Bombay High Court
Sushant Subhash Bhatghare vs The State Of Maharashtra Thr. Pso Wani ... on 29 September, 2025
2025:BHC-NAG:9891-DB
J-APL 1573-2024.odt 1/12
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APL)NO.1573/2024
Sushant Subhash Bhatghare,
Aged about - 31 years, Labourer
R/o Netaji Subhash Chandra Bose Chowk
Ward No.- 13, Near Jatra Road Wani
District Yavatmal
... APPLICANT
...VERSUS...
1. State of Maharashtra,
Through Police Station Officer,
Yavatmal
2. XYZ
Aged about - 26 years, Resident of
Ward No. 2, wagdara, Wani, Yavatmal
...NON-APPLICANTS
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Mrs. Sonal Tripathi, Advocate for applicant
Mrs. H.N. Prabhu, APP for non-applicant No.1/State
Mrs. Digvijay Mankar, Advocate for non-applicant No.2
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CORAM : URMILA JOSHI-PHALKE AND
NANDESH S. DESHPANDE, JJ.
RESERVED ON : 18.09.2025
PRONOUNCED ON : 29.09.2025
J-APL 1573-2024.odt 2/12
JUDGMENT (PER : NANDESH S. DESHPANDE, J.)
Heard. Admit. Heard finally with the consent of learned
Counsel for the parties.
2. By this application under Section 482 of the Criminal
Procedure Code, the applicant is seeking to quash the criminal
proceedings i.e. Sessions Trial/Special Case No. 100/2023, arising
out of the First Information Report vide Crime No.1080/2023,
registered with the non applicant No.1 - Police Station Wani,
Yavatmal, for the offences punishable under Sections 376(2)(n),
417, 506 of the Indian Penal Code and Sections 3(1)(w)(i), 3(1)(w)
(ii), 3(2) (Va) of the Scheduled Castes and the Scheduled Tribes
(Prevention of Atrocities) Act, 1989 (for short 'the SC & ST Act').
3. The non-applicant No.2 lodged a report with the non-
applicant No.1 that in the year 2022, she and the applicant got
acquainted with each other, friendship developed between both of
them, which further culminated into a love relationship. It is further
stated in the said First Information Report, in February 2023, the
applicant called non-applicant No.2, at the house of his friend and
established physical relationship there. Thereafter, they met
repeatedly and the physical relationship continued thereafter also.
On 09.09.2023, the applicant had sexual intercourse with the non-
applicant No.2 on false pretext of marriage but on 13.10.2023, the
applicant refused to perform marriage and threatened the non-
applicant No.2 with dire consequences.
4. On 14.10.2023, the non-applicant No.2 lodged the First
Information Report in question alleging offences punishable under
Sections mentioned supra. It is this First Information Report and the
consequent charge-sheet which is challenged in the present
application.
5. We have heard Mrs. Sonal Tripathi, learned Counsel for the
applicant, learned Additional Public Prosecutor Mrs. H.N. Prabhu
for the non-applicant No.1/State and Shri Digvijay Mankar, learned
Counsel for the non-applicant No.2 i.e. the original informant.
6. Learned Counsel for the applicant submits that as can be seen
from the bare averments of the First Information Report, it reveals
that applicant as also the non-applicant No.2 are major and were
engaged in a consensual relationship. It is further submitted by the
learned Counsel for the applicant that composite and meaningful
reading of the First Information Report in question would reveal
that there was no coercion/force/misrepresentation by the
applicant and the non-applicant No.2 out of her own free will and
consent engaged in physical relationship with the applicant. He
further states that the first incident is of February, 2023 and the
First Information Report came to be registered on 14.10.2023, after
an inordinate and inexplicable delay of eight months. It is also the
contention of the learned Counsel for the applicant that there is no
mention of any words in the First Information Report nor in the
charge-sheet indicative of the fact that the non-applicant No.2 was
abused or sexually assaulted as she belongs to the particular caste.
It is therefore a submission of the learned Counsel for the applicant
that no offences as stated in the First Information Report are made
out.
7. Per contra, the learned Additional Public Prosecutor
vehemently opposed the quashing of the First Information Report
and states that the applicant had promised the informant that he
will marry her and at that count she was sexually exploited. When
the informant repeatedly requested the applicant to perform
marriage and the applicant has refused to perform the marriage on
one reason or the other the informant had no other alternate to
lodged the First Information Report. It is further stated by the
Additional Public Prosecutor that during investigation, spot
panchanama is conducted and the victim was referred for medical
examination. The statement of the victim was also recorded, in
which, she has specifically narrated that on the pretext of marriage,
the applicant had established physical relations with her. As far as
offences under the SC & ST Act are concerned, the learned
Additional Public Prosecutor submits that the victim belongs to
'Gond' community, and therefore, the applicant refused to marry
her.
8. Learned Counsel for the non-applicant No.2 also supports the
Additional Public Prosecutor and states that the averments in the
First Information Report are enough to show at least prima facie
involvements of the applicant. She, therefore, prays for dismissal of
the present application.
9. In the conspectus of these facts, we have perused the First
Information Report in question and the charge-sheet which is filed
consequent to completion of investigation. As can be seen from the
said First Information Report, non-applicant No.2, is a matured lady
of 28 years of age while the applicant is also 30 years of age. In the
First Information Report, there is no allegation that the physical
relationship at the first instance was established without the
consent of the non-applicant No.2. In fact, the said physical
relationship, continued for about ten months thereafter. It is
therefore hard to believe that the adult and matured lady like non-
applicant No.2 had not consented to the said initiation and
continuation of physical relationship.
10. As far as offences under the SC & ST Act are concerned, there
is no semblance of any averment that the non-applicant No.2 was
exploited and sexually assaulted only because she belongs to a
particular caste. Thus, the ingredients of offences under the Indian
Penal Code as also the SC & ST Act are not attracted after going
through the First Information Report.
11. 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, 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."
12. 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."
13. 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. 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."
14. We are therefore inclined to quash and set aside the First
Information Report No.1080 of 2023 dated 14.10.2023, along with
the Charge Sheet No. 160 of 2023 dated 09.12.2023, registered
through Police Station Wani, Yavatmal for the offences punishable
under Sections 376(2)(N), 417, 506 of the Indian Penal Code and
Section 3(1)(w)(i), 3(1) (w)(ii), 3(2)(v), 3(2)(va) of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
and consequent Sessions Case No. 100/2023. Hence, we proceed to
pass the following order :
ORDER
i) Application is allowed.
ii) The First Information Report No.1080 of 2023 dated
14.10.2023, along with the Charge Sheet No. 160 of 2023 dated
09.12.2023, registered through Police Station Wani, Yavatmal, for
offences punishable under Sections 376(2)(N), 417, 506 of the
Indian Penal Code and Sections 3(1)(w)(i), 3(1)(w)(ii), 3(2)(v),
3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 and consequent Sessions Case/Special Case
No. 100/2023, are quashed and set aside.
The application is disposed of accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI-PHALKE, J.)
Jayashree..
