Madhya Pradesh High Court
Devendra vs The State Of Madhya Pradesh on 19 December, 2022
Author: Satyendra Kumar Singh
1
M.Cr.C. No. 34868/2020
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 19th DECEMBER, 2022
MISC. CRIMINAL CASE No. 34868 of 2020
BETWEEN:-
DEVENDRA S/O LATE VINOD DUBEY, AGED 28 YEARS, OCCUPATION:
SERVICE R/O 11/1, RACE COURSE ROAD, OPP. DR. INAMDAR, INDORE
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI AMAR SINGH RATHORE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S. VIJAY NAGAR
1.
INDORE (MADHYA PRADESH)
APARNA D/O RAM MANOHAR BILTHARE, AGED 28 YEARS,
2. OCCUPATION: N/A R/O 87-A, SHEETAL NAGAR, VIJAY NAGAR
INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI S.S. THAKUR, DY. GOVT ADVOCATE)
(BY MS SHRADDHA SINGH, ADVOCATE FOR RESPONDENT NO.2)
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Reserved on : 09.09.2022
Pronounced on : 19.12.2022
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This petition having been heard and reserved for orders coming
on for pronouncement this day, Hon'ble Shri Justice Satyendra Kumar
ORDER
This petition u/S 482 of Cr.P.C. has been preferred for quashment
of FIR bearing Crime No. 858/2019 registered against the applicant for
M.Cr.C. No. 34868/2020
the offences punishable u/S 376(2)(N) of IPC and Sec 4 of Dowry
Prohibition Act at P.S. Vijay Nagar, Indore and subsequent proceedings
arising therefrom.
2. Brief facts giving rise to this petition are that prosecutrix is a major
lady aged about 28 years. Her parents fixed her marriage with the
applicant in the month of April, 2019. Her roka ceremony took place on
07.05.2019. Thereafter, she spoke with the applicant on couple of
occasions over phone whereafter applicant called her to meet him without
informing at home. In the month of July, 2019 applicant called her to meet
him and took her in his car to the field behind his house and made
physical relations with her on the pretext of marriage. He thereafter called
her 3-4 times and forcefully made physical relations with her. On
06.09.2019, some heated exchanges took place between her family
members and the applicant's mother Kavita Dubey with regard to some
money after which on 07.09.2019 applicant refused to marry the
prosecutrix. On 08.09.2019, prosecutrix made a written complaint to the
SHO, P.S. Vijay Nagar on the basis of which FIR bearing Crime No.
858/2019 was registered against the applicant. Her statements alongwith
other prosecution witnesses were recorded and after completion of
investigation, chargsheet was filed against the applicant before the
competent Court.
3. Learned counsel for the applicant submits that prosecutrix herself
stated in her written complaint that she has got engaged to the
complainant and they were about to marry, therefore it cannot be said that
applicant obtained her consent on the false pretext of marriage.
Prosecutrix was major aged about 28 years and she is an educated lady
and willfully entered into sexual relations with the applicant for a
M.Cr.C. No. 34868/2020
considerable period. Under these circumstances, it cannot be said that the
consent given by her was based on misconception of facts. No offence is
made out against the applicant. Perusal of the FIR reveals that the
allegations with regard to demand of dowry were made against the
applicant's mother and not against the applicant and that too are vague and
general. It has not been stated therein that what was the demanded in
dowry. Hence, FIR lodged against him and subsequent proceedings
arising therefrom deserves to be quashed.
In support of his above submissions, learned counsel for the
applicant has placed reliance on the judgment of Hon'ble the Apex Court
in the case of Pramod Suryabhan Pawar [(2019)9 SCC 608], Anand
Kumar Mohatta and Another Vs. State (NCT of Delhi), Department of
Home and Another[(2019)11 SCC 706 & in the case of Sonu alias
Subhash Kumar Vs. State of Uttar Pradesh and Another [ 2021 SCC
Online SC 181] as well as orders passed by Delhi High Court in the case
of Shailendra Kumar Yadav Vs. State[CRL REV.P.175/2021] and also by
this Court in the case of Sachin Jain Vs. The State of M.P.[M.Cr.C. No.
33338/2021].
4. Learned counsel for the respondent no.1/State as well as learned
counsel for the respondent no.2/complainant both have opposed the
prayer. They submit that applicant called the prosecutrix in July, 2019 to
meet him and thereafter took her in his car and forcfully made sexual
relations with her. Thereafter, he again called the prosecutrix 3-4 times
and repeatedly made sexual relations with her. Allegations alleged against
the applicant are very specific and he made relations with the prosecutrix
without her consent. Hence, petition is devoid of merit and deserves to be
rejected.
M.Cr.C. No. 34868/2020
5. Heard, learned counsel for both the parties and perused the record.
6. Before adverting to merits of the case, it is apposite to mention the
law laid down by the Hon'ble Apex Court with regard to the allegations of
rape on the pretext of marriage. Hon'ble the Apex Court in the case of
Pramod Suryabhan Pawar (supra) has held as under:
"9. In Pramod Suryabhan Pawar (supra), while dealing with a similar
situation, the principles of law which must govern a situation like the
present were enunciated in the following observations:
"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..."
10. Further, the Court has observed:
"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."
11. Bearing in mind the tests which have been enunciated in the above
decision, we are of the view that even assuming that all the allegations
in the FIR are correct for the purposes of considering the application
for quashing under Section 482 of CrPC, no offence has been
established. There is no allegation to the effect that the promise to
marry given to the second respondent was false at the inception. On the
contrary, it would appear from the contents of the FIR that there was a
subsequent refusal on the part of the appellant to marry the second
respondent which gave rise to the registration of the FIR. On these
facts, we are of the view that the High Court was in error in declining
to entertain the petition under Section 482 of CrPC on the basis that it
was only the evidence at trial which would lead to a determination as
to whether an offence was established.
12. For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the High Court dated 26 September
2019. In view of the reasons which have been adduced earlier, the
M.Cr.C. No. 34868/2020
charge sheet dated 25 April 2018, which has been filed in pursuance of
the investigation which took place, shall stand quashed. The order of
the trial Court dated 3 October 2018 taking cognizance shall
accordingly stand quashed and set aside."
7. Similarly, in the case of Sonu @ Subhash Kumar (supra),while
relying upon the same preposition in the case of Pramod Surybhan
Pawar (supra), it is held as under:-
"9. In Pramod Suryabhan Pawar (supra), while dealing with a similar
situation, the principles of law which must govern a situation like the
present were enunciated in the following observations:
"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..."
10. Further, the Court has observed:
"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."
11. Bearing in mind the tests which have been enunciated in the
above decision, we are of the view that even assuming that all the
allegations in the FIR are correct for the purposes of considering the
application for quashing under Section 482 of CrPC, no offence has been
established. There is no allegation to the effect that the promise to marry
given to the second respondent was false at the inception. On the
contrary, it would appear from the contents of the FIR that there was a
subsequent refusal on the part of the appellant to marry the second
respondent which gave rise to the registration of the FIR. On these facts,
we are of the view that the High Court was in error in declining to
entertain the petition under Section 482 of CrPC on the basis that it was
only the evidence at trial which would lead to a determination as to
whether an offence was established.
12. For the above reasons, we allow the appeal and set aside the
impugned judgment and order of the High Court dated 26 September
M.Cr.C. No. 34868/2020
2019. In view of the reasons which have been adduced earlier, the charge
sheet dated 25 April 2018, which has been filed in pursuance of the
investigation which took place, shall stand quashed. The order of the trial
Court dated 3 October 2018 taking cognizance shall accordingly stand
quashed and set aside."
(emphasis supplied)
8. In the instant case, prosecutrix in her written complaint specifically
stated that her parents fixed her marriage with the applicant and roka
ceremony had also taken place on 07.05.2019 i.e. before commission of
offence. Admittedly, prosecutrix is major aged 28 years and is highly
educated lady. She herself stated that she had gone to meet the applicant.
She admitted that after the incident, she had not informed about the acts of
the applicant to her parents or other family members. She has also
admitted that her marriage proposal with the applicant was called off on
06.09.2019 when some heated exchanges took place between her family
members and applicant's mother Kavita Dubey regarding some money.
Apparently, it appears to be a case of breach of promise of marriage
instead of false promise of marriage.
9. In view of the aforesaid, considering the law laid down by the
Hon'ble Apex Court as well as by this Court and other High Courts as
cited by learned counsel for the applicant, in the considered opinion of this
Court, ingredients of Section 376(2)(N) of IPC are not fulfilled in the
matter.
10. So far as the allegation against the applicant with regard to demand
of dowry is concerned, it has very specifically been mentioned in the FIR
on 06.09.2019 that a quarrel took place between the applicant's mother and
family members of the prosecutrix on the issue of money. It has not been
stated that what was demanded by the applicant's mother. Since, the above
allegations were not alleged against the applicant and that too were vague.
Therefore, allegations alleged against the applicant u/S 4 of Dowry
M.Cr.C. No. 34868/2020
Prohibition Act with regard to demand of dowry appears to be baseless.
11. Accordingly, M.Cr.C. is allowed and FIR and chargsheet bearing
Crime No. 858/2019 registered at P.S. Vijay Nagar, Indore against the
applicant for the offence punishable u/S 376(2)(N) of IPC and Sec 4 of
Dowry Prohibition Act and subsequent criminal proceedings arising
therefrom are hereby quashed. Applicant is discharged from the charges
levelled against him. His bail bonds, if any furnished, stand discharged.
A copy of this order be sent to the concerned court for
information and necessary compliance/action without delay.
(Satyendra Kumar Singh)
Judge
19.12.2022
sh/-
SEHAR HASEEN
2022.12.20
12:36:44
+05'30'
