Madhya Pradesh High Court
Kuldeep Dubey vs The State Of Madhya Pradesh on 3 July, 2024
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 3rd OF JULY, 2024
MISC. CRIMINAL CASE NO. 18371 OF 2022
BETWEEN:-
KULDEEP DUBEY, SON OF SHRI O.P.
DUBEY, AGED ABOUT 34 YEARS, BY
OCCUPATION-BUSINESS, R/O D-5 C NIT
COLONY CHHATARPUR, POLICE STATION-
CIVIL LINES CHHATARPUR, DISTRICT
CHHATARPUR (M.P.).
... PETITIONER
(SHRI ESHAAN DATT - ADVOCATE)
AND
1. STATE OF MADHYA PRADESH,
THROUGH POLICE STATION CIVIL
LINES CHHATARPUR, DISTRICT
CHHATARPUR.
2. VICTIM-A
...RESPONDENTS
(BY SHRI AMIT BHURRAK - PANEL LAWYER)
................................................................................................................................................
Reserved on : 30.04.2024
Pronounced on : 03.07.2024
................................................................................................................................................
This petition having been heard and reserved for orders, coming on
for pronouncement this day, the Court pronounced the following:
2
ORDER
By the instant petition filed under Section 482 of Cr.P.C. petitioner is seeking quashing of FIR registered against him vide Crime No. 87/2022 at Police Station Civil Lines, Chhatarpur, District Chhatarpur for the offence punishable under Sections 376 and 120-B of the Indian Penal Code,1860.
2. As per the case of the prosecution, an FIR was lodged on 16.02.2022 at about 13.52 hours for an incident alleged to have occurred on 30.06.2020 at about 12.00 noon wherein it was alleged that the first informant Seema Rajput @ Sadhna Rajput, d/o Shri Barnarayan Rajput, aged about 24 years was a resident of Village Shyavan, Police Station Ajnar, District Mahoba (U.P.) and was prosecuting her GNM studies in Kamla Modern College Jhansi. It is alleged that she started whatsapp chatting with the present petitioner and thereafter they started talking on whatsapp. It is alleged that on 30.06.2020, at about 12.00 hours, the present petitioner and one Ramjan Saudagar met the complainant at Panna Naka Chhatarpur and thereafter present petitioner took her to C- Nit Colony to his house and on the pretext of marriage he committed sexual intercourse with the complainant. At that time, co-accused Ramjan Saudagar was sitting outside the room. Later on, the complainant came to know that the petitioner was already married and even after asking repeatedly, the petitioner refused to marry the complainant. As such FIR got lodged against the petitioner.
3. Learned counsel for the petitioner has submitted that there is a delay in lodging the FIR. He has submitted that the alleged incident took 3 on 30.06.2020 but the report of the incident was lodged on 06.02.2022. He has submitted that the complainant is operating a racket of honey trap to extract money from the innocent persons and the present case is also a case of honey trap. He has submitted that the complainant is a leader of the said racket. She is also an accused in a crime which reflects from the fact that she filed a bail application i.e. MCRC No. 18694/2021-Seema Rajput @ Sadhna Rajput vs. State of M.P.. He has submitted that although the present petitioner has been made accused in the present case but he never developed the physical relation with the complainant.
4. Learned counsel for the petitioner has also submitted the petitioner has been made accused because he lodged an FIR against the complainant, which was registered vide Crime No. 443/2020 at Police Station Civil Lines Chhatarpur for the offence under Section 384 and 120-B of IPC and thereafter complainant was arrested and was sent to jail. He has submitted that in the said case i.e. Crime No. 443/2020, complainant along with Man Singh Rajput, Advocate and Ravindra Singh Rajput, a Constable of Uttar Pradesh Police posted at Lalitpur are being prosecuted for blackmailing the petitioner and extorting Rs.10,00,000/- from him. She had filed an application for grant of bail but it was rejected by the Sessions Court and therefore she moved a bail application before the High Court that was registered vide MCRC No. 48625/2020 and by order dated 10.03.2021 the said bail application was withdrawn. After that, second bail application was move by the complainant vide MCRC No. 18694/2021, which was rejected by order dated 03.05.2021.
45. Learned counsel for the petitioner has submitted that after rejection of the bail application father, mother and sister of the complainant were continuously seeking apologies and pardon from the petitioner and his family members upon which the petitioner gave an affidavit stating that he has no objection if bail is granted to the complainant and on the basis of the said affidavit the bail was granted to the complainant vide order dated 27.10.2021 passed in MCRC No. 38618/2021.
6. Learned counsel for the petitioner has submitted that now when the case is fixed for recording evidence, the complainant is pressurizing the petitioner for settling the issue, but the petitioner has refused to compromise the matter and filed a complaint in Police Station, Civil Lines, Chhatarpur. Thereafter, prosecutrix submitted an application under Section 156(3) of Cr.P.C. before the Judicial Magistrate First Class whereupon police submitted a report on 10.07.2021 mentioning therein that the said incident never occurred. It is stated in the report that the prosecutrix is in the habit of lodging false reports and is running a racket to implicate innocent persons and extract money from them.
7. Learned counsel for the petitioner has submitted that the aforesaid facts can be proved from the fact that on 13.08.2019 the complainant lodged an FIR against one Harishchandra Pandey at Police Station Fazalganj, District Kanpur City (UP) vide Crime No. 135/2019 for the offences punishable under Sections 376 and 506 of the Indian Penal Code and again on 07.10.2019, she lodged an FIR against one Siddharth Rajavat at Police Station Kotwali Urai, District Jalon vide Crime No. 1339/2019 for the offence under Section 354 of IPC. As such, according 5 to the petitioner, the complainant is in the habit of lodging false complaints to extract money from the persons against whom false complaint is made and offence gets registered.
8. It is also submitted that even after lodging FIR on 01.08.2020 against the petitioner, the complainant is still trapping other persons which is evident from the fact that she had lodged another FIR against one Rajesh Tiwari and other persons on 26.09.2020 vide Crime No. 241/2020 registered at Police Station GRP Bhopal for the offence under Section 376-D, 120-B, 376(2ij)(i), 323, 328 of IPC.
9. There are other documents filed by the petitioner showing that the prosecutrix made hand written complaint against one Ramkesh Meena at Police Station Kulphad, District Mahoba. The prosecutrix has also executed a compromise agreement with one Shri S.K. Gautam son of Shri R.N. Gautam and has taken Rs. 3,50,000/- from him. As such it is claimed that the FIR against the petitioner can be quashed on the ground that it is not a case of committing offence under Section 376 of IPC but it is a case of honey trap.
10. Learned counsel for the respondent although not denied the factual aspect but submitted that at this stage it is not proper to quash the FIR on the fact that the prosecutrix is in the habit of making false allegation and implicating innocent persons.
11. After hearing the rival contention of the counsel for the parties and perusal of record, it is clear that the core question involved in this case is whether on the basis of material available on record this Court 6 should exercise the inherent power as has been provided under Section 482 of Cr.P.C.. It is also to be seen whether in the existing circumstance the alleged offence of Section 376 of IPC is made out against the petitioner or not.
12. As per the contents of FIR, on 30.06.2020 the present petitioner developed physical relation with the complainant making false promise of marriage and report of the incident was lodged on 16.02.2022 that too in pursuance to the order passed by the Judicial Magistrate First Class, Chhatarpur directing concerning police station to register an FIR against the present petitioner and also against co-accused Ramjan Khan (Saudagar). The complainant submitted an application under Section 156(3) of Cr.P.C. before the Judicial Magistrate First Class, Chhatarpur praying for registering an offence against the present petitioner and also against Ramjan Saudagar under Sections 376 and 120-B of IPC. Copy of the application available on record is revealing that the same was filed on 23.06.2021 that too after almost one year of the incident. In the application it is not disclosed as to why report was not made to the police for such a long time, although from the contents of FIR it reveals that when complainant came to know about the fact that present petitioner is already married then only she decided to take action against present petitioner and hence she filed an application before the JMFC Chhatarpur. Although nowhere it is disclosed as to on what basis complainant came to know about the fact that petitioner was already married, but the petitioner has denied this fact that he ever developed physical relation with the complainant. On the contrary, the petitioner himself made a complaint to the Town Inspector of Police Station Civil 7 Lines, Chhatarpur alleging against the prosecutrix that he was being harassed and threatened by the prosecutrix as she was demanding Rs. 10 lakhs failing which she would implicate the petitioner in a false case of rape and threat to life was also given to the petitioner. Thereafter, an offence got registered against the prosecutrix under Section 384 and 120-B of IPC vide Crime No.0443/2020. In the complaint it is alleged by the petitioner that the prosecutrix is a habitual criminal and also running a gang and as such several crimes have been registered against her. It is alleged by the petitioner that for committing such crimes there are some other persons in the gang of the complainant and the said persons are Ravindra Rajput and Mansingh Rajput and with help of these persons the complainant is extracting money from the innocent persons giving threat to implicate them in a false case of rape.
13. In the same vein, the complainant lodged other FIRs against different persons alleging same allegation that the said persons also developed the physical relation with her, which is demonstrative from the following fact based upon the documents filed alongwith the petition:
(i) Against one Siddharth Rajawat crime got registered vide Crime No. 1339/2019 at Police Station Kotwali Urai, District Jalon for the offence punishable under Section 354 of IPC.
(ii) Against Rajesh Tiwari and one unknown person the crime got registered vide Crime No. 0241/2020 at Police Station Bhopal (GRP) for the offence punishable under Sections 376-
D, 323 and 328 of IPC. The said FIR was registered on the 8 basis of a written complaint made at Police Station Bhopal by the complainant. In this case the accused persons got bail by the High Court vide orders dated 18.01.2021 passed in MCRC Nos.50967/2020 and 51377/2020.
(iii) Against one Harishchandra Pandey crime got registered vide Crime No. 135/2019 at Police Station Fazalganj, District Kanpur City (UP) for the offence under Sections 376 and 506 of IPC.
14. In addition to the above, the complainant made a hand written complaint against one Ramkesh Meena at Police Station Kulphad, District Mahoba
15. It is also pertinent to note here that on the FIR lodged by the present petitioner vide Crime No. 443/2020 against the complainant, she tried to get bail as she was in jail in the said crime, but initially the bail was rejected by the Trial Court and also by the High Court. However, later on, on an affidavit given by the present petitioner pleading no objection if bail is granted to the complainant, bail was granted to her.
16. An affidavit of complainant is also available on record in which she has stated on oath that she received Rs. 3,50,000/- from Shri S.K. Gautam son of Shri R.N. Gautam, resident of Tulsidham, Urai District Jalon against whom a case got registered at the instance of complainant under Section 376 of IPC, but after receiving the said amount, she took a somersault and admitted in the affidavit that accused had not committed any rape with her and physical relation was developed by her own.
917. Thus, from the aforesaid, it is undoubtedly clear that the conduct of the complainant was suspicious and under such a circumstance, not explaining the delay in lodging the FIR can be considered to be a material aspect. Although in normal circumstances the delay in lodging the FIR in a case of rape is not considered to be a material aspect, but here in this case the delay carries importance because on the basis of the conduct of the prosecutrix and the allegations made by the petitioner against her, the delay plays important role and makes the total case suspicious. Even otherwise, in cases of rape when allegation against the accused is made that he has developed the physical relation on a false promise of marriage, the Supreme Court and also the High Court have considered this aspect and observed that if from the very inception physical relation is developed on an assurance of marriage and consent is given by the victim under misconception of fact then it falls within the ambit of rape. However, the Supreme Court has also observed that the Court has to consider the fact that if accused from the very beginning acted with malafide intention of seducing the prosecutrix by making false promise of marriage and not keeping his promise then mere breach of promise without malafide intention cannot amount to deception and it does not come within the ambit of rape. Here in this case, though the petitioner has denied to have made any physical relation with the prosecutrix but considering the fact that it was not the first occasion when the complaint was made by the prosecutrix against the petitioner for committing rape on the allegation of false promise of marriage but in the same vein she made similar type of allegations against other persons also and consequently offence got registered under Section 376 of IPC against the said persons. Thus, it can be clearly gathered that it is 10 nothing but a modus operandi of the complainant to implicate the innocent persons and extract money from them which is established from an affidavit given by the complainant admitting therein that the offence got registered on her false statement about committing rape on false promise of marriage whereas physical relation got developed by her as per her own wish and she extracted money from the accused person. The present petitioner also made a complaint against the prosecutrix that she was demanding Rs. 10 Lakhs with a threat if the money is not given, the petitioner could be implicated in a false case of rape and his complaint was prior in time to the date of registration of FIR on the complaint made by the complainant and an offence got registered against the prosecutrix.
18. The Supreme Court in the case of State of Haryana and Others vs. Bhajanlal and Others reported in AIR 1992 SC 604 has laid down the guidelines so as to interfere in such type of prosecution exercising extraordinary power provided under Article 226 of the Constitution of India or inherent power under Section 482 of the Code of Criminal Procedure. The said guidelines reads thus:-
"108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration 11 wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(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) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only 12 a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(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."
19. The Supreme Court in re Bhajanlal (supra) in paragraph 108 has very specifically categorized the cases wherein such power can be exercised by the Court. In the present case, Category No. 7 permits this Court to exercise inherent power provided under Section 482 of Cr.P.C.
13reason being on scanning overall circumstances of the case at hand, it can easily be gathered that the instant prosecution is a malicious prosecution instituted with an ulterior motive and as such appears to be an abuse of process of law.
20. In the present case, the delay in lodging the FIR, as already observed, is playing a material role. As such the allegation of false promise of marriage is nothing but a concocted allegation made by the prosecutrix so as to bring the case within the definition of rape as provided under Section 375 of IPC and to formulate the offence of Section 376 of IPC.
21. In the case of Deepak Gulati vs. State of Haryana reported in (2013) 7 SCC 675, the Supreme Court has considered the scope of 'Consent' and observed as under:-
"21. 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 14 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. 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."
22. Further in the case of Dr. Dhruvram Murlidhar Sona vs. State of Maharashtra & Others reported in (2019) 18 SCC 191 the Supreme Court has considered the aspect of 'Consent' in a case of rape and observed as under:-
"8. It is well settled that exercise of powers under Section 482 CrPC is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law"
or "to secure the ends of justice" do not confer 15 unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise.
9. This Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] , has elaborately considered the scope and ambit of Section 482 CrPC. Seven categories of cases have been enumerated where power can be exercised under Section 482 CrPC. Para 102 thus reads : (SCC pp. 378-79) "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:16
(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) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(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) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently 17 improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(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."
10. In Rajesh Bajaj v. State (NCT of Delhi) [Rajesh Bajaj v. State (NCT of Delhi), (1999) 3 SCC 259 :
1999 SCC (Cri) 401] , this Court has held that it is not necessary that a complainant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. If the factual foundation for the offence has been laid in the complaint, the court should not hasten to quash criminal proceedings during the investigation stage 18 merely on the premise that one or two ingredients have not been stated with details.
11. In State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] , it was held that while exercising powers under Section 482 CrPC, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It was further held as under : (SCC p. 94, para 6) "6. ... It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."
12. Recently, in Vineet Kumar v. State of U.P. [Vineet Kumar v. State of U.P., (2017) 13 SCC 369 : (2017) 4 19 SCC (Cri) 633] , this Court has observed as under :
(SCC p. 387, para 41) "41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. ... Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment.
When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding. ... the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."
13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers.
2014. In the instant case, FIR was registered against the appellant and the co-accused under Sections 376(2)(b), 420 read with Section 34 IPC and under Section 3(1)
(x) of the SC/ST Act. Section 376(2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. The said provision during the relevant point of time was as under:
"376. Punishment for rape.--(1) *** (2) Whoever,--
(a) ***
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c)-(g)*** shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine."
15. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the woman is in possession of 21 her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression "against her 'will' "
means that the act must have been done in spite of the opposition of the woman. 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.
16. Section 90 IPC defines "consent" known to be given under fear or misconception:
"90. Consent known to be given under fear or misconception.--A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;"
17. Thus, Section 90 though does not define "consent", but describes what is not "consent". Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. If the consent is given by 22 the complainant under misconception of fact, it is vitiated. 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 also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances.
18. In Uday v. State of Karnataka [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] , this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus : (SCC pp. 56-57, paras 21 & 23) "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 23 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.
***
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 24 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."
19. In Deelip Singh v. State of Bihar [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , the Court framed the following two questions relating to consent : (SCC p. 104, para 30) (1) Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in?
25(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her?
In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she became pregnant, she revealed the matter to her parents. Even thereafter, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time.
20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It 26 was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus : (Deelip Singh [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p. 106, para 35) "35. The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact. On the other hand, the statement of PW 12 that "later on", the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure 27 exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] at para 24 come to the aid of the appellant."
21. In Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] , the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once 28 again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that 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 accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused.
22. Recently, this Court, in Shivashankar v. State of Karnataka [Shivashankar v. State of Karnataka, (2019) 18 SCC 204] , disposed of on 6-4-2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is "rape", especially in the face of the complainant's own allegation that they lived together as man and wife. It was held as under : (Shivashankar case [Shivashankar v. State of Karnataka, (2019) 18 SCC 204] , SCC p. 205, para 4) "4. In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the appellant who may have possibly, made 29 a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as "rape" especially in the face of the complainant's own allegation that they lived together as man and wife."
23. 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 latter falls 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 rape. The acknowledged consensual 30 physical relationship between the parties would not constitute an offence under Section 376 IPC."
23. In view of the aforesaid discussion and also in view of the law laid down by the Supreme Court on the issue, this Court is of the opinion that the FIR against the present petitioner and also against the co-accused Ramjan Saudagar lodged by prosecutrix with mala fide intention and with ulterior motive just to extract money from them. As such in view of the law laid down by the Supreme Court in the case of Bhajanlal (supra), this Court is exercising power provided under Section 482 of Cr.P.C. and quashing the impugned FIR lodged against the petitioner.
24. Accordingly, this petition is allowed. The FIR registered against the petitioner vide Crime No. 87/2022 at Police Station Civil Lines, Chhatarpur for the offence under Section 376 and 120-B of the Indian Penal Code is hereby quashed and consequently all the consequential actions/investigations thereto are also hereby quashed.
(SANJAY DWIVEDI) JUDGE Raghvendra RAGHVENDRA SHARAN SHUKLA 2024.07.06 12:54:16 +05'30'