made in the F.I.R. are inherently
improbable inasmuch as it is not expected of a lady, who is adult
and mother of 20 years old son to continue with physical relations
under a threat or coercion inspite of being aware that the applicant
is a married person. This is coupled with the fact of compromise
deed entered into the parties in which she unequivocally states that
she continued the said relationship with her consent. The
allegations, therefore, do not inspire confidence and are inherently
improbable in nature. Thus, there is no sufficient ground for
proceeding against the accused and direct him to continue to face
the trial.
17. In our view, therefore, this is a fit case to quash the
charge-sheet/final report. Hence, we passed the following order.
ORDER
(i) The application is allowed.
(ii) The Charge-sheet/Final Report dated
25.02.2022 in Crime No.485/2021 registered by the non-applicant
No.1 for the offence punishable under Sections 376(2/n), 506(2),
417 of the Indian Penal Code read with Section 3(1)(w), 3(1)(i),
3(1)(w)(ii), 3(2)(va), 3(2), 3(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, is quashed
and set aside.
(iii) The application is disposed of.
(iv) Parties to bear their own costs.
(Nandesh S. Deshpande, J.) (Urmila Joshi-Phalke, J.)
wadode
Signed by: Mr. Devendra Wadode
Designation: PS To Honourable Judge
Date: 11/09/2025 17:56:41
