Bombay High Court
Vishal Rustumrao Deshmukh vs The State Of Maharashtra Thr Pso. Ps. ... on 29 September, 2025
2025:BHC-NAG:9892-DB
J-APL 178-2025.odt 1/11
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL)NO.178/2025
Vishal S/o Rustumrao Deshmukh
Age : 47 years, Occupation :
Labour, R/o Near Maroti Mandir,
Old Town Ward, n.12, Chikhli,
Buldhana
... APPLICANT
...VERSUS...
1. State of Maharashtra,
Through its Police Station
Officer, Police Station Chikhli,
District Buldhana.
2. XYZ [VICTIM]
In crime no. 97/2024
Through Police Station Chikhli,
District Buldhana
...NON-APPLICANTS
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Mrs. Kirti Deshpande, Advocate for applicant
Shri K.R. Lule, APP for non-applicant No.1/State
Mrs. Anuprita S. Mishrikotkar, Advocate for non-applicant No.2
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 20.09.2025
PRONOUNCED ON : 29.09.2025
J-APL 178-2025.odt 2/11
JUDGMENT (PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned
Counsel for 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 No.0097 of 2024 dated
08.02.2024, along with the Charge Sheet No. 62 of 2024, dated
04.04.2024, registered with non-applicant No.1 - Police Station
Chikhli, Dist. Buldhana, for the offences punishable under Sections
376, 504, 506 of the Indian Penal Code and Sections 3(1)(w)(i)(ii),
3(2)(va), 3(1)(r), 3(1)(s), 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short 'the
SC & ST Act'), and consequent Sessions Trial No. 27/2024.
3. It is the case of the non-applicant, first informant, according
to the contents of the First Information Report that on 03.02.2019,
the applicant took the informant to a temple at Gram Sakegaon, on
the pretext of worshiping, however, on the pretext of worshiping,
the applicant committed forcible intercourse with her. Thereafter,
on 17.08.2023, the first informant came to know that the applicant
is married and his petition for divorce is pending. Thereafter, as the
applicant avoided to marry her, non-applicant No.2, lodged the First
Information Report as stated above. It is this First Information
Report, which is sought to be challenged in the present proceeding.
4. We have heard Ms Kirti Deshpande, learned Counsel for the
applicant, Shri K.R. Lule, learned Additional Public Prosecutor for
the non-applicant No.1/State and Ms Anuprita Mishrikotkar,
learned Counsel for the non-applicant No.2.
5. Learned Counsel for the applicant states that meaningful
reading of the First Information Report would reveal that no offence
is made out under Sections as mentioned in the First Information
Report. It is her submission that the averments about the
relationship if considered to be true was consensual and not forced
and as both of them are major, offence under Section 376 is not
made out. It is further submitted by her that even the complaint
lodged by the non-applicant No.2, if perused in its entirety does not
make out a case for offence punishable under various sections.
6. On the other hand, the learned Additional Public Prosecutor
as also the learned Counsel for non-applicant No.2, vehemently
opposed the submissions of the Counsel for the applicant. Learned
Additional Public Prosecutor states that it was a physical relation on
the false promise of marriage and the intention to deceive was from
the initiation of the said relationship. He further submits that the
applicant at the initial stage had suppressed the said fact and their
situation would be squarely covered by Section 376 of the Indian
Penal Code. Learned Counsel for the non-applicant No.2 also
submits that the case is made out for full fledged trial under the
various sections, and therefore, it cannot be said to be a fit case for
quashing of the First Information Report and consequent charge-
sheet.
7. In the backdrop of these submissions, we have perused the
First Information Report and the consequent charge-sheet. As can
be seen from the said charge-sheet, the First Information Report in
question is lodged by the non-applicant No.2, who at the time of
lodging of the First Information Report is of 36 years of age, while
the applicant is 45 years of age. Thus, both of them are adult, major
and able to understand the consequences of any act or omission to
be done by them. The controversy in the present matter is thus to
be decided in the backdrop of these facts. It can further be seen
from the complaint of the non-applicant No.2, that she candidly
admits that she is having physical relationship with the applicant
from last six years. Furthermore, it is nowhere alleged that the
applicant abused her in the name of caste, and therefore, even
otherwise offences under Section Scheduled caste and Scheduled
Tribe (prevention of Atrocities) Act are not made out. In the
conspectus of these facts, we are of the view that the relationship is
between two adults and major persons who were well aware of the
consequences of their relationship still they ventured to enter into
that relationship out of their free will.
8. In the case of Uday Vs State of Karnataka, (2003) 4 SCC 46,
the Hon'ble Supreme Court after reproducing Section 375 has held
that "Consent is an act of reason, accompanied with deliberation,
the mind weighing, as in a balance, the good and evil on each side."
It is further held that "there does not necessarily have to be
complete willingness to constitute consent. A woman's consent to
intercourse may be hesitant, reluctant or grudging, but if she
consciously permits it there is consent" In paragraph No. 11 & 12, it
is held as under :
"11. Some of the decisions referred to in Words and
Phrases, Permanent Edition, Vol. 8A at p. 205 have held:
"that adult female's understanding of nature and
consequences of sexual act must be intelligent
understanding to constitute 'consent'. Consent within
penal law, defining rape, requires exercise of intelligence
based on knowledge of its significance and moral quality
and there must be a choice between resistance and
assent. Legal consent, which will be held sufficient in a
prosecution for rape, assumes a capacity to the person
consenting to understand and appreciate the nature of
the act committed, its immoral character, and the
probable or natural consequences which may attend it".
"12. The courts in India have by and large adopted these
tests to discover whether the consent was voluntary or
whether it was vitiated so as not to be legal consent.
"7. A mere act of helpless resignation in the face
of inevitable compulsion, quiescence, non-resistance, or
passive giving in, when volitional faculty is either
clouded by fear or vitiated by duress, cannot be deemed
to be 'consent' as understood in law. Consent, on the part
of a woman as a defence to an allegation of rape,
requires voluntary participation, not only after the
exercise of intelligence, based on the knowledge, of the
significance and moral quality of the act, but after
having freely exercised a choice between resistance and
assent.
Submission of her body under the influence of
fear or terror is no consent. There is a difference
between consent and submission. Every consent involves
a submission but the converse does not follow and a
mere act of submission does not involve consent.
Consent of the girl in order to relieve an act, of a
criminal character, like rape, must be an act of reason,
accompanied with deliberation, after the mind has
weighed as in a balance, the good and evil on each side,
with the existing capacity and power to withdraw the
assent according to one's will or pleasure."
9. Furthermore, in the celebrated judgment of Pramod
Suryabhan Pawar Vs. State of Maharashtra and another, (2019) 9
SCC 608, after exhaustively dealing with the case laws related to
the subject this 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."
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."
10. In the backdrop of these facts, if we analyze the materials
collected by the prosecution the inevitable conclusion is that the
non-applicant No.2 and the applicant were engaged in consensual
physical relationship voluntarily out of their own free will that too
for a long period of six years. It does not appeal to logic and
reasoning that an adult female like the complainant would not have
been aware about the marital status of the applicant-accused for
such a long period. It would be therefore a fit case to exercise
powers under Section 482 of the Criminal Procedure Code, since
continuance of the proceedings, in our view, would amount to
nothing but an abuse of the process of Court. When we take this
view, we are guided by the parameters laid down in paragraph No.
102 of judgment reported in State of Haryana and others Vs.
Bhajanlal and others, 1992 Supp (1) SCC 335, and more
particularly Clause 1, 3 and 7 thereof :
"102.................
(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 com- plaint 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."
11. We, therefore, of the view that since the relationship between
the applicant and the non-applicant No.2 was consensual in nature,
there was no abuse in the name of caste or otherwise which is sine-
qua-non for making out offence under Sections 376, 504, 506 of
the Indian Penal Code and Sections 3(1)(w)(i)(ii), 3(2)(va), 3(1)
(r), 3(1)(s), 3(2)(v) of the SC & ST Act, this would be a fit case to
quash the First Information Report and the consequent charge-sheet
against the present applicant. We therefore, proceed to pass the
following order :
ORDER
i) Application is allowed.
ii) The First Information Report No.0097 of 2024, dated
08.02.2024, along with the Charge Sheet No. 62 of 2024, dated
04.04.2024, registered through non-applicant No.1- Police Station
Chikhli, Dist. Buldhana, for the offences punishable under Sections
376, 504, 506 of the Indian Penal Code and Sections 3(1)(w)(i)(ii),
3(2)(va), 3(1)(r), 3(1)(s), 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989, and
consequent Sessions Trial No. 27/2024, are quashed and set aside.
The application is disposed of accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)
Jayashree..
