Madhya Pradesh High Court
Akash Rajput vs The State Of Madhya Pradesh on 14 December, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGHCOURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
MCRC No.20932 OF 2023
BETWEEN:-
1.AKASH RAJPUT S/O SHRI ASHOK RAJPUT, AGED 30
YEARS OCCUPATION- GOVT. SERVICE, R/O
TIKNOIYA OPP. RAWAT MARRIAGE HALL, MORAR
GWALIOR (MADHYA PRADESH)
.....APPLICANT
(SHRI A.P.S. SISODIYA- ADVOCATE FOR THE APPLICANT)
AND
1.STATE OF MADHYA PRADESH THROUGHS
SUPERINTENDENT OF POLICE SP OFFICE, CITY
CENTRE, GWALIOR DISTRICT GWALIOR (MADHYA
PRADESH) PIN 474011 PHONE- 0751-2445300, 0751-
2445200, FAX NO.0751-2445210 E-MAIL: ssp gwalior @ mp
police. Gov.in
TH
ES
2. STATION HOUSE OFFICER/INCHARGE POLICE
STATION- MORAR, DISTRICT GWALIOR (M.P)
3. PROSECUTRIX (CRIME NO.257/2023) THROUGH
POLICE STATION- MORAR, DISTRICT GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI G.K. AGRAWAL- ADVOCATE FOR THE RESPONDENT/STATE)
(SHRI H.K. GOYAL- ADVOCATE FOR RESPONDENT NO.3)
--------------------------------------------------------------------------------------
Reserved on : 30.10.2023
Pronounced on : 14.12.2023
2
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This petition having been heard and reserved for judgment,
coming on for pronouncement this day, Justice Sanjeev S Kalgaonkar
pronounced the following:
ORDER
This application under Section 482 of Code of Criminal Procedure
is filed for quashment of First Information Report at Crime No.257 of
2023 registered at Police Station Morar, District Gwalior for offence
punishable under Sections 376, 376(2)(n) and 506 of IPC and
consequential proceedings.
2. The petition states in brief, as under:-
(i) The complainant/respondent No.3 submitted a written complaint at
Police Station Morar, District Gwalior alleging that the petitioner has
committed rape on her on false promise of marriage. Police station
Morar registered FIR for offence punishable under Sections 376, 376(2)
(n) and 506 of IPC against the petitioner.
3. Feeling aggrieved by registration of aforementioned FIR, this
petition is filed on the following grounds:-
(i) The prosecutrix has falsely implicated the petitioner with
motive to compel him for marriage.
(ii) Mother of the petitioner was harassed by the brother of
prosecutrix. She submitted a written complaint with
Superintendent of Police, Gwalior on 21.04.2023. The petitioner
was called to Police Station Morar with regard to complaint
dated 17.04.2023. The prosecutrix was present in the Police
Station Morar on 18.04.2023 with her brother. Mother of the
petitioner appeared before Police Station Morar and stated that
prosecutrix has cooked up a false story to compel her to marry
her son with the complainant.
(iii) The initial version of complaint dated 17.04.2023 does
not mention the date of incident. The Police Station Morar,
despite receiving the complaint dated 21.04.2023 made by
mother of petitioner, lodged the FIR at Crime No. 257 of 2023
on 22.04.2023. The initial complaint dated 17.04.2023 and the
FIR dated 22.04.2023 are mutually contradictory.
(iv) The prosecutrix tried to compel the petitioner and his
mother Kamlesh Devi for marriage. She had sent WhatsApp
messages to cousin of petitioner, namely, Brijendra Rajput, who
lodged written complaint at Police Station, Morar along with
screenshot of WhatsApp messages on 29.04.2023. Thereafter,
petitioner and his mother gave written complaint to SP, Gwalior
with screenshot of WhatsApp messages on 01.05.2023. These
messages show that prosecutrix was compelling for marriage
and the FIR is another effort for this purpose.
(v) The prosecutrix was in relation with petitioner. The
consent of prosecutrix for relationship was not obtained by
misrepresentation. When the petitioner refused to marry her,
prosecutrix has lodged this false FIR. The prosecution story is
false and fabricated and lodged with a view to harass the
petitioner.
4. On such grounds, it is requested that FIR and the consequential
proceedings be quashed.
5. Learned counsel for the petitioner referring to the judgments of
Supreme Court in cases of Deepak Gulati Vs. State of Haryana AIR
(2013) SC 2071, Tilak Raj Vs. State of Himachal Pradesh AIR (2016)
SC 406 and order dated 03.05.2023 passed in MCRC No. 15082 of 2023
submits that it is a case of consensual relationship, therefore, the offence
of rape is not made out. The FIR is delayed by 8 years from alleged first
incident of rape. As per allegations in the complaint, despite forceful
rape on 28.01.2015, the prosecutrix continued physical relations with the
petitioner on his promise of marriage, it goes to show that it was a
consensual relationship between two consenting adults. Therefore, the
FIR dated 22.04.2023 deserves to be quashed.
6. Per contra, learned counsel for the respondent No. 3/prosecutrix
submits that after investigation the final report was submitted on
10.05.2023 and learned trial Court, on being satisfied with commission
of offence by the petitioner, proceeded to frame charge against him,
therefore, no case is made out for quashment of FIR. The petition
deserves to be dismissed.
7. Heard both the parties and perused the record.
8. The prosecution in this case is based on false pretext of marriage
by the accused. As per the allegations contained in FIR, accused
forcefully had physical relationship with prosecutrix on 20.01.2015 and
when she asked the accused why he had done so, accused told her that he
likes her and will marry her. Thereafter, the accused had physical
relationship with her on false pretext of marriage on multiple occasions.
In February, 2023 she came to know that accused is marrying elsewhere .
She asked the accused to marry her. On 06.04.2023, accused refused to
marry her, thereafter, on 22.04.2023, she submitted the written complaint.
9. Section 90 of IPC provides that a consent is not such a consent as
is intended by any section of this Code, if the consent is given by a
person under a misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was given in
consequence of such misconception.
10. The Apex Court in the case of Deepak Gulati v. State of Haryana,
(2013) 7 SCC 675 observed as under:-
21. Consent may be express or implied, coerced or misguided, obtained
willingly or through deceit. Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the good and evil on each
side. There is a clear distinction between rape and consensual sex and in a
case like this, the court must very carefully examine whether the accused
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 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. 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.
11. In the case of Uday Vs. State of Karnataka (2003) 4 SCC 46) the
Apex Court observed that:-
"A false promise is not a fact within the meaning of the Code. We are inclined
to agree with this view, but we must add that there is no straitjacket formula
for determining whether consent given by the prosecutrix to sexual intercourse
is voluntary, or whether it is given under a misconception of fact. In the
ultimate analysis, the tests laid down by the courts provide at best guidance to
the judicial mind while considering a question of consent, but the court must,
in each case, consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because each case has its own
peculiar facts which may have a bearing on the question whether the consent
was voluntary, or was given under a misconception of fact. It must also weigh
the evidence keeping in view the fact that the burden is on the prosecution to
prove each and every ingredient of the offence, absence of consent being one
of them."
12. Further, the Apex Court in the case of Deelip Singh v. State of
Bihar, (2005) 1 SCC 88 held as under:-
28. The first two sentences in the above passage need some explanation.
While we reiterate that a promise to marry without anything more will not
give rise to "misconception of fact" within the meaning of Section 90, it needs
to be clarified that a representation deliberately made by the accused with a
view to elicit the assent of the victim without having the intention or
inclination to marry her, will vitiate the consent. If on the facts it is established
that at the very inception of the making of promise, the accused did not really
entertain the intention of marrying her and the promise to marry held out by
him was a mere hoax, the consent ostensibly given by the victim will be of no
avail to the accused to exculpate him from the ambit of Section 375 clause
secondly. This is what in fact was stressed by the Division Bench of the
Calcutta High Court in the case of Jayanti Rani Panda [1984 Cri LJ 1535 :
(1983) 2 CHN 290 (Cal)] which was approvingly referred to in Uday case
[(2003) 4 SCC 46 : 2003 SCC (Cri) 775 : (2003) 2 Scale 329]. The Calcutta
High Court rightly qualified the proposition which it stated earlier by adding
the qualification at the end (Cri LJ p. 1538, para 7) -- "unless the court can be
assured that from the very inception the accused never really intended to
marry her". (emphasis supplied) In the next para, the High Court referred to
the vintage decision of the Chancery Court which laid down that a
misstatement of the intention of the defendant in doing a particular act would
tantamount to a misstatement of fact and an action of deceit can be founded
on it. This is also the view taken by the Division Bench of the Madras High
Court in Jaladu case [ILR (1913) 36 Mad 453 : 15 Cri LJ 24] (vide passage
quoted supra). By making the solitary observation that "a false promise is not
a fact within the meaning of the Code", it cannot be said that this Court has
laid down the law differently. The observations following the aforesaid
sentence are also equally important. The Court was cautious enough to add a
qualification that no straitjacket formula could be evolved for determining
whether the consent was given under a misconception of fact. Reading the
judgment in Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri) 775 : (2003) 2
Scale 329] as a whole, we do not understand the Court laying down a broad
proposition that a promise to marry could never amount to a misconception of
fact. That is not, in our understanding, the ratio of the decision. In fact, there
was a specific finding in that case that initially the accused's intention to
marry cannot be ruled out.
13. Thus, there is a distinction between the "breach of promise to
marry" and giving a "false promise to marry." Only a false promise to
marry made with intention to deceive a woman would vitiate the women's
consent being obtained under misconception of fact but mere breach of
promise cannot be said to be a false promise. The Supreme Court in case
of Ansaar Mohammad Vs. The State of Rajasthan & Anr. 2022 Live
Law (SC) 599 held that there is a difference between "giving a false
promise" and "committing breach of promise" by the accused. In case of
false promise, the accused right from the beginning would not have any
intention to marry the prosecutrix and would have cheated or deceited the
prosecutrix by giving a false promise to marry her only with a view to
satisfy his lust, whereas in case of breach of promise, one cannot deny a
possibility that the accused might have given a promise with all
seriousness to marry her, and subsequently might have encountered
certain circumstances unforeseen by him or the circumstances beyond his
control, which prevented him to fulfill his promise. So, it would be a folly
to treat each breach of promise to marry as a false promise and to
prosecute a person for the offence under Section 376.
14. While dealing with a petition under Section 482 CrPC, in matter of
sexual relationship on false promise to marry, the Apex Court in case of
Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608
observed as under:--
"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.....
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." (emphasis supplied)
15. In case of Sonu @ Subhash Kumar v. State of Uttar Pradesh, 2021
SCC OnLine SC 181 after relying on Pramod Suryabhan Pawar
(supra), it was observed:--
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.''
17. The allegations contained in FIR show that the prosecutrix was in
long term relationship spanning over period of 8 years and the complaint
was lodged only after the said relationship became sour on refusal to
marry her by the accused. The prosecutrix tried to compel the accused to
marry her. After failed attempts, she proceeded to lodge the FIR.
Prosecutrix was major even at the time of alleged first incident. The
prosecutrix was mature and intelligent enough to understand the
consequence and significance of the act. She entered into relationship at
her own will and did not complain physical relationship throughout its
continuance over a period of 8 years. No inference can be drawn from the
contents of FIR and the statement of prosecutrix recorded under sections
161 and 164 of CrPC that the accused had malafide intention to make
false promise of marriage from the inception.
19. Considering aforementioned aspects of the matter, the trial of
petitioner, on the allegations contained in FIR would be an abuse of
process of the court and would not serve the ends of justice.
20. Consequently, in view of law laid down in aforementioned cases,
petition under Section 482 CrPC is allowed with the direction that the
FIR in Crime No.257 of 2023 registered at Police Station Morar, District
Gwalior for offence punishable under Sections 376, 376(2)(n) and 506 of
IPC and consequential proceedings against the petitioner, are hereby
quashed.
21. This MCRC stands disposed off in the aforesaid terms.
Certified copy as per rules.
(SANJEEV S KALGAONKAR)
JUDGE
Avi/Vijay
VIJAY Digitally signed by VIJAY TRIPATHI
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MADHYA PRADESH BENCH
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ATHI
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cn=VIJAY TRIPATHI
Date: 2023.12.14 19:08:07 +05'30'
