[Cites 11, Cited by 0]
Bombay High Court
Ashish S/O. Prakash Kalsapre vs The State Of Mah. Thr. Pso Gitti Khadan ... on 25 March, 2026
2026:BHC-NAG:4970-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 836 OF 2021
Ashish S/o Prakash Kalsapre,
Aged about 28 yrs, Occ. Service,
R/o 450 Quarter, Building No.1,
Quarter No. 24, Police Line Takli,
Police Station Gittikhadan, Nagpur. APPLICANT
Versus
1. State of Maharashtra,
Thr. P.S.O. Gittikhadan Police Station
Gittikhadan, Nagpur.
2. Reena D/o Domnic Francis,
Aged about 37 years, Occ. Business,
R/o, Plot No.25 Aarya Nagar, in-front
of Hanuman Temple Koradi Naka,
Nagpur. NON-APPLICANTS
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Mr. A.A. Syed, Advocate for the Applicant.
Ms. M.A. Barabde, APP for the Non-applicant No.1/State.
Mr. Atharva Khadse, Advocate h/f Mr. S.P. Bhandarkar, Advocate
for the Non-applicant No.2.
-----------------------------------------------
CORAM : URMILA JOSHI PHALKE, J.
DATED : 25th MARCH, 2026.
ORAL JUDGMENT :-
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1. Heard.
2. ADMIT. Heard finally by the consent of learned
Counsel for the respective parties.
3. The present Application is preferred by the
Applicant under Section 482 of the Code of Criminal Procedure
for quashing and setting aside the First Information Report in
connection with Crime No.388/2021 registered with Police
Station Gittikhadan, Nagpur for the offence punishable under
Sections 376(2)(n) and 506 of the Indian Penal Code.
4. Heard learned Counsel for the Applicant, who
submitted that the crime is registered on the basis of a report
lodged by the Victim/Non-applicant No.2 on an allegation that
she is aged 37 years old and she was working as Event
Management Professional at Goa. Since her mother was
suffering from illness, she came to Nagpur to take care of her
mother. The Applicant known to her through Facebook. After
accepting his friendship they started meeting with each other.
On 28.11.2020, the Applicant called her at his home and
offered her Coffee. After consuming Coffee she felt giddiness
and after regaining consciousness she found that the present
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Applicant has sexually exploited her. On the basis of the said
report Police have registered the crime against the present
Applicant.
5. He submitted that, considering the nature of the
relationship it appears to be a consensual relationship, and
therefore, no offence is made out against the present Applicant.
He invited my attention towards the recitals of the FIR and
submitted that the recitals of the FIR sufficiently shows that the
relationship between the present Applicant and the
Non-applicant No.2 was consensual in nature.
6. In support of his contention he placed reliance on
the decision of this Court in Mushtak Esrail Shaikh Vs. State of
Maharashtra & Anr., decided on 07.10.2021, Sachin Shantaram
Potude Vs. State of Maharashtra & Anr., decided on 14.06.2018
and Prashant Bharti Vs. State of NCT of Delhi, Criminal Appeal
No. 175/2013.
7. Per contra, learned APP and learned Counsel for the
Non-applicant No.2 strongly opposed the said contentions and
submitted that the Non-applicant No.2 was called on the pretext
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that he advised her to start some other work, and therefore, she
visited his house and she was subjected for the forceful sexual
assault by administering her some stupefying substance. Thus,
prima facie case is made out against the present Applicant, and
therefore, the Application deserves to be rejected.
8. On hearing both the sides and on perusal of the
entire recitals of the FIR it reveals that the Applicant and
Non-applicant No.2 got acquaintance with each other through
Facebook. Thereafter they communicated with each other. The
recitals of the FIR shows that, the Applicant attempted to seek
the information from her about her family background and
thereafter the nature of her work. He has also disclosed to her
that he is a Jim trainer and also advised her that she can also
give an advice as to the diet and everything and on that pretext
he has called her at home and thereafter subjected her for the
forceful sexual assault. Admittedly, the recitals of the FIR and
the statement of the victim nowhere disclose that there was any
communication between them as to the promise of marriage or
any communication regarding consensual relationship between
both of them. Even the recitals of the FIR nowhere shows that,
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the friendship was developed between them. It is only reflecting
that there was an acquaintance as the present Applicant had
sent her some messages, and therefore, she has communicated
with him. Thus, the entire recitals of the FIR nowhere disclose
that there was acquaintance of such a nature and there was
communication between both of them to the extent that they
would preform marriage or there would be a friendship
between them.
9. Section 482 of Cr.P.C. undoubtedly to be used
unsparingly and not in a regular manner. The test which are laid
down by the Hon'ble Apex Court in the case of State of
Harayana & Ors. Vs. Ch. Bhajan Lal & Ors., 1992 AIR 604,
while considering the Application under Section 482 of Cr.P.C.,
which reads as under:
"(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 FIR 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.
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(3) Where the uncontroverted allegations made in the FIR
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 FIR do not constitute a
cognizable offence but constitute only a non-cognizable
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 FIR or complaint are
so absurd and inherently improbable on the basis of which
no prudent person can ever reach a just conclusion that
there is sufficient ground for proceeding against the
accused.
(6) Where there is an express legal bar engrafted in any of
the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution
and continuance of the proceedings and/or where there is
a specific provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.
(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."
10. Learned Counsel for the Applicant, placed reliance
on the decision of Prashant Bharti (supra), wherein also the
scope of the application under Section 482 of Cr.P.C. is discussed
by the Hon'ble Apex Court and the parameters are laid down by
the Hon'ble Apex Court. As far as the other two orders on which
the learned Counsel for the Applicant placed reliance on are
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concerned, wherein the facts are completely different, and
therefore, being the facts are not identical i.e. not useful for the
Applicant.
11. This issue regarding the consensual relationship is
elaborately discussed by the Hon'ble Apex Court in the case of
Pramod Suryabhan Pawar vs. State of Maharashtra & Anr. ,
(2019) 9 SCC 608, wherein after considering the various
judgments the Hon'ble Apex Court held as under :
"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. "
It is further held that, this Court has repeatedly held
that consent with respect to Section 375 of the IPC involves an
active understanding of the circumstances, actions and
consequences of the proposed act. An individual who makes a
reasoned choice to act after evaluating various alternative
actions as well as the various possible consequences flowing
from such action or inaction, consents to such action. In
Dhruvaram Murlidhar Sonar v State of Maharashtra, AIR 2019
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SCC 327, which was a case involving the invoking of the
jurisdiction under Section 482, this Court observed:
"15. ... An inference as to consent can be drawn if only
based on evidence or probabilities of the case. "Consent" is
also stated to be an act of reason coupled with
deliberation. It denotes an active will in mind of a person
to permit the doing of the act complained of."
"12. ... "Consent", for the purpose of Section 375, requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance of
the moral quality of the act but after having fully exercised
the choice between resistance and asset."
It is further held that, 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.
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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.
12. In light of the above legal position if the facts of the
present case are taken into consideration, admittedly, the
recitals of the FIR or the statement of the victim nowhere shows
that there was a promise of marriage or out of friendship there
was physical relationship developed between them, and
therefore, there was a consent on her part. On the contrary, her
entire statement says that she was called at home on the pretext
of communicating with each other and thereafter Coffee was
offered to her and thereafter she was subjected for the forceful
sexual assault. Admittedly, the investigation is still going on and
no charge-sheet is filed. At this stage, there is no material on
record to ascertain that it was a consensual relationship
between the victim and the present Applicant, and therefore, it
would not be appropriate to exercise the jurisdiction under
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Section 482 of Cr.P.C., to quash the FIR. In view of that, the
Application deserves to be rejected. Accordingly, I proceed to
pass the following order.
ORDER
i. Criminal Application is rejected.
13. Pending application/s, if any, shall stand disposed of
accordingly.
(URMILA JOSHI PHALKE, J.)
S.D.Bhimte
Signed by: Mr.S.D.Bhimte
Designation: PA To Honourable Judge
Date: 30/03/2026 10:44:29
