Bombay High Court
Mah. State Handlooms Corporation Ltd. ... vs Dy. Regional Director, Employees State ... on 22 December, 2025
2025:BHC-NAG:14957-DB
1 6.APL.935-2021..JUDGMENT.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APL) NO. 935 OF 2021
1. Raju Namdeo Wankhede,
Aged about 45 Yrs., Occ: Business,
R/o. Ganesh Peth, Washim,
Tq. & Distt. Washim.
2. Shobha w/o Raju Wankhede,
Aged about 40 Yrs., Occ: Household,
R/o. Ganesh Peth, Washim,
Tq. & Distt. Washim. APPLICANTS
Versus
1. State of Maharashtra,
through its Police Station Officer,
Police Station Washim (City),
Tq. & Distt. Washim.
2. Vandana Namdeo Kharatkar,
Aged about 45 Yrs., Occ. Household,
R/o. Shukrawar Peth, Near Rajani
Well, Washim. NON-APPLICANTS
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Mr. R.S. Kurekar, Advocate for the Applicants.
Mr. A.G. Mate APP for the Non-applicant No.1/State.
Ms. Ragini Swami, Advocate Appointed for the Non-applicant
No.2.
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2 6.APL.935-2021..JUDGMENT.odt
CORAM : URMILA JOSHI PHALKE AND
NANDESH S. DESHPANDE, JJ.
DATED : 22nd DECEMBER, 2025.
ORAL JUDGMENT :- (PER : NANDESH S. DESHPANDE, J.)
1. Heard finally by the consent of learned Counsel for the respective parties.
2. This is an application filed under Section 482 of the Code of Criminal Procedure challenging the FIR/Crime No.3/2016 and consequent charge-sheet No.96/2017 dated 15.07.2017 for the offence punishable under Sections 323, 376, 504, 506 of the Indian Penal Code and Section 67 of the Information Technology Act and consequent proceedings arising out of the same bearing Sessions Trial No. 42/2019.
3. As per the said FIR lodged by the Non-applicant No.2 i.e. the first Informant, the Applicant No.1 was contesting elections in the year 2007 for Washim Nagar Parishad. During the course of canvassing, the Applicant No.1 and Non-applicant No.2 came in contact with each other. Thereafter, there were elections in the year 2011 also, wherein the Applicant No.1 3 6.APL.935-2021..JUDGMENT.odt requested the Non-applicant No.2 to canvass for his candidature. Thus, both the parties were acquainted with each other.
4. It is further alleged in the FIR that, in the month of September 2013, at about 07.30 p.m. the Applicant No.1 asked the Non-applicant No.2 that there is a meeting with relation to the elections and she was called for meeting. However, the Applicant No.1 made indecent advances to the Non-applicant No.2 and without her consent established physical relations with her. The Non-applicant No.2 resisted and protested loudly, however since, according to her, television was on, her lauds and cries could not be heard.
5. It is further alleged in the FIR that, the Applicant No.1 continued to establish physical relations with her without her consent thereafter also. It is further stated that, on 02.10.2015 at about 07.00 p.m. in the evening, the Applicant No.1 again called the Non-applicant No.2 at his office at Patni Chowk and established physical relations with her. It is further stated in the FIR that, on 28.12.2015, when the Non-applicant No.2 confronted the Applicant No.1 with this fact, the Applicant 4 6.APL.935-2021..JUDGMENT.odt No.2 who happens to be the wife of the Applicant No.1, abused her in a filthy language. It is therefore stated that, the Applicants have committed offences as mentioned in the FIR.
6. The FIR and the statements leading to the lodging of the FIR reproduces the text messages sent by the Applicant No.1 to the Non-applicant No.2. It is on these allegations, the FIR in question was lodged. The Investigating Agency investigated the matter and the charge-sheet is filed. It is this FIR and the consequent charge-sheet which is challenged in the present Application on the grounds as raised in the Application.
7. Heard Mr. Kurekar, learned Counsel for the Applicants, Mr. Mate, learned APP for the Non-applicant No.1/State and Ms. Swami, learned Appointed Counsel for the Non-applicant No.2.
8. The learned Counsel for the Applicants by taking us through the various statements and documents filed with the charge-sheet submits that, the relationship was purely consensual in nature, which can be seen from the various messages exchanged in between the Applicant No.1 and Non-
5 6.APL.935-2021..JUDGMENT.odt applicant No.2. He points out that, the last incident happened in the year 2013 and while the FIR is lodged on 01.01.2016 i.e. almost about three years from the date of incident. He submitted that, the delay caused in lodging the FIR is pointing out the fact that the relationship is purely consensual, and therefore, no offence is made out.
9. Learned APP while vehemently opposing the contentions advanced by the learned Counsel for the Applicants states that, even though there is some delay, the relationship between the parties continued for a long period of time, and therefore, offence is squarely made out. He submitted that, a prima facie case being made out against the Applicants and the matter would require full fledge trial, and therefore, there is no case made out for interference in inherent jurisdiction.
10. Learned Appointed Counsel for the Non-applicant No.2 while submitting the contentions advanced by the learned APP that, the Applicant No.1 being the influential person, the Non-applicant No.2 could not make any grievance. She points out the fact that, the Applicant No.1 was the member of Municipal Council at the relevant time, and therefore, being 6 6.APL.935-2021..JUDGMENT.odt influential person the Non-applicant No.2 could not ventilate her grievances earlier. She therefore prays that, a triable case is made out against the Applicants, and therefore, the Application deserves to be rejected.
11. We have considered the contentions advanced by the learned Counsel for the respective parties. At the outset, it is relevant to point out that, the age of the Non-applicant No.2 is 45 years and the age of the Applicant No.1 is also shown to be 45 years. It is thus clear that, both the Applicant No.1 and Non- applicant No.2 are adult, major and are able to understand the repercussions of initiation and the continuation of a live-in- relationship. The controversy in the present matter has to be adjudicated in the backdrop of these facts. While going through the FIR and the consequent charge-sheet on record, one glaring fact is to be noted is the various messages exchanged between the parties which unequivocally points out to the fact that it was a consensual relationship and there was a love affair between them. Even though the FIR and the charge-sheet reproduces the messages in question in verbatim, no material has been placed on record to show that in fact the messages were sent from the 7 6.APL.935-2021..JUDGMENT.odt mobile phone of the Applicant No.1 and were in fact delivered to the phone of the Non-applicant No.2. Even though the statement of the Non-applicant No.2 alleges that the said messages have been saved in her mobile phone, we could not see any material on record to show that in fact these messages were sent by the Applicant No.1 to the Non-applicant No.2. While being confronted, the learned Counsel for the Non- applicant No.2 also could not point out such messages being sent by the Applicant No.1 to the Non-applicant No.2.
12. The learned Counsel for the Applicants has rightly relied on the judgment of this Court in the case of Pravesh Vs. State of Maharashtra, 2025 SCC OnLine Bom 4299 , wherein we have exhaustively discussed about the concept of consent under misconception and difference between the consent and mere breach of promise. In the above said judgment, we have relied upon the reported judgment of Pramod Suryabhan Pawar Vs. State of Maharashtra, (2019) 9 SCC 608, wherein the Hon'ble Apex Court while enunciating the law on subject has stated as under:
8 6.APL.935-2021..JUDGMENT.odt "12. This Court has repeatedly held that consent with respect to Section 375 IPC 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. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction under Section 482, this Court observed: (SCC para 15) "15.... An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of." This understanding was also emphasised in the decision of this Court in Kaini Rajan v. State of Kerala: (SCC p. 118, para 12) "12.... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the 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."
13. This understanding of consent has also been set out in Explanation 2 of Section 375 (reproduced above). Section 3(1)(w) of the SC/ST Act also incorporates this concept of consent:
3(1)(w)(i) intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;
Explanation - For the purposes of sub-clause (i), the expression "consent" means an unequivocal voluntary agreement when the person by words, gestures, or any form of non-verbal communication, communicates willingness to participate in the specific act:
9 6.APL.935-2021..JUDGMENT.odt Provided that a woman belonging to a Scheduled Caste or a Scheduled Tribe who does not offer physical resistance to any act of a sexual nature is not by reason only of that fact, is to be regarded as consenting to the sexual activity:
Provided further that a woman's sexual history, including with the offender shall not imply consent or mitigate the offence;"
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 IPC 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 IPC and can be convicted for the offence under Section 376 IPC."
Similar observations were made by this Court in Deepak Gulati v. State of Haryanas (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 there was made, at an early stage a false promise of marriage by the accused;""
10 6.APL.935-2021..JUDGMENT.odt
13. In that view of matter, we are of the considered opinion that the relation between the Applicant No.1 and the Non-applicant No.2 was purely consensual in nature, and therefore, cannot be said to be an offence punishable under Section 376 of IPC.
14. Further, as far as the Applicant No.2 is concerned, who happens to be the wife of the Applicant No.1, the only allegation against her is that she had caused grievous hurt to the Non-applicant No.2. However, no material has been placed on record in support of the said plea. Thus, offences punishable under Sections 323 and 506 of IPC is also not made out against the Applicant No.2. Thus, it would be a fit case to exercise inherent jurisdiction under Section 482 of the Code of Criminal Procedure.
15. The present situation is squarely lies within the parameters law laid down in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors., 1992 Supp.(1) SCC 335 , wherein following principles / guidelines are laid down by the Hon'ble Apex Court for consideration of the application under Section 482 of Cr.P.C.
11 6.APL.935-2021..JUDGMENT.odt "(1) Where the allegations made in the first information report or 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 a case against the accused.
(2) .......
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) .......
(5) .......
(6) .......
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
16. In view of the above observations, the Application deserves to be allowed. Accordingly, we proceed to pass the following order.
ORDER i. The Criminal Application is allowed.
ii. The FIR/Crime No.3/2016 and consequent charge-
sheet No.96/2017 dated 15.07.2017 for the offence punishable under Sections 323, 376, 504 and 506 of the Indian Penal Code and Section 67 of the Information Technology Act and consequent proceeding arising out of the same bearing Sessions 12 6.APL.935-2021..JUDGMENT.odt Trial No. 42/2019 pending before the Additional Sessions Judge, Washim, is hereby quashed and set aside to the extent of the present Applicants. iii. Fees of the Appointed Counsel be paid as per rules.
17. Pending application/s, if any, shall stand disposed of accordingly.
(NANDESH S. DESHPANDE, J.) (URMILA JOSHI PHALKE, J.) S.D.Bhimte Signed by: Mr.S.D.Bhimte Designation: PA To Honourable Judge Date: 24/12/2025 13:00:52