Madhya Pradesh High Court
Praveen Uikey vs The State Of Madhya Pradesh on 11 May, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11th OF MAY, 2022
MISC. CRIMINAL CASE No. 22920 of 2022
Between:-
PRAVEEN UIKEY S/O LATE DAN SINGH UIKEY ,
AGED ABOUT 25 YEARS, OCCUPATION:
STUDENT R/O DEVNAGAR DEVDHARA
KOTWALI MANDLA DISTRICT MANDLA
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI PARITOSH TRIVEDI, COUNSEL FOR THE APPLICANT)
AND
THE STATE OF MADHYA PRADESH THROUGH
P.S.KOTWALI DISTRICT-MANDLA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SANTOSH YADAV, DEPUTY GOVERNMENT ADVOCATE)
This application coming on for hearing this day, the court passed the
following:
ORDER
This is first application filed under Section 438 of the Code of Criminal
Procedure 1973 on behalf of applicant Praveen Uikey S/o Late Dan Singh
Uikey.
Case Crime No. 207/2022 is registered at Police Station Kotwali, District
Mandla for offences punishable under Sections 376(2)n and 506 of I.P.C.
It is submitted by learned counsel for the applicant that applicant is
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SAN apprehending his arrest in regard to report lodged by the prosecutrix on
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18/04/2022 wherein she has mentioned that applicant was in relationship with
her since 2015 in the name of marriage. He exploited the prosecutrix and later
on refused to marry her, therefore, she lodged a report.
It is further submitted that there is no reason for delay in lodging of the
F.I.R. A case of consent has been converted into that of rape. The applicant
was in consensual relationship with the prosecutrix and, therefore, allegations
made are false.
In this backdrop, it is submitted that the applicant is innocent, he is
falsely implicated. Thus, in the light of the law laid down by the Supreme Court
in case of Maheshwar Tigga vs The State Of Jharkhand, (2020)10 SCC,
108 wherein emphasis is placed on para 20-21, so also in light of the law laid
down in case of Pramod Suryabhan Pawar Vs The State Of Maharashtra
& Another, (2019) 9 SCC, 608 , it is submitted that application be allowed and
the applicant be granted anticipatory bail.
Shri Santosh Yadav, learned Deputy Government Advocate, on the other
hand, opposes the application and prays for its rejection.
The facts of the case upon which reliance is placed by learned counsel
for the applicant do not match with the present case. In the case of Pramod
Suryabhan Pawar (supra) the complainant was aware that there existed
obstacles to marrying the appellant since 2008. The applicant/accused
expressed his reservations about marrying the complainant on 31 January 2014.
Despite this, the appellant and the complainant continued to engage in sexual
intercourse until March 2015. Similarly, in the case of Maheshwar Tigga
(supra) Hon'ble Apex Court at the stage of judgment after evaluating all the
prosecution evidence held that the prosecution failed to prove his case against
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the applicant. So both the judgments do not help the applicant. Even in the
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case of Pramod Suryabhan Pawar (supra), Hon'ble Apex Court held as
under :
" 3 7 . 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 assurance by the accused that he
would marry her, such 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 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."
In the case of Deepak Gulati vs. State of Haryana (2013)7 SCC 675
Hon'ble Apex Court held "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 physical 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
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misrepresentation made to her by the accused, or where an accused on account
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of circumstances which he could not have foreseen, or which were beyond his
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control, was unable to marry her, despite having every intention to do so. Such
cases must be treated differently. An accused can be convicted for rape only if
the court reaches a conclusion that the intention of the accused was mala fide,
and that he had clandestine motives"
In the case of State Of U.P vs Naushad (2013) 16 SCC 651 Hon'ble
Apex Court also held that "the consent taken by the accused with the clear
intention not to fulfill the promise and persuaded the girl to believe that he is
going to marry her and obtained her consent for sexual intercourse under the
total misconception, cannot be treated to be a consent."
From the above judgments of Hon'ble Apex Court the position that
emerges on the point whether consensual sex on the promise of marriage can be
called rape or not is that 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. But in
such cases where the intention of the accused was mala fide and that he had
clandestine motives and where the accused had mala fide intention right from
the inception and that he had made such false promise of marriage from the
very beginning, in order to lure the victim to have physical relations with him,
such acts come under the preview of rape.
In view of foregoing discussions, this M.Cr.C. is hereby dismissed.
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(VIVEK AGARWAL)
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Date: 2022.05.18 12:37:07 IST JUDGE
vy
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