AI Structured Summary
Not yet generated for this judgment
Judgment
Heard.
Admit. Heard finally by consent of the learned counsels for the parties.
By the present application, filed under Section 528 of the Bharatiya Nagarik Surakhsa Sanhita, 2023, the applicant is seeking quashing of First Information Report (FIR) No.242/2024 registered with Police Station Akot Rural, Dist. Akola for the offence punishable under Sections 376, 376(2)(n), 417 and 506 of the Indian Penal Code, 1860 (IPC), charge-sheet No. 97/2025 and the proceeding bearing RCC No.371/2025 pending on the file of learned Civil Judge Junior Division and Judicial Magistrate First Class, Akot.
The brief facts of the case, as per the charge-sheet, are as under:-
The complainant/non-applicant no.2 was residing separately from her husband on account of some matrimonial discord, and the divorce proceedings were pending between them until their divorce in 2023. As per the FIR, the complainant alleged that she met the applicant through an online platform, and subsequently their friendship developed into a love relationship.
ii) It is the case of the complainant that on 08.01.2021, the applicant took her to a tourist place where both of them stayed in the same room. There, based on the promise of marriage, the applicant established physical relationship with the complainant. Thereafter, number of times physical relationship were established between the applicant and the complainant. On 30.04.2024, the applicant called the complainant and gave Rs.5000/- to her and told her that they are going to marry on 02.05.2024 and for that purpose he asked the complainant to purchase a Saree from the given amount. Later on, the applicant went unreachable and did not marry the complainant. Therefore, on the basis of the complaint lodged by the complainant, the aforesaid offence came to be registered against the applicant.
Heard the learned counsel for the applicants as well as the learned APP for the State assisted by the learned counsel appointed for non-applicant no.2 and also gone through the charge-sheet.
Perusal of the charge-sheet indicates that the complainant is a married women and she got divorced from her husband in the year 2023. The FIR as well as the statement of the complainant depicts that the physical relationship for the first time was established between the complainant and the applicant on 08.01.2021. The complainant was already married at that time and her earlier marriage was in subsistence at that relevant time. In this scenario, it will be difficult to accept the allegations that irrespective of her earlier marriage still being in subsistence, she was succumbed to the promise of marriage made by the applicant and resultantly agreed to establish physical relationship with him.
That apart, it appears that the physical relationship between the complainant and the applicant continued from 2021 to 2024, i.e. for approximately three years. If the physical relationship was initiated on the basis of a false promise of marriage, as alleged, and the complainant was deceived by the applicant, it is relevant to note that the relationship continued for nearly three years. Moreover, at the time of the first sexual intercourse when the applicant allegedly promised to marry the complainant her first marriage was still subsisting. The complainant, being an adult and already involved in matrimonial litigation before the Court, was aware that she could not legally marry the applicant while her first marriage subsisted.
Sofaras, the submission of the learned counsel for the complainant that the consent has been given by the complainant under misconception of the fact is concerned, no doubt if the consent is given by the complainant under misconception of the fact, it will be no consent in the eyes of law.
Consent of a woman in respect of Section 375 of the IPC must involve understanding of circumstances, actions and consequences of the proposed act of establishing physical relationship. To determine whether the consent was initiated by misconception of the fact arising out of the promise to marry two propositions must be established: the promise of marriage must be a false promise given in a bad faith with no intention of being adhere to, at the time it was given and second that the false promise must be of immediate relevance and bear a direct nexus to a woman’s decision to engage in the sexual act. {See: Pramod Suryabhan Pawar Vs. State of Maharashtra and anr [(2019) 9 SCC 608] }.
In the present case, as stated above, at the time of initial sexual intercourse, earlier marriage of the complainant was in subsistence and she was aware that during the subsistence of her marriage, she cannot marry the applicant. Further, the complainant all the way, went with the applicant to a tourist place and shared a room with him and entered into sexual intercourse with him. Thereafter at multiple occasions, the physical relationship between the applicant and the complainant was established which itself suggests that that the physical relationship between the applicant and the complainant was an act done out of an active and reasoned deliberation. This clearly demonstrate that the physical relationship between the applicant and the complainant is a consensual act.
Even if for the sake of argument if it is presumed that before establishing physical relationship, the applicant had made a false promise to the complainant of performing marriage with her however, the material in the charge-sheet otherwise depicts that on 30.04.2024, the applicant gave the complainant Rs.5000/- for purchasing a Saree for the purpose of their marriage. Though, it is a different aspect that later on the marriage of the applicant and the complainant could not materialized. Thus, the material on record clearly suggests that physical relationship between the applicant and the complainant was consensual in nature.
A reference can be made to the decision of the Supreme Court in Pramod Kumar Navratna Vs. State of Chhattisgarh and others [2026 SCC Online SC 154], wherein the Supreme Court in para nos. 19 and 24 has held as under:-
“19.Upon a careful consideration of the record in the present case, we are unable to discern any material that would warrant the invocation of Section 376(2)(n) of the IPC. The facts of the present case unmistakably indicate towards a classic case of a consensual relationship turning acrimonious. Upon perusal of the records of the case, it is evident that the complainant-respondent No. 3 is a married lady with a ten years old child. The said marriage was solemnized on 02.06.2011 and although divorce proceedings are currently pending adjudication between her and her husband, by no stretch of imagination can it be held that the complainant-respondent No. 3 was eligible for being married with the accused-appellant on 18.09.2022, the date on which the first of the multiple instances of acts of rape on the false pretext of marriage has been committed by the accused-appellant are alleged. Therefore, even for the sake of argument, if the contention of the respondent No. 1 - State and the complainant-respondent No. 3 is accepted that there indeed was a false promise of marriage based on which the accused-appellant indulged in sexual activities, such a promise would not be legally enforceable or even capable of being acted upon as the victim herself was not eligible for marriage, neither on the date of the first alleged act of offence i.e. 18.09.2022 nor on any subsequent dates wherein the parties indulged in the sexual activities, till the point of the date of registration of FIR i.e. 06.02.2025. The said embargo arises from sub-clause (i) of Section 5 of the Hindu Marriage Act,1955 which categorically prohibits marriage between two individuals if either of them have a living spouse. The said position of law has been reiterated under sub-clause (i) of Section 4 of the Special Marriage Act, 1954. XXX XXX XXX
24.On a perusal of the allegations made in the present case, it is an admitted fact that the complainant-respondent No. 3, within the first initial meetings told the accused-appellant that she was a married woman with divorce proceedings pending before the Family Court. Therefore, in the same breath, she cannot be allowed to claim and allege that she was also coaxed by the accused-appellant into having a physical relationship with him on the false pretext of marriage as the two facts cannot stand together on the same plane and simultaneously as both are antagonistic and antithetical to each other. In our opinion, the facts of the present case clearly indicate a consensual relationship gone sour whereas both the parties should have exercised restraint and should have refrained from involving the State into their personal relationship turning rancour.”
A reference can be made to the decision of the Supreme Court in the case of State of Haryana and others Vs. Bhajan Lal and others [1992 Supp (1) SCC 335], wherein the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the FIR were discussed and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the case, the Supreme Court has laid down broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under:—
“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.
(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 F.I.R. 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 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.”
As stated above, there is nothing on record to suggest that applicant had no intention of marrying the complainant at the time of initial sexual intercourse even if the allegations of false promise of marriage is taken at its face value.
So far as offences under Sections 417 and 506 of the IPC are concerned, these offences fall under the category of non-cognizable offence. Thus, the Police could not have initiated investigation of these offences without permission from the competent Magistrate as stated under Clause (4) of the decision in the case of Bhajan Lal (supra).
Thus, I find support in the arguments of the learned counsel for the applicant that a case is made for exercising the inherent powers of this Court for quashing the FIR and the consequent proceeding. Hence, I proceed to pass the following order:-
The application is allowed.
ii) FIR No.242/2024 registered with Police Station Akot Rural, Dist. Akola for the offence punishable under Sections 376, 376(2)(n), 417 and 506 of the IPC, charge-sheet No. 97/2025 and the proceeding bearing RCC No.371/2025 pending on the file of learned Civil Judge Junior Division and Judicial Magistrate First Class, Akot is quashed and set aside qua the applicant.