Jharkhand High Court
Major Prem Deep Anand vs The State Of Jharkhand & Anr on 13 February, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 2899 of 2021
Major Prem Deep Anand .... .. ... Petitioner(s)
Versus
The State of Jharkhand & Anr. .. ... ...Opp. Party(s)
...........
CORAM :HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
.........
For the Petitioner(s) : Mr. Indrajit Sinha, Advocate
Mr. Rishav Kumar, Advocate
For the State : Ms. N. Sharmin, APP
......
09/ 13.02.2023. The instant Cr. M. P. has been filed for quashing the entire criminal
proceeding including the order taking cognizance dated 15.10.2020 passed by
learned ACJM, Ranchi in connection with Sadar (Khelgaon) P.S. Case No.373 of
2016 corresponding to G.R. No.5051 of 2016 whereby and whereunder cognizance
of the offence under Section 376(2)n of the IPC has been taken.
2. As per the case of the prosecution, the petitioner is posted as Major in the
Army and the informant was a major girl and they met on 14.08.2016 in connection
with marriage negotiation. The parents of the petitioner came to see the informant
as a part of marriage negotiation and the informant along with her parents had stayed
in the Guest House of the Army Cant.
3. At night after dinner, they went for a walk and it is alleged that the petitioner
took her to his flat where he established physical relationship. On the next day he
had physical relationship as well and she did not object to it because of her
attachment with him. It is alleged that later on he refused to marry her.
4. It is submitted by learned counsel for the petitioner that admittedly the
informant is not a minor as she was aged about more than 25 years and there is no
allegation in the FIR that physical relationship was established by force or by any
inducement or there was a false promise of marriage before the physical relationship
took place. Both were adults and it was a case of consensual relationship. Under
the circumstances, no offence under Section 376 or under Section 417 of the IPC is
made out.
5. Reliance in this regard has been placed on Dhruvaram Murlidhar Sonar v.
State of Maharashtra, (2019) 18 SCC 191 wherein it has been held:-
3. Thus, there is a clear distinction between rape and consensual sex. The court, in such
cases, must very carefully examine whether the complainant had actually wanted to marry
the victim or had mala fide motives and had made a false promise to this effect only to
satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not fulfilling a false promise. If the
accused has not made the promise with the sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such
cases must be treated differently. If the complainant had any mala fide intention and if he
had clandestine motives, it is a clear case of rape. The acknowledged consensual physical
relationship between the parties would not constitute an offence under Section 376 IPC.
Since there was no allegation of force or fraud, as such, the Hon'ble Supreme
Court has quashed the cognizance in this case.
6. Reliance has also been placed on the judgment reported in 2019 (9) SCC 608
at Paras 14, 16 and 18.
7. Learned APP for the State has vehemently opposed the prayer. It is submitted
that the FIR itself states that there was marriage negotiation and it was in that
connection that the girl had come and stayed in the Guest House. No objection or
protest was made on her part only for the reason that there was an implied assurance
on the part of the petitioner for marriage.
8. It is further submitted that the anticipatory bail application of this petitioner
has been rejected and the charge-sheet has been filed.
9. Force or fraud is the essence of offence of rape and from the FIR and the
statement under section 164 Cr.P.C there is no averment that inducement of
marriage was offered as a precondition for establishing consensual physical
relationship. It is true that both had come together when their marriage negotiations
were in progress, but both the adults went together and had physical relationship not
once, but twice without any protest or demur. Present case appears to be a product
of an afterthought after the breakdown of marriage negotiation to wreck vengeance
against the petitioner.
The impugned order is set aside the entire criminal proceeding arising out of
Sadar (Khelgaon) P.S. Case No.373 of 2016 is quashed.
Criminal miscellaneous petition is allowed.
I.A. No.6044 of 2022 stands disposed of.
(Gautam Kumar Choudhary, J.)
Sandeep/
