Patna High Court
Dr. Atul Shekhar vs The State Of Bihar on 27 February, 2025
Author: Chandra Shekhar Jha
Bench: Chandra Shekhar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.5695 of 2024
Arising Out of PS. Case No.-774 Year-2023 Thana- AHIYAPUR District- Muzaffarpur
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Dr. Atul Shekhar, Son of Prakash Sahu, R/O Lohiya Nagar, P.S.- Lohia Nagar,
Ward No. 28, Dist.- Begusarai, Bihar.
... ... Petitioner/S
Versus
1. The State of Bihar.
2. Dr. Priya Kumari, D/O Baiju Choudhary, R/O Mohalla- Sheikhpur, P.S.-
Ahiyarpur, Dist.- Muzaffarpur.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. N.K. Agrawal, Sr. Advocate
Mr. Kumar Rajdeep, Advocate
Mr. Arvind Kumar, Advocate
Mrs. Diksha Kumari, Advocate
For the Opposite Party/s : Mr. Navin Kumar Pandey, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT
Date : 27-02-2025
1. Heard learned counsel appearing on behalf of the
parties.
2. The present application has been filed for
quashing the order dated 09.10.2023 passed by learned
Chief Judicial Magistrate, Muzaffarpur in connection with
Ahiyarpur P.S. Case No. 774/2023, for the offences
punishable under Sections 376, 504, 506 of the Indian Penal
Code.
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3. Prosecution case in brief, as it appears from
written statement of the Opposite Party no. 2, namely, Dr.
Priya Kumari dated 21.06.2023, stating inter-alia, that she
did her MBBS from P.M.C.H, Patna from 2014 to 2020 and
during her stay in Patna, she came in contact with the
petitioner (Dr. Atul Shekhar) and became friends and visited
each other houses. Petitioner was also pursuing MBBS from
S.K.M.C.H, Muzaffarpur and she being friend used to visit the
petitioner off and on. On 06.09.2020, petitioner during his
visit to his friend at Muzaffarpur visited her house also at 6:00
PM, and seeing nobody at her home petitioner forcefully
established physical relation with her and on protest he
threatened to kill if she disclosed it to anybody outside as he
had contact with the criminals. Thereafter, petitioner made
physical relation with her on different occasions and took
video from the hidden camera without her knowledge at
PMCH, Patna and promised her to marry. Presently the
petitioner is posted in ANMCH, Gaya. Opposite party no. 2
went to meet the petitioner at Gaya and stayed in hotel and
on the assurance of marriage the petitioner again established
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physical relation with her. On 23.05.2023 petitioner on phone
refused to marry her and threatened to make all the videos
and photos viral and spoil her carrier, if she again press for
her marriage with the petitioner. On 29.05.2023 she narrated
the entire story of their relation/occurrence to her parents.
4. Police after investigation submitted charge sheet,
upon perusal of which and on the basis of material available
and collected during the course of investigation, the learned
jurisdictional magistrate took cognizance for the offences
under Sections 376, 504 and 506 of the Indian Penal Code
against petitioner.
5. It is submitted by Mr. N.K. Agrawal, learned
senior counsel appearing for the petitioner that as per FIR,
the affairs between the parties started somewhere in year
2014, while both of them were pursuing their medical course.
It is submitted that this case was filed on 21.06.2023 i.e. in
the background of seven years of acquaintance. It is
submitted by Mr. Agrawal that informant of the present case
wanted to marry with petitioner which was not acceptable to
the petitioner and his family members and, therefore, the
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present case was lodged. It is submitted that as per the
narration of FIR, on the first occasion petitioner visited the
house of opposite party no. 2 at Muzaffarpur on 06.09.2020,
while she was alone in her house and established physical
relation with her. Thereafter, on several occasions, physical
relations was established between them and for that video
clips were also captured by the petitioner, on the basis of
which opposite party no. 2 was threatened to keep silent,
failing which she would loose her social reputation as the
petitioner threatened to make it viral, but no such video clips
was gathered by police during investigation. It is submitted
that the opposite party is a full grown lady of about 30 years
and she is well educated being a MBBS doctor from a reputed
institution.
6. Mr. Agrawal in support of false allegation
submitted further that opposite party no. 2 failed to provide
any video clip during the course of investigation or
photographs in support of her allegation and it was also not
collected by investigating agency. It is pointed out that
petitioner never called informant at Bodhgaya rather she
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herself went to Gaya to pressurize the petitioner to marry her
otherwise to face the dire consequences.
7. It is submitted that interestingly, opposite party
no. 2 also filed a complaint case before the Chief Judicial
Magistrate, Muzaffarpur bearing complaint case no. 1786 of
2023 on 27.05.2023 for the offences punishable under
Section 498A of the Indian Penal Code, stating inter alia that
on 13.10.2021 she solemnized marriage with petitioner at
Patandevi Mandir, Patna but his family members not
accepting her as their daughter-in-law as she could not fulfill
their dowry demand.
8. While concluding the argument, it is submitted
that the physical relations between the parties was consensual
and same cannot be categorized as rape. It is submitted that
the present FIR was lodged on 21.06.2023, prior to lodging
the aforesaid complaint case with ulterior and oblique motive
to settle the private and personal grudge and also to harass
the petitioner and his family members. In support of his
submission, learned senior counsel submitted that Hon'ble
Supreme Court categorically held that any corporeal
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relationship under the garb of false promise of marriage
cannot be categorized as rape. In support of his submission,
Mr. Agrawal relied upon the legal report of Hon'ble Supreme
Court as available through Ansaar Mohammed. Vs State
of Rajasthan reported through 2022 SCC OnLine SC 886
and also upon Pramod Suryabhan Pawar Vs State of
Maharashtra and Another reported through (2019) 9
SCC 608.
9. Learned counsel appearing for opposite party no.
2 filed counter affidavit on 08.01.2025, where it appears that
marriage of opposite party no. 2 was never solemnized with
petitioner as the parents of petitioner demanded Rs. 50 lacs
from the parents of opposite party no. 2 as dowry. It is
submitted that on first occasion physical relation with opposite
party no. 2 was established forcibly at Muzaffarpur by
petitioner with a threat to kill her which forced opposite party
no. 2 to maintain her silence. It is conceded that on false
assurance of marriage on several occasions, the petitioner
established physical relationship with opposite party no. 2.
10. It would be apposite at this stage to reproduce
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the paragraph nos. 8, 9 and 10 of the Pramod Suryabhan
Pawar Case (supra), which reads as under:-
"8. In deciding whether to exercise its
jurisdiction under Section 482, the Court does not
adjudicate upon the veracity of the facts alleged or
enter into an appreciation of competing evidence
presented. The limited question is whether on the
face of the FIR, the allegations constitute a
cognizable offence. As this Court noted in
Dhruvaram Murlidhar Sonar v. State of
Maharashtras, (Dhruvaram Sonar) : (SCC para
13)
"13. It is clear that for quashing the
proceedings, meticulous analysis of factum of
taking cognizance of an offence by the Magistrate
is not called for. Appreciation of evidence is also
not permissible in exercise of inherent powers. If
the allegations set out in the complaint do not
constitute the offence of which cognizance has
been taken, it is open to the High Court to quash
the same in exercise of its inherent powers."
9. The present proceedings concern an FIR
registered against the appellant under Sections
376, 417, 504 and 506(2) IPC and Sections 3 (1)
(u), (w) and 3(2)(vii) of the SC/ST Act. Section
376 IPC prescribes the punishment for the offence
of rape which is set out in Section 375. Section
375 prescribes seven descriptions of how the
offence of rape may be committed. For the
present purposes only the second such
description, along with Section 90 IPC is relevant
and is set out below:
"375. Rape.-A man is said to commit
"rape" if he-
under the circumstances falling under any
of the following seven descriptions-
communication, communicates willingness
to participate in the specific sexual act:
Provided that a woman who does not
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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"
10. Where a woman does not "consent" to
the sexual acts described in the main body of
Section 375, the offence of rape has occurred.
While Section 90 does not define the term
"consent", a "consent" based on a "misconception
of fact" is not consent in the eye of the law."
11. The primary contention advanced by the
learned counsel appearing for opposite party no. 2 that the
petitioner engaged in sexual relation with opposite party no. 2
on the false promise of marrying her and, therefore, her
consent being premised on "misconception of fact" (the
promise to marry), stands vitiated.
12. At this juncture, it would be apposite to
reproduce para nos. 12 and 18 of the Pramod Suryabhan
Pawar Case (supra), which reads 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
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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. 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."
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
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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.
13. In background of aforesaid legal proposition,
now coming to the fact of the present case, it appears that the
petitioner was acquainted with opposite party no. 2 since
2014. It appears that on first occasion this petitioner
established forcible relation with opposite party no. 2 on
06.09.2020
, whereafter opposite party no. 2 was threatened
by him that if she would disclose the incidence to her parents,
they would be killed. She also supplied reason to maintain her
silence was false promise of marriage. It appears highly
contrasting to co-exist both "threat to kill parents" and the
"false promise" of marriage. It appears that the opposite
party no. 2 continued in relation with petitioner since long
three years thereafter it was finally refused to marry by
petitioner on 23.05.2023 and after so she lodged the present
FIR on 21.06.2023. It also appears from the FIR that the
Patna High Court CR. MISC. No.5695 of 2024 dt.27-02-2025
petitioner was posted in Gaya, where out of her own opposite
party no. 2 visited and resided together in a hotel of
Bodhgaya, where she also claimed to establish physical
relation with petitioner.
14. Interestingly, it appears from complaint case
no. 1786 of 2023, which was filed on 13.10.2021 before the
learned C.J.M., Muzaffarpur that opposite party no. 2 married
with petitioner on 13.10.2021, in Patandevi Temple, Patna,
making prima facie all allegation of rape false subsequently.
15. In view of aforesaid factual and legal
discussions and by taking note of fact as opposite party no. 2
claimed herself to marry petitioner long back in year 2021
before lodging this FIR in year 2023, where in FIR she
narrated a completely different story that petitioner refused to
marry her due to non-fulfillment of demand of dowry as raised
by his parents, the narration of FIR not appears convincing as
to disclosing the offence of rape as discussed above.
16. Accordingly, impugned order of cognizance
dated 09.10.2023 passed by learned Chief Judicial
Magistrate, Muzaffarpur in connection with Ahiyarpur P.S.
Patna High Court CR. MISC. No.5695 of 2024 dt.27-02-2025
Case No. 774/2023 is hereby set aside and quashed qua
petitioner with all its consequential proceedings.
17. Let copy of this order be sent to the trial court,
without delay.
(Chandra Shekhar Jha, J)
veena/-
AFR/NAFR AFR
CAV DATE NA
Uploading Date 28.02.2025
Transmission Date 28.02.2025
