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Heard. Admit. Heard finally by consent of learned counsel appearing for the parties.
This is an application filed under Section 482 of the Criminal Procedure Code seeking quashing and setting aside the Charge-sheet dated 16.9.2021, registered by non-applicant No.1/Police Station Gondia City, for the offences punishable under Sections 376(2)(n), 417 of the Indian Penal Code, vide Crime No.529/2021, registered by Police Station Gondia City, District Gondia.
As per the averments in the First Information Report lodged by the non-applicant No.2, she and the applicant are acquainted with each other, they being relatives. The applicant came in contact with the non-applicant No.2 prior to 12 years of the lodging of the First Information Report, at the said time the applicant confessed her love about the non-applicant No.2 and agreed to marry her. According to non-applicant No.2, the applicant thereafter forced himself upon her and established physical relations with her. He also told her not to disclose this fact to anybody since they are going to marry. Thereafter, according to the First Information Report the matter was discussed within the families wherein the applicant told non-applicant No.2 that his father at present not ready, but they would marry after father is persuaded by him. Thereafter, on 16th June, 2020, when the non-applicant No.2 was alone, the applicant repeated the act of the month of June 2020. There was a talk between the families of the parties regarding the marriage, however, since there was no response for the marriage proposal, the applicant stopped talking with the non-applicant No.2. The family of the non-applicant No.2, however, started searching for suitable groom for her and her engagement was finalized. However, the cousin of the applicant told the prospective groom about the earlier physical relationship between the applicant and non-applicant No.2 which resulted in breaking the said marriage. It is in this backdrop that the non-applicant No.2 lodged the First Information Report alleging that applicant has committed offence as punishable under the sections mentioned above.
We have heard Mr. Virat S. Mishra, learned counsel for the applicant, Mr. N.B. Jawade, learned Additional Public Prosecutor for the non-applicant No.1 and Mrs. Shiba Thakur, learned counsel for non-applicant No.2.
Learned counsel for the applicant submits that even if the allegations in the First Information Report are taken in its entirety, no offence much less as mentioned in the First Information Report is committed. He further submits that the meaningful reading of the First Information Report in question would reveal that the entire relationship was consensual in nature and, therefore, cannot amount to rape. He, therefore, submits that the First Information Report and the subsequent criminal proceedings are liable to be quashed.
Learned Additional Public Prosecutor while opposing the contentions advanced by the learned counsel for the applicant submits that even if assuming that the relationship was consensual but the intention to deceive on the false pretext of marriage was therefrom inception and, therefore, the case under Section 376(2)(n) is squarely made out.
Learned counsel for the non-applicant No.2 also supports the contentions advanced by the learned Additional Public Prosecutor and states that the applicant has exploited non-applicant No.2 on the false pretext of marriage and, therefore, according to her, it is not a fit case to exercise jurisdiction under Section 482 of the Criminal Procedure Code.
In the backdrop of these facts and circumstances we have carefully perused the First Information Report in question. As can be seen from the oral complaint lodged by the non-applicant No.2 she has been shown to be aged 30 years in the year 2021 and the applicant is shown to be 36 years at the time of filing of First Information Report. Even according to the averments in the First Information Report, the parties were in relationship since last 12 years prior to 2021. It is worthwhile to mention that the non-applicant No.2 is serving in Nagar Parishad, Gondia. Thus, both persons in the present matter i.e. applicant and non-applicant No.2 are major, adult and able to understand the consequences of initiation and continuance of any relationship. The controversy, in the present matter has to be adjudicated in the backdrop of these facts.
The non-applicant No.2 states in the First Information Report in question is lodged only when her marriage as fixed by her family was broken due to interference of the cousin of the applicant. It, therefore, implies that she gave consent to the initiation and continuation of physical relationship between her and the applicant. One more fact for reaching to this inference is duration of relationship i.e. about more than 12 years. It is only when the non-applicant No.2 realized that her marriage was broken due to the act of the cousin of the applicant that she went to the Police Station for lodging the complaint. In that view of the matter, in our considered opinion this cannot be a case where physical relationship is entered into and continued on a false promise of marriage. The averments in this regard in the First Information Report are not believable. In the celebrated judgment of Pramod Suryabhan Pawar Vs. State of Maharashtra and another, reported in
“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 vs. State of Haryana, (2013) 7 SCC 675, this Court observed:
“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.
24.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. The “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 misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC 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.”
Thus, in the conspectus of the law law laid down as mentioned above, if the facts are analyzed, it can very well be said that it was at the most only breach of promise to marry. Therefore, it can be inferred that the non-applicant No.2 consented for the living relationship between her and the applicant. The act, therefore, would not come within the purview of Section 376(2)(n) which would warrant continuance of criminal proceedings against the present applicant.
The situation would, therefore, squarely fall within the well laid down parameters of celebrated judgment of State of Haryana and others Vs. Ch. Bhajan Lal and others, reported in AIR
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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.
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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.”
Thus, in our view, the continuance of proceeding would amount to an abuse of process of Court and amount to travesty of justice. We, therefore, pass the following order :
O R D E R
The application is allowed.
Charge-sheet dated 16.9.2021, registered by non-applicant No.1/Police Station Gondia City, for the offences punishable under Sections 376(2)(n), 417 of the Indian Penal Code, vide Crime No.529/2021, registered by Police Station Gondia City, District Gondia and further proceeding in Sessions Case No.108/2021, pending before the District and Sessions Judge, Gondia are quashed and set aside.
The application is disposed of.