Susma Kumari vs The State Of West Bengal & Anr
2023 Latest Caselaw 1519 Cal

                      IN THE HIGH COURT AT CALCUTTA
                     CRIMINAL REVISIONAL JURISDICTION
                              (APPELLATE SIDE)


Present:
The Hon'ble Justice Rai Chattopadhyay


                             CRR 687 of 2016

                             Susma Kumari
                                   Vs.
                     The State of West Bengal & Anr.


For the Petitioner                        : Mr. Shataroop Purokayastha,
                                          : Ms. Jagriti Bhattacharya.

For the OP No.2                           : Mr. Uday Sankar Chatterjee,
                                          : Mr. Suman Sankar Chatterjee,
                                          : Ms. Trisa Raksit.

For the State                            : Mr. Pravas Bhattacharya,
                                         : Mr. Mirza Firoj Ahmed Begg,


Hearing concluded on: 23/02/2023

Judgment on: 01/03/2023


Rai Chattopadhyay, J.

1. The petitioner is the defecto complainant in Burdwan Women Police

Station Case No. 164 of 2014 dated 30. 11. 2014, under sections 493, 376,

377, 420 of the Indian Penal Code and is aggrieved and dissatisfied with the

impugned order of the trial Court dated 14.12.2015 passed by the Additional

Sessions Judge 2nd Court at Burdwan, in Sessions Case No.177 of 2015

and has preferred to file the present case in this Court. By dint of the said

impugned order, the trial Court has discharged the accused person under

provisions of section 227 CRPC.

2. Criminal proceedings were set in motion pursuant to the first

information report lodged by the present petitioner/defecto complainant on

November 29, 2014. The crux of the allegations made in the FIR may be

narrated to be that the defecto complainant maintained a romantic

relationship with the accused person, that is, opposite party No. 2 in this

case, since previous six years from the date of filing of the said first

information report. She stated to have consented to such relationship with

the accused person due to his misrepresentation regarding his marital

status as well as his false promise to marry the defecto complainant at any

future point of time. She has stated that later on, when the accused severed

relationship and contact with her, she pursuent to her own endeavour could

come to know that the accused has been a married person from a previous

date that is since previous two months from the date of her coming to know

about the fact. These has prompted the defecto complainant to file the police

case against the accused person for falsely representing to her and

procuring her consent to the sexual relationship with him on such false

representation and false promise to marry her.

3. The police investigated into the matter and ultimately filed charge

sheet against the accused person/opposite party number two in this case

under sections 393, 376, 420 and adding section 377 of the Indian Penal

Code. Subsequent thereto the accused person preferred to file an application

in the trial Court under section 227 of the CRPC praying for his discharge

from the case. Upon hearing the parties the trial Court has passed the

impugned order dated December 14, 2015, allowing his application for

discharge. The petitioner being aggrieved with the said order has come up

before this Court in the present case.

4. Ms. Jagriti Bhattacharya, Ld. Advocate, who started arguing for the

petitioner, has vehemently challenged the findings and decision of the trial

Court in the said impugned order. She has pointed out to the fact that due

to misrepresentation by the accused person, the petitioner agreed for the

romantic as well as sexual relationship with him, but for which the

petitioner would not have indulged into any such alliance. According to her,

any consent given by her client under such a misrepresentation of fact

would not amount to be a consent under section 375 of the Indian Penal

Code, to delink the criminal action of the accused person from coming within

the purview of the penal provision of law.

5. Mr. Shataroop Purokayastha, Ld. Senior Counsel appearing for the

petitioner who has later on, proceeded with the further arguments, has

indicated that the Court must consider presence of the culpable intention of

the accused person, his guilty mind, in misrepresenting his status and

thereby indulging a like relationship with the defecto complainant. He

emphasises that an act done by a person with a guilty mind, must be

construed to be a crime as envisaged in the statute. He has suggested that

even a long-standing personal relationship interse the parties in this case,

would not benefit the accused person by muddling it up on the question of

"consent" or "no consent", as the very fact of the present case would clearly

suggest that even if the defecto complainant has consented to be involved

with the accused person sexually, such consent has been extended only

under the misrepresentation of fact. He has emphasised that this Court may

in exercise of its inherent power under section 482 CRPC, set aside the

impugned order and ensure expeditious trial in the case.

6. Mr Chatterjee, while appearing for the opposite party number 2 in this

case, has raised vehement objections to such contentions and prayer of the

petitioner. He has pleaded that the first information report as well as the

other documents collected during investigation has categorically indicated

about prolonged and consensual relationship, be it an emotional one or

sexual one, between the parties. Hence, he says that pursuant to the

provisions of law as already been settled very well, those materials cannot be

found to have disclosed any prima facie cognizable offence against his client.

He indicates that there is no material to suggest that the accused person

might have got any ill motive since the inception of the relationship with the

defecto complainant to induce her to satisfy his lust, pursuant to any

promise of marriage which was not intended from the very initiation of their

relationship. Hence, according to him the impugned order cannot be flawed

as the same is based on strong and profound reasoning as to the petitioner

having consented to the relationship with full knowledge and understanding

of the future thereof. Mr Chatterjee has submitted that the impugned order

suffers no impropriety and would warrant no interference by this Court. He

has suggested that the present case may be dismissed.

7. This case is basically of an offence against human body. Though not

any forceful violation or ravishing any woman physically has been alleged,

but the allegation is of exploitation of a woman sexually by obtaining her

consent, by false representation and taking advantage of her misconception

regarding the actual state of affairs. Rape laws are being given effect to in an

intimate relationship on the allegation of violation of promises which might

have motivated the victim to give consent to sexual acts in that relationship

under misconception. As to what would be the effect of any consent given

under misconception, one may resort to the provisions under section 90 of

the Indian Penal Code, which is as follows:

"90. Consent known to be given under fear or misconception.--A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or Consent of insane person.--if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child.--unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age."

8. Thus according to law, any consent given under misconception would

not amount to be a consent, as it intended in the Code. Further it is relevant

to discuss about section 375 of the Indian Penal Code, a strict interpretation

of which would include sexual intercourse with the woman "without her

consent" to be an offence of rape. This clamour regarding presence of

'consent' or 'no consent' has been dealt with the use of concepts such as

"misconception of facts under section 90 IPC". That is 'consent' given under

the misconception of fact would not amount to be so in the eyes of law.

9. Some of the guiding principles, decided in various judicial

pronouncements may also be mentioned and referred to, as follows:

(i) KainiRajan versus State of Kerala reported in (2013) 9 SCC 113.

"12. Section 375 IPC defines the expression "rape", which indicates that the first clause operates, where the woman is in possession of her senses, and therefore, capable of consenting but the act is done against her will; and second, where it is done without her consent; the third, fourth and fifth, when there is consent, but it is not such a consent as excuses the offender, because it is obtained by putting her on any person in whom she is interested in fear of death or of hurt. The expression "against her will" means that the act must have been done in spite of the opposition of the woman. 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 the mind of a person to permit the doing of an act complained of. Section 90 IPC refers to the expression "consent". Section 90, though, does not define "consent", but describes what is not consent. "Consent", for the purpose of Section 375, 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 fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances. (See State of H.P. v. Mango Ram [(2000) 7 SCC 224 : 2000 SCC (Cri) 1331] .)"

Some other judgments of the Hon'ble Supreme Court may be mentioned

in this regard, which are as follows:

i. Niam Ahamed vs. State (NCT of Delhi), judgment dated 30.01.2023

in Criminal Appeal No. 257 of 2023 arising out of SPL (Crl.) No.

8586 of 2017. (unreported)

ii. Mandar Deepak Pawar vs. The Stae of Maharashtra & Anr.,

judgment dated July 27, 2022 in Criminal Appeal No. 442 of 2022.

(unreported)

iii. Pramod Suryabhan Pawar vs. State of Maharashtra & Anr.

Reported in (2019) 9 SCC 608.

10. The proposition decided in those cases may be stated to be that, there

is a difference between giving a false promise and committing breach of

promise by the accused. In case of false promise, the accused right from the

beginning would not have any intention to marry the prosecutix but cheated

her with the false promise only to satisfy his own desires whereas in case of

breach of promise one cannot deny a possibility that the accused might have

given a promise with all seriousness, though subsequently might have

encountered certain circumstances unforeseen or beyond his control which

prevented him to fulfil his promise. The Court held that "consent" of a

woman due to the "misconception of fact" arising out of a promise to marry

is no consent and is liable to be vitiated.

11. Thus we understand how the rape laws would be applicable in a case

where the parties have been mutually engaged in a relationship. On the

yardstick of the laws settled as discussed earlier, it is to be considered now

in this case whether the defecto complainant has at all been able to put forth

prima facie material suggesting cognizable offence against the accused

person and as to whether the impugned order of the trial Court dated

December 14, 2015, to discharge the accused person in the case would be

maintainable being proper and in accordance with law.

12. The defecto complainant has not denied her relationship with the

opposite party number 2/accused person for a fairly long period of time that

is about six years before filing the FIR, either in the FIR or in her statement

recorded by the Magistrate under section 164 CrPC. She has however

pleaded that even after a prolonged and intimate relationship, when the

accused person stopped contacting her, that made her to desperately find

out the reasons thereof. Thus she was driven to visit the workplace of the

accused person where from she obtained the knowledge of the accused

person having been married from a date two months prior to the date of her

such knowledge. Otherwise, the petitioner has not denied her consent in

whatever intimacy their relationship has had. Her case is dependent on the

fact that the accused person has never disclosed to her about his marriage

or intention to marry any other, excepting her. Had that been so, she would

not have consented to any sexual relationship with a person not committed

to the relationship and actually married some other person. Thus allegedly

the accused person has extracted her consent under misrepresentation and

her misconception.

13. As discussed earlier, 'mens rea' or a guilty mind or intent of the

accused person would be the constituent along with the 'actus reus' as to

whether a prima facie cognizable offence has been made out against him or

not. In this case, it appears that the parties maintained a relationship for a

period of six years prior to lodging of the FIR. The accused is said to have

solemnized marriage about more or less 2 months prior to the date of filing

of the FIR and during subsistence of their relationship. The most relevant is

the accused person to have suppressed the said facts from the defacto-

complainant. These materials are sufficient to find prima facie that the

accused might had a guilty mind or culpable intent to procure complainant's

consent to sexual acts by misrepresentation and induced her to misconceive

about his intent to sexually exploit her and not to have any serious thoughts

for their relationship. Two young adults, who have been in relationship for

years together may even break up at a later stage and anything done in that

relationship may, in normal circumstances be presumed to be done in

pursuance to their mutual feelings and understanding. However this

element of the mutual mental togetherness is shadowed with doubt, the

moment suppression and flippancy creeps in, even at any later stage of the

said relationship. In that case a reasonable suspicion of the person backing

off in the said relationship, not to have an amount of seriousness as regards

the same and even to possess an intention to deceive, from the very

initiation - cannot be ruled out. The materials in the form of the FIR or the

statement of the defecto complainant recorded under section 164 CRPC are

thus cannot be termed to be devoid of any ingredient to prima facie construe

the offence as alleged against the opposite party number 2/accused person.

The consent of the petitioner, whether obtained by misrepresentation of fact

or given by her under any misconception would be a question of fact in this

case, which the trial Court shall have to decide upon evidence. In the

judgment of Yedla Srinivasa Rao versus State of Andhra Pradesh reported in

(2006) 11 Supreme Court cases 615 the Court has held that "it is always a

matter of evidence whether the consent was obtained willingly or consent has

been obtained by holding a false promise which the accused never intended to

fulfil. If the Court of facts comes to the conclusion that the consent has been

obtained under misconception and the accused persuaded a girl of tender age

that he would marry her then in that case it can always be said that such

consent was not obtained voluntarily but under a misconception of fact and the

accused right from the beginning never intended to fulfil the promise. Such

consent cannot condone the offence." And also that "What is a voluntary

consent and what is not a voluntary consent depends on the facts of each case."

14. Under such circumstances and in view of the available materials in

the case this Court is constrained to find that there is no scope for discharge

of the accused person under section 227 CrPC, as has been done by the trial

Court by dint of the order impugned in this revision. Hence the same is not

maintainable and is liable to be set aside. Instead, it is found that the

matter should go into trial.

15. The order dated December 14, 2015, passed in Sessions Case No.177

of 2015 by the Additional Sessions Judge 2nd Court at Burdwan, is hereby

set aside. The said Court shall henceforth proceed with the trial of the case,

as expeditiously as possible, without granting any unnecessary

adjournments to either of the parties.

16. Needless is to mention that during trial, the Court shall not be in any

way influenced by the findings in this case, and proceed to decide on merits

independently and exclusively on the basis of the evidence on record.

17. CRR 687 of 2016 is allowed. Application, pending, if any, is also

disposed of.

18. Certified website copies of this judgment, if applied for, be supplied to

the parties subject to compliance with all the requisite formalities.

(Rai Chattopadhyay,J.)