Madhya Pradesh High Court
Yogesh Pratap Singh vs The State Of Madhya Pradesh on 16 June, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
MCRC-54176-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 16th OF JUNE, 2025
M.Cr.C. No.54176 of 2023
YOGESH PRATAP SINGH
Versus
STATE OF MADHYA PRADESH
............................................................................................................................................
Appearance :
Shri Manish Datt - Senior Advocate with Shri Eshaan Datt - Advocate
for the petitioner.
Shri Amit Bhurrak - Panel Lawyer for respondent No.1/State.
Shri Rahul Deshmukh - Advocate for respondent
No.2/complainant/objector.
............................................................................................................................................
Reserved on : 25.03.2025
Pronounced on : 16.06.2025
ORDER
With the consent of learned counsel for the parties, the matter is
finally heard.
2. The petitioner has filed this petition under Section 482 of the Code
of Criminal Procedure seeking quashing of the charge-sheet filed against
the petitioner by respondent in Crime No.59/2023 registered at Police
Station Ratibad, District Bhopal, for the offence punishable under
Sections 376, 376(2)(n) and 376(1) of the Indian Penal Code.
MCRC-54176-2023
3. The counsel for the petitioner is seeking quashing of the charge-
sheet and further proceedings initiated against the petitioner in
pursuance of registration of FIR mainly on the ground that offence of
376 of IPC is not made out. He has contended that considering the
overall conduct of the prosecutrix and the facts relating to the case, it is
clear that the petitioner and the prosecutrix were in affair and the
prosecutrix was pressurizing the petitioner to get married to her but it
was not possible for some reasons, therefore, the petitioner has refused
to marry her. He has further contended that though the allegation of
sexual exploitation is made against the petitioner that he developed
physical relations with the prosecutrix giving false assurance of
marriage but looking to the existing circumstances of the case as has
been narrated in the FIR, it is clear that no case of 376 of IPC is made
out against the petitioner, ergo, he is seeking quashing of further
proceedings also.
4. Although, the counsel for the State and Objector have opposed the
submissions made by the counsel for the petitioner and submitted that
merely because the FIR has been lodged after some time, the delay in
lodging the FIR cannot be made a ground for quashing the proceedings.
They have submitted that once the allegation of false promise of
marriage and developing physical relations are made that will be
considered only at the time of trial but not at this stage, therefore, they
submitted that the petition deserves to be dismissed.
THE FACTUAL PRISM
5. Considering the rival contentions of the counsel for the parties and
MCRC-54176-2023
perusal of record, especially the case diary, to answer the questions that
emerge to be adjudicated, it is apt to mention the necessary facts of the
case, which are as under:-
(5.1) On 13.02.2023, a written complaint was made by the
prosecutrix at Police Station Ratibad, District Bhopal, alleging
against the petitioner that he repeatedly developed physical
relations with her giving false promise of marriage.
(5.2) The prosecutrix is aged about 29 years, residing at Bhopal and
is an Architect by profession. She met the petitioner on
20.01.2021 along with other relatives in D.B. Mall and as per
the report, it is the Aunt of the prosecutrix who introduced her
to the petitioner for the marriage proposal in D.B. Mall itself
and thereafter the petitioner and the prosecutrix exchanged
their mobile numbers and were in regular contact. They used to
meet in restaurants and the petitioner was doing fellowship in
National Judicial Academy and residing in a government
quarter.
(5.3) On 23.03.2022, the petitioner took the prosecutrix to his house
and then on a false pretext of marriage, he developed physical
relation with her. Although the prosecutrix had refused to do so
but on a great persuasion, she agreed and that relationship
continued for years together as the prosecutrix used to visit the
house of the petitioner.
(5.4) Although due to physical relationship developed between
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them, the prosecutrix conceived but the petitioner gave her
medicine to terminate the pregnancy. It is mentioned in the FIR
that prior to that also, in the month of October, 2022, the
prosecutrix became pregnant at the instant of the petitioner.
The attitude of the petitioner towards the prosecutrix became
incordial and lastly on 8th January, 2023, despite resistance by
the prosecutrix, the petitioner had developed physical relation
with her.
(5.5) On 13.02.2023, the petitioner refused to get married with the
prosecutrix over a mobile call.
(5.6) As per the petitioner, he was getting married to some other girl
and so told the prosecutrix that she was also free to get married
to anyone else and this is the cause when the prosecutrix made
a complaint to the police alleging that on a false promise of
marriage, the petitioner has developed physical relations with
her and twice she became pregnant, but the petitioner got it
terminated. The prosecutrix has also stated that only to save
her image in the society, she did not report the matter to the
police in time but now she is making complaint and thereafter
the offence got registered.
(5.7) Although in the petition it is averred that in the year 2021,
marriage proposal was given by the parents of the prosecutrix
to the petitioner and as such, their relatives met in D.B. Mall
Bhopal but even after due deliberation and discussions
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between them, it could end up with a positive result. There
were some reasons for which the petitioner could not be
married to the prosecutrix.
(5.8) The brother of the prosecutrix had committed suicide,
therefore, the prosecutrix used to go to the petitioner for taking
his advise in the matter pending against her brother's wife.
(5.9) As per the petitioner, the prosecutrix was carrying
misimpression that he would marry her but when he informed
the prosecutrix that his marriage is already settled with some
other girl, she was pressurizing him to pay Rs.10 lakhs and as
such a complaint dated 18.01.2023 was made by the petitioner
to the Superintendent of Police, Bhopal, alleging therein that
the prosecutrix is pressurizing and blackmailing him for giving
Rs.10 lakhs and also apprehending registration of a false case
by the prosecutrix about his implication in the matter.
(5.10) It is also averred in the petition that the petitioner's marriage
was settled with some other girl and after coming to know, the
prosecutrix along with her family members came to the house
of the petitioner on 12.02.2023 at about 06:00 P.M. with lethal
weapons, misbehaved with the petitioner and his parents, used
filthy language, abused them and also did marpeet with them.
A report in that regard was also made to the police on
13.02.2023.
(5.11) The petitioner has also made a complaint under Section 200
MCRC-54176-2023
r/w 156(3) of CrPC against the prosecutrix and other persons
for registration of offence under Sections 384, 506-II, 294 and
325 of IPC and that is still pending before the Judicial
Magistrate First Class, Bhopal and in retaliation, the
prosecutrix with ill-intention made a written complaint on
13.02.2023 to the police and as such, offence got registered
against the petitioner vide Crime No.59/2023. Hence, this
petition.
SUBMISSION BY PETITIONER
6. As per the contentions of learned counsel for the petitioner, the
relationship between the petitioner and the prosecutrix is nothing but an
affair and it was continued for years together but that relationship for
some reason could not culminate into marriage. As a rebut, the
prosecutrix got annoyed and got the FIR registered on the ground that
the physical relation developed between them only on false assurance of
marriage made by the petitioner. However, Shri Datt has submitted that
the Supreme Court and this High Court in number of occasions has
observed that such relationship cannot be said to be a rape committed
with the prosecutrix but it is a consensual relationship and in such
circumstances, offence of 376 of IPC is not made out.
CASES RELIED BY THE PETITIONER
1. (2003) 4 SCC 46 (Uday v. State of Karnataka)
2. (2019) 9 SCC 608 (Pramod Suryabhan Pawar v. State of
Maharashtra)
MCRC-54176-2023
3. (2020) 10 SCC 108 (Maheshwar Tigga v. State of Jharkhand)
4. (2019) 18 SCC 204 (Shivshankar @ Shiva v. State of
Karnataka & Anr.,)
5. AIR 2019 SC 327 (Dr. Dhruvaram Murlidhar Sonar v. State of
Maharashtra and another)
6. (2013) 7 SCC 675 (Deepak Gulati v. State of Haryana)
7. 2024 INSC 481 (Shiv Pratap Singh Rana v. State of Madhya
Pradesh & Anr.)
8. 2024 INSC 897 (Mahesh Damu v. The State of Maharashtra &
Anr.)
9. Sonu @ Subhash Kumar v. State of Uttar Pradesh and Anr.
[Criminal Appeal No.233 of 2021 (Arising out of SLP (Cri) No.
11218 of 2019]
10. Delhi 2024 INSC 879 [Prashant v. State (NCT of Delhi)]
11. 2025 LiveLaw (SC) 279 (Rajnish Singh @ Soni v. State of U.P.
and another) and t
12. M.Cr.C. No.5754 of 2022 (Nageshwar Prasad Jaisal v. State of
Madhya Pradesh & Anr.) decided vide order dated 02.07.2024.
SUBMISSION BY THE OBJECTOR
7. Per contra, the counsel for the objector has opposed the
submissions made by the counsel for the petitioner and submitted that
merely because the FIR lodged belatedly does not mean that no case of
rape is made out and on this ground alone, the FIR and the proceedings
initiated in pursuance thereto cannot be quashed. To bolster his
submissions, Shri Deshkumh has placed reliance upon an order passed
MCRC-54176-2023
by this High Court in M.Cr.C. No.26587 of 2022 (Naresh Rajoriya v.
The State of Madhya Pradesh and another) on 12.04.2024 and
submitted that in the said case, the Court has observed that lodging an
FIR belatedly that too with regard to rape cannot be made a ground for
quashing the FIR and the proceedings based thereon.
8. The counsel for the State has supported the submissions made by
the counsel for the objector and submitted that considering the overall
circumstances of the case, the offence has rightly been registered against
the petitioner because developing physical relation on a false pretext of
marriage in any manner cannot be said to be a consensual relationship,
ergo, the petition deserves to be dismissed.
ANALYSIS, REASONING AND CONCLUSION
9. I have heard the arguments advanced by learned counsel for the
parties and perused the record.
10. From the contents of FIR and the statement of the prosecutrix
recorded under Section 164 of Cr.P.C. it is palpably clear that the
petitioner and the prosecutrix were very much familiar to each other.
There was a love affair between them and they also developed physical
relation, which continued for years together and they are also well-
educated. However, before reaching to a concrete decision in the matter
on the basis of material available before this Court and also on the basis
of arguments advanced by the learned counsel for the parties, it is
appropriate to first take note of the law laid down by the Supreme Court
and also by the High Court on the issue.
MCRC-54176-2023
The Supreme Court in case of Prashant (supra), dealing with
similar circumstances has observed as under:-
"17. In the present case, the issue that had to be
addressed by the High Court was whether, assuming
all the allegations in the FIR are correct as they stand,
an offence punishable under Sections 376 and 506 IPC
were made out. A bare perusal of the FIR reveals that
the appellant and the complainant first came in contact
in the year 2017 and established a relationship
thereafter. The parties met multiple times at various
places during the years 2017 and 2019, including at
parks and their respective houses. Although the
complainant stated that the appellant had a forceful
sexual relationship with her, neither did she stop
meeting the appellant thereafter, nor did she file a
criminal complaint during the said period.
18. It is inconceivable that the complainant would
continue to meet the appellant or maintain a prolonged
association or physical relationship with him in the
absence of voluntary consent on her part. Moreover, it
would have been improbable for the appellant to
ascertain the complainant's residential address, as
mentioned in the FIR unless such information had
been voluntarily provided by the complainant herself.
It is also revealed that, at one point, both parties had an
intention to marry each other, though this plan
ultimately did not materialize. The appellant and the
complainant were in a consensual relationship. They
are both educated adults. The complainant, after filing
the FIR against the appellant, got married in the year
2020 to some other person. Similarly, the appellant
was also married in the year 2019. Possibly the
marriage of the appellant in the year 2019 has led the
complainant to file the FIR against him as they were in
a consensual relationship till then."
In case of Shiv Pratap Singh Rana (supra), the Supreme Court
considering the long relationship between the parties has observed as
MCRC-54176-2023
under:-
"25. From the factual matrix of the case, the following
relevant features can be culled out:
(i) the relationship between the appellant and the
prosecutrix was of a consensual nature;
(ii) the parties were in a relationship for a period of
almost two years; and
(iii) though there were talks between the parties
and their family members regarding marriage, the
same did not fructify leading to lodging of FIR.
26. That being the position and having regard to the
facts and circumstances of the case, we are of the view
that it would be in the interest of justice if the
proceedings are terminated at this stage itself.
Consequently, impugned order of the High Court dated
03.10.2019 and the order of the Sessions Judge dated
24.04.2019 are hereby set aside and quashed."
Further, in case of Mahesh Damu (supra), the observation made
by the Supreme Court is as under:-
"22. In our view, if a man is accused of having sexual
relationship by making a false promise of marriage and
if he is to be held criminally liable, any such physical
relationship must be traceable directly to the false
promise made and not qualified by other
circumstances or consideration. A woman may have
reasons to have physical relationship other than the
promise of marriage made by the man, such as
personal liking for the male partner without insisting
upon formal marital ties. Thus, in a situation where
physical relationship is maintained for a prolonged
period knowingly by the woman, it cannot be said with
certainty that the said physical relationship was purely
because of the alleged promise made by the appellant
to marry her. Thus, unless it can be shown that the
physical relationship was purely because of the
promise of marriage, thereby having a direct nexus
MCRC-54176-2023
with the physical relationship without being influenced
by any other consideration, it cannot be said that there
was vitiation of consent under misconception of fact.
x x x
31. In our view if criminality is to be attached to such
prolonged physical relationship at a very belated stage,
it can lead to serious consequences. It will open the
scope for imputing criminality to such long term
relationships after turning sour, as such an allegation
can be made even at a belated stage to drag a person in
the juggernaut of stringent criminal process. There is
always a danger of attributing criminal intent to an
otherwise disturbed civil relationship of which the
Court must also be mindful."
Further in case of Dr. Dhruvaram Murlidhar Sona (supra),
considering the existing facts and circumstances of the case, which are
almost similar to the case in hand, has observed as under:-
"20. With this factual background, the Court held that
the girl had taken a conscious decision, after active
application of mind to the events that had transpired. It
was further held that at best, it is a case of breach of
promise to marry rather than a case of false promise to
marry, for which the accused is prima facie
accountable for damages under civil law. It was held
thus : (Deelip Singh [Deelip Singh v. State of Bihar,
(2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p. 106,
para 35)
"35. The remaining question is whether on the basis of
the evidence on record, it is reasonably possible to hold
that the accused with the fraudulent intention of
inducing her to sexual intercourse, made a false
promise to marry. We have no doubt that the accused
did hold out the promise to marry her and that was the
predominant reason for the victim girl to agree to the
sexual intimacy with him. PW 12 was also too keen to
marry him as she said so specifically. But we find no
evidence which gives rise to an inference beyond
reasonable doubt that the accused had no intention to
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marry her at all from the inception and that the promise
he made was false to his knowledge. No circumstances
emerging from the prosecution evidence establish this
fact. On the other hand, the statement of PW 12 that
"later on", the accused became ready to marry her but
his father and others took him away from the village
would indicate that the accused might have been
prompted by a genuine intention to marry which did not
materialise on account of the pressure exerted by his
family elders. It seems to be a case of breach of
promise to marry rather than a case of false promise to
marry. On this aspect also, the observations of this
Court in Uday case [Uday v. State of Karnataka, (2003)
4 SCC 46 : 2003 SCC (Cri) 775] at para 24 come to the
aid of the appellant."
Likewise in a case of Deepak Gulati (supra), the Supreme Court
has 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
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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.
x x x
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.e. at the
initial stage itself, the accused had no intention
whatsoever, of keeping his promise to marry the
victim. There may, of course, be circumstances, when
a person having the best of intentions is unable to
marry the victim owing to various unavoidable
circumstances. The "failure to keep a promise made
with respect to a future uncertain date, due to reasons
that are not very clear from the evidence available,
does not always amount to misconception of fact. In
order to come within the meaning of the term
"misconception of fact", the fact must have an
immediate relevance". Section 90 IPC cannot be called
into aid in such a situation, to pardon the act of a girl
in entirety, and fasten criminal liability on the other,
unless the court is assured of the fact that from the
very beginning, the accused had never really intended
to marry her."
The Supreme Court in case of Sonu @ Subhash Kumar (supra),
has observed as under:-
"10. Bearing in mind the tests which have been
enunciated in the above decision [Pramod Suryabhan
Pawar v. State of Maharashtra, (2019) 9 SCC 608 :
(2019) 3 SCC (Cri) 903] , 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 482CrPC, 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
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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 482CrPC on the
basis that it was only the evidence at trial which would
lead to a determination as to whether an offence was
established."
In case of Maheshwar Tigga (supra), the observation made by the
Supreme Court is as follows:-
"13. The question for our consideration is whether the
prosecutrix consented to the physical relationship
under any misconception of fact with regard to the
promise of marriage by the appellant or was her
consent based on a fraudulent misrepresentation of
marriage which the appellant never intended to keep
since the very inception of the relationship. If we reach
the conclusion that he intentionally made a fraudulent
misrepresentation from the very inception and the
prosecutrix gave her consent on a misconception of
fact, the offence of rape under Section 375 IPC is
clearly made out. It is not possible to hold in the nature
of evidence on record that the appellant obtained her
consent at the inception by putting her under any fear.
Under Section 90 IPC a consent given under fear of
injury is not a consent in the eye of the law. In the facts
of the present case, we are not persuaded to accept the
solitary statement of the prosecutrix that at the time of
the first alleged offence her consent was obtained
under fear of injury."
Further, in case of Pramod Suryabhan Pawar (supra), the
Supreme Court has considered the similar circumstances and observed
as under:-
"12. This Court has repeatedly held that consent with
respect to Section 375 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
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alternative actions (or inaction) as well as the various
possible consequences flowing from such action or
inaction, consents to such action. In Dhruvaram Sonar
[Dhruvaram Murlidhar Sonar v. State of Maharashtra,
(2019) 18 SCC 191 : 2018 SCC OnLine SC 3100]
which was a case involving the invoking of the
jurisdiction under Section 482, this Court observed :
(SCC para 15)
"15. ... An inference as to consent can be
drawn if only based on evidence or probabilities of
the case. "Consent" is also stated to be an act of
reason coupled with deliberation. It denotes an
active will in mind of a person to permit the doing
of the act complained of."
This understanding was also emphasised in the
decision of this Court in Kaini Rajan v. State of Kerala
[Kaini Rajan v. State of Kerala, (2013) 9 SCC 113 :
(2013) 3 SCC (Cri) 858] : (SCC p. 118, para 12)
"12. ... "Consent", for the purpose of
Section 375, requires voluntary participation not
only after the exercise of intelligence based on the
knowledge of the significance of the moral quality
of the act but after having fully exercised the choice
between resistance and assent. Whether there was
consent or not, is to be ascertained only on a careful
study of all relevant circumstances."
x x x
14. In the present case, the "misconception of fact"
alleged by the complainant is the appellant's promise
to marry her. 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. In Anurag Soni v. State
of Chhattisgarh [Anurag Soni v. State of Chhattisgarh,
(2019) 13 SCC 1 : 2019 SCC OnLine SC 509], this
Court held : (SCC para 12)
"12. The sum and substance of the aforesaid
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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 an assurance by the accused that he would marry
her, such a consent can be said to be a consent obtained on
a misconception of fact as per Section 90 IPC and, in such
a case, such a consent would not excuse the offender and
such an offender can be said to have committed the rape as
defined under Sections 375 IPC and can be convicted for
the offence under Section 376 IPC."
Similar observations were made by this Court
in Deepak Gulati v. State of Haryana [Deepak
Gulati v. State of Haryana, (2013) 7 SCC 675 :
(2013) 3 SCC (Cri) 660] (Deepak Gulati) :
(SCC p. 682, para 21)
"21. ... 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;"
x x x
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. In Deepak Gulati [Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660]
this Court observed : (SCC pp. 682-84, paras 21 & 24)
"21. ... There is a distinction between the
mere breach of a promise, and not fulfilling
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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.
* * *
24. Hence, it is evident that there must be
adequate evidence to show that at the
relevant time i.e. at the initial stage itself,
the accused had no intention whatsoever, of
keeping his promise to marry the victim.
There may, of course, be circumstances,
when a person having the best of intentions
is unable to marry the victim owing to
various unavoidable circumstances. The
"failure to keep a promise made with respect
to a future uncertain date, due to reasons that
are not very clear from the evidence
available, does not always amount to
misconception of fact. In order to come
within the meaning of the term
"misconception of fact", the fact must have
an immediate relevance". Section 90 IPC
cannot be called into aid in such a situation,
to pardon the act of a girl in entirety, and
fasten criminal liability on the other, [Ed. :
The matter between two asterisks has been
emphasised in original.] unless the court is
assured of the fact that from the very
beginning, the accused had never really
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intended to marry her [Ed. : The matter
between two asterisks has been emphasised
in original.] ."
x x x
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."
The Supreme Court in case of Uday (supra), dealing with the
factual circumstances existing in the said case has observed as under:-
"21. It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given
by the prosecutrix to sexual intercourse with a person
with whom she is deeply in love on a promise that he
would marry her on a later date, cannot be said to be
given under a misconception of fact. 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
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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.
x x x
23. Keeping in view the approach that the court must
adopt in such cases, we shall now proceed to consider
the evidence on record. In the instant case, the
prosecutrix was a grown-up girl studying in a college.
She was deeply in love with the appellant. She was,
however, aware of the fact that since they belonged to
different castes, marriage was not possible. In any
event the proposal for their marriage was bound to be
seriously opposed by their family members. She
admits having told so to the appellant when he
proposed to her the first time. She had sufficient
intelligence to understand the significance and moral
quality of the act she was consenting to. That is why
she kept it a secret as long as she could. Despite this,
she did not resist the overtures of the appellant, and in
fact succumbed to them. She thus freely exercised a
choice between resistance and assent. She must have
known the consequences of the act, particularly when
she was conscious of the fact that their marriage may
not take place at all on account of caste considerations.
All these circumstances lead us to the conclusion that
she freely, voluntarily and consciously consented to
having sexual intercourse with the appellant, and her
consent was not in consequence of any misconception
of fact.
x x x
25. There is yet another difficulty which faces the
prosecution in this case. In a case of this nature two
conditions must be fulfilled for the application of
Section 90 IPC. Firstly, it must be shown that the
consent was given under a misconception of fact.
Secondly, it must be proved that the person who
obtained the consent knew, or had reason to believe
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that the consent was given in consequence of such
misconception. We have serious doubts that the
promise to marry induced the prosecutrix to consent to
having sexual intercourse with the appellant. She
knew, as we have observed earlier, that her marriage
with the appellant was difficult on account of caste
considerations. The proposal was bound to meet with
stiff opposition from members of both families. There
was therefore a distinct possibility, of which she was
clearly conscious, that the marriage may not take place
at all despite the promise of the appellant. The
question still remains whether even if it were so, the
appellant knew, or had reason to believe, that the
prosecutrix had consented to having sexual intercourse
with him only as a consequence of her belief, based on
his promise, that they will get married in due course.
There is hardly any evidence to prove this fact. On the
contrary, the circumstances of the case tend to support
the conclusion that the appellant had reason to believe
that the consent given by the prosecutrix was the result
of their deep love for each other. It is not disputed that
they were deeply in love. They met often, and it does
appear that the prosecutrix permitted him liberties
which, if at all, are permitted only to a person with
whom one is in deep love. It is also not without
significance that the prosecutrix stealthily went out
with the appellant to a lonely place at 12 o'clock in the
night. It usually happens in such cases, when two
young persons are madly in love, that they promise to
each other several times that come what may, they will
get married. As stated by the prosecutrix the appellant
also made such a promise on more than one occasion.
In such circumstances the promise loses all
significance, particularly when they are overcome with
emotions and passion and find themselves in situations
and circumstances where they, in a weak moment,
succumb to the temptation of having sexual
relationship. This is what appears to have happened in
this case as well, and the prosecutrix willingly
consented to having sexual intercourse with the
appellant with whom she was deeply in love, not
because he promised to marry her, but because she also
desired it. In these circumstances it would be very
difficult to impute to the appellant knowledge that the
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prosecutrix had consented in consequence of a
misconception of fact arising from his promise. In any
event, it was not possible for the appellant to know
what was in the mind of the prosecutrix when she
consented, because there were more reasons than one
for her to consent."
11. The Supreme Court in case of State of Haryana and others v.
Bhajan Lal and others reported in of 1992 Supp (1) SCC 335, has laid
down the criteria/categories as to under what circumstances the Court
should exercise the power provided under Section 482 of CrPC or
extraordinary jurisdiction provided under Article 226 of the Constitution
of India so as to quash the proceedings. The categories of the cases in
which interference is permissible quoted by the Supreme Court, are as
under:-
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this
Court in a series of decisions relating to the exercise of
the extraordinary power under Article 226 or the
inherent powers under Section 482 of the Code which
we have extracted and reproduced above, we give the
following categories of cases by way of illustration
wherein such power could be exercised either to
prevent abuse of the process of any court or otherwise
to secure the ends of justice, though it may not be
possible to lay down any precise, clearly defined and
sufficiently channelised and inflexible guidelines or
rigid formulate and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised:
(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.
(emphasis supplied)
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(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) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.
(emphasis supplied)
(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by
a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis
of which no prudent person can ever reach a just
conclusion that there is sufficient ground for
proceeding against the accused.
(emphasis supplied)
(6) Where there is an express legal bar engrafted in any
of the provisions of the Code or the Act concerned
(under which a criminal proceeding is instituted) to
the institution and continuance of the proceedings
and/or where there is a specific provision in the
Code or the Act concerned, providing efficacious
redress for the grievance of the aggrieved party.
(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.
103. We also give a note of caution to the effect that
the power of quashing a criminal proceeding should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases; that the court will
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not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the
allegations made in the FIR or the complaint and that
the extraordinary or inherent powers do not confer an
arbitrary jurisdiction on the court to act according to
its whim or caprice."
Accordingly, as per the submissions made by the counsel for the
petitioner, the present case falls within category Nos.1, 3 and 5 as laid
down by the Supreme Court in the said case.
12. This Court also in case of Nageshwar Prasad Jaisal (supra),
relying upon several judgments of the Supreme Court and also of this
Court, has quashed the proceedings observing as under:-
8. Thus, based on an overview of record available
before this Court, it is evidently clear that in 2010
when incident occurred for the first time, the
prosecutrix got cause of action to register an FIR as,
according to her, physical relation was developed by
the petitioner despite her resistance on the pretext of
marriage and that relationship continued till 2020.
However no FIR was lodged by the prosecutrix and
when petitioner refused to enter into the marriage then
only report was lodged by the prosecutrix in the year
2021. In the present case in view of the observation
made by the Supreme Court on the issue, the consent
cannot be considered to be a consent obtained under
misconception of fact reason being the relationship
between the parties was existing for a long period of
10 years but prosecutrix never realized that the
petitioner was exploiting her by developing physical
relation with her continuously. Therefore, in the facts
and circumstances of the present case, it is difficult to
sustain the charge levelled against the petitioner that
he developed physical relation with the prosecutrix on
a false promise of marriage. It is also difficult to hold
sexual intercourse in the course of a relationship,
which continued for over 10 years, as 'rape' especially
in the facts of the complainant's own allegation.
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9. In one of the case laws cited hereinabove, the
Supreme Court has very specifically observed that
there must be adequate evidence to show that at the
relevant time i.e. at the initial stage itself, the accused
had no intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. The "failure to
keep a promise made with respect to a future uncertain
date, due to reasons that are not very clear from the
evidence available, does not always amount to
misconception of fact. In order to come within the
meaning of the term "misconception of fact", the fact
must have an immediate relevance". Section 90 IPC
cannot be called into aid in such a situation, to pardon
the act of a girl in entirety.
10. It is also apt to mention here that considering
the facts and circumstances of the case parties were
called in the Court and they were advised to get
married but even in the Court the parents of the parties
because of some differences could not reach to
consensus and as such the attempt made by the Court
to resolve the dispute failed. Thus, in my opinion, the
present case does not come within the definition of
rape as defined in Section 375 of IPC because
consensual relationship and affair between the parties
are apparent on the face of the record and admitted by
the prosecutrix herself and therefore if ultimately their
relationship could not culminate into marriage and the
promise made by the petitioner was not fulfilled by
him, it cannot be said that consent given by the
prosecutrix for developing physical relation was
obtained by the petitioner on the false pretext of
marriage.
11. Needless to say, in the young age when a boy
and a girl attracts towards each other and they flow in
emotions and believe that they love each other,
normally they carry impression that their relationship
will naturally be led to marriage. However, sometimes
it fails, and the girl, considering herself to be betrayed
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and deceived, cannot lodge the FIR saying that rape
has been committed with her.
12. In the case at Bar, the prosecutrix and the
petitioner both are major, well-educated, having affair
and developed physical relation regularly out of their
own free will which continued for more than 10 years
and ultimately they got separated from each other
because petitioner refused to enter into the marriage,
however it does not mean that a case of rape could be
registered against the petitioner. The Supreme Court
and also the High Court time and again consistently
observing that such type of relationship and
developing physical relation during that period cannot
be given shape of rape and prosecution under Section
376 of IPC cannot be initiated. In my opinion, as per
the factual circumstances, as have been narrated by the
prosecutrix in her complaint and also in her statement
of 164 Cr.P.C., this case cannot be considered to be a
case of rape as defined under Section 375 of IPC and
the prosecution is nothing but appears to be an abuse
of process of law. Under such circumstances, this
Court exercising inherent power provided under
Section 482 of Cr.P.C. can quash the FIR and
subsequent proceedings based upon the said FIR/final
report/charge sheet.
13. In view of the foregoing, I do not find any
material and any ingredient available on record to
indicate that any offence under Section 366 of IPC is
made out against the petitioner. Therefore, the offence
under Section 366 of IPC registered against the
petitioner at the later point of time is also liable to be
quashed."
13. Although Shri Deshmukh has relied upon the order passed by the
High Court in case of Naresh Rajoriya (supra), but that case and the
legal position as has been laid down therein, is not applicable in the
present case because this Court is not deciding the petition on the
ground of delay in lodging the FIR but the Court is considering the fact
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whether in the existing facts and circumstances of the case, offence of
376 of IPC is made out or not and looking to the existing and undisputed
facts of the case that the petitioner and the prosecutrix came in
relationship in the month of March, 2021 and continuously they
developed physical relation till 8 th January, 2023. As such, it is clear that
it is not a case in which physical relation was developed once or twice
as the petitioner assured the prosecutrix for getting married to her.
The prosecutrix should have stopped the petitioner from
developing physical relationship till their marriage got culminated but
she did not do so and even after getting the pregnancy terminated, the
prosecutrix continued with that relationship and, therefore, in my
opinion, when the prosecutrix was educated lady and fully aware about
her future and also her well-being and did not stop the petitioner, then
she can be considered to be a consenting party and relationship between
them can be said to be a consensual relationship.
14. Thus, in view of the above enunciation of law, I do not find any
material and any ingredient available on record to indicate that any
offence under Section 376 of IPC is made out against the petitioner and
as such, the prosecution initiated against him can be quashed in view of
the law laid down by the Supreme Court in case of Bhajan Lal (supra)
exercising the power provided under Section 482 of CrPC.
15. Ex consequentia, the petition succeeds and stands allowed. The
FIR registered against the petitioner vide Crime No.59/2023 at Police
Station Ratibad, District Bhopal, for the offence punishable under
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Sections 376, 376(2)(n) and 376(1) of IPC is hereby quashed and
consequently the charge-sheet filed against the petitioner so also the
further proceedings based upon the said FIR are also quashed.
16. Accordingly, the petition stands allowed and disposed of. No
order as to costs.
(SANJAY DWIVEDI)
JUDGE
ac/-
