Madhya Pradesh High Court
Vinod vs The State Of Madhya Pradesh on 5 August, 2024
1 MCRC-31748-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 5 th OF AUGUST, 2024
MISC. CRIMINAL CASE No. 31748 of 2024
VINOD
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Mr. Ashish Gupta - Advocate for applicant.
Ms. Neelu Khetra - Deputy Govt. Advocate for the respondent No.1 /
State.
Mr. Vibhash Khedekar - Advocate for respondent No.2.
ORDER
This petition under Section 482 of Cr.P.C. has been filed for the relief
of quashment of FIR registered at Crime No.192/2024 at Police Station
Pansemal, District Barwani under Section 376, 376(2)(n), 323 and 506 of
Indian Penal Code, 1860, charge sheet and subsequent proceedings thereto.
2. Brief facts as emerging from the FIR are that the victim was married
to one 'X' S/o Awadhesh Shukla, resident of Pansemal, District Barwani and
she blessed with two sons, one is aged about 11 years and another is 06
years. Due to family dispute, she went police station for lodging a complaint,
where the applicant / Head Constable advised her not to report family dispute
and also said that he will mediate by calling the her family members.
Applicant also gave his mobile number to the complainant and after that she
2 MCRC-31748-2024
started having conversation with him. Applicant stating that he is unmarried
and will marry her, on 25/06/2018 at about 07:30 pm came to the backside of
her house and under threat committed rape upon her in bathroom. After that
he started blackmailing her and out of fear she was going to meet him in the
backside of her residence and applicant was having physical relation with
her. She did not report the incident to anyone due to threat given by the
applicant to scandalize her. Applicant has assured to bring her at Indore,
therefore, after informing her in-laws that she will reside at Indore, she
started living in Scheme No.140, Bicholi Mardana, Indore. For last five
years, applicant used to come to her place and one day after calling a Pandit,
got married to her. After that he was having physical relations with her and
against her will having recorded a video of the incident and blackmailed her.
He also physically assaulted her. On 01/10/2022, she came to Sendhwa and
met the applicant in Sendhwa Court. She had lodged a complainant against
the applicant but afterward compromised on the condition that applicant will
never harass her, but the family members of the applicant assaulted her at
Police Station Niwari and last time on 30/08/2022 applicant committed rape
on her at Indore. After that she reported the incident to the police station and
the FIR as aforesaid was registered and charge sheet was filed.
3. Learned counsel for the applicant taking this Court to the narration
in the FIR submits that it is not a case of rape. This is a case of consensual
physical relationship by an adult and educated victim constituting no offence
and therefore, he urged the Court to allow the petition and to quash the FIR,
charge sheet and subsequent proceedings thereto. To buttress his submission,
3 MCRC-31748-2024
learned counsel placed reliance on the judgment by the Apex Court in the
case of Shambhu Kharwar Vs. State of Uttar Pradesh and Another passed in
Criminal Appeal No.1231 of 2022 on 12/08/2022. Relevant paras 7 to 15 are
extracted herein below:
"7. The parameters governing the exercise of the
jurisdiction of Section 482 of CrPC are well-settled and
have been reiterated in a consistent line of decisions of this
Court. In Neeharika Infrastructure v. State of Maharashtra
[2021 SCC OnLine SC 315] a three Judge Bench of this
Court which one of us was a part of (D.Y. Chandrachud J.),
reiterated the parameters laid down in R.P. Kapur v. State
of Punjab [AIR 1960 SC 866] and State of Haryana v.
Bhajan Lal [1992 Supp (1) SCC 335] and held that while
the Courts ought to be cautious in exercising powers under
Section 482, they do have the power to quash. The test is
whether or not the allegations in the FIR disclose the
commission of a cognizable offence. The Court does not
enter into the merits of the allegations or trench upon the
power of the investigating agency to investigate into
allegations involving the commission of a cognizable
offence.
8. In Bhajan Lal (supra) this Court formulated the
parameters in terms of which the powers in Section 482 of
CrPC may be exercised. While it is not necessary to revisit
all these parameters again, a few that are relevant to the
present case may be set out. The Court held that quashing
may be appropriate :
"102. (1) Where the allegations made in the first
information report or the complaint, even if they
are taken at their face value and accepted in their
entirety do not prima facie constitute any
offence or make out a case against the accused.
4 MCRC-31748-2024
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers
under Section 156(1) of the Code except under
an order of a Magistrate within the purview of
Section 155(2).
[...]
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge."
9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra
[2019 (18) SCC 191], a two Judge Bench of this Court
while dealing with similar facts as the present case
reiterated the parameters laid down in Bhajan Lal (supra)
held that:
"13. It is clear that for quashing the proceedings,
meticulous analysis of factum of taking cognizance of an
offence by the Magistrate is not called for. Appreciation of
evidence is also not permissible in exercise of inherent
powers. If the allegations set out in the complaint do not
constitute the offence of which cognizance has been taken,
it is open to the High Court to quash the same in exercise of
its inherent powers."
(emphasis supplied)
10. An offence is punishable under Section 376 of the IPC
if the offence of rape is established in terms of Section 375
which sets out the ingredients of the offence. In the present
case, the second description of Section 375 along with
Section 90 of the IPC is relevant which is set out below.
5 MCRC-31748-2024
"375. Rape - A man is said to commit "rape" if
he -
[...]
under the circumstances falling under any of the
following seven descriptions
Firstly ...
Secondly. - Without her consent.
[...]
Explanation 2. - Consent means an unequivocal
voluntary agreement when the woman by
words, gestures or any form of verbal or non-
verbal communication, communicates
willingness to participate in the specific sexual
act:
Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as
consenting to the sexual activity.
xxx
90. Consent known to be given under fear or
misconception - 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 fear of
injury, or 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 fear or misconception;
or..."
11. In Pramod Suryabhan Pawar v. State of Maharashtra
[2019 (9) SCC 608], a two Judge Bench of this Court of
which one of us was a part (D.Y. Chandrachud J.), held in
Sonu @ Subhash Kumar v. State of Uttar Pradesh [2021
SCC OnLine SC 181], observed that :
6 MCRC-31748-2024
"12. This Court has repeatedly held that consent
with respect to Section 375 of the IPC involves
an active understanding of the circumstances,
actions and consequences of the proposed act.
An individual who makes a reasoned choice to
act after evaluating various alternative actions
(or inaction) as well as the various possible
consequences flowing from such action or
inaction, consents to such action...
[...]
14. [...] 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...
[...]
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...
7 MCRC-31748-2024
[...]
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)
12. In the present case, the issue which had to be addressed
by the High Court was whether, assuming all the
allegations in the charge-sheet are correct as they stand, an
offence punishable under Section 376 IPC was made out.
Admittedly, the appellant and the second respondent were
in a consensual relationship from 2013 until December
2017. They are both educated adults. The second
respondent, during the course of this period, got married on
12 June 2014 to someone else. The marriage ended in a
decree of divorce by mutual consent on 17 September
2017. The allegations of the second respondent indicate that
her relationship with the appellant continued prior to her
marriage, during the subsistence of the marriage and after
the grant of divorce by mutual consent.
13. In this backdrop and taking the allegations in the
complaint as they stand, it is impossible to find in the FIR
or in the charge-sheet, the essential ingredients of an
8 MCRC-31748-2024
offence under Section 376 IPC. The crucial issue which is
to be considered is whether the allegations indicate that the
appellant had given a promise to the second respondent to
marry which at the inception was false and on the basis of
which the second respondent was induced into a sexual
relationship. Taking the allegations in the FIR and the
charge-sheet as they stand, the crucial ingredients of the
offence under Section 375 IPC are absent. The relationship
between the parties was purely of a consensual nature. The
relationship, as noted above, was in existence prior to the
marriage of the second respondent and continued to subsist
during the term of the marriage and after the second
respondent was granted a divorce by mutual consent.
14. The High Court, in the course of its judgment, has
merely observed that the dispute raises a question of fact
which cannot be considered in an application under Section
482 of CrPC. As demonstrated in the above analysis, the
facts as they stand, which are not in dispute, would indicate
that the ingredients of the offence under Section 376 IPC
were not established. The High Court has, therefore,
proceeded to dismiss the application under Section 482 of
CrPC on a completely misconceived basis.
15. We, accordingly allow the appeal and set aside the
impugned judgment and order of the High Court dated 5
October 2018 in application u/s 482 No 33999 of 2018.
The application under Section 482 of CrPC shall
accordingly stand allowed. The Case Crime No 11 of 2018
registered at Police Station Rasra, District Ballia, charge-
sheet dated 23 April 2018 in the aforementioned case and
the order dated 24 May 2018 in Criminal Case No 785 of
2018 in the Court of the Addl. Chief Judicial Magistrate
(First), Ballia taking cognizance of the charge-sheet shall
accordingly stand quashed."
9 MCRC-31748-2024
4 . Reliance is also placed on the judgment by the Apex Court in the
case of XXXX Vs. State of Madhya Pradesh and Another passed in Criminal
Appeal No.3431 of 2023 on 06/03/2024. Relevant para 9 is extracted herein
below:
"9. Similar issue was considered by this Court in Naim
Ahamed Vs. State (NCT of Delhi) [2023 SCC OnLine SC
89] on almost identical facts where the prosecutrix herself
was already a married woman having three children. The
complaint of alleged rape on false promise of marriage was
made five years after they had started having relations. She
even got pregnant from the loins of the accused. Therein
she got divorce from her existing marriage much after the
relations between the parties started. This Court found that
there cannot be any stretch of imagination that the
prosecutrix had given her consent for sexual relationship
under misconception. The accused was not held to be
guilty. Relevant paragraph 21 thereof is extracted below:
"21. In the instant case, the prosecutrix who
herself was a married woman having three
children, could not be said to have acted under
the alleged false promise given by the appellant
or under the misconception of fact while giving
the consent to have sexual relationship with the
appellant. Undisputedly, she continued to have
such relationship with him at least for about five
years till she gave complaint in the year 2015.
Even if the allegations made by her in her
deposition before the court, are taken on their
face value, then also to construe such allegations
as 'rape' by the appellant, would be stretching
the case too far. The prosecutrix being a married
woman and the mother of three children was
matured and intelligent enough to understand
the significance and the consequences of the
moral or immoral quality of act she was
consenting to. Even otherwise, if her entire
10 MCRC-31748-2024
conduct during the course of such relationship
with the accused, is closely seen, it appears that
she had betrayed her husband and three children
by having relationship with the accused, for
whom she had developed liking for him. She
had gone to stay with him during the subsistence
of her marriage with her husband, to live a better
life with the accused. Till the time she was
impregnated by the accused in the year 2011,
and she gave birth to a male child through the
loin of the accused, she did not have any
complaint against the accused of he having
given false promise to marry her or having
cheated her. She also visited the native place of
the accused in the year 2012 and came to know
that he was a married man having children also,
still she continued to live with the accused at
another premises without any grievance. She
even obtained divorce from her husband by
mutual consent in 2014, leaving her three
children with her husband. It was only in the
year 2015 when some disputes must have taken
place between them, that she filed the present
complaint. The accused in his further statement
recorded under Section 313 of Cr.P.C. had
stated that she had filed the complaint as he
refused to fulfill her demand to pay her huge
amount. Thus, having regard to the facts and
circumstances of the case, it could not be said
by any stretch of imagination that the
prosecutrix had given her consent for the sexual
relationship with the appellant under the
misconception of fact, so as to hold the
appellant guilty of having committed rape
within the meaning of Section 375 of IPC."
5. Per contra, learned counsel for the Objector vehemently opposes the
prayer by referring statement recorded under Section 164 of Cr.P.C. and
seizure of Pen Drive and submits that applicant has sexually abused the
complainant and therefore, no case of quashment is made out.
6. Learned counsel for the State has also opposed the prayer.
11 MCRC-31748-2024
7. Heard learned counsel for the parties and perused the record.
8. From perusal of the FIR, it is apparent that the alleged incidents of
rape extend to a span of more than four years from 25/06/2018 to
30/08/2022. From perusal of the FIR itself, it is apparent that complainant is
a teacher in a private school. She is already married and having two sons of
11 years and 06 years. Despite the above ventured she has relationship with
the applicant for a considerable time. By no stretch of imagination, it can be
presumed that she was not under duress or threat of the applicant for having
physical relations with him.
9 . Considering the aforesaid FIR on its face value also taken into
account the judgments by the Apex Court in the case of Shambhu Kharwar
(Supra) and XXXX Vs. State of M.P. (Supra) , it is apparent that the consent
of complainant was not obtained under any fraud or misconception of fact. It
is not a case where the sexual intercourse was committed by the applicant on
false promise of marriage. Assuming that the prosecutrix had physical
relationship with the applicant at her home and at different places, her
immediate conduct as also the conduct of family members clearly reveal that
it is not a case of rape as enshrined under Section 375 of IPC so that it can be
said that she was raped against her will or without her consent. There was no
false promise, which can suggest that it was a rape. Merely on the basis of
seizure of some Pen Drive will not bring the case of the complainant within
the purview of an offence of rape as enshrined under Section 376 of IPC.
10. Resultantly, the petition stands allowed and the FIR registered at
Crime No.192/2024 at Police Station Pansemal, District Barwani under
12 MCRC-31748-2024
Section 376, 376(2)(n), 323 and 506 of Indian Penal Code, 1860, charge
sheet and all subsequent proceedings arising therefrom are hereby quashed.
Applicant is discharged from all the charges.
11. Let a copy of this order be sent to the concerned Court below for
information and necessary action.
Certified copy as per rules.
(BINOD KUMAR DWIVEDI)
JUDGE
Tej
