Bombay High Court
Arvind S/O. Vinayak Bhole vs The State Of Mah. Thr. Pso, Gittikhadan ... on 4 March, 2026
2026:BHC-NAG:4051-DB
29 apl 1434.23.odt..odt
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APL) NO. 1434 OF 2023
1. Arvind s/o Vinayak Bhole
Aged about 55 years,
Occupation :Service,
Presently R/o Police Head Quarter,
94 Quarters Building,
N.M.-1, Flat No.2, Takli Nagpur
APPLICANT
// V E R S U S //
1. The State of Maharashtra,
Through Police Station Officer, NON-APPLICANTS
Gittikhadan Police Station, Nagpur
2. X.Y.Z. in F.I.R. No.182/2021
registered at Police Station
Gittikhadan, Nagpur
-------------------------------------------------------------------------------------------
Mr. S.P. Sonwane, Advocate for the applicant.
Mrs. Mrunal Barbade, APP for non-applicant No.1 /State.
-----------------------------------------------------------------------------------------
CORAM : URMILA JOSHI PHALKE, J.
DATED:- 04.03.2026
ORAL JUDGMENT :
1. Heard.
2. ADMIT. Taken up for final disposal with the consent of learned counsel for the parties.
29 apl 1434.23.odt..odt 2
3. The present application is filed by the applicant for quashing of the First Information Report in connection with crime No.182/2021 registered with the non-applicant No.1-Police Station Gittikhadan District Nagpur City under Sections 376, 493, 419, 420, 323 and 506 of the Indian Penal Code (for short, 'IPC') and Section 67 of the Information Technology Act and consequent proceedings arising out of the same bearing Sessions Case No.406/2022 pending before District Judge-11 and Additional Sessions Judge, Nagpur against the present applicant.
4. The present applicant is arrayed as an accused on the basis of report lodged by non-applicant No.2 on an allegation that she got acquaintance with the present applicant in the year 2019 through Facebook. Thereafter they have exchanged their mobile numbers with each other. The present applicant has proposed her for marriage and also disclosed to her that he has already married but his wife is mentally ill and therefore, he is not communicating with her. He has also disclosed that he is having two children who are already grown up now. She further alleged that he has called her to meet at Murtijapur. However, she has not went there and thereafter also on various occasions 29 apl 1434.23.odt..odt 3 during the communication the applicant has proposed her and thereafter she also consented for the same. Thereafter the applicant took her in one temple on 08.11.2020 and they have garlanded each other and started residing together. It is alleged that present applicant has obtained her nude photographs and obtained from her Rs.1 lakh as well as she eloped and while leaving the house he has taken her gold ornaments also. On the basis of the said report police have registered crime against present applicant.
5. Heard learned counsel for the applicant who submitted that the victim is 45 years grown up woman. She was also married. Her husband has already died in an accident. She is having one son aged about 21. He submitted that from the recitals of the FIR it is clear that there was consensual relationship between present applicant and non-applicant No.2. Only to falsely implicate the present applicant this false FIR came to be lodged. He submitted that as far as the allegations regarding the theft of gold ornaments and obtaining Rs.1 lakhs are concerned, the summary of the investigation report i.e. charge- sheet specifically shows that the allegation is not substantiated by 29 apl 1434.23.odt..odt 4 any other material. He submitted that the applicant and non- applicant No.2 stay with each other and that relationship was continued till 2021. Therefore, there is no proximity as to the misconception of fact and alleged incident. In view of that application deserves to be allowed.
6. Per contra learned APP strongly opposed the said contention and submitted that applicant has not only subjected her for forcible sexual assault but also obtained her photographs and thereby committed an offence. The statement of the victim is sufficient to attract offence. In view of that application deserves to be rejected.
7. After hearing both the sides and on perusal of the entire investigation papers it reveals that statement of the victim is recorded which shows that in the year 2019 she got acquaintance with the present applicant. Thereafter she met present applicant in the year 2020 i.e. 6.11.2020 and the said relationship was continued till filing of the FIR i.e. till 12.03.2021. It is apparent from her statement that present applicant was already disclosed to her that he is a married and having two children from the first 29 apl 1434.23.odt..odt 5 wedlock. Thereafter he proposed her and she has also consented for his proposal. Thereafter they garlanded each other in one temple and he started residing along with her. Thereafter physical relationship was developed between them. Admittedly the victim is grownup woman of 45 years having one children from the first marriage. Her son is 21 years of age. Thus, it is apparent that there was consensual relationship between them. Whether the consent was obtained under the misconception of fact or not is to be inferred from the relevant circumstances. The statement of the victim itself sufficiently shows that he has already disclosed to her that he is married and having two children from the said wedlock. But his wife is mentally sick and therefore, he wants to marry her. Thereafter she has accepted his proposal. This aspect is considered by the Hon'ble Apex Court in the celebrated judgment of Pramod Suryabhan Pawar vs The State Of Maharashtra reported in (2019) 9 SCC 608 wherein after referring the catena of decisions the Hon'ble Apex Court held that 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"
29 apl 1434.23.odt..odt 6 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.
8. The question for the consideration is whether the consent of the victim is under the misconception of fact. Under Section 90 a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the non-applicant no.2 was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest.
9. In the instant case the prosecutrix who herself was married woman having one son and grown up lady known the consequence of her act could not be said to have acted under 29 apl 1434.23.odt..odt 7 alleged false promise given by present applicant under the misconception of fact by giving the consent to have sexual relationship with him at least for more than two years. In view of that application deserves to be allowed.
10. Hence, I proceed to pass the following order:-
ORDER
(i) The Criminal Application is allowed.
(ii) The First Information Report in connection with crime No.182/2021 registered with the non-applicant No.1-
Police Station Gittikhadan District Nagpur City under Sections 376, 493, 419, 420, 323 and 506 of the Indian Penal Code (for short, 'IPC') and Section 67 of the Information Technology Act and consequent proceedings arising out of the same bearing Sessions Case No.406/2022 pending before District Judge-11 and Additional Sessions Judge, Nagpur against the present applicant is quashed and set aside against the present applicant- Arvind s/o Vinayak Bhole.
11. The criminal application stands disposed of in the above said terms.
29 apl 1434.23.odt..odt 8 Pending applications, if any, also stand disposed of.
(URMILA JOSHI PHALKE, J.) manisha Signed by: Mrs. Manisha Shewale Designation: PA To Honourable Judge Date: 11/03/2026 11:44:19