Sushil Kumar Gupta vs The State Of Madhya Pradesh
2023 Latest Caselaw 6836 MP

                                                             1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VISHAL DHAGAT
                                                 ON THE 27 th OF APRIL, 2023
                                          MISC. CRIMINAL CASE No. 7762 of 2023

                           BETWEEN:-
                           SUSHIL KUMAR GUPTA S/O SHRI RADHE SHYAM
                           GUPTA, AGED ABOUT 48 YEARS, OCCUPATION:
                           SERVICE, (AGM. ADMINISTRATION BSNL), R/O H.NO.
                           25, KUNJAN NAGAR PHASE- II, P.S.- BAG SEVANIYA,
                           DISTRICT BHOPAL (MADHYA PRADESH)

                                                                                          .....APPLICANT
                           (BY SHRI RAKESH DWIVEDI - ADVOCATE WITH SHRI RAVI SHANKAR
                           GUPTA - ADVOCATE FOR APPLICANT)

                           AND
                           1.    THE STATE OF MADHYA PRADESH THROUGH
                                 STATION HOUSE OFFICER, POLICE STATION
                                 HABIBGANJ, DISTRICT BHOPAL (MADHYA
                                 PRADESH)

                           2.    SHAKUN SHARMA @ PAYAL SHARMA W/O
                                 KULDEEP PATHAK, AGED ABOUT 42 YEARS, R/O E-
                                 7 H.NO.305, RENTED HOUSE OF R.K. GUPTA,
                                 ARERA COLONY, HABIBGANJ, DISTRICT BHOPAL,
                                 PERMANENT ADDRESS GAYATRI TAPOBHUMI,
                                 MADHAVKUNJ, VRINDAVAN ROAD, MATHURA
                                 (UTTAR PRADESH)

                                                                                       .....RESPONDENTS
                           (BY SHRI DINESH PRASAD PATEL - DEPUTY GOVERNMENT ADVOCATE
                           FOR RESPONDENT/STATE AND SHRI SWAPNIL KHARE - ADVOCATE FOR
                           RESPONDENT NO.2/OBJECTOR)

                                 This application coming on for admission this day, the court passed the
                           following:
                                                              ORDER

Petitioner has filed this petition under Section 482 of Criminal Procedure Code for quashing of FIR dated 03.10.2022 registered at Crime No.584/2022 at Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 02-05-2023 14:40:41

Police Station Habibganj, District Bhopal for committing offence punishable under Section 376(2)(n) of Indian Penal Code.

2. Counsel appearing for petitioner submitted that respondent No.2 lodged an FIR against him on 03.10.2022 at about 19:08 hours at Police Station Habibganj, District Bhopal under Section 376(2)(n) of IPC. It was alleged that incident is said to have taken place between 04.07.2021 to 15.09.2022. As per said FIR, prosecutrix was known to petitioner Sushil Kumar Gupta from year 2016. Petitioner had helped her in getting a house on rent and he was also bearing all her expenses of food and residence since 2016. Sushil Gupta informed her that he was divorced and made a proposal to marry her. On

04.07.2021, on birthday of prosecutrix, petitioner is said to have established physical relationship with her. When prosecutrix asked him to marry her, then he said that we will get married soon. Prosecutrix lived in flat of Sushil Gupta for 6-7 months and during said period Sushil Gupta regularly established physical relationship with her. Last physical relationship between petitioner and prosecutrix happened on 15.09.2022. Thereafter, he promised to marry the prosecutrix but did not married her and later on, refused to marry her. In these circumstances, police has registered offence under Section 376 (2)(n) of IPC.

3. Counsel appearing for petitioner relied on judgment passed by Apex Court in case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another; reported in (2019) 9 SCC 608, it was laid down that consent of woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. Two propositions must be established to vitiate consent under misconception of fact which are (i) promise of marriage must have been a false promise and given in bad faith and with no intention of

Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 02-05-2023 14:40:41

being adhered to at the time it was given. (ii) The false promise itself must be of immediate relevance, or bear a direct nexus to woman's decision to engage in sexual act. It is submitted that said propositions are not fulfilled. Further reliance is placed on judgment passed by Supreme Court in case of Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and others; (2019) 18 SCC 191. In this case, it has been held by Supreme Court that there is distinction between rape and consensual sex. Court has to examine the complaint carefully and find out whether there is false promise to satisfy the lust and promise false within ambit of cheating and deception. Distinction between breach of a promise and not fulfilling false promise is also laid down and each case has to be examined on basis of facts to determine whether it is consensual physical relationship or relationship was established on basis of false promise. Counsel appearing for petitioner also relied on judgment passed in case of Uday V. State of Karnataka, reported in (2003) 4 SCC 46 . In said case, it was held that two conditions must be fulfilled for application of Section 90 of Indian Penal Code. Firstly, it must be shown that consent was given under misconception of fact and secondly, it must be proved that person, who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. In view of aforesaid circumstances, counsel appearing for petitioner made a prayer for quashing of FIR dated

03.10.2022.

4. Counsel appearing for respondent as well as objector opposed the prayer. It is submitted that it is too early to quash the FIR. Whether there was false promise by petitioner or not is to be considered after recording of evidence. Petitioner made a promise to marry the prosecutrix and, therefore, prosecutrix consented to establish his physical relationship. Said fact is clearly Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 02-05-2023 14:40:41

born out from FIR which is registered at police station. In these circumstances, petition filed by petitioner under Section 482 of Cr.P.C. be dismissed.

5. Heard the counsel for the parties.

6. Carefully examined the FIR which is registered at Police Station Police Habibganj, District Bhopal. On reading said FIR, it is found that petitioner had offered to marry the prosecutrix. Prosecutrix agreed to marry the petitioner. Thereafter on 04.07.2021, Sushil Gupta on eve of birthday of prosecutrix brought cake and established physical relationship with her, thereafter, prosecutrix told him to marry her and he said they will soon get married. Thereafter, petitioner and prosecutrix established physical relationship with each other, but petitioner did not marry her. From aforesaid facts, it is clear that on 04.07.2021, prosecutrix did not stop petitioner from having physical relationship as they are not married. Petitioner on said date and time did not made any promise that they are soon getting married, therefore, physical relationship may be established. On other occasions also when both of them established physical relationship, it has not been stated that prosecutrix asked petitioner for marrying her and petitioner assured her of marriage and established physical relationship with her. Petitioner and prosecutrix were known to each other since 2016 and petitioner is bearing all the expenses of the prosecutrix and also of her rented accommodation. Petitioner made proposal to marry her and prosecutrix agreed. Sexual relationship between them was established later on. On the date of establishment of physical relationship, prosecutrix never stopped him from entering into physical relationship as they were not married. Later on, both of them had physical relationship again without marriage and prosecutrix consented. Consent was not given under

Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 02-05-2023 14:40:41

misconception. Both had relationship since 2016. Petitioner never showed intention to marry, then also prosecutrix consented, therefore, consent was not under misconception.

7. In view of aforesaid facts and circumstances of the case, miscellaneous criminal case filed by petitioner is allowed and FIR registered at Police Station Habibganj, District Bhopal vide Crime No.584/2022 dated 03.10.2022 is quashed.

8. Certified copy as per rules.

(VISHAL DHAGAT) JUDGE sp/-

Signature Not Verified Signed by: SUNIL KUMAR PATEL Signing time: 02-05-2023 14:40:41