Rajasthan High Court - Jodhpur
Vishal Goyal vs State Of Rajasthan on 8 October, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Petition No.2232/2018
Vishal Goyal s/o Pusharam Goyal, Aged About 30 Years, B/c
Darji, R/o Near Rajmahal Girls Middle School, Ajay Chowk,
Khinvasar Ki Haweli Inside Nagori Gate, Jodhpur. At Present
Dadhimati Nagar, Near 80 ft. Road, Bhadwasiya, Jodhpur.
----Petitioner
Versus
1. State Of Rajasthan, Through the Public Prosecutor.
2. Miss Rosen Gusar d/o Madanlal Gusar, Aged About 30
Years, Near Bhagat Singh Circle, Nehru Colony, Balotra,
Barmer.
----Respondents
For Petitioner(s) : Mr.Mahesh Bora, Senior Advocate
assisted by Mr.Ajay Vyas
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
Mr.Ugam Singh
Ms.Rosen Gusar, respondent No.2
present in person.
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 01/10/2018 Pronounced on 08/10/2018
1. This criminal misc. petition under Section 482 Cr.P.C.
has been preferred claiming the following relief:
"It is, therefore, most humbly and respectfully prayed on behalf of the petitioner that present misc. petition may kindly be allowed, FIR No.23/2018 dated 12.05.2018 lodged at Police Station, Ramdevra, District Jaisalmer, registered against the petitioner for offence under Sections 376, 313, 384 IPC and Sections 3(1)(b), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 may kindly be quashed and set aside.
(2 of 42) [CRLMP-2232/2018] Any other appropriate order or direction which may be deemed just and proper in the facts and circumstances of the case may be passed in favour of the petitioner."
2. Brief facts of this case necessary for disposal of the present writ petition are that the complainant/respondent No.2 filed a complaint against the petitioner before the SHO, Police Station, Balotra, District Barmer regarding making false promise to marry and establishing sexual relationship on the pretext of such false promise of marriage.
3. The complainant had alleged in the complaint that four years ago, while the complainant was coming from her exams at Marwar Engineering College, she received a message from the petitioner on her mobile phone. The petitioner had enquired about her exams and further gave a missed call to the complainant, upon which the complainant called back to enquire from the petitioner as to who he was. The complainant further alleged in the complaint that the petitioner asked her if she was married or not, and upon being told that she was unmarried, the petitioner proposed her for marriage.
4. The complainant also stated in the complaint that she told the petitioner that she will consult her family members and thereafter let him know. The complainant thereafter, met the petitioner when she came to Jodhpur, while the complainant's sister was undertaking an Exam of B.Ed., and they both decided to get married, which was also acceptable to the mother of the complainant. The complainant has further averred in the complaint that the petitioner and the complainant went together to Ratanada Ganesh Mandir, and second time they went to find hostel for the (3 of 42) [CRLMP-2232/2018] complainant's sister. It was further averred that they went to see movie, also went to a guest house, Mandor Garden, Santoshimata Mandir, a Restaurant at Mahamandir, Machia Safari Park, Jodhpur Fort etc. The fact of the petitioner and the complainant going to Ramdevra and checking into a hotel, where the petitioner made physical relations with the complainant by making a false promise of marriage, inspite of the complainant not giving any consent to make such relation, has also been averred.
5. As per the complainant, physical relations thereafter continuously remained between the petitioner and the complainant, and the petitioner has consented that he shall marry the complainant. The complainant further alleged that she became pregnant and had to abort such pregnancy in about two months.
The complainant further stated that her mother also enquired from the petitioner about the proposal for marriage, whereupon the petitioner accepted that he shall marry the complainant as soon as the petitioner gets a job. Thereafter, the petitioner's phone started remaining busy and he stopped taking calls from the complainant, and also he backed out from the promise of marriage.
6. Thereafter, FIR No.07/2018 was lodged at Police Station, Balotra, District Barmer for the offences under Sections 376, 313 & 384 IPC and Sections 3(1)(b) & 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.
7. Mr.Mahesh Bora, learned Senior Counsel assisted by Mr.Ajay Vyas appearing for the petitioner has shown to this Court some of the messages of the complainant, which reflect that she initially wanted to marry one Mukesh and when Mukesh did not (4 of 42) [CRLMP-2232/2018] marry her, she sent messages to the petitioner and told the petitioner to help her to marry Mukesh.
8. Learned Senior Counsel for the petitioner further stated that the petitioner thereafter established consensual sexual relationship with the complainant, as reflected in the FIR itself, and when the girl forced the petitioner to marry, he refused, upon which the present FIR has been lodged.
9. Learned Senior Counsel for the petitioner has drawn the attention of this Court towards the earlier orders passed by this Hon'ble Court on 01.08.2018, 10.08.2018, 18.08.2018 and 30.08.2018 in the present petition, which read as under:-
"01/08/2018 This criminal misc. petition under Section 482 Cr.P.C. has been filed by the petitioner with a prayer for quashing of FIR No.23/2018 of Police Station Ramdevra, District Jaisalmer.
It appears that the petitioner has earlier filed S.B. Criminal Misc. Petition No.1844/2018 before this Court with a prayer for quashing the impugned FIR, however, this Court has disposed of the said petition vide order dated 20.06.2018 while granting liberty to the petitioner to submit his representation along with the necessary documents before the Investigating Officer. It was specifically ordered that the Investigating Officer shall consider the said representation and documents before completing the investigation. It is also ordered that if the concerned Investigating Authority arrests the petitioner then the petitioner shall be given fifteen days prior notice before making such arrest.
Learned counsel for the petitioner has submitted that though pursuant to the order dated 20.06.2018, he has submitted the copy of the text messages exchanged between the petitioner and the respondent No.2 to the Investigating Officer but the Investigating Officer has not conducted any investigation in that regard and issued fifteen days notice to the petitioner to arrest him.
(5 of 42) [CRLMP-2232/2018] Learned Public Prosecutor has submitted the factual report, wherein it is mentioned that the petitioner has produced copy of text messages but it is nowhere mentioned that the Investigating Officer has conducted any investigation in respect of those text messages.
In view of the above, it is clear that the Investigating Officer has not conducted the investigation as directed by this Court vide order dated 20.06.2018 passed in S.B. Criminal Misc. Petition No.1844/2018.
The Investigating Officer is directed to remain present before this Court on 10.08.2018.
Meanwhile, no coercive action shall be taken against the petitioner till the next date."
"10/08/2018 The Investigating Officer, present in person, has submitted that he will submit a detail report regarding the investigation conducted by him in relation to documentary evidence such as text massage exchanged between the petitioner and the respondent No.2.
List on 18th August, 2018. Interim order, if any, to continue till then."
"18/08/2018 Pursuant to the direction given by this Court on 10.8.2018, the Investigating Officer, present in person, has submitted a detailed report regarding the investigation conducted by him in relation to documentary evidence such as text massage exchanged between the petitioner and the respondent No.2. The same be taken on record.
Put up on 30.8.2018 as prayed. Interim order, if any, to continue till then."
"30/08/2018 Learned counsel for the respondent No.2 prays for some time to argue the matter.
List on 10th September, 2018.
Learned Public Prosecutor is directed to procure the case diary on the next date of hearing.
(6 of 42) [CRLMP-2232/2018] Interim order, if any, to continue till the next date."
10. In support of his submissions, learned Senior Counsel for the petitioner relied upon the precedent law laid down by the Hon'ble Apex Court in Prashant Bharti Vs. State of NCT of Delhi, reported in AIR 2013 SC 2753, relevant paras 19 to 22 of which read as under:-
"19. 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 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 (7 of 42) [CRLMP-2232/2018] 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 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 (8 of 42) [CRLMP-2232/2018] 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.
20. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16.2.2007 and 21.2.2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. In so far as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter. Firstly, the Appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15.2.2007. He was at Noida before 7.55 pm. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh etc. From 9.15 pm to 11.30 pm on 15.2.2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the Appellant-accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16.2.2007. Secondly, verification of the mobile phone call details of the complainant/prosecutrix Priya revealed, that on 15.2.2007, no calls were made by the Appellant-accused to the complainant/prosecutrix, and that, it was the complainant/prosecutrix who had made calls to him. Thirdly, the complainant/prosecutrix, on and around the time referred to in the-complaint dated 16.2.2007, was at different places of New Delhi i.e., in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlakabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16.2.2007. Fourthly, at the time when the complainant/prosecutrix alleged, that the Appellant- accused had misbehaved with her and had outraged her modesty on 15.2.2007 (as per her complaint dated 16.2.2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). Fifthly, even though the complainant/prosecutrix had merely alleged in her complaint dated 16.2.2007, that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (on 21.2.2007), levelled allegations against the accused for offence of rape. Sixthly, even though the complainant/prosecutrix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit (9 of 42) [CRLMP-2232/2018] appended to the Delhi police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16.2.2007 and 21.2.2007), she had suggested that she was unmarried. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23.9.2008, the complainant was married to Lalji Porva on 14.6.2003. The aforesaid marriage subsisted till 23.9.2008. The allegations made by the complainant dated 16.2.2007 and 21.2.2007 pertain to occurrences of 23.12.2006, 25.12.2006, 1.1.2007 and- 15.2.2007, i.e., positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30.9.2008. This is evidenced by a "certificate of marriage" dated 30.9.2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship, based on an assurance of marriage. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 Indian Penal Code. Especially because the complainant was a major on the date of occurrences, which fact emerges from the "certificate of marriage" dated 30.9.2008, indicating her date of birth as 17.7.1986. Ninthly, as per the medical report recorded by the AIIMS dated 16.2.2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16.2.2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. Tenthly, The factual position indicated in the charge-sheet dated 28.6.2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the-complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28.6.2007. Eleventhly, as per the medical report recorded by the AIIMS dated 21.2.2007 the assertions made by the complainant that the accused had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical (10 of 42) [CRLMP-2232/2018] examination on 21.2.2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination.
21. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge sheet dated 28.6.2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 of the Code of Criminal Procedure.
22. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar's case (supra) stand-satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the High Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the accused-Appellant, in exercise of the inherent powers vested with it under Section 482 of the Code of Criminal Procedure. Accordingly, based on the conclusions drawn hereinabove, we are satisfied, that the first information report registered under Sections 328, 354 and 376 of the Indian Penal Code against the Appellant-accused, and the consequential chargesheet dated 28.6.2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1.12.2008, deserves to be quashed. The same are accordingly quashed. Disposed of in the aforesaid terms."
11. Learned Senior Counsel for the petitioner has also placed reliance on the precedent law laid down by he Hon'ble Rajasthan High Court in Anup K. Paul Vs. State of Rajathan & Anr., reported in 2016(1) RCC (Raj.) 5, relevant portion of which reads as under:-
(11 of 42) [CRLMP-2232/2018] "4. Learned counsel for the petitioner has challenged the impugned FIR by raising the following arguments:
(i) That the impugned FIR is highly belated and filed by respondent No.2 only with a prayer that the petitioner be restrained from marrying another girl on 29.09.2014 at Kerala. It is argued that as per the impugned FIR, the petitioner has refused to marry the respondent No.2 in April, 2013 but for the first time, the complaint was lodged on 29.09.2014, however, no explanation of lodging the complaint after delay of 17 months has been given.
(ii) That even if the contents of the impugned FIR are read in its entirety and all the contents are accepted to be true, then also no offence under section 376 IPC is made out against the petitioner. It is contended that the petitioner and the respondent No.2 both are adult and by their own free will they entered into intimate relations with each other, hence, consensual relation does not fall within the definition of 'rape' as given in section 375 IPC. It is further argued that the impugned FIR does not contain any allegation to the effect that the respondent No.2 was forced to get intimate with the petitioner or does not contain any allegation that the petitioner has no intention to marry the respondent No.2 since beginning. In such circumstances, it cannot be held that the petitioner made physical relation with respondent No.2 by giving her false promise to marry. Learned counsel for the petitioner has further argued that making physical relation on promise to marry does not constitute any offence punishable under section 376 IPC when there is no material to suggest that a boy, who made physical relation with a girl, with promise to marry, has no intention of not marrying her since beginning. In support of above arguments, learned counsel for the petitioner has placed reliance on decisions of Hon'ble Supreme Court in Uday vs. State of Karnataka, 2003 CRI.L.J.1539; Pradeep Kumar Verma vs. State of Bihar & Anr., AIR 2007 SC 3059; Prashat Bharti vs. State of NCT of Delhi, 2013 CRI.L.J. 3839; Deepak Gulati vs. State of Haryana, 2013 CRI.L.J. 2990 and of this Court in Farook Ahmed (DR.) vs. State of Rajasthan & Anr., 2013(3) Cr.L.R. (Raj.) 1273.
(iii) That from bare reading of the contents of the FIR, no offence under section 313 IPC is made out against the petitioner as the respondent No.2 has not stated in her complaint that the petitioner got aborted the child without her consent.
5. On the strength of above arguments, learned counsel for the petitioner has prayed that this criminal (12 of 42) [CRLMP-2232/2018] misc. petition may be allowed and the impugned FIR and further investigation conducted by the police may be quashed and set aside.
6. Per contra, learned Public Prosecutor and the counsel appearing on behalf of the respondent No.2 have opposed the petitioner. Learned Public Prosecutor has informed this Court that the police has concluded the investigation and proposed to file charge-sheet against the petitioner for the offences punishable under sections 376(2)
(n), 313 and 420 IPC. It is submitted by the learned Public Prosecutor that during the course of investigation, the police found that the petitioner has repeatedly committed offence of rape upon the respondent No.2 by making a false promise of marriage and as such he committed offence punishable under section 376(2)(n) IPC. The learned Public Prosecutor has further submitted that the petitioner has also got aborted the child of the respondent No.2 and as such committed the offence punishable under section 313 IPC. It is also submitted that the petitioner has promised the respondent No.2 to marry her on 13.05.2013 and for that purpose the father of respondent No.2 has booked tent, band etc. and also made several arrangements but just before the marriage, the petitioner had refused to marry the respondent No.2 and as such, he has also committed the offence punishable under section 420 IPC. Learned Public Prosecutor has also argued that in her statement recorded under section 164 CrPC, the respondent No.2 has specifically alleged that the petitioner has repeatedly committed rape upon her by making false promise of marriage and in view of the material collected by the police during the course of investigation, no case for quashing the impugned FIR and further investigation is made out.
7. Learned counsel appearing for respondent No.2 has argued that from the allegations levelled in the impugned FIR, statement of respondent No.2 recorded under section 164 CrPC as well as from the statement of other witnesses recorded by the police during the course of investigation and the material collected by it, the case against the petitioner for commission of offences punishable under sections 376(2)(n), 313 and 420 IPC are made out. Hence, no interference is called for by this Court while exercising inherent powers under section 482 CrPC and this criminal misc. petition is liable to be dismissed.
8. Heard learned counsel for the rival parties and perused the case diary made available by learned Public Prosecutor.
9. 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.
(13 of 42) [CRLMP-2232/2018] 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) 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.
(14 of 42) [CRLMP-2232/2018]
(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 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."
11. Recently the Hon'ble Supreme Court in Rishipal Singh vs. State of U.P. and Anr., AIR 2014 SC 2567 has held as under:
"12. This Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482, Cr.P.C. In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335, this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in Central Bureau of Investigation v. Duncans Agro Industries Ltd. 1996 (5) SCC 591; Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC 259 and; Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque & Anr (2005) 1 SCC 122. This Court in Zandu Pharmaceuticals Ltd., observed that:
"The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the (15 of 42) [CRLMP-2232/2018] power under Section 482 of the Code must be exercised and proceedings must be quashed".
Also see Om Prakash and Ors. V. State of Jharkhand 3012 (12) SCC 72.
What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482, Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact."
12. As per law laid down by the Hon'ble Supreme Court in the above referred cases, the High Court should be very careful while exercising power under section 482 CrPC, however, at the same time, it should not allow a litigant to file vexatious complaints to otherwise settle his or her scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold.
13. In view of the above legal position well settled by the Hon'ble Supreme Court, I would like to deal with the facts of the present case, which lead to file the impugned FIR against the petitioner for the offences punishable under sections 376 and 313 IPC.
14. Initially, the respondent No.2 has filed a written complaint before the SHO, Police Station, Bajaj Nagar, Jaipur on 29.09.2014 with a prayer to stop the petitioner from marrying another girl on 29.09.2014 at Kerala. In the said complaint, it is stated that the respondent No.2 was doing job in Jodhpur in 2011, where she met with the petitioner and gradually they became friends, thereafter, by giving a false promise of marriage, he developed physical relations with her and she became pregnant in 2012 and the petitioner got her pregnancy terminated by giving her contraceptive pills while stating that at present he has no money for marriage but later on, with the consent of the parents, they would marry with each other. It is further stated that thereafter with the consent of their parents, the marriage was fixed in May, 2013, however, the petitioner (16 of 42) [CRLMP-2232/2018] did not inform to anybody about her pregnancy. In April, 2013, the parents of the petitioner refused to marry but he used to talk to her and assured that he would marry her only and not marry to anyone else but now he is going to marry some another girl at Kerala on 29.09.2014. In the bottom of the said written complaint, one line is also written that he has sexually exploited her.
15. At this stage, it will be useful to make a reference of the definition of rape as defined in section 375 IPC as it stood prior to coming into force of Criminal Law (Amendmend) Act, 2013 and thereafter section 375 IPC as it stood prior to coming into force of Act of 2013.
"375. Rape.-- A man is said to commit "rape"
who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following 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 understand the nature and consequences of that to which she gives consent.
Sixthly.- With or without her consent, when she is under sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape."
16.Section 375 IPC as it exists after coming into force of Criminal Law (Amendment) Act, 2013 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 (17 of 42) [CRLMP-2232/2018]
(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 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 I.--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:
(18 of 42) [CRLMP-2232/2018] 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 I.--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.]
17. As per section 375 IPC as it stood prior to Criminal Law (Amendment) Act, 2013 and as it exists thereafter, consent of a woman is the prime consideration in the cases involving allegations of rape.
18. Now the question, which comes for consideration, is whether the petitioner has obtained the consent of the respondent No.2 with the sole intention to seduce her to indulge in sexual act by making false promise to marry her without intention to do so since beginning or whether he has obtained her consent fraudulently. The Hon'ble Supreme Court has considered this aspect of the matter extensively in various judgments. In Uday vs. State of Karnataka (supra), the Hon'ble Supreme Court while deciding a case having almost similar facts as of instant case has held as under:
"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 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 (19 of 42) [CRLMP-2232/2018] offence, absence of consent being one of them."
[Emphasis supplied]
19. Later on, the Hon'ble Supreme Court in case of Pradeep Kumar Verma vs. State of Bihar & Anr. (supra) while taking into consideration the decision passed by it in Uday vs. State of Karnataka (supra) has held as under:
"9. The crucial expression in Section 375 which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained by Section 90 which reads as follows:
"consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all."
That is what is explained in first part of Section 90. There are two grounds specified in Section 90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in first part of Section 90 are from the point of view of the victim and second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the Court has to see whether the person giving the consent has given it under fear or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology. As observed by this Court in Deelip Singh @ Dilip Kumar v. State of Bihar (2005 (1) SCC 88), Section 90 cannot be considered as an exhaustive (20 of 42) [CRLMP-2232/2018] definition of consent for the purposes of IPC. The normal connotation and concept of consent is not intended to be excluded.
10. In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Strouds Judicial Dictionary, Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines consent "as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side"
Jowitt, while employing the same language added the following:
"Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind."
11. In Words and Phrases, Permanent Edn., Vol. 8-A, the following passages culled out from certain old decisions of the American courts are found:
"...adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent."
Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent..."
12. It was observed in Uday v. State of Karnataka (2003 (4) SCC 46) as under:
"12. The courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent."
13. There is a good analysis of the expression consent in the context of Section 375 IPC in Rao Harnarain Singh Sheoji Singh v. State (AIR 1958 Punj 123). The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries.
(21 of 42) [CRLMP-2232/2018] The observation of the learned Judge is as follows:
"there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent",
14. The said proposition is virtually a repetition of what was said by Coleridge, J. in R. v. Day (173 E.R. 1026) in 1841 as quoted in Words and Phrases (Permanent Edn.) at p.
205. The following remarks in Harnarains case (supra) are also pertinent:
"Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non- resistance and passive giving in cannot be deemed to be consent."
15. The passages occurring in the above decision were either verbatim quoted with approval or in condensed form in the subsequent decisions: vide Anthony, In Re (AIR 1960 Madras 308), Gopi Shanker v.
State of Rajasthan (AIR 1967 Rajasthan 159), Bhimrao v. State of Maharashtra (1975 Mah.LJ 660) and Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234). All these decisions have been considered in Uday's case (supra). The enunciation of law on the meaning and content of the expression consent in the context of penal law as elucidated by Tekchand, J. in Harnarains case (supra) (which in turn was based on the above extracts from law dictionaries) has found its echo in the three-Judge Bench decision of this Court inState of H.P. v. Mango Ram (2000 (7) SCC 224). It was observed as follows:
"Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and 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."
(22 of 42) [CRLMP-2232/2018]
16. On the facts, it was held that there was resistance by the prosecutrix and there was no voluntary participation in the sexual act. That case would, therefore, fall more appropriately within clause first of Section
375.
17. It would be appropriate to deal with the specific phraseology of Section 90 IPC. We have an illuminating decision of the Madras High Court rendered in 1913 in N. Jaladu, Re (ILR (1913) 36 Madras 453) in which a Division Bench of that Court considered the scope and amplitude of the expression misconception of fact occurring in Section 90 in the context of the offence of kidnapping under Section 361 IPC. The 2nd accused in that case obtained the consent of the girls guardian by falsely representing that the object of taking her was for participating in a festival. However, after the festival was over, the 2nd accused took her to a temple in another village and married her to the 1st accused against her will. The question arose whether the guardian gave consent under a misconception of fact. While holding that there was no consent, Sundara Ayyar, J. speaking for the Bench observed thus:
We are of opinion that the expression 'under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married. In considering a similar statute, it was held in England in R. V. Hopkins (1842) Car & M 254 that a consent obtained by fraud would not be sufficient to justify the taking of a minor. See also Halsburys Laws of England, Vol. 9, p.
623. In Stephens Digest of the Criminal Law of England (6th Edn.,p. 217) the learned author says with reference to the law relating to abduction of girls under sixteen thus ... if the consent of the person from whose (23 of 42) [CRLMP-2232/2018] possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person. Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
18. This decision is an authority for the proposition that a misrepresentation as regards the intention of the person seeking consent i.e. the accused, could give rise to the misconception of fact. This view of the Madras High Court was accepted by a Division Bench of the Bombay High Court in Parshottam Mahadev v. State (AIR 1963 Bombay 74). Applying that principle to a case arising under Section 375, consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact.
19. 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 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 (24 of 42) [CRLMP-2232/2018] 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 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 (25 of 42) [CRLMP-2232/2018] 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 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."
20. 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 (26 of 42) [CRLMP-2232/2018] 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 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."
(27 of 42) [CRLMP-2232/2018]
[Emphasis supplied]
20.Recently, the Hon'ble Supreme Court in Deepak Gulati vs. State of Haryana (supra), 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, has held as under:
"13. Admittedly, the prosecutrix has never raised any grievance before any person at any stage. In fact, she seems to have submitted to the will of the appellant, possibly in lieu of his promise to marry her. . Thus, a question arises with respect to whether, in light of the facts and circumstances of the present case, the appellant had an intention to deceive her from the very beginning when he had asked the prosecutrix to leave for Kurukshetra with him from Karnal.
14. The undisputed facts of the case are as under:
I. The prosecutrix was 19 years of age at the time of the said incident.
II. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married.
III. The appellant had been giving her assurance of the fact that he would get married to her. IV. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another.
V. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there.
15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the Act 1872 be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417,375 and 376, IPC have to be taken into (28 of 42) [CRLMP-2232/2018] consideration, along with the provisions of Section 90 of the Act 1872. Section 90 of the Act, 1872 provides, that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375, IPC are concerned, and thus, such a physical relationship would tantamount to committing rape.
16. This Court considered the issue involved herein at length in the case of Uday v. State of Karnataka, AIR 2003 SC 1639: Deelip Singh alias Dilip Kumar v. State of Bihar, AIR 2005 SC 203:
Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., AIR 2007 SC 3059: and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned.
17..............
18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. 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 mis-representation made to her by the accused, (29 of 42) [CRLMP-2232/2018] 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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.
19. In Deelip Singh (supra), it has been observed as under:
"20. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology."
20. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453, wherein it has been observed:
"We are of opinion that the expression "under a misconception of fact" is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married........ "thus ... if the consent of the person from whose possession the girl is taken is (30 of 42) [CRLMP-2232/2018] obtained by fraud, the taking is deemed to be against the will of such a person". ... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90, IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence."
21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at 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, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
[Emphasis supplied]
21. From the above mentioned authoritative pronouncements of the Hon'ble Supreme Court, the position of law emerges that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.
22.In the impugned FIR, the respondent No.2 has not alleged that the petitioner has no intention to marry her since beginning. I am convinced that from bare reading of initial written complaint and the contents of the impugned FIR, no offences under sections 376 and 313 IPC are made out. However, since the police has carried out thorough investigation and the learned Public Prosecutor as well as the counsel for the respondent No.2 have argued that from the investigation carried out by the police, the offences punishable under sections 376(2)(n), 313 and 420 IPC are made out against the petitioner, I have decided to go through the case diary, which is made available by the learned Public Prosecutor, to ascertain whether any case is made out against the petitioner for the aforesaid offences on the basis of evidence and material collected by the police.
(31 of 42) [CRLMP-2232/2018] During the course of investigation, the police has got recorded the statement of respondent No.2 under section 164 CrPC on 09.10.2014. The extract of the said statement is as under:
A.C.J. & M.M. No. C.R. No. c;ku xokg vkt vnkyr A.C.J. & M.M. No 6 dke tksa/kiqj egkuxj vkSj eqdnesa C.R. No. la- 229 lu 2014 uksV %& xokg us fcuk fdlh Hk; ncko o mRizsj.kk ds c;ku viuh Lora= bPNk ls nsuk tkfgj fd;kA xokg dh LohdkjksfDr ij c;ku fy;s tk jgs gSA eSa o"kZ 2009 esa tks/kiqj esa Hkkjr Iyktk esa tkWc djus vkbZ FkhA tgka twu 2011 rd tkWc fd;kA ebZ 2011 esa blh Hkkjr Iyktk dEiuh esa esjh eqykdkr vuwi dss ikWy ls gqbZ FkhA vuwi ds- ikWy us eq>s izikst Hkh fd;k FkkA tqykbZ 2011 esa eSaus Hkkjr Iyktk dEiuh NksMdj eSa t;iqj esjs ?kj pyh xbZ rc vuwi eq>s yxkrkj esjs eksckby ij Qksu djrk FkkA og esjs ihNs& 2 t;iqj Hkh vk x;k FkkA vuwi eq>ls 'kknh djus dh ckr dgrk FkkA vuwi ds dgus ls eSa flrEcj 2011 esa okil tks/kiqj esa vkbZ ogka ij tkSgjh fMftVy gsYi ds;j fyfeVsM] cksjkukMk esa tkWc djus yx xbZA eSa gkbZdksVZ dkWykuh esa nks ekg fdjk;s dk edku ysdj jgha ogka vuwi vkrk tkrk jgrk FkkA vuwi us i=dkj dkWyksuh esa viuh ppsjh cfgu ds ?kj dk dejk fdjk;s ls fnyk;k Fkk] ogka Hkh og vkrk tkrk jgrk FkkA vuwi gh eq>s vkWfQl ls ? kj o ?kkj ls vkWfQl ykrk&ys tkrk FkkA ?kj dk dksbZ vko';d dk;Z lCth] nw/k oxSjk Hkh og eq>s lkFk ys tkdj fnykrk FkkA og lHkh yksxksa us ;gh dgrk Fkk fd eSa mldh iRuh gwaA og eq>s fdlh vU; ls feyus ugha nsrk FkkA vuwi dk jkst i=dkj dkWyksuh fLFkr ?kj esa vkuk tkuk jgrk FkkA mlh nkSjku vuwi us eq>ls 'kknh dk dgdj esjs lkFk esa 'kkjhfjd lEca/k cuk;s FksA vuwi us esjs lkFk lEca/k cuk;s] ftlls esjs cPpk Bgj x;kA fQj MkW- js[kk tk[kM ds ;gka tkdj cPpk fxjok;k FkkkA vuwi eq>s fdzlel dh rS;kfj;ksa ds le; [kqn ds ?kj Hkh ysdj x;kA ogka eSa lkr fnuksa rd :dhA vuwi us o eSaus vius&2 ?kjksa esa gekjs fj'rs ds ckjs esa ckr dh FkhA tc gekjs ?kj okys jkth gks x,A rc vuwi us ekpZ 2013 esa eq>s] t;iqj esjs ?kj 'kknh dh rS;kfj;ksa ds fy, Hkst fn;k FkkA eSa o esjs ?kj okys 'kknh dh rS;kfj;ka dj jgs Fks rc /khjs&2 vuwi o mlds ifjokj okys fdlh u fdlh ckr dk cgkuk cukdj euk djus yxsA 25 flrEcj 2014 dks tc eSa tks/kiqj vuwi ds ?kj 'kknh ds ckjs esa ckr djus vkbZ rc blds ?kj ij rkyk yxk FkkA eSaus vkl ikl ds yksxksa ls iwNk rks irk pyk fd vuwi o mldk ifjokj dsjy vuwi dh 'kknh ds fy, x, gq, gSaA vuwi us eq>s 'kknh dk >kalk nsdj esjk nsg 'kks"k.k fd;kA uksV %& xokg dks c;ku i<dj lquk;s o le>k;s x,A c;ku lgh gksuk Lohdkj dj gLrk{kj fd;sA"
24.From the above statement also, it is clear that respondent No.2 has nowhere alleged that the petitioner has no intention to marry her since beginning. On the (32 of 42) [CRLMP-2232/2018] other hand, it is clearly stated that the petitioner had proposed her and parents of both of them had agreed to the marriage of them and the same was fixed in May, 2014, however, later on, the petitioner and his parents refused for it. In her statement recorded under section 164 CrPC, the respondent No.2 has even stated that she had stayed at the house of the petitioner for seven days for Christmas's preparation. During the course of investigation, the police has recorded the statements of brother, father, mother and other relatives of respondent No.2 and all of them have stated that the mother and father of the petitioner had visited Jaipur in October, 2012 to fix the marriage of the petitioner and respondent No.2 and the date of the marriage was fixed as 13.05.2014. The police has also interrogated the petitioner, his mother and father and all of them have stated that they had visited the house of respondent No.2 at Jaipur to fix her marriage with the petitioner and the date of marriage was fixed as 13.05.2014. In the interrogation note, the petitioner, his mother and father have specifically stated that on account of some dispute with the respondent No.2, proposal of marriage could not be materialized and they have informed the parents of the respondent No.2, who also agreed to it and in June, 2014, mother of respondent No.2 had asked them that they should marry their son to somewhere else, so that they also marry their daughter in Indore, wherefrom a proposal came.
25.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 (33 of 42) [CRLMP-2232/2018] 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.
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.
29.So far as offence punishable under section 313 IPC is concerned, it is important to note that the respondent No.2 in the impugned FIR has alleged that in the year 2012, when she became pregnant, the petitioner got her child aborted by giving her contraceptive pills. It is noticed that in her statement recorded under section 164 CrPC the respondent No.2 has stated that in October, 2012, she got aborted her child through Dr. Rekha Jakhar at Jodhpur. The police, during the course of investigation, has recorded the statement of Dr. Rekha Jakhar and also collected the prescription slip prepared by her on 01.10.2012. In her statement recorded under section 161 CrPC, Dr. Rekha Jakhar has stated that on 01.10.2012 one lady Mrs. Divya visited her residence for the purpose of checking. She checked Mrs. Divya and found her pregnancy test positive, then that woman asked Dr.Rekha Jakhar that she does not want this child. Despite making her understand by the (34 of 42) [CRLMP-2232/2018] Doctor, she insisted to get her child aborted while saying that her job and studies would be disturbed. Dr. Rekha Jakhar further stated that when the lady was not convinced, then she asked her to come with her husband and she again visited with her husband. Dr.Rekha Jakhar informed them about ill effects of abortion but both of them told that they want to abort this child. Then Doctor asked them to give this in writing, on which both of them gave in writing that they have been told about ill effects of abortion even though, they want to get the child aborted and they will only be held responsible for any mishappenings. The prescription slip dated 01.10.2012 with the endorsement of petitioner and respondent No.2 is the part of the case diary. From the statement of Dr. Rekha Jakhar, it is clear that it was the respondent No.2, who voluntarily caused miscarriage of her child and there is no iota of evidence that the petitioner had caused miscarriage of child of the respondent No.2 without her consent and as such no offence under section 313 IPC is made out against the petitioner.
30.Looking to the above facts and circumstances of the case, this Court is convinced that even if the FIR and the evidence/material collected by the police is taken as it is, then too the same is not sufficient to hold the petitioner guilty of the offences punishable under sections 376, 313 and 420 IPC. Hence, the continuance of the impugned FIR against the petitioner and other proceedings of the impugned FIR will result in abuse of process of the Court and the same is liable to be quashed.
31.Resultantly, this criminal misc. petition under section 482 CrPC is allowed. The impugned FIR No.229 dated 01.10.2014 of Police Station, Shashtri Nagar, Jodhpur and ongoing investigations are quashed and set aside. Stay petition stands disposed of."
12. Learned Public Prosecutor as well as learned counsel for the complainant/respondent No.2 alongwith Ms.Rosen Gusar, complainant/respondent No.2 present in person have opposed the submissions made on behalf of the petitioner stating that at the inception itself the petitioner has entered into sexual relationship with the complainant on the pretext of promise to marry her, and therefore, has committed rape upon the complainant.
(35 of 42) [CRLMP-2232/2018] 13. Learned Public Prosecutor submitted that the
investigation has concluded that the offence against the petitioner is made out, as he has induced a scheduled caste girl, the complainant, on the pretext of marriage and has established sexual relationship with her, and thus, committed rape upon her.
14. The complainant was also given an opportunity to address the Court, and she submitted that she has been induced into sexual relationship by the petitioner on the pretext of promise of marriage, and thus, the petitioner is guilty of committing rape upon the complainant, as he has forcefully established sexual relationship with her on account of promise to marry.
15. Heard learned counsel for the parties as well as perused the record of the case, alongwith the precedent laws cited at the Bar.
16. At the time of hearing of the case, learned Public Prosecutor has shown to this Court the case diary of the case.
17. The case diary reflects the statement given by the girl under Section 164 Cr.P.C. and the same is reproduced as hereunder:-
"uksV% xokg ls iwNdj ;g lqfuf'pr fd;k x;k gS fd og viuh bPNk ls o fcuk fdlh Hk; ;k ncko ds c;ku ns jgh gS%& 'kiFk fnykbZ xbZ%& o"kZ 2014 esa igyh ckj fo'kky xks;y ds lkFk Qksu ij esjh ckrphr 'kq: gqbZA ge efUnj esa feys FksA efUnj esa fo'kky us eq>s 'kknh dk izLrko fn;kA mlds ckn ge vDlj feyk djrs FksA ge tc Hkh feyrs oks eq>s 'kknh dk dgrk fd eSa rqels 'kknh dj ywaxkA ml nkSjku gekjs 'kkjhfjd lEca/k Hkh cusA fo'kky ,d ckj esjh eEeh ls 'kknh dh ckr djus vk;k vkSj dgk fd esjs ?kjokys ;fn ugha ekusxsa rks Hkh 'kknh dj ywaxkA mlds ckn ge izk;% feyrs FksA dHkh gksVy esa dHkh ikdZ esaA tks/kiqj] jkensojk] vtesj] lqesjiqj] ikyh vkfn txgksa ij ?kweus x, ogka gksVy esa ,d lkFk :dsA gksVy (36 of 42) [CRLMP-2232/2018] esa gekjs chp 'kkjhfjd lac/k cuk, x,A fQj ,d ckj eq>s jkensojk ysdj x;kvkSj esjs lkFk 'kkjhfjd lac/k cukus dk dgA eSaus euk fd;k rks eq>s dgk fd eSa rqels 'kknh dj ywaxk vkSj esjs lkFk tcjnLrh lac/k cuk,A eq>s 'kknh dk >kalk nsdj 'kkjhfjd lac/k cuk,A 2015 fnlEcj ;k 2016 tuojh eq>s vkt vPNs sls ;kn ugha gS eSa fo'kky ds cPps dh eka cuus okyh FkhA eSa xHkZorh gks xbZ FkhA fo'kky us eq>s ,d xksyh ykdj nh vkSj oks eSaus [kk yh ftlls xHkZ fxj x;kA eq>s 'kknh ds fy, Vkyrk jgrk FkkA tuojh 2017 esa 'kknh dh odhy ls ckr dh FkhA fQj vpkud mlus 'kknh ls bUdkj dj fn;kA eSaus vius ?kj ij crk;kA eSaus bldh otg ls dgha vksj 'kknh ugha dhA 'kknh dk >kalk nsdj esjs lkFk 'kkjhfjd lac/k cukrk jgrk FkkA gksVy esa esjh QksVk o fofM;ks cukbZ vkSj eq>s /kedk;k fd eSa ;s QksVks o fofM;ks lHkh dks fn[kk nwaxkA eq>s /kedkrk gS fd rw 'kknh djsxh rks rsjs ifr dks crk nwaxkA vc fo'kky us eq>ls feyuk tqyuk can dj fn;kA eq>s ;g Hkh dgrk Fkk fd eSa rq>ls 'kknh ugha dj ldrk fd rw gfjtu gS esjs ?kj okys ugha ekusaxsA eq>s /kedkrk gS fd esjs firkth dksVZ esa gS eSa rq>s Qlk nwaxkA rsjs ?kj dks cckZn dj nwaxkA tks/kiqj esa lHkh txg ge lkFk ?kwesA iz'u % vkidks vkSj dqN dguk gS mRrj % ugha uksV'% xokg ds dFkukuqlkj c;ku esjs gkFk ys[kc) fd, x,A vkj- vks- ,.M , lh ,l- Mh-
gLrk{kj U;kf;d eftLVªsV]
ckyksrjk ¼jkt-½ "
18. The case diary contains certain messages, which reflect intense relationship between the petitioner and the complainant, and the same is admitted by the complainant herself, who is also present in person before this Court alongwith the learned Public Prosecutor and her counsel.
(37 of 42) [CRLMP-2232/2018]
19. This Court also finds that a bare reading of the FIR as well as statement of the complainant recorded under Section 164 Cr.P.C., as quoted hereinabove, and the averments made by the complainant herself in the Court, makes it amply clear that the petitioner and the complainant were in an intense relationship.
The relationship was consensual in nature and the said consent of course may have been given under the promise of marriage by the petitioner. The fact of the abortion and the petitioner and the complainant going to so many places, including Ratanada Ganesh Mandir, movie, guest house, Mandor Garden, Santoshimata Mandir, Restaurant at Mahamandir, Machia Safari Park, Jodhpur Fort, Ramdevra etc. clearly establish that the consensual relationship was in existence between the petitioner and the complainant.
20. This Court has also carefully gone through WhatsApp messages between the parties and the same have not been refuted either by the complainant or the learned Public Prosecutor, who are both present in the Court, which show the intense consensual relationship between the complainant and the petitioner.
21. Statement of the complainant/girl recorded by the learned court below under Section 164 Cr.P.C. also clearly indicates that the petitioner and the complainant are in relationship for last four years. In the statement, the complainant has categorically stated that the petitioner had given her a proposal of marriage, and thereafter, they continuously started meeting and established physical relationship. The complainant in her statement has also stated that the petitioner had promised her (38 of 42) [CRLMP-2232/2018] mother that he would marry the complainant, even if the petitioner's family members do not agree.
22. The statement of the complainant recorded under Section 164 Cr.P.C. further indicates that the petitioner and the complainant continuously met in the parks and hotels in Jodhpur, Ramdevra, Ajmer, Sumerpur, Pali etc. and various places where they went and stayed together and remained in physical relationship. It has also been stated that the petitioner and the complainant also maintained physical relationship when they visited Ramdevra, particularly when the complainant was under
continuous inducement and promise of marriage by the petitioner.
The abortion also happened in December, 2015 or January 2016, which was done by consent of both the parties. The statement under Section 164 Cr.P.C. also indicates that the petitioner stopped meeting the complainant/girl and refused to marry her, and thus, the present FIR was lodged.
23. Thus, it is clear from the case diary, which contains the statement of the complainant recorded under Section 164 Cr.P.C.
as well as the messages alongwith lot of other record, that the long term relationship resulted into the dispute between the parties, as the petitioner refused to get married with the complainant.
24. The definition of the term 'rape' as contained in Section 375 IPC 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 (39 of 42) [CRLMP-2232/2018] 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 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.
(40 of 42) [CRLMP-2232/2018] 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."
25. If the present facts are applied as it is in the aforequoted definition of the term 'rape', then on a bare reading of the FIR alongwith the statement of the complainant recorded under Section 164 Cr.P.C. as well as taking note of the averments made by the complainant present in the Court and the messages and other documents in the case diary, it is clear that the offence of rape is not made out against the present petitioner.
26. The act of establishing physical relationship, as the facts would reveal, is neither against the will of the complainant, nor without her consent. Moreover, the consent has not been obtained by putting her in fear of death or hurt. Neither the complainant thought that she was lawfully married to the petitioner; and the consent was not under the unsoundness of mind or intoxication. The complainant is admittedly major and was apparently able to communicate her consent.
(41 of 42) [CRLMP-2232/2018]
27. Thus, in the present facts and circumstances, the petitioner was having a long term relationship with the complainant, which was with the consent of both the parties, as is clearly reflected in the FIR and the statement of the complainant recorded under Section 164 Cr.P.C. as well as the messages which are contained in the case diary. The messages clearly indicate an intense relationship between the petitioner and the complainant, and the complainant has admitted the same in the Court, while saying that the same was done under the inducement by the petitioner, while making the promise of marriage. A long period of relationship between the petitioner and the complainant also indicates that there was no fear or extraneous consideration for the consent being given by the complainant.
28. Thus, this Court finds that the precedent laws of Prashant Bharti (supra) and Anup K. Paul (supra) are absolutely applicable in the present case.
29. In light of the aforesaid discussion and looking to the facts and circumstances of the case, this Court is convinced that even if the FIR and the evidence/material collected by the police are taken as it is, then too, the same are not sufficient to hold the petitioner guilty of the offence punishable under Sections 376, 313 & 384 IPC and Sections 3(1)(b) & 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989. Hence, the continuance of the impugned FIR against the petitioner and other proceedings pursuant thereto will be nothing but an abuse of process of the Court and the same are liable to be quashed.
(42 of 42) [CRLMP-2232/2018]
30. Resultantly, the present criminal misc. petition is allowed and the impugned FIR No.23/2018 dated 12.05.2018 lodged at Police Station, Ramdevra, District Jaisalmer, registered against the petitioner for offences under Sections 376, 313, 384 IPC and Sections 3(1)(b), 3(2)(v) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, alongwith entire proceedings pursuant to the said FIR, is hereby quashed and set aside.
(DR. PUSHPENDRA SINGH BHATI),J Skant/-
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