Orissa High Court
Manoj Kumar Munda vs State Of Odisha & Anr. .... Opposite ... on 14 February, 2025
Author: S.K. Panigrahi
Bench: S.K. Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Designation: AR-CUM- SR. SECRETARY
Reason: Authentication
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.4485 of 2024
(In the matter of an application under Section 528 of Bharatiya
Nagarik Suraksha Sanhita, 2023)
Manoj Kumar Munda .... Petitioner(s)
-versus-
State of Odisha & Anr. .... Opposite Party(s)
Advocates appeared in this case through Hybrid Arrangement Mode:
For Petitioner(s) : Mr. Arun Kumar Acharya, Adv.
For Opposite Party(s) : Ms. J. Sahoo, ASC
Mr. K. A. Guru, Adv.
For O.P No.2
CORAM:
DR. JUSTICE S.K. PANIGRAHI
DATE OF HEARING:-04.02.2025
DATE OF JUDGMENT: -14.02.2025
Dr. S.K. Panigrahi, J.
1. In this Criminal Miscellaneous Petition, the Petitioner is challenging
the initiation of criminal proceedings in Bolangir Town PS Case No.
191 of 2021 (corresponding to OR Case No. 426 of 2021) registered in
the Court of the learned SDJM, Bolangir. The charges include offenses
under Sections 376(2)(a), 376(2)(i), 376(2)(n), 294, 506, and 34 of the
IPC.
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
I. FACTS AS PRESENTED BY THE PETITIONER:
2. Opp. Party No. 2 (the prosecutrix) filed a written complaint alleging
that she met the Petitioner in 2012 while both were pursuing a
computer course in Sambalpur. They developed a close friendship
that eventually led the Petitioner to fall in love with her. Admittedly,
their families were aware of their relationship.
3. After the Petitioner secured a job as a Sub-Inspector of Police, he
maintained a physical relationship with her, allegedly, under the false
promise of marriage. She claimed that the relationship was against her
will, and when she complained to the Petitioner's family, they ignored
her.
4. She further alleged that she was tortured by the Petitioner and his
family. Furthermore, she attempted suicide and was treated at
Titilagarh Government Hospital.
5. In 2019, she stayed with the Petitioner in Bhubaneswar and Titilagarh,
where they continued their physical relationship. She alleged that the
Petitioner failed to register their marriage as promised and
administered "unwanted 72" contraceptive pills to prevent her
pregnancy.
6. Interestingly, in 2023, the prosecutrix filed a Civil Proceeding (CP No.
169 of 2023) in the Court of the learned Judge, Family Court,
Sambalpur, seeking a declaration that she is the legally married wife
of the Petitioner and also an injunction to prevent him from marrying
anyone else.
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
7. In the civil suit, she claimed that, on 03.02.2021, she and the Petitioner
had solemnized their marriage at Samaleswari Temple, Sambalpur,
and exchanged garlands, vermilion, and mangalsutra. She also alleged
that they applied for marriage registration under the Special Marriage
Act, but the Petitioner failed to appear for the registration on
18.03.2021.
8. After the FIR was registered, the prosecutrix's statement was recorded
under Sections 161 and 164 of the Cr.P.C., and she was medically
examined.
9. The Petitioner highlights that the prosecutrix's allegations in the FIR
and the Civil Proceeding are inconsistent. In the FIR, she did not
mention the marriage at Samaleswari Temple, but in the civil suit, she
claimed to be the Petitioner's legally married wife.
II. PETITIONER'S SUBMISSIONS:
10. The Petitioner contends that the relationship between him and the
prosecutrix was consensual. The prosecutrix is a grown-up, mature,
and intelligent woman who understood the consequences of her
actions. She voluntarily maintained the relationship despite alleged
objections from the Petitioner's family.
11. The Petitioner argues that the prosecutrix's claim of a false promise of
marriage is baseless. The relationship was based on mutual consent,
and the prosecutrix continued the relationship even after being
allegedly tortured by the Petitioner's family.
12. The prosecutrix's allegations in the FIR and the Civil Proceeding are
contradictory. In the FIR, she did not mention the marriage at
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
Samaleswari Temple, but in the civil suit, she claimed to be the
Petitioner's legally married wife. This inconsistency raises doubts
about her credibility.
13. The Petitioner submits that there is no evidence to substantiate the
prosecutrix's claims regarding her alleged admission to Titilagarh
Government Hospital following a suicide attempt. Additionally, there
is no record of any complaint lodged by her at Titilagarh Police
Station, as she asserts. Furthermore, no medical or documentary proof
has been presented to support the allegation that the Petitioner
administered "Unwanted 72" pills to the prosecutrix.
14. The Petitioner had previously approached this Court under Section
438 Cr.P.C. for anticipatory bail, which was disposed of on 29.06.2021.
In its order, the Court prima facie observed that the prosecutrix was a
consenting party to the relationship and that her primary grievance
stemmed from the Petitioner's refusal to marry her, rather than any
act of coercion. The Court further noted that the relationship between
the parties was consensual and had continued for approximately nine
years, thereby casting doubt on the allegations of rape under a false
promise of marriage.
III. OPPOSITE PARTIES' SUBMISSION:
15. Learned counsel for the Opposite Parties vehemently refuted the
contentions advanced by the Petitioner, asserting that, given the
gravity of the offenses alleged, a full-fledged trial is imperative.
16. He contends that the allegations warrant a thorough judicial
examination, and that quashing the proceedings at this stage would
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
preclude the prosecution from establishing its case through due
process of law.
IV. COURT'S ANALYSIS AND REASONING:
17. Heard Learned Counsel for the parties and perused the materials
placed before this Court.
18. This case involves a long-term consensual relationship between the
Petitioner and the prosecutrix, which began in 2012 and lasted nearly
nine years. The prosecutrix claims that the Petitioner engaged in a
physical relationship with her based on a false promise of marriage.
However, in a civil case, she later stated that she was already married
to him. This contradiction, along with the lack of evidence of coercion
or deception at the start of the relationship, is central to the dispute.
The key legal question is whether the Petitioner's failure to marry the
prosecutrix invalidates her consent under Section 375 OF IPC or if this
is simply a failed personal relationship that does not amount to a
criminal offense.
19. At this juncture, the first and foremost consideration before this Court
is whether it possesses the jurisdiction to quash the proceedings in
question. This would necessitate a careful and purposive
interpretation of Section 482 of the Cr.P.C.
20. It is a well-settled principle that Section 482 of the Cr.P.C. serves as an
overriding provision, preserving the inherent powers of the Court to
uphold the ends of justice. The jurisdiction conferred under this
provision is of an extraordinary nature and must be exercised with
utmost caution and circumspection. While the Court is vested with
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
wide discretion in determining whether to invoke such powers, it
must be mindful that indiscriminate interference at the threshold of
criminal proceedings may unduly pre-empt the prosecution from
discharging its duty of conducting a fair investigation and presenting
evidence.
21. To this effect, the Supreme Court in the case of Pramod Suryabhan
Pawar v. The State of Maharashtra1 , observed as follows:-
"Section 482 is an overriding section which saves the
inherent powers of the court to advance the cause of
justice. Under Section 482 the inherent jurisdiction of the
court can be exercised (i) to give effect to an order under
the CrPC; (ii) to prevent the abuse of the process of the
court; and (iii) to otherwise secure the ends of justice. The
powers of the court under Section 482 are wide and the
court is vested with a significant amount of discretion to
decide whether or not to exercise them. The court should
be guarded in the use of its extraordinary jurisdiction to
quash an FIR or criminal proceeding as it denies the
prosecution the opportunity to establish its case through
investigation and evidence."
22. In view of the diverse and multifaceted nature of cases that come
before the High Courts, any rigid formulation of principles governing
the exercise of extraordinary jurisdiction would serve only to fetter
judicial discretion, rendering it impotent in the face of unforeseen
injustices. Recognizing this necessity, the Supreme Court, in State of
Haryana v. Bhajan Lal,2 undertook a comprehensive analysis of the
circumstances under which the inherent powers of the judiciary may
be justly invoked. The decision, far from prescribing an exhaustive
AIR 2019 SUPREME COURT 4010
1992 AIR 604.
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
rule, set forth illustrative instances where the quashing of proceedings
would be not only permissible but imperative to prevent an abuse of
process. Among these, certain principles find direct relevance to the
matter at hand and shall be duly considered in the course of this
adjudication:-
"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.
(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."
23. The foregoing precedent leaves no room for doubt that in determining
whether to invoke its jurisdiction under Section 482, the Court is not
called upon to weigh the truth of the allegations or to engage in an
evaluation of competing evidence. Confined to the four corners of the
FIR, the inquiry is narrow: whether, on its face, the allegations
disclose the commission of a cognizable offence? In this regard, the
reasoning articulated in Dhruvaram Murlidhar Sonar v. State of
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
Maharashtra3 assumes particular significance, illuminating the
precise contours within which this Court's extraordinary powers may
be exercised. The relevant excerpts are produced below:
"13. It is clear that for quashing 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."
24. In the case before this court, the allegations leveled against the
Petitioner are of grave import, implicating Sections 376(2)(a), 376(2)(i),
376(2)(n), 294, 506, and 34 of the IPC, provisions that speak to offenses
of sexual assault, criminal intimidation, and common intention.
Section 376, in its various sub-clauses, prescribes the punishment for
rape, as delineated under Section 375. It sets forth the essential
ingredients constituting the offense. In the factual constellation before
us, particular attention must be directed toward the second such
description, taken in conjunction with Section 90, which governs the
vitiation of consent. The relevant excerpts are produced below:
"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.
AIR 2019 SUPREME COURT 327.
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
...
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."
"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..."
25. Upon careful perusal of the provisions outlined, the submissions
made, and the case records, one incontrovertible truth emerges; the
fulcrum upon which the adjudication of this case rests is "consent". In
the jurisprudence of sexual offences, the absence or presence of
consent is not merely a factual consideration but the very essence of
criminal culpability. The law mandates that the prosecution must
establish, beyond reasonable doubt, that consent was either absent or
vitiated by coercion, deception, or incapacity. Thus, in the final
analysis, the outcome of this case shall turn solely on this cardinal
question: was there free, voluntary, and unequivocal consent?
26. The annals of jurisprudence are replete with deliberations on the
concept of consent, a principle that has been scrutinized, refined, and
expounded upon in countless judicial pronouncements. Within the
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
framework of Section 375 of the IPC, consent is not a mere nod of
acquiescence, nor the absence of resistance, but an active and reasoned
understanding of the circumstances, the nature of the act, and its
attendant consequences. In Dhruvaram Sonar (supra), the Supreme
Court observed
"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."
27. This provision was further substantiated and succinctly articulated in
Pramod Suryabhan Pawar (supra) wherein the Supreme Court held
as follows:
"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."
28. Indeed, this Court, drawing upon the wisdom of the aforementioned
precedents, had an occasion to consider this very issue in G. Achyut
Kumar v. State of Odisha.4 Therein, the concept of consent and the
2020 SCC OnLine Ori 417.
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
agency of a woman in asserting it stood at the forefront of
deliberation. The relevant excerpts are produced below:
"15. The intention of the law makers is clear on this issue.
The rape laws should not be used to regulate intimate
relationships, especially in cases where women have
agency and are entering a relationship by choice. It is also
equally disturbing, many of the complaints come from
socially disadvantaged and poor segment of the society,
rural areas, who are often lured into sex by men on false
promises of marriage and then dumped as soon as they
get pregnant. The rape law often fails to capture their
plight. Nonetheless, it radiates from the above discussion
that the law is well settled that consent obtained on a false
promise to marry is not a valid consent. Hence, the
automatic extension of provisions of Section 90 of I.P.C.
to determine the effect of a consent under Section 375 of
I.P.C. deserves a serious relook. The law holding that false
promise to marriage amounts to rape appears to be
erroneous. The authoritative commentary on Criminal
Law by Glanville William corroborates this proposition of
law. (Glanville Williams, Criminal Law, Second Edition,
Universal Law Publishing, at page 559-560.) Since the
framers of law have specifically provided the
circumstances when 'consent' amounts to 'no consent' in
terms of Section 375 of I.P.C., hence consent for the
sexual act on the pretext of marriage is not one of the
circumstances mentioned under Section 375 of I.P.C."
29. Applying the weight of precedent to the facts at hand, one truth
emerges with unmistakable clarity; the prosecutrix's consent was not
vitiated by any misconception of fact. The law does not extend its
protection to every broken promise nor does it impose criminality
upon every failed relationship. The Petitioner and the prosecutrix
entered into a relationship in 2012, when both were competent,
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
consenting adults, capable of making their own choices, of exercising
their own will, and of shaping their own futures. That the relationship
did not culminate in marriage may be a source of personal grievance,
but the failure of love is not a crime, nor does the law transform
disappointment into deception.
30. The most pressing issue that demands recognition is the urgent need
to disentangle the constructs of sex and marriage, both in our legal
system and in the social consciousness that shapes it. The concept of
sexual autonomy, a woman's right to make independent and
uncoerced decisions about her body, sexuality, and relationships, has
been a site of continuous contestation within feminist philosophy.
31. Judith Butler, one of the most influential post-structuralist feminist
thinkers, offers a critical interrogation of gender norms,
performativity, and power structures, providing a radical framework
for understanding sexual autonomy beyond the rigid binaries of sex,
gender, and societal morality. In her work, Gender Trouble: Feminism
and the Subversion of Identity,5 she has challenged the idea that gender
and sexuality are innate or biologically determined. Instead, she
argues that gender is a series of repeated acts, gestures, and behaviors
that are culturally and socially constructed. This performative nature
of gender extends to sexuality, which is also shaped by societal norms
and power structures. One of Butler's key arguments is that
heterosexual norms are artificially constructed and sustained through
repetitive acts of gender performance:
Butler, J. (1990). Gender trouble: Feminism and the subversion of identity, Routledge
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
"Gender is an identity tenuously constituted in time,
instituted in an exterior space through a stylized
repetition of acts." (Gender Trouble, p. 179)
32. Marriage, in a patriarchal society, has been reduced to a mere
performative act, reinforcing the notion that female sexuality must be
bound to male commitment. It is a legal construct, a deliberate
compact between two individuals who elect to bind their futures
together under the sanction of law. It is not the inexorable destination
of passion, nor the predetermined consequence of intimacy. To
conflate the two is to imprison human relationships within archaic
expectations, to deny individuals, especially women, their right to
autonomy, to choice, to the pursuit of desire unshackled by social
decree.
33. Marriage is a choice, not inevitability. It is a legal recognition, not a
moral recompense for physical union. It is an agreement, not
atonement. To treat it otherwise is to strip individuals of their right to
define their relationships on their own terms, to reduce love to a
binding transaction, and to transform desire into a liability.
34. Feminist philosophy has long waged battle against the tyranny of
expectation, the insidious notion that a woman's sexual agency is
valid only when tethered to marriage. Simone de Beauvoir, a
renowned French existentialist philosopher, feminist theorist, and
writer, in her seminal work The Second Sex,6 unmasked the historical
subjugation embedded in this expectation:
de Beauvoir, S. (2015). The second sex, Vintage Classics.
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
"The destiny that society traditionally offers women is
marriage. Even today, most women are, were, or plan to
be married, or they suffer from not being so. Marriage is
the reference by which the single woman is defined,
whether she is frustrated by, disgusted at, or even
indifferent to this institution." (The Second Sex, p. 502)
35. It is this fiction of destiny that the law must resist. The presumption
that a woman engages in intimacy only as a prelude to marriage, that
her consent to one act is but a silent pledge to another, is a vestige of
patriarchal thought, not a principle of justice. The law cannot lend
itself to such a perversion of choice, where failed relationships become
grounds for legal redress, and disappointment is cloaked in the
language of deception.
36. The legal system, by criminalizing sex under a "false promise of
marriage," upholds this performative construct, one that assumes that
women engage in sexual relationships only as a prelude to
matrimony, rather than as autonomous agents of their own desires.
37. In its pursuit of justice, the law must not become an instrument of
moral policing. It must acknowledge that sexual agency is not a
promise, nor is it a contract that mandates a predetermined outcome.
To assume otherwise is to deny women the full measure of their
autonomy, desire, and choice, reducing them to mere bearers of
honour, rather than as individuals possessing an intrinsic right to their
own bodies and decisions.
38. Society, for far too long, has treated sex as a transaction, where the
woman's participation is conditioned upon the promise of marriage,
and her agency is recognized only in so far as it aligns with this
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
expectation. But the law must not succumb to such anachronistic
notions. The ability of a woman to engage in intimacy on her own
terms, free from coercion, from expectation, and from the weight of
archaic social contracts, must be protected, not punished.
39. It is in this light that the automatic criminalization of failed
relationships under the guise of "false promise of marriage" must be
scrutinized. The assumption that every physical relationship between
a man and a woman carries the implicit condition of matrimony is not
a principle of law but a vestige of control. It is a proposition that
denies women the very agency the law purports to protect.
40. The law must be a shield, not a shackle. It must recognize that sexual
autonomy is a right, not a bargain, and that the exercise of this right is
not a betrayal of virtue, not an invitation for legal persecution. If the
law is to serve justice, it must evolve, not in deference to tradition, but
in allegiance to the fundamental truth that a woman's body, her
choices, and her future are hers alone to define.
41. Yet, the realities of society cannot be ignored, nor can the law afford to
be blind to the conditions in which it operates. In the vast expanse of
this nation, there exist women reared in conservatism, sheltered from
the world, their choices shaped not by unfettered will but by the
narrow confines of tradition. For them, consent may not always be an
act of true volition, but rather a submission to circumstance, to
pressure, to the unspoken weight of expectation.
42. Thus, this reasoning must not be wielded as a sword where it was
meant to be a shield. It must not become a tool of exploitation,
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
allowing men to feign love, deceive the trusting, and abandon them to
dishonor. The law must tread with vigilance and make sure that
principle does not become pretext for abuse.
43. The intervention of the court in this particular case was imperative to
shield the criminal justice system from being wielded as an
instrument of vengeance for the collapse of a personal relationship.
The pivotal question turned upon the consent of the prosecutrix and
whether it had been tainted by fraud or coercion. The inconsistencies
in her narrative where she charged the petitioner with rape on the
pretext of a false promise of marriage in the FIR while in the civil
proceeding she asserted that she was already his legally wedded wife
cast a shadow upon the veracity of her allegations. The fact that the
relationship lasted nearly nine years clearly showed that it was
voluntary, making the invocation of Section 376 of the IPC
questionable. Quashing the criminal proceedings is necessary to
protect the integrity of the law and prevent it from being used to
litigate personal disappointments or moral conflicts. The justice
system is meant to address genuine crimes, not to serve as a
battleground for failed relationships.
44. Accordingly, the holding in this case is confined to its own facts, and
the judgment must not be read as a universal license. Each case must
be weighed on its own merits, with the Court ever mindful that
justice, to be just, must be both principled and compassionate.
Designation: AR-CUM- SR. SECRETARY
Location: ORISSA HIGH COURT, CUTTACK
Date: 21-Feb-2025 17:22:46
V. CONCLUSION:
45. In light of the legal precedents, the concept of consent, and the
principles of sexual autonomy, this Court finds that continuation of
criminal proceedings against the Petitioner would constitute an abuse
of process. The allegations, even if taken at face value, do not disclose
the commission of a cognizable offense. Therefore, invoking the
extraordinary jurisdiction under Section 482 Cr.P.C., this Court deems
it just and proper to quash the impugned proceedings.
46. Accordingly, this Criminal Miscellaneous Petition is allowed, and the
impugned proceedings are hereby quashed.
(Dr. S.K. Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 14th February, 2025/
