Madhya Pradesh High Court
Lavleen Mishra vs The State Of Madhya Pradesh on 22 February, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 22 nd OF FEBRUARY, 2023
MISCELLANEOUS CRIMINAL CASE No. 25766 of 2022
BETWEEN:-
LAVLEEN MISHRA S/O ASIM MISHRA, AGED ABOUT 34
YEARS, JWALA JI WARD, MAHARAJPUR MAIN ROAD,
POLICE STATION MAHARAJPUR, DISTRICT MANDLA
(M.P.)
.....APPLICANT
(BY SHRI PARITOSH TRIVEDI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION MAHILA THANA, JABALPUR
(M.P.)
2. VICTIM A D/O NAGENDRA YADAV, AGED ABOUT
32 YEARS, R/O BESIDE HOTEL VIJAN MAHAL,
TILHARI, POLICE STATION GORA BAJAR,
DISTRICT JABALPUR (M.P.)
.....RESPONDENTS
(SHRI AJAY TAMRAKAR - PANEL LAWYER FOR THE RESPONDENT NO.1-
STATE AND SHRI SANKALP KOCHAR - ADVOCATE FOR THE
RESPONDENT NO.2)
This application coming on for admission this day, the court passed the
following:
ORDER
This petition under Section 482 of the Code of Criminal Procedure is filed by the petitioner seeking quashing of the FIR registered for offence Signature Not Verified punishable under Sections 376(2)(n) of IPC in crime No.0099/2021 at Police SAN Digitally signed by PUSHPENDRA PATEL Station Mahila Thana, Jabalpur.
Date: 2023.02.24 18:17:00 IST2. Shri Paritosh Trivedi, learned counsel for the petitioner submits that it is 2 not a case of rape as defined under Section 375 of IPC. It is submitted that it is a case of consensual sex between the prosecutrix and the present petitioner, in which case due to some fortuitous circumstances, marriage could not take place. As a result, out of frustration, complaint was registered by the prosecutrix on 22.11.2021 for an incident which took place with the prosecutrix between 25.10.2009 to 22.03.2020.
3. Reading from the written complaint which was given by the prosecutrix, it is submitted that this written complaint dated 22.11.2021 reveals that it is case of failed relationship. Similarly, reading statements of the prosecutrix, recorded on 25.11.2021 under Section 164 of the Cr.P.C., same thing is reiterated.
4. Placing reliance on these documents, it is submitted that it is a fit case to extend benefit of quashing of the FIR and consequential proceedings.
5. Reliance is placed on the judgment of the Supreme Court in case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another, 2019 (9) SCC 608, wherein it is held that inherent jurisdiction of the court can be exercised to give effect to an order under Cr.P.C to prevent the abuse of the process of the court; and to otherwise secure the ends of justice. The powers under said Section are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. It is further submitted that in dealing with the petition under Section 482, Cr.P.C. court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation from competing evidence presented. The limited question is whether on the face of the FIR, allegations constitute a cognizable offence.
Signature Not VerifiedSAN 6. It is further submitted that Section 375 prescribes seven descriptions of Digitally signed by PUSHPENDRA PATEL Date: 2023.02.24 18:17:00 IST how the offence of rape may be committed. Where a woman does not consent 3 to the sexual act described in the main body of Section 375, the offence of rape has occurred. A consent based on a misconception of fact is not consent in the eyes of law and the Supreme Court has repeatedly held that consent with respect to Section 375 involves an active understanding of the circumstances, actions and consequences of the proposed act.
7. Reliance is also placed on the judgment of the Supreme Court in Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and another, AIR 2021 SC 1405, wherein it is held that accused allegedly committing rape on prosecutrix on pretext of promise of marriage. Relationship between accused and the prosecutrix was consensual in nature. No allegation that promise was false at inspection. Subsequent refusal resulting in registration of FIR will not lead to establishment of the offence.
8. Reliance is also placed on the judgment of the Supreme Court in Dhruvaram Murlidar Sonar Vs. State of Maharashtra and others, (2019) 18 SCC 191.
9. Shri Sankalp Kochar, learned counsel for the respondent No.2 on the other hand submits that charges have been framed and without amending the petition, quashing of FIR simplicitor cannot be sought. It is further submitted that this Court while deciding anticipatory bail application of the petitioner in M.Cr.C. No.61316/2021 has considered the law on subject and, therefore, this is not a fit case to extend benefit of quashing the FIR.
1 0 . Reliance is also placed on the judgments of the Supreme Court in Mahesh Choudhary Vs. State of Rajasthan and another, (2009) 4 SCC 439, State of Madhya Pradesh Vs. Surendra Kori, (2012) 10 SCC 155, Signature Not Verified SAN State of Uttar Pradesh Vs. Naushad, (2013) 16 SCC 651, Anurag Soni Digitally signed by PUSHPENDRA PATEL Date: 2023.02.24 18:17:00 IST Vs. State of Chhatisgarh, (2019) 13 SCC 1, besides the judgement of the 4 Supreme Court in State of Uttar Pradesh and another Vs. Akhil Sharda and others, 2022 SCC OnLine SC 820.
11 . Shri Sankalp Kochar further submits that Whatsapp chat is also available on record which reveals that present petitioner Lavleen Mishra has gave an impression to the prosecutrix that she is his married wife. He has used word 'Biwi' on 02.08.2012. This is just one of the examples.
12. Reading this communication, it is pointed out that a promise was held to marry the prosecutrix and, therefore, that will come within the definition of rape.
13. Shri Ajay Tamrakar, learned Panel Lawyer, in his turn, submits that in the light of law laid down by the Supreme Court in cases of State of Haryana & Others Choudhary Bhajan Lal & Others AIR 1992 SC 604 and M/S Neeharika, Infrastructure Pvt. Ltd. Vs. State of Maharashtra and Others, 2021 SCC Online SC 315 case for quashing of FIR is not made out.
14. After hearing learned counsel for the parties and going through the record, from the complaint dated 22.11.2021, it is evident that there is a clear mention of the fact that when the prosecutrix met parents of the present applicant, they categorically stated that they will not marry their son in different caste and they had already informed their son Lavleen that they will never allow him to marry in another caste.
15. In her statements under Section 164 of the Cr.P.C., prosecutrix clearly deposed that she had asked the present petitioner that she belongs to Yadav Signature Not Verified SAN community and applicant belongs to Brahmin community, therefore, their Digitally signed by PUSHPENDRA PATEL marriage is not possible when applicant had said that he does not believe in Date: 2023.02.24 18:17:00 IST 5 casteism and will marry her only. This fact is corroborated from the chat which is available on record as is filed by the petitioner himself.
16. Ratio of the law laid down by the Supreme Court in Pramod Suryabhan Pawar (supra) is that consent based on misconception of fact is not consent in the eyes of law. Consent with respect to Section 375 involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. Court has always distinguished 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.
17. Thus, from the statements of the prosecutrix and the complaint made to the police authorities so also the Whatsapp chat available on record, it is to be understood that whether a false promise was made which the applicant always knew that it will be broken or it is a breach of promise made in good faith but subsequently not fulfilled because according to Hon'ble Supreme Court, misconception of fact makes the consent inconsequential qua culpability of accused.
18. In case of Sonu @ Subhash (supra), ratio is same that unless there is an allegation that promise to marriage was false at inception, subsequent refusal will not be of any consequence.
19. In case of Dhruvaram Murlidhar Sonar (supra), facts are different. Prosecutrix was a widow. She had fallen in love with the appellant as being a Signature Not Verified SAN widow she needed a companion so they started living together as if they were Digitally signed by PUSHPENDRA PATEL Date: 2023.02.24 18:17:00 IST husband and wife. That being a different circumstance, wherein facts were of 6 mutual need and not of pure love, ratio of said judgment will not be applicable to the facts and circumstances of the present case.
20. Thus, when ratio of law laid down in Pramod Suryabhan Pawar (supra) and Sonu @ Subhash (supra) is taken into consideration, it is evident from the statements of the father of the present petitioner, as has been quoted by the prosecutrix, that father had already warned his son i.e. the present petitioner that he will never allow him to marry outside the Brahmin caste.
21. Thus, it is evident that the promise to marry was false at the inception and it was only to gain physical favours.
22. In that view of the matter, promise being not made in good faith but it being a false promise given on the understanding by the maker that it will be broken, the consent will constitute a misconception of fact qua the prosecutrix making the consent inconsequential qua culpability of accused.
23. Similarly, in cases of Mahesh Choudhary (supra), State of Madhya Pradesh Vs. Surendra Kori (supra), State of Uttar Pradesh Vs. Naushad (supra), Anurag Soni (supra) so also the latest judgement of the Supreme Court in State of Uttar Pradesh and another Vs. Akhil Sharda (supra), ratio is that in the light of judgment of the Supreme Court in M/S Neeharika, Infrastructure Pvt. Ltd. (supra), the quashing of FIR cannot be sought merely for the asking.
24. The FIR need not be an encyclopedia as has been held by the Supreme Court in case of Satpal Vs. State of Haryana, (2018) 6 SCC 610. Trial is yet to take place. Trial cannot be curtailed merely for asking of the accused.
Signature Not Verified SAN25. In Anurag Soni (supra), it is held that if prosecution proves beyond Digitally signed by PUSHPENDRA PATEL reasonable doubt that consent of the prosecutrix was obtained by accused on Date: 2023.02.24 18:17:00 IST 7 false promise to marry her, though knowing well from very beginning that he had no such intention, it cannot be treated as consent but amounts to cheating and consent given under misconception of fact within the meaning of Section 19, Court would presume under Section 114-A of Indian Evidence Act, absence of consent of the prosecutrix, which is a matter of trial.
26. Similarly, in case of Naushad (supra), it is held that accused committed breach of trust of the prosecutrix based on relationship and a brazen fraud just to appease his lust.
27. In case of State of Madhya Pradesh Vs. Surendra Kori (supra), Supreme Court has held that powers of the High Court under Section 482 of the Cr.P.C. has to be used sparingly, carefully and with caution. High Court was not justified in quashing the FIRs and charge-sheets in exercise of that powers.
28. In view of such facts, prima facie it cannot be said that it is a case of promise made in good faith but subsequently not fulfilled, especially, when this fact is taken into consideration that caste of the prosecutrix were already known to the petitioner as they were good family friends and that being a ground to recile from the relationship, creates a prima facie impression that petitioner had made a false promise to marry her, this is not a fit case to quash the FIR and consequential proceedings.
29. In view of above, petition fails and is dismissed.
VIVEK AGARWAL) Signature Not Verified JUDGE SAN pp Digitally signed by PUSHPENDRA PATEL Date: 2023.02.24 18:17:00 IST