Patna High Court - Orders
Dr. Kumar Shreyaskar @ Kumar ... vs The State Of Bihar, Through The Director ... on 18 October, 2023
Author: Satyavrat Verma
Bench: Satyavrat Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.71748 of 2023
Arising Out of PS. Case No.-872 Year-2023 Thana- KANKARBAG District- Patna
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DR. KUMAR SHREYASKAR @ KUMAR SHREYASHKAR Son of Late
Sudhir Kumar R/o Maurya Vihar Colony, Transport Nagar, P.S. - Agamkuan,
Distt. - Patna
... ... Petitioner/s
Versus
1. The State of Bihar, through the Director General of Police, Bihar, Patna
Bihar
2 The Senior Superintendent of Police, Patna Bihar
3. The Superintendent of Police, Patna Bihar
4. The Assistant Superintendent of Police, Kankarbagh, Patna Bihar
5. The Officer-in-charge, Kankarbagh, Patna Bihar
6. Saumya Pranjali D/o Late Kishor Kumar R/o S.K. Colony, S.K. 10, Near
Malahi Pakdi, P.S. - Patrakar Nagar, Kankarbagh, Distt. - Patna. At Present
residing at Sukh Sagar Resturant Building, Bypass, Main Road Kankarbagh,
P.S. - Kankarbagh, Distt. - Patna
... ... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. Shashank Chandra, Advocate
For the Opposite Party/s : Mr. Chandra Bhushan Prasad, APP
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CORAM: HONOURABLE MR. JUSTICE SATYAVRAT VERMA
ORAL ORDER
2 18-10-20231. Heard the learned counsel for the petitioner and learned APP for the State, Mr. Chandra Bhushan Prasad.
2. The learned counsel for the petitioner submits that the present quashing application has been filed seeking quashing of the F.I.R. being Kankarbagh P.S. Case No. 872 of 2023 dated 21.08.2023 registered under Sections 376, 420 and 406 of the Indian Penal Code (hereinafter referred to as the "IPC').
3. The learned counsel for the petitioner submits that Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 2/17 the issue, which arises for consideration in the present case, is whether sexual intercourse with woman amounts to rape, if consent of the prosecutrix was obtained by a false promise of marriage within the meaning of Section 375 of the IPC, it is further submitted that obtaining consent for sexual intercourse on false promise of marriage is considered as misconception of fact within the meaning of Section 90 of the IPC, thus it is not considered as a valid consent in the eyes of law and hence the accused would be charged under Section 375 of the IPC, as second explanation of Section 375 of IPC provides punishment of rape if sexual intercourse is done without victim's consent. It is, thus, submitted that the law is clear that establishing physical relation on false promise of marriage amounts to rape.
4. The learned counsel for the petitioner next submits that law is not static rather is dynamic and changes in accordance with the needs of the society. It is further submitted that with passage of time, the society is changing, live-in- relationship which was unthinkable about 40-50 years back is now slowly becoming the order of the day, marriage which was considered sacrosanct is breaking at the drop of the hat and the Courts are being flooded with matrimonial litigations, the day is not far when the Courts would be flooded with litigation of the Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 3/17 present nature also.
5. It is further submitted that with rapid changes coming in the society, even the Courts have started taking a different view towards Section 375 IPC and have interpreted the term 'consent' in a broader way.
6. It is next submitted that when two consenting adults establish physical relation, the same is not an offence, if there is an affirmative conscious and voluntary consent to engage in physical relation.
7. The learned counsel for the petitioner further submits that before appreciating the facts of the case, it is necessary to make submissions relying on the Judgment of the Hon'ble Supreme Court.
8. It is submitted that the Hon'ble Supreme Court in the case of Dr. Dhruvaram Murlidhar Sonar Vs. The State of Maharashtra & Ors. 2019 (18) SCC 191, at Para-20 of the Judgment has held- "that the parties were in a relationship for quite some time and enjoyed each other company and when prosecutrix came to know that the appellant had married some other woman she instituted the complaint. It is not a case that there was any psychological pressure exerted upon her which forced her towards passive submission and that there was a tacit Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 4/17 consent and the tacit consent given by her was not the result of a misconception created in her mind, further held that subsequent breach of promise will not come within the ambit of Section 375 IPC relying on the case of Dilip Singh Vs. The State of Bihar 2005 1 SCC 88.
9. The learned counsel for the petitioner further submits that the Hon'ble Supreme Court in the case of Shambhu Kharwar Vs. State of U.P. & Anr. 2022 SCC Online SC 1032, held that where two consenting adults enter into a consensual relationship, no offence under Section 376 IPC is attracted as the crucial ingredients of rape as defined under Section 375 IPC are absent.
10. It is next submitted that the Hon'ble Supreme Court in the case of Sonu @ Subhash Kumar Vs. State of U.P. 2021 SCC Online SC 181, while dealing with the issue as to whether an allegation of establishing physical relationship and subsequent refusal to solemnize marriage will constitute an offence within the meaning of Section 375 IPC, held at Para-11 of the Judgment-: "that the contents of the F.I.R. nowhere discloses that promise to marry made was false at very inception on the contrary it only discloses that there was a subsequent refusal on the part of the appellant to marry the second Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 5/17 respondent, which gave rise to the registration of the present F.I.R., accordingly based on the allegation it was held that no offence of rape is made out in terms of the allegation.
11. It is next submitted that the Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr. 2019 9 SCC 608, after considering the factual aspect of the case came to a conclusion that no offence under Section 375 IPC is made out and at Para-21 specifically held that the appellant failure in 2016 to fulfill his promise made in 2008 cannot be construed to mean that the promise itself was false.
12. The learned counsel for the petitioner next relies on the judgment in the case of Maheshwar Tigga vs. State of Jharkhand (2020) 10 SCC 108 and submits that the Hon'ble Supreme Court based on the facts of the case recorded at Paras- 10 and 14:-
"10. They were both smitten by each other and passions of youth ruled over their minds and emotions. The physical relations that followed was not isolated or sporadic in nature, but regular over the years. The prosecutrix had even gone and resided in the house of the appellant. In our opinion, the delay of four years in lodgement of the FIR, at an opportune time of seven days prior to the appellant solemnising his marriage with another girl, on the pretext of a promise to the prosecutrix raises serious doubts about the truth and veracity of the Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 6/17 allegations levelled by the prosecutrix. The entire genesis of the case is in serious doubt in view of the admission of the prosecutrix in cross-examination that no incident had occurred on 9-4-1999.
14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her."
13. It is next submitted that rape cannot continue in eternity without the prosecutrix realizing that the accused does not have any intention to marry, it is submitted that it is difficult to fathom that the prosecutrix over a prolonged period of time was not able to realize that promise of marriage was false from the beginning or there is a possibility of breach of promise.
14. The learned counsel, thus, submits that in view of the submissions and case laws recorded hereinabove, the facts of the present case be appreciated i.e. whether in the nature of allegation as alleged in the FIR, can it be even remotely suggested that O.P. No. 6 was raped by the petitioner on pretext of marriage, when she herself admits that she was in Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 7/17 relationship with the petitioner since 2011 and the FIR came to be instituted in 2023 i.e. after nearly 12 years of the relationship.
15. The learned counsel for the petitioner next submits that O.P. No. 6 instituted the instant F.I.R. which arises from a complaint case, alleging that she and petitioner are known to each other since school days and the petitioner in the year 2011 qualified the NDA exam but subsequently he took admission in MBBS course at IGIMS, Patna, further O.P. No. 6 after completing her intermediate in 2011 started studying engineering at Vellore, next alleges that while she was in Vellore, they were in regular touch with each other and the petitioner promised to marry after completing MBBS, it is next alleged that they used to move all over India and went to Calcutta several times, further alleges that after completing her M.Tech she started working at Bengalore but on account of immense pressure of the petitioner, she had to quit the job and she returned to Patna, further at Patna the petitioner started pressurizing her to leave her parental home and start living with him in a rented house and the O.P. No. 6 on account of pressure of the petitioner had to agree, next alleges that when she asked the petitioner to marry after he completed his MBBS, he said that he is pursuing his P.G. Course and hence cannot get married Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 8/17 during the course. It is next alleged that few months back, the O.P. No. 6 came to know that petitioner was in a relationship with his classmate (girl) on which she confronted and objected his relationship with another girl and asked him to marry when the petitioner flatly refused and threatened that in the event if she will pressurize him to marry, he will make all the intimate pictures of the O.P. No. 6 viral and will defame her, thus, alleges that petitioner for several years with dishonest intention established physical relation on pretext of marriage and now is threatening to viral the objectionable photographs.
16. The learned counsel for the petitioner submits that from bare perusal of the allegation as alleged in the FIR, it would manifest that the same does not inspire confidence, rather is cryptic and lacking in essential details and is vague, it is further submitted that present FIR arises from a complaint petition which the O.P. No. 6 had filed in the Court of learned C.J.M, Patna, who under Section 156(3) Cr.P.C. had directed the police to institute an FIR.
17. It is submitted that petitioner and O.P. No. 6 till standard 6th studied at Ishan International Public School, Patna but in 7th standard the petitioner took admission in Military School, Belgaum at Karnataka, It is next submitted that in Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 9/17 school, the petitioner and the O.P. No. 6 had hardly knew each other, it is next submitted that though it is alleged that petitioner promised to marry, but then the FIR is completely silent as to when and where the petitioner assured her of marriage, when after 7th standard the petitioner had left the school and thereafter they never studied together. It is further submitted that though O.P. No. 6 alleges that they started living as husband and wife and used to travel at different places in India including Calcutta, but then the FIR is completely silent as to which places in India they travelled together nor discloses any date or year of the travel and the period of stay, next submits that O.P. No. 6 alleges that she was working in Bangalore and had to leave her job on pressure of petitioner, but does not disclose in which company she was working at Bangalore and when she left her job, it is further submitted that it absolutely does not stand to reason that why such an educated lady would have left her job on pressure of petitioner when petitioner by that time was studying. It is next submitted that petitioner lives with his mother in Patna at Transport Nagar, Maurya Vihar Colony, Patna and takes her care as his father died long back, it is thus submitted that when petitioner is staying with his widow mother why he would have pressurized the O.P. No. 6 to stay in a rented premise, it is Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 10/17 submitted that though O.P. No. 6 alleges that she succumbed to his pressure and started living in a rented premises in Patna but then does not disclose the address where they stayed in Patna on rent.
18. It is next submitted that though the O.P. No. 6 alleges that she came to know that petitioner was in relationship with a girl of his class when she confronted and objected but then she does not disclose the name of the girl with whom petitioner is in relationship nor discloses in the FIR that as to how she came to know that petitioner was in relationship with a girl. It is further submitted that even allegation of establishing physical relationship is vague and the allegation of making intimate picture viral is ornamental only to give a serious colour to the case when petitioner and the O.P. No. 6 had hardly met.
19. The learned counsel for the petitioner next submits that the O.P. No. 6, prior to instituting the complaint case, had sent an application to the SSP, Patna on 03.02.2023 with allegations which was appended with the complaint petition, the O.P. No. 6 in her petition before the SSP, Patna had alleged that she knew the petitioner since 2001 as they had studied in the same school and petitioner proposed to her in 2011 after she passed her intermediate examination, when these Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 11/17 allegations have no legs to stand as the petitioner had left the school in question in class 7th itself, further alleges that petitioner is in final year of P.G. course, when petitioner is in first year of his P.G. course which amply demonstrates that O.P. No. 6 was not in contact with the petitioner or else she would have known in which year the petitioner presently is studying.
20. The learned counsel for the petitioner next relies on a judgment of the Hon'ble Supreme Court in the case of Salib @ Shalu @ Salim vs. State of U.P. and Ors. 2023(3) PLJR 389 (SC) and draws the attention of the Court to Para 26 of the judgment which reads as under:-
"26. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complainant is very well Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 12/17 drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and if need be, with the due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowers to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issues of wreaking vengeance out of private or personal grudge as alleged."
21. The learned counsel for the petitioner next submits that even presuming what is alleged is true without Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 13/17 admitting then in the nature of allegation as alleged in the FIR, it cannot be even remotely presumed that petitioner established physical relation on false promise of marriage rather what transpires is that petitioner and O.P. No. 6, being major, entered into a relationship and the consent of O.P. No. 6 to establish physical relation was a conscious and informed choice made by her after due deliberation and when the relationship soured, the FIR came to be instituted.
22. The learned counsel for the petitioner next relying on the case of Maheshwar Tigga Vs. The State of Jharkhand (supra) submits that- that misconception of fact has to be in proximity of time to the occurrence and cannot be spread over the period of 12 years, further relying on the case of Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr. (supra), it is submitted that the O.P. No. 6 alleges that promise to marry was made in 2011, as such, it cannot be said that the promise so made was false in 2023.
23. The learned counsel for the petitioner next relying on the case of Shambhu Kharwar Vs. The State of U.P. & Anr. (supra) submits that where two consenting Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 14/17 adults enter into a consensual relationship, no offence under Section 376 IPC is made out as the crucial ingredients of rape as defined under Section 375 IPC are absent. It is further submitted that the present case if not akin is similar to what has been decided by the Hon'ble Supreme Court in the case of Dhurvwram Murlidhar Sonar Vs. State of Maharashtra & Anr. (supra) that an FIR came to be instituted when the O.P. N. 6 came to know that petitioner was in relationship with another female and that subsequent breach of promise will not come within the ambit of Section 375 IPC.
24. The learned counsel for the petitioner lastly submits relying on the case of Salib @ Shalu @ Salim Vs. State of U.P. & Ors. (supra) that when the Court is exercising its inherent jurisdiction under Section 482 of the Cr.P.C. which is to be used sparingly, but then while dealing with the case, it is not enough for the Court just to look into the averments made in the F.I.R./Complaint alone for the purposes of ascertaining whether the necessary ingredients to constitute the alleged offences are disclosed or not, it is next submitted that the Court must be circumspect while Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 15/17 dealing with frivolous or vexatious proceedings by looking into many other attending circumstances emerging from the record of the case over and above the averments and if need be, with the due care and circumspection tried to read in between the lines, further the Court while exercising its jurisdiction under Section 482 of the Cr.P.C. or Article 226 of the Constitution of India need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the registration of the case as well as the materials collected in the course of investigation.
25. The learned counsel for the petitioner, at the cost of repetition, submits that in the nature of allegation as alleged, prima facie, no offence is made out against the petitioner and the allegation of making the picture viral is ornamental and the Hon'ble Supreme Court in its catena of decisions has interpreted the law based on facts which have been recorded hereinabove and thus submits that the FIR be quashed.
26. The learned APP for the State, Mr. Chandra Bhushan Prasad, submits that no doubt the arguments put Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 16/17 forth by the learned counsel for the petitioner has been recorded in detail and the present being a police case, the necessity of notice may not arise but for doing complete justice between the parties, it would be necessary to issue notice to the O.P. No. 6.
27. Issue notice to the Opposite Party No. 6 by both modes i.e. registered cover with A/D as well as ordinary post for which requisites etc. must be filed on or before 10.11.2023 failing which the present quashing application shall stand rejected without further reference to the Bench.
28. Put up this case on 28.02.2024.
29. In the meantime, further proceedings before the learned Trial Court arising out of Kankarbagh P.S. Case No. 872 of 2023 dated 21.08.2023 registered under Sections 376, 420 and 406 of the IPC against the petitioner, shall remain stayed.
30. It is made clear that the Court has not barred the police from investigating the case in its correct perspective.
31. At this stage, the learned counsel for the Patna High Court CR. MISC. No.71748 of 2023(2) dt.18-10-2023 17/17 petitioner submits that the mother of the petitioner has represented the SSP, Patna vide her Representation Dated 13.10.2023 (Annexure P/2 to the quashing application) for holding a fair and an impartial investigation by bringing the facts recorded hereinabove to his notice.
32. The Court expects that the SSP, Patna shall look into the representation of the mother of the petitioner.
(Satyavrat Verma, J) Rishabh/-
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