Bineet Kumar Patel & vs State
2023 Latest Caselaw 13084 Ori

        IN THE HIGH COURT OF ORISSA AT CUTTACK

                  CRLMC NO.227 of 2016

  (In the matter of application under Section 482 of the
  Criminal Procedure Code, 1973.).

  Bineet Kumar Patel &                 .... Petitioners
  another
                           -versus-

  State                                ... Opposite Party


  For Petitioners          :   Mr. H.S.Mishra, Advocate



  For Opposite Party       :   Mr. R.B.Mishra, AGA
                               Mr. S.Kanungo,Adv(OP2)

       CORAM:
                     JUSTICE G. SATAPATHY

               DATE OF JUDGMENT: 19.10.2023


G. Satapathy, J.

1. The application by the petitioners U/S. 482 of

Cr.P.C. impugns the order passed on 29.01.2010 by

the learned J.M.F.C., Loisingha in G.R. Case No. 125 of

2009 taking cognizance of offences U/Ss.

376/417/506/34 of the IPC or alternatively for the

offence U/S. 376 of the IPC.

2. The short background facts are, on 07.08.2009

at about 11.45 AM, OP No.2 lodged a FIR against the

petitioners before the IIC Loisingha P.S. alleging

therein that on the allurement of marriage, petitioner

No.1 had been keeping physical relationship with her

for since last six months and as a consequence

thereof, when she became pregnant of two months,

the petitioner No.1 is deceiving her and petitioner No.2

had been threatening to kill her if she disclose the

incident.

On receipt of such FIR, Loisingha P.S. Case No.

125 of 2009 was registered U/Ss. 376/506/34 of the

IPC which was investigated into resulting submission

of charge sheet against the petitioners for offence

U/Ss. 417/506/34 of the IPC, but not withstanding to

the submission of charge sheet of aforesaid offences,

the learned J.M.F.C., Loisingha by way of a detailed

order took cognizance of offence U/Ss.

376/417/506/34 of the IPC and issued process against

the petitioners which is the subject matter of challenge

in the present CRLMC.

3. In the course of hearing, Mr.H.S.Mishra,

learned counsel for the petitioners has submitted that

the allegation on record never discloses a case of rape

against the petitioner No.1 and by no stretch of

imagination, the sexual act as alleged against the

petitioner No.1 by the victim would vindicate the

commission of offence U/Ss. 376 of IPC, but not

withstanding to the submission of charge sheet against

the petitioners for offence U/Ss. 417/506/34 of the

IPC, the learned J.M.F.C., Loisingha erroneously took

cognizance of offence U/S. 376 of IPC in addition to

the aforesaid offences which is not at all legally

sustainable and, therefore, the proceeding against the

petitioner No.1 for offence U/S. 376 of IPC having not

made out, the impugned order taking cognizance of

offence is liable to be set aside and thereby, the

present CRLM may kindly be allowed by deleting the

offence U/S. 376 of IPC. In support of his contention,

Mr.H.S.Mishra relied upon the decision in Sambhu

Kharwar Vrs. State of Uttar Pradesh and another;

Criminal Appeal No. 1231 of 2022 disposed of on

12.08.2022.

4. On the other hand, Mr.R.B.Mishra, learned

AGA, however, assiduously has contended that the act

of the petitioner No.1 squarely covered by the

definition of Section 375 of IPC and thereby, the

impugned cognizance order does not suffer from any

infirmity. In echoing the submission of learned AGA,

Mr.S.Kanungo, learned counsel for the informant by

producing the certified copy of statement of witnesses

including that of victim recorded U/S. 161 of Cr.P.C.,

has submitted that the allegation leveled by the victim

itself justify a case against petitioner No.1 for offence

U/S. 376 of IPC and, therefore, the impugned order

does not suffer from any infirmity. Mr.Kanungo while

praying to dismissed the CRLMC has relied upon the

decision in Anurag Soni V. State of Chattisgarh;

(2019) 13 SCC 1.

5. Admittedly, the petitioners have approached

this Court for quashing of impugned order taking

cognizance of offence U/Ss.376/417/506/34 of IPC or

alternatively quashing for the offence U/S.376 of IPC

on the ground that the uncontroverted allegation on

record do not prima facie constitute the aforesaid

offences or make out a case against the petitioners.

The ingredients of offence of rape is provided in

Section 375 of IPC and the submission advanced for

the petitioners makes it clear that the petitioners

challenge the offence of rape on the ground of

consensual relationship on the assurance of marriage.

In such situation, the definition of rape as falling under

description under second clause to Section 375 of IPC

together with the definition of consent as provided in

Section 90 of IPC is required to be noticed and is

accordingly exposited below:

"375. Rape - A man is said to commit "rape" if he -

Xx xx xx xx xx xx

under the circumstances falling under any of the following seven descriptions Firstly: xx xx xx xx

Secondly.- Without her consent.

xx xx xx xx xx

Explanation2.-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..."

A careful glance of definition of consent as

noticed above discloses that if the consent is given by

a person under misconception of facts and if the

person doing the act knows, or has reason to believe,

that the consent was given in consequence of

misconception, it is not a valid consent.

6. In Sonu @ Subash Kumar v. State of Uttar

Pradesh; 2019 (9) SCC 608 the Apex Court has held

as follows:

"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... [xxx]

14. [xxx] 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... [xxx]

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 deceived 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... [xxx]

18. To summarize 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".

7. In Deepak Gulati v. State of Haryana; 2013

(7) SCC 675 the Apex Court at Paragraph-21 has

observed as follows:

"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".

In Yedla Srinivasa Rao v. State of A.P.;

2006 (11) SCC 615 in somewhat similar situation,

the Apex Court after discussing the facts therein, has

held as under:

"In that case, the sexual intercourse was committed with the prosecutrix by the accused. As per the prosecutrix, the accused used to come to her sister's house in between 11 a.m. and 12 noon daily and asked her for sexual intercourse with him. She refused to participate in the said act but the accused kept on persisting and persuading her. She resisted for about 3 months.

On one day, the accused came to her sister's house at about 12 noon and closed the doors and had sexual intercourse forcibly, without her consent and against her will. When she asked the accused as to why he spoiled her life, he gave assurance that he would marry her and asked her not to cry, though his parents were not agreeing for the marriage. It was found that on the basis of the assurance given by the accused this process of sexual intercourse continued and he kept on assuring that he would marry her. When she became pregnant, she informed about the pregnancy to the accused. He got certain tablets for abortion but they did not work. When she was in the third month of pregnancy, she again insisted for the marriage and the accused answered that his parents are not agreeable. She deposed that had he not promised, she would not have allowed him to have sexual intercourse with her. The question was raised before the panchayat of elders and the prosecutrix was present in the panchayat along with her sister and brother-in-law. The accused and his father both attended the panchayat and the accused admitted about the illegal contacts with the prosecutrix and causing pregnancy. The accused asked for two days' time for marrying the prosecutrix and the panchayat accordingly granted time. But after the panchayat meeting, the accused absconded from the village and when the accused did not fulfil his promise which was made before the panchayat, the prosecutrix lodged the complaint. Considering the aforesaid facts and after considering Section 90 IPC, this Court convicted the accused for the offence under Section 376 IPC".

In the aforesaid decision in Yedla Srinivasa Rao

(supra) the Apex Court has held as under:

"9. The question in the present case is whether this conduct of the accused apparently falls under any of the six descriptions of Section 375 IPC as mentioned above. It is clear that the prosecutrix had sexual intercourse with the accused on the representation made by the accused that he would marry her. This was a false promise held out by the accused. Had this promise not been given perhaps, she would not have permitted the accused to have sexual intercourse. Therefore, whether this amounts to a consent or the accused obtained a consent by playing fraud on her. Section 90 of the Penal Code says that if the consent has been given under fear of injury or a misconception of fact, such consent obtained, cannot be construed to be a valid consent. xx

10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him.

xxx xxx xxx

16. If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Presumption has been introduced by the legislature in the Evidence Act looking to

atrocities committed against women and in the instant case as per the statement of PW 1, she resisted and she did not give consent to the accused at the first instance and he committed the rape on her. The accused gave her assurance that he would marry her and continued to satisfy his lust till she became pregnant and it became clear that the accused did not wish to marry her."

8. Keeping in view the aforesaid principles as

above, when the facts in this case are analyzed, the

victim herself has lodged the FIR alleging against

petitioner No.1 for keeping physical relationship on the

allurement of marriage, but she became pregnant for

two months and the petitioner No.1 was not willing to

keep his promise. The victim has also stated about

petitioner No.1 entering into her rented house by

finding her alone and taking advantage of such

situation, caught hold of her and manage to convince

her for love and marriage with her and committed

sexual intercourse, but when the victim informed

about her pregnancy, petitioner No.1 insisted for not

to abort pregnancy. It is further alleged that petitioner

No.2, however, threatened the victim not to take the

name of petitioner No.1 and he openly denied the

marriage of petitioner No.1 with the victim.

9. In the backdrop of aforesaid allegations and

keeping in view the principles reiterated by the Apex

Court in the decisions referred to above and taking

into account the definition of consent as provided in

Section 90 of IPC together with presumption as

available U/S.114-A of Indian Evidence Act, it cannot

be said at this stage that the uncontroverted allegation

made in the FIR and the evidence collected in support

of the same do not disclose the ingredients of Section

375 of IPC and the commission for other offences and

make out a case against the accused, so as to quash

the criminal proceeding or the offence U/S.376 of IPC.

Nonetheless, the petitioner No.1 can demonstrate the

aforesaid plea as his defence plea in the trial, but the

prosecution has to establish its case against the

petitioners independent of the defence plea. The

decision in Sambhu Kharwar (supra) was relied

upon by the petitioners, but the same is found

distinguishable from the facts of the present case

inasmuch as the allegation against the accused therein

was for keeping relationship with the victim prior to

her marriage, during the subsistence of marriage and

after the grant of divorce by mutual consent.

10. In view of the discussions made hereinabove

coupled with analysis of facts involved in this case by

keeping in view the principles laid down by the Apex

Court in the decisions referred to above, this Court

does not find any justifiable ground to quash the

impugned order taking cognizance of offence, much

less for the offence U/S.376 of IPC.

In the result, the CRLMC stands dismissed on

contest, but in the circumstance, there is no order as

to costs.

(G. Satapathy) Judge Signature Not Verified Digitally Signed Orissa Signed by: KISHORE KUMAR High Court, Cuttack, SAHOO Designation: Secretary th Reason: AuthenticationDated the 19 of October, 2023/Kishore Location: High Court of Orissa Date: 19-Oct-2023 16:01:55