Madhya Pradesh High Court
Nitin Chouraha vs The State Of Madhya Pradesh on 14 March, 2022
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 14th OF MARCH, 2022
MISC. CRIMINAL CASE No. 58277 of 2021
Between:-
NITIN CHOURAHA S/O SHRI MAHENDRA
CHOURAHA , AGED ABOUT 25 YEARS,
OCCUPATION: PVT. JOB R/O CIVIL WARD NO. 7
DAMOH TEHSIL DAMOH DISTT. DAMOH M.P.
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI MANISH DATT, LEARNED SENIOR ADVOCATE ALONG
WITH SHRI MAYANK SHARMA, ADVOCATE FOR THE APPLICANT )
AND
1. THE STATE OF MADHYA PRADESH THR. S.H.O. P.S.
KOTWALI DISTT. DAMOH (MADHYA PRADESH)
2. VICTIM A D/O NOT KNOWN NOT MENTION
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SHIV KUMAR SHIRVASTAVA, GOVERNMENT ADVOCATE)
This application coming on for hearing this day, the court passed the
following:
ORDER
This is first application under Section 438 of the Cr.P.C. for grant of anticipatory bail on behalf of the applicant Nitin Chouraha S/o Shri Mahendra Chouraha, who is apprehending his arrest in connection with case Crime No.628/2018 registered at Police Station Kotwali Damoh, District Damoh (M.P.) for offence punishable under Sections 376, 506, 376(2)(n) of IPC.
Brief facts of the present case are that on 23.01.2019 victim had filed a complaint under Section 200 of the Code of Criminal Procedure against the present applicant - Nitin Chouraha and his Bua, Rajesh Chouraha, Mahendra Chouraha, Ramavtar Chouraha and Shivam@Sonu Pandeya.
Allegation of the complainant is that she is resident of Damoh and applicant is her neighbour they had developed friendship and had fallen in love with each Signature SAN Not other thereafter in the name of marriage present applicant established physical Verified Digitally signed by relationship with her as a result in April, 2018 complainant became pregnant. She MOHD TABISH KHAN Date: 2022.03.25 18:27:52 IST 2 had informed this fact to the applicant then applicant advised her to terminate the pregnancy and thereafter they will marry each other. Complainant consumed some medicines prescribed by the applicant and suffered miscarriage. Applicant refused to marry her and threatened her to commit suicide if she will make a complaint to the police.
In this backdrop, it is submitted that complainant is innocent, he has been falsely implicated, prosecutrix is major, there is a tacit consent of the prosecutrix. Thus, in light of the law laid down by the Supreme Court in case of Maheshwar Tigga vs The State Of Jharkhand, (2020)10 SCC, 108 wherein emphasis is placed in para 20-21, so also in light of the law laid down in case of Pramod Suryabhan Pawar Vs The State Of Maharashtra & Another, (2019) 9 SCC, 608, it is submitted that application be allowed and order dated 06.03.2021 taking cognizance in Complaint Case No.339/2021 for an offence under Section 376 of Indian Penal Code, so also the proceedings recorded vide Crime No.628/2018 for offence punishable under Sections 376, 417, 420, 294, 376(2)(n) and 506 of Indian Penal Code in Complaint Case No.319/2021 be quashed.
Shri Shiv Kumar Shrivastava, learned Government Advocate submits that this is not a fit case to quash the order taking cognizance inasmuch as at the stage of cognizance learned JMFC is only required to see presence of sufficient grounds of proceedings.
The facts of the case upon which reliance is placed by the learned counsel for the applicant do not match with the present case. In the case of Pramod Suryabhan Pawar (supra) the complainant was aware that there existed obstacles to marrying the appellant since 2008. The applicant/accused expressed his reservations about marrying the complainant on 31 January 2014. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015. While in this case, the applicant and prosecutrix belonged to the same caste. It is not the defence of the appellant that despite denying to marry the prosecutrix, he and the prosecutrix continued to engage in sexual intercourse. Similarly, in the case of Maheshwar Tigga (supra) Hon'ble Apex Court at the stage of judgment after evaluating all the prosecution evidence held that the prosecution failed to prove his case against the applicant, while in this case the trial 3 has not been started as yet. So both the judgments do not help the applicant. Even in the case of Pramod Suryabhan Pawar (supra), Hon'ble Apex Court held as under :
"37. 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 assurance by the accused that he would marry her, such consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."
In the case of Deepak Gulati vs. State of Haryana (2013)7 SCC 675 Hon'ble Apex Court held "There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives"
In the case of State Of U.P vs Naushad (2013) 16 SCC 651 Hon'ble Apex Court also held that "the consent taken by the accused with the clear intention not 4 to fulfill the promise and persuaded the girl to believe that he is going to marry her and obtained her consent for sexual intercourse under the total misconception, cannot be treated to be a consent."
F ro m the above judgments of Hon'ble Apex Court the position that emerges on the point whether consensual sex on the promise of marriage can be called rape or not is that 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. But in such cases where the intention of the accused was mala fide and that he had clandestine motives and where the accused had mala fide intention right from the inception and that he had made such false promise of marriage from the very beginning, in order to lure the victim to have sexual relations with him, such acts come under the preview of rape.
In view of foregoing discussions, this M.Cr.C. is hereby dismissed.
(VIVEK AGARWAL) JUDGE Tabish