Madhya Pradesh High Court
Mohit Maheshwari vs The State Of Madhya Pradesh on 18 April, 2023
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 18 th OF APRIL, 2023
CRIMINAL REVISION No. 1238 of 2023
BETWEEN:-
MOHIT MAHESHWARI S/O SHRI VINIT MAHESHWARI,
AGED ABOUT 31 YEARS, OCCUPATION: BRANCH
MANAGER RESIDENT OF ICICI BANK PRUDENTIAL
MANAGEMENT KOTAWALA MOHALLA LOHAMANDI
GWALIOR (MADHYA PRADESH)
.....PETITIONER
(SHRI RAJMANI BANSAL, LEARNED COUNSEL FOR THE PETITIONER)
AND
1. THE STATE OF MADHYA PRADESH INCHARGE
POLICE STATION THROUGH POLICE STATION
GWALIOR (MADHYA PRADESH)
2. PR OS ECUTR IX THROUGH POLICE STATION
GWALIOR GWALIOR DISTT GWALIOR (MADHYA
PRADESH)
.....RESPONDENTS
( SHRI RK UPADHYAY- LEARNED COUNSEL FOR THE RESPONDENT
NO.1- STATE)
Th is revision coming on for hearing this day, th e court passed the
following:
ORDER
Present criminal revision under Section 397 r/w Section 401 of CrPC has been filed by applicant -Mohit Maheshwari being aggrieved by order of framing charges dated 02-12-2021 passed by Sixth Additional Sessions Judge, Gwalior in Sessions Trial No.511 of 2021, whereby the charges under Sections 376(2)
(n), 294, 506(2) of IPC have been framed against him.
Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 2(2) Facts of case in short are that on 29-06-2021 at around 01:45 pm prosecutrix (herein respondent No.2), aged about 30 years, resident of Kota Bala Mohalla, lodged a written complaint with Police Station Gwalior against the present petitioner alleging therein that she knows him for the last five years. Both of them used to love each other. He promised to marry her and under the false pretext of marriage, he used to meet her and made physical relationship against her wishes while she was alone in her house. It is further stated that she was working at Dewas and the petitioner used to meet her at there and also she used to meet him at Bhopal and meanwhile, the petitioner used to make physical relationship with her. When she used to tell him for solemnization of marriage, he denied to it and abused her and used to give a threat in this regard. On 28- 05-2021 at about 11:30 am, he called her by telephone to meet him and came to her house to meet her and told that he could not live without marrying her. When she objected to it and told him to discuss first with his family members regarding marriage, then he agreed to it. Without her wishes, he used to commit sexual intercourse with her and when she told him to get married, he told that his family members are not agreeing, therefore, he should not get her married. Afterwards, he used to harass her mentally. One day, in mobile phone she saw that he has a relationship with another girl and when she asked about this fact, then he said that she is my friend and you can do whatever you want. It is alleged that under the false pretext of marriage on so many occasions, he used to commit sexual intercourse with her. On the basis of such report, Crime No.406 of 2021 was registered against petitioner for offences under Sections 376, 376(2)(n) of IPC and he was arrested on 30-06-2021. Matter was investigated. He was granted the benefit of bail vide order dated 16-07-2021 Signature Not Verified by this Court.
Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 3(3) It is submitted by counsel for the petitioner that as per the contents of FIR, the prosecutrix is a major lady and with her consent, she had made physical relationship with the petitioner many times so that allegations made against petitioner that under the false pretext of marriage he has committed sexual intercourse with her are absolutely baseless and incorrect, therefore, no offence under Section 376(2)(n) of IPC is made out. The impugned FIR has been lodged with a mala fide intention and ulterior motive in order to just to take advantage of benefit. As per the contents of FIR, the prosecutrix has stated that when the petitioner did not agree to get her married, she has lodged the FIR, therefore, the FIR is baseless and abuse of process of law. As per version of the prosecutrix, she was in relationship with the petitioner for the last so many years and made physical relationship with him with her own consent and volition and she became silent in this regard without making any complaint to anybody. The prosecutrix was well-aware of the fact that such relationship has been made with her consent and, therefore, ingredients of Section 376 of IPC are lacking. The Court below without taking into consideration the aforesaid facts has wrongly framed charges vide impugned order which is totally illegal and arbitrary and against the settled principle of law and the same is liable to be set aside. It is further submitted that as and when the petitioner called her, the prosecutrix used to meet her and made physical relationship with him according to her own wishes and therefore, it cannot be said that under false assurance given to her or under false pretext of marriage, he had committed sexual intercourse with her. Therefore, the whole allegations made against the petitioner are vitiated and no offence is madeout against him. Therefore, the impugned order of framing charges deserves to be set aside. To buttress his contentions, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 4 the learned counsel for the petitioner has relied upon the judgments passed by the Supreme Court in the case of Deepak Gulati vs. State of Haryana AIR 2013 SC 2071, Tilak Raj vs. State of Himachal Pradesh AIR 2016 SC 406, Uday vs. State of Karnataka (2003) 4 SCC 46, Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr. (2019) 3 SCC (Cri.) 903, Sonu @ Subhash Kumar Vs. State of Uttar Pradesh & Anr. AIR 2021 SC 1405 as well as the judgments passed by this Court in the case of Senjeet Singh Vs. State of M.P. and another 2020 (1) MPLJ (Cri.) 260, Abid Ali Vs. State of MP & Anr. passed on 18/5/2017 in M.Cr.C. No.11363/2016 and a judgment passed by a coordinate Bench of this Court in the case of Umesh Lilani Vs. The State of M.P. & Anr. passed on 18/7/2019 in M.Cr.C. No.16158/2019 (Indore Bench) as well as the order dated 28th March, 2022 passed by a Coordinate Bench of this Court in the case of Satendra Rathore vs. State of MP and Another passed in MCRC 45389 of 2021.
(4) From the plain reading of allegations made by the prosecutrix in the impugned FIR as well as statements made under Section 164 of CrPC, it is clear that the prosecutrix was in relationship with the petitioner for so many years i.e. more than four years. FIR has been lodged on 29-06-2021 while the initial incident was happened with her prior to five years of lodging of impugned FIR. Before lodging report, neither prosecutrix has neither made any complaint to anybody nor to any police authorities in this regard.
(5) The Hon'ble Apex Court in the matter of Deepak Gulati (supra) has held as under:-
''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 Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 5 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, 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. '' In the case of Tilak Raj (supra), the Hon'ble Supreme Court has held as under:-
''19. We have carefully heard both the parties at length and have also given our conscious thought to the material on record and relevant provisions of The Indian Penal Code (in short "the IPC"). In the instant case, the prosecutrix was an adult and mature lady of around 40 years at Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 6 the time of incident. It is admitted by the prosecutrix in her testimony before the trial court that she was in relationship with the appellant for the last two years prior to the incident and the appellant used to stay overnight at her residence. After a perusal of copy of FIR and evidence on record the case set up by the prosecutrix seems to be highly unrealistic and unbelievable.'' The Hon'ble Supreme Court further in the case of Uday (supra) has held as under:-
''21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 7
23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could.
Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact.
25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 8 consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'™clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 9 and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.'' The Hon'ble Apex Court in the case of Sonu @ Subhash Kumar (supra) has held as under:-
''11.Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.'' The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar (supra) has held as under:-Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 10
''14. In the present case, the "misconception of fact" alleged by the complainant is the Appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v. State of Chhattisgarh, this Court held: (SCC para 12) "12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the Accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the Accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the Indian Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined Under Sections 375 of the Indian Penal Code and can be convicted for the offence Under Section 376 IPC." Similar observations were made by this Court in Deepak Gulati v. State of Haryana ("Deepak Gulati"): (SCC p.682, para 21) "21. ... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether that was made, at an early stage a false promise of marriage by the Accused....
16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to Signature Not Verified deceive the woman to convince her to engage in sexual relations, there is a Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 11 "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman Under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: (SCC pp.682-84, paras 21 & 24)
21..... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the Accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the Accused, and not solely on account of misrepresentation made to her by the Accused, or where an Accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the Accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 12 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 Indian Penal Code 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.
18. To summarise the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact"
arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to thewoman's decision to engage in the sexual act."
T he Hon'ble Apex Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. Naval Singh Rajput and others reported in 2019 (3) MPLJ (Cri.) SC 52 has held as under:-
''20. Thus, there is a clear distinction between rape and consensual sex. The Court, in such cases, must very carefully examine whether the complainant 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 later falls Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 13 within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of r ap e. The acknowledged consensual physical relationship between the parties would not constitute an offence under section 376 of the Indian Penal Code.
21. In the instant case, it is an admitted position that the appellant is business man and the complainant is a married lady. It was alleged by her that the petitioner committed rape with her forcefully. Admittedly, they knew each other. It is not her case that the petitioner has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 14 created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under section 376 cannot be sustained. '' (6) On going through the law laid down by Hon'ble Apex Court, it is evident that there is a distinction between ''mere breach of promise'' and ''giving a false promise to marry''. Only a false promise to marry made with an intention to deceive a woman would vitiate the woman's consent being obtained under misconception of fact, but mere breach of promise cannot be said to be a false promise. In the present case at hand, the complainant prosecutrix was in physical relationship with petitioner for a long period i.e. more than four years.
On so many occasions, as and when the petitioner used to call her at the places concerned, the prosecutrix used to go that places to meet her where they made physical relationship according to own wishes. Thus, it cannot be said that her consent was obtained by misconception of fact. At the most, it can be said to be a breach of promise to marry. Near about more than four years are more than sufficient time for a prudent woman to realize as to whether the promise of marriage made by the petitioner is false from its very inception or there is a possibility of breach of promise. When the petitioner was not acceding to her request for marriage, then why she continued to make relationship with him till the date of lodging of FIR as alleged by prosecutrix. Thus, it is clear that at the most, it can be said that it is a case of breach of promise and, therefore, it cannot be said that the promise made by petitioner was obtained under fear or Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM 15 misconception of fact.
(7) Thus, considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that no case is made out against petitioner. Accordingly, the order of framing charges dated 02-12-2021 passed by Sixth Additional Sessions Judge, Gwalior in Sessions Trial No. 511 of 2021 whereby the charges under Sections 376(2)(n), 294, 506(2) of IPC have been framed against the petitioner is quashed and as a consequence thereof, the impugned FIR vide Crime No.406 of 2021 registered at Police Station Gwalior is hereby quashed. Petitioner is discharged from all the charges levelled against him.
(8) A copy of this order be sent to the concerned Police Station as well as concerned Court for information.
(DEEPAK KUMAR AGARWAL) JUDGE MKB Signature Not Verified Signed by: MAHENDRA BARIK Signing time: 4/20/2023 11:02:34 AM