Rajasthan High Court - Jodhpur
Jitendra Kumar Meena vs State Of Rajasthan on 20 July, 2022
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 2057/2018
Jitendra Kumar Meena S/o Shri Shankar Lal, Aged About 33
Years, B/c Meena, R/o Vill. Kharbar, Teh. Sarada
----Petitioner
Versus
1. State Of Rajasthan, Through Station House Officer, P.s.
Kherwara
2. Shanta Kumari Kharadi D/o Shri Bhoma Kharadi, Aged
About 29 Years, B/c Meena, R/o Vill. Dabayacha, Teh.
Kherwara, Presently Working As Teacher, Govt. Sr. Sec.
School, Bilakh, Teh. Rishabhdev,
----Respondents
Connected With
S.B. Criminal Misc(Pet.) No. 2608/2018
Shanti D/o Homa Ji Kharadi, Aged About 29 Years, Dabaycha
Pahada Distt. Udaipur
----Petitioner
Versus
1. State Of Rajasthan, Through Pp
2. Jitendra Kumar S/o Shankar Lal, B/c Meena , 1 Kharbar A
Sarada Udaipur
----Respondents
For Petitioner(s) : Mr. Shambhoo Singh
Mr. Hitendra Singh
For Respondent(s) : Mr. Arun Kumar, PP
Mr. Jitendra Ojha
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reportable
20/07/2022
In S.B. Criminal Misc(Pet.) No. 2057/2018:-
Learned counsel for the petitioner submits that the incident
is of the year 2005-06 when the prosecutrix was studying in 12 th
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class at Udaipur and she came into contact with the present
petitioner. The prosecutrix submitted that she and the present
petitioner belonged to the same caste and when she asked the
petitioner to marry her, to which he refused, but they continued to
live together. As per prosecutrix, the petitioner raped her from
2005-06 to 2017 and in these 11 years, she got pregnant several
times, but resorted to choosing to get abortions done. The
prosecutrix alleges that she was exploited by the present
petitioner, who allegedly had been promising marriage for 12
years.
Learned counsel for the petitioner has relied upon the
judgment rendered by Hon'ble Apex Court in State of Haryana &
Ors. Vs. Ch.Bhajan Lal & Ors., 1992 Supp.(1) SCC 335. The
relevant part of the above mentioned judgment reads as under :-
"105. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extra-ordinary power under Article 226 or the inherent
powers Under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any Court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
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 F.I.R. do
not disclose a cognizable offence, justifying an
investigation by police officers Under Section 156(1) of
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the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute
a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated Under Section 155(2) of the Code.
5. Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
6. Where there is an express legal bar engrafted in any
of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
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.""
Learned Public Prosecutor and learned counsel for the
respondent oppose the petition, but are unable to refute the
aforesaid factual matrix.
Heard learned counsel for the parties and perused the record
of the case.
This Court takes into consideration the following judgments
as rendered by the Hon'ble Apex Court;
Uday v. State of Karnataka (2003) 4 SCC 46, relevant
portion of which reads as under:
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"It, therefore, appears that the consensus of judicial opinion is in
favour of the view that the consent given by the prosecutrix to
sexual intercourse with a person with whom she is deeply in love
on a promise that he would marry her on a later date, cannot be
said to be given under a misconception of fact. false promise is
not a fact within the meaning of the Code. We are inclined to
agree with this view, but we must add that there is no strait
jacket formula for determining whether consent given by the
prosecutrix to sexual intercourse is voluntary, or whether it is
given under a misconception of fact. In the ultimate analysis, the
tests laid down by the Courts provide at best guidance to the
judicial mind while considering a question of consent, but the
Court must, in each case, consider the evidence before it and the
surrounding circumstances, before reaching a conclusion, because
each case has its own peculiar facts which may have a bearing on
the question whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh the evidence
keeping in view the fact that the burden is on the prosecution to
prove each and every ingredient of the offence, absence of
consent being one of them."
Pradeep Kumar Verma vs. State of Bihar & Anr. AIR 2007
SC 3059, wherein while taking into consideration the decision in
Uday vs. State of Karnataka (supra), it was held as under:
"On the specific question whether the consent obtained
on the basis of promise to marry which was not acted upon,
could be regarded as consent for the purpose of Section 375
IPC, was dealt with by a Division Bench of the Calcutta High
Court in Jayanti Rani Panda v. State of WB (1984 Cr.L.J.
1535). The relevant passage in this case has been cited in
several other decisions. This is one of the cases referred to
by this Court in Uday's case (supra) approvingly. Without
going into the details of that case, the crux of the case can
be discerned from the following summary given at para 7:
"Here the allegation of the complainant is that the accused
used to visit her house and proposed to marry her. She
consented to have sexual intercourse with the accused on a
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belief that the accused would really marry her. But one thing
that strikes us is ... why should she keep it a secret from her
parents if really she had belief in that promise. Assuming that
she had believed the accused when he held out a promise, if
he did at all, there is no evidence that at that time the
accused had no intention of keeping that promise. It may be
that subsequently when the girl conceived the accused might
have felt otherwise. But even then the case in the petition of
complainant is that the accused did not till then back out.
Therefore it cannot be said that till then the accused had no
intention of marrying the complainant even if he had held out
any promise at all as alleged." The discussion that follows the
above passage is important and is extracted hereunder: "The
failure to keep the promise at a future uncertain date due to
reasons not very clear on the evidence does not always
amount to a misconception of fact at the inception of the act
itself. In order to come within the meaning of misconception
of fact, the fact must have an immediate relevance. The
matter would have been different if the consent was obtained
by creating a belief that they were already married. In such a
case the consent could be said to result from a misconception
of fact. But here the fact alleged is a promise to marry we do
not know when. If a full-grown girl consents to the act of
sexual intercourse on a promise of marriage and continues to
indulge in such activity until she becomes pregnant it is an
act of promiscuity on her part and not an act induced by
misconception of fact. Section 90 IPC cannot be called in aid
in such a case to pardon the act of the girl and fasten
criminal liability on the other, unless the court can be assured
that from the very inception the accused never really
intended to marry her." (Emphasis supplied) The learned
Judges referred to the decision of the Chancery Court in
Edgington v. Fitzmaurice (1885 (29) Ch.D.459) and observed
: "This decision lays down that a misstatement of the
intention of the defendant in doing a particular act may be a
misstatement of fact, and if the plaintiff was misled by it, an
action of deceit may be founded on it. The particular
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observation at p. 483 runs to the following effect: There must
be a misstatement of an existing fact. Therefore, in order to
amount to a misstatement of fact the existing state of things
and a misstatement as to that becomes relevant. In the
absence of such evidence Section 90 cannot be called in aid
in support of the contention that the consent of the
complainant was obtained on a misconception of fact." After
referring to the case-law on the subject, it was observed in
Uday's case (supra): "It therefore appears that the
consensus of judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual intercourse with a
person with whom she is deeply in love on a promise that he
would marry her on a later date, cannot be said to be given
under a misconception of fact. A false promise is not a fact
within the meaning of the Code. We are inclined to agree
with this view, but we must add that there is no straitjacket
formula for determining whether consent given by the
prosecutrix to sexual intercourse is voluntary, or whether it is
given under a misconception of fact. In the ultimate analysis,
the tests laid down by the courts provide at best guidance to
the judicial mind while considering a question of consent, but
the court must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar facts
which may have a bearing on the question whether the
consent was voluntary, or was given under a misconception
of fact. It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent being one
of them."
The first two sentences in the above passage need some
explanation. While we reiterate that a promise to marry without
anything more will not give rise to misconception of fact within the
meaning of Section 90, it needs to be clarified that a
representation deliberately made by the accused with a view to
elicit the assent of the victim without having the intention or
inclination to marry her, will vitiate the consent. If on the facts it is
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established that at the very inception of the making of promise,
the accused did not really entertain the intention of marrying her
and the promise to marry held out by him was a mere hoax, the
consent ostensibly given by the victim will be of no avail to the
accused to exculpate him from the ambit of Section 375 clause
second. This is what in fact was stressed by the Division Bench of
the Calcutta High Court in the case of Jayanti Rani Panda's case
(supra) which was approvingly referred to in Uday's case (supra).
The Calcutta High Court rightly qualified the proposition which it
stated earlier by adding the qualification at the end - unless the
court can be assured that from the very inception the accused
never really intended to marry her. (emphasis supplied). In the
next para, the High Court referred to the vintage decision of the
Chancery Court which laid down that a misstatement of the
intention of the defendant in doing a particular act would
tantamount to a misstatement of fact and an action of deceit can
be founded on it. This is also the view taken by the Division Bench
of the Madras High Court in Jaladu case (vide passage quoted
supra). By making the solitary observation that a false promise is
not a fact within the meaning of the Code, it cannot be said that
this Court has laid down the law differently. The observations
following the aforesaid sentence are also equally important. The
Court was cautious enough to add a qualification that no
straitjacket formula could be evolved for determining whether the
consent was given under a misconception of fact. Reading the
judgment in Uday's case as a whole, we do not understand the
Court laying down a broad proposition that a promise to marry
could never amount to a misconception of fact. That is not, in our
understanding, the ratio of the decision. In fact, there was a
specific finding in that case that initially the accused's intention to
marry cannot be ruled out."
Deepak Gulati vs. State of Haryana AIR 2013 SC 2071,
wherein while considering the question whether the action of
developing physical relation while making promise to marry and
later on not fulfilling the said promise would amount to rape or
not, it was held as under:
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From all the above material available on record, it is
clear that there is no iota of evidence available on record to
suggest that the petitioner had no intention to marry
respondent No.2 since beginning and made a false promise
of marrying her only with the intention to satisfy his lust. If
the petitioner had no intention to marry with the respondent
No.2 since beginning, there was no occasion for him to
bring her to his house for Christmas's preparation and to
ask his parents to visit residents of parents of respondent
No.2 at Jaipur to fix his marriage with respondent No.2. As
stated earlier, respondent No.2, her brother, parents and
other relatives have stated in their statements before the
police that the petitioner and his parents did visit their
house to fix the marriage of the petitioner and the
respondent No.2 and date for their marriage was also fixed.
26.Admittedly, the respondent No.2 had never raised
any grievance before any person at any stage and for
the first time filed the complaint against the petitioner
in September, 2014 i.e. after 17 months when the
petitioner had refused the marry her in April, 2013. It is
also to be noticed that the respondent No.2 has not
informed her parents and brother about her pregnancy,
which was terminated in the month of October, 2012.
In their statements recorded under section 161 CrPC,
the parents and brother of the respondent No.2 have
not mentioned that respondent no.2 has ever informed
them about her pregnancy in October, 2012.
27.In the light of the above facts and circumstances of
the present case, it cannot be said that the petitioner
had no intention to marry the respondent No.2 from
beginning or the petitioner had any intention to deceive
her from very beginning. The respondent No.2 was 26
years of age at the time of incident. She was in love
with the petitioner and both of them promised to marry
each other. Even the respondent No.2 has informed her
brother and parents that she is in love with the
petitioner and wants to marry him. Looking from all
these angles, it cannot be said that the petitioner had
no intention to marry the respondent No.2 since
beginning and developed physical relation with her
while making a false promise of marriage only with
intention to satisfy his lust.
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28. It appears that the petitioner and the respondent No.2
were in deep love, and their love translated into physical
relation. Their parents agreed to the marriage of them but
later on, due to some disputes between the petitioner, his
mother and respondent No.2, the marriage could not be
materialized and then the petitioner decided to marry with
some another girl in September, 2014. When the respondent
No.2 came to know about the same, she filed the criminal
complaint against the petitioner out of vengeance. Looking
to overall facts and circumstances as noted above, I have no
hesitation in holding that no offence under section 376 IPC is
made out against the petitioner. So far as offence
punishable under section 420 IPC is concerned, when this
Court has already come to the conclusion that the petitioner
did not make any false promise to marry the respondent
No.2, no case of cheating is made out against the petitioner.
Prashant Bharti Vs. State of NCT of Delhi, reported in AIR
2013 SC 2753, relevant portion of which reads as under:-
"The proposition of law, pertaining to quashing of
criminal proceedings, initiated against an accused by a
High Court under Section 482 of the Code of Criminal
Procedure (hereinafter referred to as "the Code of
Criminal Procedure") has been dealt with by this Court
in Rajiv Thapar and Ors. v. Madan Lal Kapoor (Criminal
Appeal No... of 2013, arising out of SLP (Crl.) No. 4883
of 2008, decided on 23.1.2013) wherein this Court inter
alia held as under:
"22. The issue being examined in the instant case
is the jurisdiction of the High Court under Section
482 of the Code of Criminal Procedure, if it chooses
to quash the initiation of the prosecution against
an accused, at the stage of issuing process, or at
the stage of committal, or even at the stage of
framing of charges. These are all stages before the
commencement of the actual trial. The same
parameters would naturally be available for later
stages as well. The power vested in the High Court
under Section 482 of the Code of Criminal
Procedure, at the stages referred to hereinabove,
would have far reaching consequences, inasmuch
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as, it would negate the prosecution's/complainant's
case without allowing the prosecution/complainant
to lead evidence. Such a determination must
always be rendered with caution, care and
circumspection. To invoke its inherent jurisdiction
under Section 482 of the Code of Criminal
Procedure the High Court has to be fully satisfied,
that the material produced by the accused is such,
that would lead to the conclusion, that his/their
defence is based on sound, reasonable, and
indubitable facts; the material produced is such, as
would rule out and displace the assertions
contained in the charges levelled against the
accused; and the material produced is such, as
would clearly reject and overrule the veracity of
the allegations contained in the accusations
levelled by the prosecution/complainant. It should
be sufficient to rule out, reject and discard the
accusations levelled by the
prosecution/complainant, without the necessity of
recording any evidence. For this the material relied
upon by the defence should not have been refuted,
or alternatively, cannot be justifiably refuted, being
material of sterling and impeccable quality. The
material relied upon by the accused should be
such, as would persuade a reasonable person to
dismiss and condemn the actual basis of the
accusations as false. In such a situation, the
judicial conscience of the High Court would
persuade it to exercise its power under Section 482
of the Code of Criminal Procedure to quash such
criminal proceedings, for that would prevent abuse
of process of the court, and secure the ends of
justice.
23 Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps
to determine the veracity of a prayer for quashing,
raised by an accused by invoking the power vested
in the High Court under Section 482 of the Code of
Criminal Procedure:
(i) Step one, whether the material relied upon by
the accused is sound, reasonable, and indubitable,
i.e., the material is of sterling and impeccable
quality?
(ii) Step two, whether the material relied upon by
the accused, would rule out the assertions
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contained in the charges levelled against the
accused, i.e., the material is sufficient to reject and
overrule the factual assertions contained in the
complaint, i.e., the material is such, as would
persuade a reasonable person to dismiss and
condemn the factual basis of the accusations as
false.
(iii) Step three, whether the material relied upon
by the accused, has not been refuted by the
prosecution/complainant; and/or the material is
such, that it cannot be justifiably refuted by the
prosecution/complainant?
(iv) Step four, whether proceeding with the trial
would result in an abuse of process of the court,
and would not serve the ends of justice?
If the answer to all the steps is in the affirmative,
judicial conscience of the High Court should
persuade it to quash such criminal-proceedings, in
exercise of power vested in it under Section 482 of
the Code of Criminal Procedure. Such exercise of
power, besides doing justice to the accused, would
save precious court time, which would otherwise be
wasted in holding such a trial (as well as,
proceedings arising therefrom) specially when, it is
clear that the same would not conclude in the
conviction of the accused."
Anup K. Paul Vs. State of Rajathan & Anr., reported in
2016(1) RCC (Raj.) 5, relevant portion of which reads as under:
"There is no doubt that the Court should be very careful
while exercising the powers under section 482 CrPC
particularly in the matters of quashing of criminal
complaints.
10. The Hon'ble Supreme Court in plethora of
judgments has laid down the guidelines with regard to
exercise of jurisdiction by the High Courts under
section 482 CrPC. In State of Haryana v. Bhajan Lal
1992 Supp(1) SCC 335, the Hon'ble Supreme Court
has listed the categories of cases when the power
under section 482 CrPC can be exercised by the High
Courts. The law laid down by the Hon'ble Supreme
Court in State of Haryana v. Bhajan Lal (supra)
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has later on followed in various decisions. To
mention a few -- Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre, (1988) 1 SCC
692; State of Haryana v. Bhajan Lal,1992 Supp
(1) SCC 335; Rupan Deol Bajaj v. Kanwar Pal
Singh Gill (1995) 6 SCC 194; Central Bureau of
Investigation v. Duncans Agro Industries Ltd
(1996) 5 SCC 591; State of Bihar v. Rajendra
Agrawalla (1996) 8 SCC 164, Rajesh Bajaj v.
State NCT of Delhi,(1999) 3 SCC 259; Medchl
Chemicals & Pharma (P) Ltd. v. Biological E.
Ltd(2000) 3 SCC 269 Hridaya Ranjan Prasad
Verma v. State of Bihar (2000) 4 SCC 168, M.
Krishnan v. Vijay Singh (2001) 8 SCC 645 and
Zandu Pharmaceutical Works Ltd. v. Mohd.
Sharaful Haque (2005) 1 SCC 122. The principles
relevant are as under:
"(i) A complaint can be quashed where the
allegations made in 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 the case alleged against the accused.
For this purpose, the complaint has to be
examined as a whole, but without examining the
merits of the allegations. Neither a detailed inquiry
nor a meticulous analysis of the material nor an
assessment of the reliability or genuineness of the
allegations in the complaint, is warranted while
examining prayer for quashing of a complaint.
(ii) A complaint may also be quashed where it is a
clear abuse of the process of the court, as when
the criminal proceeding is found to have been
initiated with mala fides/malice for wreaking
vengeance or to cause harm, or where the
allegations are absurd and inherently improbable.
(iii) The power to quash shall not, however, be
used to stifle or scuttle a legitimate prosecution.
The power should be used sparingly and with
abundant caution.
(iv) The complaint is not required to verbatim
reproduce the legal ingredients of the offence
alleged. If the necessary factual foundation is laid
in the complaint, merely on the ground that a few
ingredients have not been stated in detail, the
proceedings should not be quashed. Quashing of
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the complaint is warranted only where the
complaint is so bereft of even the basic facts
which are absolutely necessary for making out the
offence.
(v) A given set of facts may make out:
(a) purely a civil wrong; or
(b) purely a criminal offence; or
(c) a civil wrong as also a criminal offence.
A commercial transaction or a contractual dispute,
apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal
offence. As the nature and scope of a civil
proceeding are different from a criminal
proceeding, the mere fact that the complaint
relates to a commercial transaction or breach of
contract, for which a civil remedy is available or
has been availed, is not by itself a ground to
quash the criminal proceedings. The test is
whether the allegations in the complaint disclose a
criminal offence or not."
2.3 Pramod Suryabhan Pawar Vs. State of Maharashtra
and Anr. reported in (2019) 3 SCC (Cri.) 903, relevant
portion of which reads as under: -
"The allegations in the FIR do not on their face indicate that the
promise by the appellant was false, or that the complainant
engaged in sexual relations on the basis of this promise. There is
no allegation in the FIR that when the appellant promised to
marry the complainant, it was done in bad faith or with the
intention to deceive her. The appellant's failure in 2016 to fulfil
his promise made in 2008 cannot be construed to mean the
promise itself was false. The allegations in the FIR indicate that
the complainant was aware that there existed obstacles to
marrying the appellant since 2008, and that she and the appellant
continued to engage in sexual relations long after their getting
married had become a disputed matter. Even thereafter, the
complainant travelled to visit and reside with the appellant at his
postings and allowed him to spend his weekends at her residence.
The allegations in the FIR belie the case that she was deceived by
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the appellant's promise of marriage. Therefore, even if the facts
set out in the complainant's statements are accepted in totality,
no offence under Section 375 of the IPC has occurred".
This Court also keeps into consideration the following
judgments rendered by the Hon'ble Court in;
Baldev Gora v. State of Rajasthan (CRLMP
1106/2016 decided by this Court on 06-09-2017), the
relevant part of the judgment reads as under: -
After hearing the learned counsel for the parties
as well as perusing the record of the case
alongwith the precedent laws cited at the Bar, this
Court is of the opinion that on a bare reading of
the FIR, it is clear that the petitioner and the
complainant were in a relationship, which was
consensual in nature, and the said consent could
not have been given in fear or injury or
misconception, as long time has elapsed since
such relationship began. The birth of the son,
namely, Tejas out of the relationship admittedly in
the year 2013 also reflects continuance of the
relationship between the parties.
It is also clear from the record shown that the
complainant was aware of the earlier marriage of the
petitioner, and had accepted the relationship as it was,
and therefore, the long term relationship resulted into
the dispute when the petitioner refused to give his
name in the Obituary of the mother of the complainant,
as husband of the complainant.
The case law discussed in the case of Prashant
Bharti Vs. State of NCT of Delhi (supra) and
Anup K. Paul Vs. State of Rajathan & Anr.
(supra) is absolutely applicable in the present
case and the arguments raised by learned counsel
for the respondent regarding Section 114A of the
Evidence Act as well as Section 376 IPC are met in
the later judgmentA
18. The continuance of the consensual relationship
for more than nine years and a son being born out
of the same reflect that no offence like the one
under Section 376 IPC could have been
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constituted. It is apparent that the complainant
herself was maintaining the relationship with the
present petitioner. The ingredients of Section 375
IPC, which defines the term 'Rape' reads as under:
-
"[375. Rape. --A man is said to commit "rape"
if he--
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions: --
First. --Against her will.
Secondly. --Without her consent.
Thirdly. --With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt, Fourthly. --With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly. --With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to (Downloaded on 26/12/2022 at 08:13:50 AM) (16 of 19) [CRLMP-2057/2018] understand the nature and consequences of that to which she gives consent.
Sixthly. --With or without her consent, when she is under eighteen years of age.
Seventhly. --When she is unable to communicate consent.
Explanation 1. --For the purposes of this section, "vagina" shall also include labia majora. 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.
Exception 1. --A medical procedure or intervention shall not constitute rape.
Exception 2. --Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape." The afore- quoted definition does not constitute any such offence in the present case, as the relationship with consent of the parties does not fall within the ambit of the seven conditions reflected in the aforesaid definition of the term 'Rape'. Radhakrishan Meena v. State of Rajasthan CRLMP 4952/2020 decided on 23-02-2022. the relevant part of the above-mentioned judgment reads as under: -
18......... "In the considered view of this court, a breach of 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 words at the time of giving it. The consent of a woman under Section 375 of IPC can be held vitiated only on the ground of misconception of fact where such misconception was the basis of her surrender for establishing physical relationship. Likewise, prima facie there is no evidence to substantiate the allegations (Downloaded on 26/12/2022 at 08:13:50 AM) (17 of 19) [CRLMP-2057/2018] regarding the offence under Sections 418 and 506 IPC in view of observations made herein above".
The Hon'ble Apex court has dealt with the proposition of law pertaining to quashing of FIR/complaint/all criminal proceedings initiated against an accused by High Court under Section 482 Cr.P.C. in catena of judgments. Particularly, in the case of Prashant Bharti v. State of NCT of Delhi, reported in AIR 2013 SC 2753, Hon'ble the Supreme Court has held as under:
23. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Code of Criminal Procedure: (i) Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality? (ii) Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false. (iii) Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant? (iv) Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal-proceedings, in exercise of power vested in it under Section 482 of the Code of Criminal Procedure. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.
In view of overall discussions and observations made herein above and guided by the principles laid down in Prashant Bharti v. State of NCT of Delhi (supra) and State of Haryana and Ors. Vs. Ch. Bhajan Lal and Ors. (supra), I am of this firm view that the present is a fit case which falls within the parameters laid down by Hon'ble the Supreme Court. Therefore, this court deems it appropriate to allow the criminal misc. (Downloaded on 26/12/2022 at 08:13:50 AM)
(18 of 19) [CRLMP-2057/2018] petitions and to quash the proceedings that arose out of the FIR impugned.
The proposition of law thus is a settled position, and has been retierated an umpteen number of times by the Hon'ble Apex Court in a catena of judgments, as above mentioned, the most recent one being Mandar Deepak Pawar Vs. State of Maharashtra and Anr. Criminal Appeal no. 442/2022, wherein the Hon'ble Apex Court observed that there is a distinction between a false promise to marriage and a breach of promise which is made in good faith but subsequently not fulfilled; the same has also been consistently followed by this Hon'ble Court after taking into due consideration of the overall facts and circumstances of each case.
Now adverting to the facts and circumstances of the present case, this Court finds that the allegation is that from 2005-06 to 2017 on the pretext of promise to marry, the sexual exploitation of prosecutrix was done and nothing on record to show any kind of brutality or any kind of mal-intention on the part of the present petitioner. The prolonged physical relationship, multiple pregnancies, multiple abortions without any protest indicate the reality of the case, which is nothing more than a domestic relationship akin to matrimony deviating after 12 years between the partners. The precedent law cited by learned counsel for the petitioner applies in the present case.
This Court is of the firm opinion that the precedent law of State of Haryana & Ors. Vs. Bhajan Lal (supra) empowers the Court to quash FIR / complaint / all criminal proceedings under Section 482 of C.P.C. when on the face of it no offence is made out.
(Downloaded on 26/12/2022 at 08:13:50 AM)
(19 of 19) [CRLMP-2057/2018] In the present case in hand, where on the face of it, no offence is made out except for and the factual matrix is only of a prolonged consensual domestic relationship, this Court deems it appropriate to allow the criminal misc. petition and to quash the proceedings that arose out of the FIR impugned.
With the aforesaid observations, the present misc. petition is allowed and the FIR No.129/2018 lodged at Police Station Kherwara (Udaipur), along with entire proceedings pursuant thereto qua the petitioner is hereby quashed.
All pending applications also stand disposed of accordingly. In S.B. Criminal Misc(Pet.) No. 2608/2018 :-
In view of the disposal of the aforesaid misc. petition bearing no.2057/2018, the present misc. petition filed by the petitioner-
complainant seeking fair and impartial investigation in the FIR in question is also disposed of in the same terms.
All pending applications also stand disposed of accordingly.
(DR.PUSHPENDRA SINGH BHATI), J.
72-73-Sudheer/-(Downloaded on 26/12/2022 at 08:13:50 AM)
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