Madhya Pradesh High Court
Veerendra Yadav vs The State Of Madhya Pradesh on 10 February, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 10th OF FEBRUARY, 2025
MISC. CRIMINAL CASE No. 48783 of 2024
VEERENDRA YADAV
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Shreyash Pandit - Advocate for applicant.
Shri Shailendra Mishra - Dy. Govt. Advocate for respondent-State.
ORDER
This is a petition filed under Section 482 of Cr.P.C. seeking
quashment of the FIR / Crime No.136/2024 at Police Station Bada Malhar
District Chhattarpur in respect of offence punishable under Sections 376(2)
(n) and 506 of IPC and ensued proceedings.
2. Learned counsel for the applicant contends that in the present case,
the prosecutrix who is already a married lady has lodged the FIR under
Sections 376(2)(n) and 506 of IPC and the offence cannot be registered at the
instance of the complainant who is already married and this issue has already
been settled by the Apex Court in the case of XXX vs. State of M.P. & Anr
[2024 (3) SCC 496], in the case of Naim Ahamed vs. State (NCT of Delhi)
[(2023) 15 SCC 385] and also by this Court in the case of Abhishek Arjariya
vs. The State of M.P. and Anr. (M.Cr.C. No.31926/2019) . It is contended by
the counsel that the factum of complainant being married was taken note of
in the aforesaid cases and ultimately the Court proceedings where quashed
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while holding that a married lady could not have alleged that the consent was
obtained on the basis of misconception of fact. It is thus contended by the
counsel that in such circumstances, the petition deserves to be allowed.
3. Per contra, learned counsel for the State has opposed the prayer and
submitted that there are direct allegations against the applicant. It is
contended by the counsel that the FIR prima facie discloses the commission
of an offence under Section 376(2)(N) and 506 of IPC, therefore, at this
stage no interference is warranted. It is also contended by the counsel that the
statement of prosecutrix recorded under Section 164 of Cr.P.C. further
implicate the present applicant and thus, submits that the petition filed under
Section 482 of Cr.P.C. deserves to be dismissed.
4. Heard the submissions advanced on behalf of the parties and
perused the record.
5. A perusal of record reflects that the prosecutrix lodged the FIR
against the present applicant while submitting that the husband of the
prosecutrix was working as Driver and the prosecutrix was mother of two
children. The present applicant used to reside in the neighborhood, and
therefore, was known to the prosecutrix. The applicant and the prosecutrix
came in touch and they were in friendship for a period of 3 months and the
present applicant used to promise the prosecutrix that he would enter into
wedlock after giving divorce to his wife and thus, there was physical
relationship between the prosecutrix and the applicant on number of
occasions. Later on, the present applicant declined to enter into wedlock
while saying that he was not in a position to give divorce to his wife and the
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present applicant also threatened the prosecutrix.
6. The aforesaid FIR prima facie reflects that the prosecutrix is
married and mother of two children. The prosecutrix, as per the FIR was in
relation with the present applicant. They had physical relationship also, and
therefore, in such circumstances, whether the FIR at the behest of the
prosecutrix under Section 376(2)(n) is sustainable or not, is the issue which
requires indulgence in the present case.
7. A question came up before the Apex Court where a married lady
alleged that there was an assurance by the accused to enter into wedlock but
later on declined and the said aspect dealt with by the Apex Court in the case
of Prashant Bharti Vs. State (NCT of Delhi) reported in [(2013) 9 SCC 293]
8. The Apex Court in the case of Prashant Bharti (supra) held in
paragraph 17 as under:-
"It is relevant to notice, that she had alleged, that she
was induced into a physical relationship by Prashant
Bharti, on the assurance that he would marry her.
Obviously, an inducement for marriage is
understandable if the same is made to an unmarried
person. The judgment and decree dated 23-9-2008
reveals that the complainant/prosecutrix was married to
Lalji Porwal on 14-6-2003. It also reveals that the
aforesaid marriage subsisted till 23-9-2008, when the
two divorced one another by mutual consent under
Section 13-B of the Hindu Marriage Act. In her
supplementary statement dated 21-2-2007, the
complainant/prosecutrix accused Prashant Bharti of
having had physical relations with her on 23-12-2006,
25-12-2006 and 1-1-2007 at his residence, on the basis
of a false promise to marry her. It is apparent from
irrefutable evidence, that during the dates under
reference and for a period of more than one year and
eight months thereafter, she had remained married to
Lalji Porwal. In such a fact situation, the assertion
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made by the complainant/prosecutrix, that the
appellant-accused had physical relations with her, on
the assurance that he would marry her, is per se false
and as such, unacceptable. She, more than anybody
else, was clearly aware of the fact that she had a
subsisting valid marriage with Lalji Porwal.
Accordingly, there was no question of anyone being in
a position to induce her into a physical relationship
under an assurance of marriage. If the judgment and
decree dated 23-9-2008 produced before us by the
complainant/prosecutrix herself is taken into
consideration along with the factual position depicted
in the supplementary statement dated 21-2-2007, it
would clearly emerge that the complainant/prosecutrix
was in a relationship of adultery on 23-12-2006, 25-12-
2006 and 1-1-2007 with the appellant-accused, while
she was validly married to her previous husband Lalji
Porwal. In the aforesaid view of the matter, we are
satisfied that the assertion made by the
complainant/prosecutrix, that she was induced to a
physical relationship by Prashant Bharti, the appellant-
accused, on the basis of a promise to marry her, stands
irrefutably falsified."
9. Again before the Apex Court in the case of Naim Ahamed (supra)
also this question came up for consideration and the Apex Court, elaborately
dealt with the issue.
10. The Apex Court in the case of Naim Ahamed (supra) held in
paragraph 22 as under:-
"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
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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
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 313CrPC had stated that she
had filed the complaint as he refused to fulfil 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
IPC."
11. Thereafter again the Apex Court in the case of XXX (supra) held
in paragraphs 11 and 12 as under:-
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"11. From the contents of the complaint, on the basis
of which FIR was got registered and the statement got
recorded by the complainant, it is evident that there
was no promise to marry initially when the relations
between the parties started in the year 2017. In any
case, even on the dates when the complainant alleges
that the parties had physical relations, she was already
married. She falsely claimed that divorce from her
earlier marriage took place on 10-12-2018. However,
the fact remains that decree of divorce was passed only
on 13-1-2021. It is not a case where the complainant
was of an immature age who could not foresee her
welfare and take right decision. She was a grown up
lady about ten years elder to the appellant. She was
matured and intelligent enough to understand the
consequences of the moral and immoral acts for which
she consented during subsistence of her earlier
marriage. In fact, it was a case of betraying her
husband. It is the admitted case of the prosecutrix that
even after the appellant shifted to Maharashtra for his
job, he used to come and stay with the family and they
were living as husband and wife. It was also the stand
taken by the appellant that he had advanced loan of Rs
1,00,000 to the prosecutrix through banking channel
which was not returned back."
12. Similar issue was considered by this Court in Naim
Ahamed case [Naim Ahamed v. State (NCT of Delhi),
(2023) 15 SCC 385 : 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......................."
12. Even this Court also considered the identical issue in the case of
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Abhishek Arjariya (supra) and this Court held in paragraphs 15 and 16 as
under:-
15. Likewise, in a case of Pramod Suryabhan Pawar
(supra), the Supreme Court has considered Section 90
of IPC and taking note of the definition of consent has
observed that the consent based on misconception of
fact is not a consent in eye of law. It is also
observed by the Supreme Court that if a woman is
engaged in sexual relations on a false promise of
marriage, her consent is based on misconception of fact
and that is not the consent in the eye of law and that
physical relationship would amount to rape. But here in
this case, the facts are altogether different because on
the date of developing physical relationship, the
prosecutrix was a married lady and surrendering
before the petitioner on a false promise of marriage
does not fall within the definition of consent obtained
on misconception of fact. Here it is a case that on the
date of developing physical relation, the question of
promise of marriage does not arise that too with a
married lady as she was continued in relationship with
the petitioner for a long period of 8 years and thereafter
she got decree of divorce from her husband.
Therefore, the case on which the respondents have
placed reliance has no relevance with the case in hand.
16. Considering the judgment of the Supreme Court
and also of the High Court, in which the petitioner has
placed reliance, it is clear that the prosecutrix on the
date of developing physical relations with the
petitioner was a married lady and physical relations
developed between them in the-then existing facts can
be considered that it was consensual relationship. There
was no consent obtained by the accused/petitioner
on the basis of misconception of fact. Accordingly, the
offence of 376 is not made out in view of the judgment
of the Supreme Court. Therefore, this Court is of the
considered opinion that it is fit case, in which the FIR
can be quashed on the ground that if the facts
mentioned in the FIR are considered to be true at their
face value even though the offence of 376 is not made
out because the existing facts do not fulfill
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the requirement of Section 375 of IPC so also the
requirement of Section 90 of IPC of consent.
13. The aforesaid judgments of the Apex Court as well as this Court
postulate that when the prosecutrix is married lady, and therefore, her
consent for physical relationship on the garb of false promise of marriage
cannot be brought within the framework of the consent obtained on the basis
of "misconception of the fact". In the present case, the prosecutrix in the FIR
itself has stated that she was in relationship with the present applicant since
last 3 months and whenever her husband used to go out, the present
applicant used to visit her home and they had physical relationship,
therefore, it cannot be said that the consent was given by the prosecutrix
under some misconception of fact. Moreover, if the FIR is perused carefully
and subjected to microscopic scrutiny it would reveal that there are no
allegations that the present applicant pressurized the prosecutrix to enter into
wedlock under the garb of false promise of marriage. On the contrary, it is
mentioned in the FIR that the applicant used to say that he would divorce his
wife and would marry the prosecutrix but it is nowhere mentioned that there
was false promise and under the garb of such false promise, the present
applicant persuaded the prosecutrix to enter into sexual relationship.
14. In such a case, the FIR is required to be nipped in the bud, as the
same would entail in the long drawn process of conduct of trial whereas the
allegations levelled in the FIR on their face value, do not indicate the
commission of offence under the aforesaid sections.
15. Resultantly, the petition under Section 482 of Cr.P.C. stands
allowed. The FIR registered vide Crime No.136/2024 at Police Station Bada
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Malhar District Chhattarpur and ensued proceedings stand quashed. The
applicant is discharged from the aforesaid charges. Bail bonds and Surety
bonds, if any, furnished by the applicant also stand discharged.
(MANINDER S. BHATTI)
JUDGE
mn
