Between vs State (Nct Of Delhi)
2023 Latest Caselaw 1225 UK

 IN THE HIGH COURT OF UTTARAKHAND
                         AT NAINITAL
              ON THE 3RD DAY OF MAY, 2023
                               BEFORE:
       HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


CRIMINAL MISC. APPLICATION (C482) No. 1688 of 2017

BETWEEN:

Deepak Pandey.                                               ...Applicant
       (By Mr. Aditya Singh, Advocate)


AND:

State of Uttarakhand & another.                          ...Respondents
       (By Mr. Sachin Panwar, Brief Holder for the State of Uttarakhand/
       respondent no.1 and Mr. Ayush Agarwal, Advocate, holding brief of Mr.
       Akhil Kumar Sah, Advocate for respondent no. 2.)



                              JUDGMENT

Applicant has challenged the charge-sheet dated 07.03.2017 filed against him under Section 323, 376, 504 & 506 I.P.C., summoning order dated 10.07.2017 passed by learned Additional Chief Judicial Magistrate, Haldwani, District Nainital and also the proceedings pending against him before learned Additional Chief Judicial Magistrate, Haldwani, District Nainital in connection with Criminal Case No.2918 of 2017.

2. The F.I.R. was lodged by respondent no. 2 against the applicant at Police Station Mahilla Thana, Almora on 17.10.2016 under Section 323, 376, 504 & 506 I.P.C. As per the F.I.R., her marriage was solemnized with some other person in Ranikhet in 2006 and she has a four year old son, out of the said

wedlock; her husband used to harass and beat her and, in the month of August, 2012, she met the applicant who promised that he will marry her and keep her happy; she told him that she is married and has not been divorced, but applicant told her that his father is a lawyer, who will help her in getting divorce from her husband. It is further stated that since she was destitute and was legally ignorant, therefore, she went with the applicant to his parental home at Almora, where she stayed for two days and, thereafter, she went to Haldwani together with applicant, where he took house on rent and they started living together and her son was also got admitted in a School; in the year 2012, around Deepawali, applicant made physical relation with her without her consent and, thereafter he continued to make physical relations without her consent for next four years. It is further stated that after four years, when she asked applicant that much time has passed and when will they get married, then applicant became furious and said that what is the need of marriage and they can continue to live like this only and when she protested, then applicant physically assaulted her and hurled abuses at her and told that if she again asks for marriage, then he will do away her life; when she complained about the matter to the parents of applicant, then they told her that it is her matter and they are not concerned with that and they will not let her in their house.

3. Upon investigation, Investigating Officer filed charge-sheet against the applicant under Section 323, 376, 504 & 506 I.P.C. Learned Magistrate took cognizance in the matter on 10.07.2017 and summoned

the applicant. Thus, feeling aggrieved, applicant has approached this Court.

4. Learned counsel for the applicant contends that allegations made in the F.I.R., if taken on face value, indicate that relationship between applicant and respondent no. 2 was consensual and they happily lived together for more than four years, therefore, offence under Section 376 I.P.C. is not made out. He further contends that there is no allegation in the F.I.R. that the consent given by complainant was under fear or misconception. He further contends that respondent no. 2 was a married lady, therefore, applicant could not have married her unless she obtained a decree of divorce from a competent court of law. Thus, according to him, it is not a case of false promise and, in fact, it is a case of breach of promise, due to intervening circumstances beyond the control of the applicant.

5. This Court finds substance in the submission made by learned counsel for the applicant. Respondent no. 2 was a married woman with a school going son. She was mature enough to understand the significance and the consequences of the moral or immoral quality of act, she was consenting to. She lived with the applicant for more than four years and established intimate relations with the applicant, all through that period. She was aware that applicant cannot marry her till she gets divorce from her first husband, yet she became consenting partner to the sexual act of the applicant.

6.        Learned        State       Counsel    contended          that
respondent     no.   2    had    given    consent     for    sexual
relationship   under     the     misconception       of    fact,    as

applicant had given a false promise to marry her, but subsequently, he did not marry, therefore, such consent is no consent in the eyes of law and the case fell under the Clause-Secondly of Section 375 I.P.C. This aspect has been dealt with by Hon'ble Supreme Court in the case of Naim Ahamed Vs. State (NCT of Delhi), reported in 2023 SCC On Line SC 89. Paragraph nos. 20 & 21 of the said judgment are reproduced below:

"20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause - Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be a folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court.

21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as 'rape' by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the

consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr. P.C. had stated that she had filed the complaint as he refused to fulfill her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC."

7. As held by Hon'ble Supreme Court in the case of Naim Ahamed (Supra), there is a difference between giving a false promise and committing breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all

seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. Thus, viewed, it would be unwise to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376.

8. In the present case, respondent no. 2 was under a legal incapacity to marry till her marriage with first husband was dissolved. The allegation against the applicant is that he was refusing to marry her, although he had promised to marry. Respondent no. 2 herself was aware that without getting divorce from first husband, she cannot marry another man, as is admitted by her in the F.I.R. Therefore, this Court is of the considered opinion that this is not a case of false promise made by applicant to marry respondent no. 2, but it is a case of breach of promise, as held by Hon'ble Supreme Court in the case of Naim Ahamed (Supra).

9. In the case of Shambhu Kharwar Vs. State of Uttar Pradesh and another, reported in 2022 SCC On Line SC 1032, Hon'ble Supreme Court, while dealing with a similar question, also considered the scope of powers under Section 482 Cr.P.C. Paragraph nos. 9 to 14 of the said judgment are reproduced below: "9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra, a two Judge Bench of this Court while dealing with similar facts as the present case reiterated the parameters laid down in Bhajan Lal (supra) held that:

"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."

(emphasis supplied)

10. An offence is punishable under Section 376 of the IPC if the offence of rape is established in terms of Section 375 which sets out the ingredients of the offence. In the present case, the second description of Section 375 along with Section 90 of the IPC is relevant which 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 Firstly ...

Secondly. - Without her consent.

[...] 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. 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..."

11. In Pramod Suryabhan Pawar v. State of Maharashtra, a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh, observed that:

"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... [...]

14. [...] 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... [...]

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...

[...]

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.

(emphasis supplied)

12. In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.

13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent.

14. The High Court, in the course of its judgment, has merely observed that the dispute raises a question of fact which cannot be considered in an application under Section 482 of CrPC. As demonstrated in the above analysis, the facts as they stand, which are not in dispute, would indicate that the ingredients of the offence under Section 376 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of CrPC on a completely misconceived basis."

10. In the present case also, in the F.I.R. and the charge-sheet, essential ingredients of an offence under Section 376 IPC are missing. There is nothing to indicate that the applicant had given a promise to the respondent no.2 to marry, which at the inception was false and, on the basis of which, the respondent no. 2 was induced into a sexual relationship. There is nothing to indicate in the F.I.R. or charge-sheet that promise made by applicant to second respondent was false from very inception. Taking the allegations in the FIR as they stand, the crucial ingredients of the offence under Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature. Thus, in view of the law laid down by Hon'ble Supreme Court, this Court has no hesitation in quashing the charge- sheet dated 07.03.2017, summoning order dated 10.07.2017 passed by Additional Chief Judicial Magistrate, Haldwani, District Nainital in Criminal Case No.2918 of 2017 and also the entire proceedings of Criminal Case No.2918 of 2017 pending against the applicant in the Court of Additional Chief Judicial Magistrate, Haldwani, District Nainital under Section 323, 376, 504 & 506 I.P.C.

11. Accordingly, this criminal miscellaneous application under Section 482 Cr.P.C. is allowed. Impugned charge sheet dated 07.03.2017, summoning order dated 10.07.2017 as well as entire proceedings of Criminal Case No. 2918 of 2017, pending in the Court of Additional Chief Judicial Magistrate, Haldwani, District Naintial, are hereby quashed.

(MANOJ KUMAR TIWARI, J.) Arpan