Jharkhand High Court

Nishant Kumar vs The State Of Jharkhand on 30 January, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

                                      1

         IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      Cr.M.P. No. 1204 of 2018

     Nishant Kumar                              .......Petitioner
                   Versus
1. The State of Jharkhand
2. Kanti Kumari
                                                    ......   Opp. Parties
                          ........

CORAM:        HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                           ---------
For the Petitioners: Mr. P.P. N. Roy, Sr. Advocate
                     Mrs. Pragati Prasad, Advocate
For the State      : Mrs. Shweta Singh, A.P.P.

For the O.P. No.2 : Mr. Sujit Kumar Singh, Advocate, through V.C.

06/Dated: 30/01/2024 Heard Mr. P.P. N. Roy, learned senior counsel for the petitioner,

Mrs. Shweta Singh, learned counsel for the State and Mr. Sujit Kumar Singh,

learned counsel for the O.P. No. 2 (through V.C.)

2. This petition has been filed for quashing the entire criminal

proceeding including order taking cognizance dated 20.09.2014 in connection

with Giridih (Muffasil) P.S. Case No. 46 of 2014, corresponding to G.R. Case

No. 265 of 2014, pending in the Court of learned S.D.J.M, Giridih.

3. The F.I.R. was lodged on the basis of the written statement of the

informant namely Nakul Mandal alleging therein that his daughter's age is 16

years.

It is alleged in the F.IR that Nishant Kumar of the village of informant

committing rape upon the daughter of the informant from last one year.

It is further alleged in the F.I.R. that whenever his daughter was

telling him not to commit such act, he was telling the informant's daughter that

he will marry her.

It is further alleged in the F.I.R. that when the informant came to learn

about such action of the accused then the informant had called panchayati on

20.01.14 for performing marriage of his daughter and Nishant Kumar. In that

panchayati Local Mukhiya and respectable persons were present and in that

panchayati it was be decided that the marriage will perform in the month of

"Baishakh."

It is further alleged in the F.I.R. that father of Nishant Kumar namely

Jageshwar Mandal did not agree for marriage and he told that whatever they

like, they do, he will not accept to perform marriage.

It is further alleged in the F.I.R. that Nishant Kumar had fled away

somewhere outside and as such the informant has made request to take legal

action.

4. Mr. P.P.N. Roy, learned senior counsel for the petitioners submits

that inspite of any cogent evidence chargesheet has been submitted under

section 376 I.P.C. and the learned court has been pleased to take cognizance.

By way of referring statement of the victim under section 164 of Cr.P.C. he

submits that age of the petitioner is 18 years and she has herself admitted that

they were in relationship and consensual relationship was established with the

consent of both the side. He further submits that in solemn affirmation further

it is stated that she will got to marry but with intervention of the family

members of the petitioner marriage could not taken place and thereafter the

case has been lodged. On these grounds he submits that no case under section

376 of I.P.C. is made out and the petitioner is unnecessarily facing the trauma

of trial. He relied in the case of "Dr. Dhruvaram Murlidhar Sonar Vs. State

of Maharashtra and Others"AIR 2019 SC 327. He refers to para 20 of the

said judgment which is quoted hereinbelow:-

"20. 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 later 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 ac- count of the misconception created by accused, or where an accused, on account of circumstances which he could not have fore- seen 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 be- tween the parties would not constitute an offence under Section 376 of the IPC."

5. He further submits that he has filed supplementary affidavit

wherein it has been stated that the father of the petitioner has stated that still

the family is ready to accept the O.P. No.2 as daughter-in-law.

6. Mr. Sujit Kumar Singh, learned counsel for the O.P. No.2 through

V.C. submits that the case is made out. He submits that on the false assurance

of marriage the relationship was established and in view of that the learned

court has rightly taken cognizance. He submits that the O.P. No.2 is already

married. He submits that from the very inception on the false promise

relationship was established. He relied in the case of "Anurag Soni Vs. State

of Chhattisgarh" 2019 SCC Online SC 509.

7. Learned counsels for the State submits that the learned court

looking into the materials on record has been pleased to take cognizance.

8. It is an admitted position that the petitioner and O.P. N.2 are

major and in statement under section 164 Cr.P.C. she has stated as under:-

"In the court of SDJM, Giridih Giridih (M) P.S. 46/2014 FORM OF HEADING OF DEPOSITION

Deposition of Witness no. 1 for the U/S 164 Cr.P.C aged about 18 taken on solemn affirmation of the 27 day of Jan 2014.

My name is Kanti Kumari, I am son/daughter/wife of Nakul Mandal. My age is 16-17 years, I am by religion Hindu.

My nationality is Indian and belong to Schedules Caste/Schedule Tribe. My home is at mauza Rani Khawa, Police station Muffasil, District Giridih. I reside at present in Mauza ......where I am student. Police Station .......District Q1. Whether you are giving statement on your sweet will without any coercion or pressure?

Ans. Yes.

Q2. What you have to say?

Ans. I met Nishant Kumar for the first time near well of Ramchandra mandal in course of taking water in December 2012 thereafter, both of them fell in love and were meeting regularly. Nishant Kumar and I were making sexual relationship with consent, Nishnat Kumar on the pretext and allurement of marriage made sexual relationship several times, But when my parents had gone to talk the parents of Nishant then they refused for marriage. This matter was also taken to panchayat then on 20.01.2014 panchayati was held but thereafter Nishant Kumar did not agree for marriage and his parents sent him far away from that place and she has not getting any contact with him, Nishant Kumar is aged about 22-23 and he study in the college. Q3. Whether she has to say anything more?

Ans. No. "

9. The context of a promise to marry, the Hon'ble Supreme Court has

observed that there is distinction between a false promise given on the

understanding by the maker that it will be broken and the breach of a promise

which is made in good faith but subsequently, not fulfilled. Reference may be

made to the case of "Pramod Suryabhan Pawan Vs. State of

Maharashtra & Anr."(2019) 9 SCC 608 wherein paras 14, 16 and 18 it has

been held as under:-

"14 In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, this Court held:

12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."

Similar observations were made by this Court in Deepak Gulati v State of Haryana ("Deepak Gulati"):

"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..."

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:

"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." (Emphasis supplied)

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 case in hand it is an admitted position that the petitioner

and O.P. NO.2 were in relationship. Question remains that when two adults

established relationship particularly the informant is major how case under

section 376 of I.P.C. can be attracted. The relationship was voluntary by both

the sides. The contents of statement under section 164 Cr.P.C. which has been

noted hereinabove, clearly indicates that O.P. No.2 had voluntarily established

relationship with the petitioner and in view of that statement three important

features emerges:-