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Patna High Court
Mithlesh Kumar vs The State Of Bihar on 12 May, 2026
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.82945 of 2023
Arising out of PS. Case No.-33 Year-2021 Thana- MAHILA THANA District- Begusarai
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Mithlesh Kumar Son of Arbind Poddar @ Pravin Poddar R/o Village- Taraiya,
P.S.- Muffasil, Dist.- Begusarai
... ... Petitioner/s
Versus
1. The State of Bihar Patna
2. Pinki Kumari Wife of Janardan Singh R/o Village- Teghra, P.S.- Teghra,
Dist.- Begusarai At Present Residing at Village- Pokhariya, P.S.- Nagar,
Dist.- Begusarai
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Ashok Kumar Jha, Advocate
For the Opposite Party/s : Mr. Braj Kishore Pd.(APP)
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CORAM: HONOURABLE MR. JUSTICE ANSUL
ORAL JUDGMENT
Date : 12-05-2026
Heard learned counsel for the petitioner, learned counsel
for the Informant and learned Additional Public Prosecutor for the
State.
2. Petitioner seeks quashing of the order of cognizance
dated 05.09.2023 passed by learned Sub-divisional Judicial
Magistrate, Begusarai in connection with Mahila P.S. Case No. 33
of 2021 for the offences under Sections 323, 326, 498, 504 and
379/34 IPC.
3. The allegation as per the F.I.R is that the petitioner
claiming himself to be a Government staff came to her beauty
clinic, thereafter, he raped her and then his brother Amit Kumar
Patna High Court CR. MISC. No.82945 of 2023 dt.12-05-2026
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shot a video. She did not tell anybody due to fear. On 09.12.2019,
he called to a particular place and forcibly married her. She also
alleges that he asked her to sign a stamp paper. He got her
signature on stamp paper and thereafter started demanding money
and jewellery. On 09.06.2021, he kept her at his home but
thereafter all the family members started assaulting and torturing
her. The case was finally lodged under Sections 323, 326, 498, 504
and 379/34.
4. Learned counsel for the informant alleges that the
informatory petition would show that the petitioner admits the
relationship with the informant, however, he exploited her
physically and economically and left her high and dry.
5. Learned Additional Public Prosecutor for the State has
vehemently opposed the quashing of the order dated 05.09.2023.
6. The perusal of the F.I.R on records would show that a
lady aged about 30 years entered into consensual relationship with
a person. This may be illicit but it cannot be termed as illegal in
terms of the judgment rendered in the case of Sonu alias Subhash
Kumar vs. State of Uttar Pradesh and Anr. reported in (2021)
18 SCC 517 and in the case of Pramod Suryabhan Pawar vs.
State of Maharashtra and Anr. reported in (2019) 9 SCC 608.
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The relevant paras 16 and 18 of the aforesaid case of Pramod
Suryabhan Pawar are as under:-
"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 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.
***
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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
intended to marry her [Ed. : The matter
between two asterisks has been emphasised in
original.] ."
(emphasis supplied)
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."
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7. In view of such, the order of cognizance dated
05.09.2023
passed by learned Sub-divisional Judicial Magistrate,
Begusarai in connection with Mahila P.S. Case No. 33 of 2021 (Tr.
No. 68 of 2023) for the offences under Sections 323, 326, 498, 504
and 379/34 IPC is quashed so far as the petitioner is concerned.
(Ansul, J)
Vikash/-
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