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Judgment
(Per : Nandesh S. Deshpande, J.)
Heard. Admit. Heard finally by consent of learned counsel appearing for the parties.
The applicant has approached this Court by filing the present application under Section 482 of the Code of Criminal Procedure, 1973, seeking quashing of the First Information Report dated 10.03.2023, registered as Crime No. 0085/2023, at Police Station Ganeshpeth, Nagpur, for offences punishable under Sections 376(2)(n) and 417 of the Indian Penal Code, 1860, as also offences punishable under Sections 3(1)(w)(i), 3(1)(w)(ii), 3(1)(v), and 3(1) (u) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. The applicant has further prayed for quashing of the Charge-sheet/Final Report bearing No. 41/2023 dated 28.04.2023, wherein the offence under Section 3(1)(u) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been dropped, which is pending before the 10th District Judge and Additional Sessions Judge, Nagpur. The applicant has also prayed to grant stay to the proceedings in Special Case No.230/2023 pending before the 10th District Judge and Additional Sessions Judge, Nagpur.
The case of the prosecution in short is as under :
The non-applicant No. 2 states that she met the present applicant during training programme at 3H System Institute, IT Park, Ambazari, Nagpur. They became friends and their friendship gradually culminated into a love affair. In July 2021, at Koradi Mandir, Nagpur, the applicant allegedly confessed his love to the non-applicant No.2 and expressed willingness to marry her. At that time, the non-applicant No.2 informed the applicant about her caste (Scheduled Caste) and also subsequently accepted his marriage proposal. It is further alleged that on 11.06.2021, on the pretext of discussing arrangements for their marriage ceremony, the applicant allegedly took the non-applicant No.2 a Hotel and established physical relations with her. It is further alleged that non-applicant No.2 was in false belief of marrige and thus consented to marriage.
On 13.06.2021, the applicant allegedly called the non-applicant No.2 to his residence at Wardha, where he again established physical relations with her. Thereafter, in March 2022, when the applicant began giving evasive answers regarding the marriage, the non-applicant No.2 visited his residence. A quarrel allegedly took place between her and the applicant's parents, following which she lodged a First Information Report at Ram Nagar Police Station, Wardha.
In conclusion, the non-applicant No.2 alleges that the applicant established sexual relations with her on the false promise of marriage and without her free will. She further alleged that the applicant, despite being aware that she belonges to a Scheduled Caste, took undue advantage of her and continued such relations. Based on these allegations, the non-applicant No.2 lodged First Information Report No. 0085/2023, which is under challenge in the present application.
We have heard Mr. Sachin Sambre, learned Advocate for the applicant, Mrs. Sneha Dhote, learned Additional Public Prosecutor for the the non-applicant No.1/State, and Mrs. Anuprita Mishrikotkar, learned appointed counsel for the non-applicant No.2.
The learned counsel for the applicant has submits as follows :
The applicant is an Engineer by profession, employed in a private organisation, and enjoys a respectable reputation in society. He has no criminal antecedents. It is submitted that he has been falsely implicated, necessitating the present application for quashing. Both the parties were admittedly in a consensual love relationship and the alleged physical relations occurred voluntarily. The non-applicant no. 2 willingly consented to the said acts, and her consent was not obtained through any coercion or deception.
It is further submitted that there is an unexplained delay of 21 months in lodging the First Information Report. The alleged incidents occurred on 11.06.2021 and 12.06.2021, whereas the First Information Report was filed on 10.03.2023. This indicates that the allegations are an afterthought story and lack credibility.
It is further submitted that the non-applicant No.2 is a well-educated and matured woman, holding an M.B.A. degree. Therefore, it is rightly improbable that she was misled into sexual relations under a misconception. It is also submitted that the applicant and his family have repeatedly lodged reports against the non-applicant No. 2, alleging that she has been publishing defamatory content about them on Facebook, causing mental harassment. It is further contended that the non-applicant No.2 had earlier filed a First Information Report dated 14.03.2022 against the applicant's family members, much before the First Information Report in question. It is surprising to note that, in that complaint, she did not mention anything regarding alleged sexual relations under a false promise of marriage, which casts serious doubt on the veracity of the present allegations.
On a bare perusal of the charge-sheet, it is evident that there is no material to show that the non-applicant No. 2 had disclosed her caste to the applicant. Hence, the offences alleged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, are baseless.
On the other hand, the learned Additional Public Prosecutor strongly opposes the application and states that the Investigating Officer has recorded statements of witnesses i.e. Ms. Sonali Washimkar (sister), Mr. Roshan Patil (brother), and Mr. Piyush Taksande (friend), who have corroborated that the non-applicant No.2 narrated the incident to them. The statement of Ms. Mohini Banode (receptionist of Krishna Hotel) confirms that both the applicant and the non-applicant No.2 stayed at the hotel after submitting their Aadhar cards. It is submitted that a prima facie case is made out against the applicant and, therefore, the application deserves to be rejected.
In the backdrop of these facts, we have carefully examined the First Information Report as well as the charge-sheet. It is undisputed that both the applicant and non-applicant No 2 are major and mature individuals, aged 29 and 27 years respectively, capable of understanding the consequences of their actions. It is further to be noted that both the applicant and the non-applicant No.2 are highly educated, qualified and come from respectable strata of the Society. Considering their age and the duration of their relationship, it appears that the physical relationship between them was consensual and voluntary. It also appears that the First Information Report came to be lodged only after the applicant refused to marry with non-applicant No.2 and severed contact with her.
Furthermore, no material is placed on record indicating that the applicant gave false promise of marriage to the non-applicant No. 2 and that her consent for physical relations was obtained particularly through cheating and deception, more particularly right from the inception of the relationship.
The question of voluntary consent or consent under a misconception of fact has been settled in various judgments, such as Uday Vs. State of Karnataka, reported in (2003) 4 SCC 46, and thereafter again in Dilip Singh alias Dilip Kumar Vs. State of Bihar, reported in (2005) 1 SCC 88. Thereafter, in the celebrated judgment of Pramod Suryabhan Pawar Vs. State of Maharashtra and another, reported in (2019) 9 SCC 608, the Hon'ble Apex Court held in paras 8,10, and 13 as under :
"8.In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of Maharashtra, ("Dhruvaram Sonar"):
10.Where a woman does not "consent" to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 does not define the term "consent", a "consent" based on a "misconception of fact" is not consent in the eyes of the law.
13.It is clear that for quashing proceedings, meticulous analysis of the factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in the 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 its inherent powers."
This understanding of consent has also been set out in Explanation 2 of Section 375 (reproduced above). Section 3(1)(w) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 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 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: 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;"
Furthermore, in the same judgment in para 16 the Hon'ble Apex Court held as under :
"16.Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: (SCC pp. 682-84, paras 21 & 24).
"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; 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.”
Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e., at the initial stage itself, the accused had no intention whatsoever of keeping his promise to marry the victim. There may, of course, be circumstances when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. A mere "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to a misconception of fact. To come within the meaning of the term "misconception of fact", the fact must have an immediate relevance. Section 90 I.P.C. cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her."
(Emphasis supplied)
In para 18 of the said judgment, the Hon'ble Apex Court summarized the legal position as under :
"18.To summarize the legal position that emerges from the above cases, the "consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the "consent" was vitiated by a "misconception of fact" arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act."
The allegations made in the First Information Report are inherently improbable inasmuch as it is not expected of a lady of 27 years of age, who is an M.B.A. Graduate, to continue with physical relations under a false pretext of marriage. As also, it is very surprising to know that the same lady was given false assurances of marriage. In the backdrop of these facts we have no option but to infer that the allegations, therefore, do not inspire confidence and are inherently improbable in nature. Furthermore, there is a considerable delay in loding F.I.R. which also casts doubt on the veracity of the allegations. Thus, there is no sufficient ground for proceeding against the applicant.
In our view, therefore, this is a fit case to quash the charge-sheet/final report. Hence, we pass the following order :
O R D E R
The application is allowed to the extent of the present applicant.
The Charge-sheet/Final Report dated 28.04.2023 in Crime No.41/2023 registered by the non-applicant No.1 for the offence punishable under Sections 376(2)(n), 417 of the Indian Penal Code read with Section 3(1)(w)(i), 3(1)(w)(ii), 3(2)(5), of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is quashed and set aside to the extent of applicant.
The application is disposed of.
Parties to bear their own costs.
Fees of the appointed counsel be quantified as per rules.