Honey Tokas vs The State (NCT Of Delhi) & Anr.

“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. ***

18.

To summarise 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.”

“12.

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 an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Section 375 IPC and can be convicted for the offence under Section 376 IPC.”

“23.

The courts have to be extremely careful and cautious in identifying the genuine cases filed under Section 376(2)(n)IPC by identifying the essential ingredients to constitute the said offence i.e. there should be a promise of marriage made by the accused solely with a view to obtain consent for sexual relations and without having any intent of fulfilling said promise from the very beginning, and that such false promise of marriage had a direct bearing on the prosecutrix giving her consent for sexual relations. Such genuine cases that deserve prosecution of the accused must be clearly demarcated from the litigation that arises from the cases of consensual relationships between consenting adults going acrimonious on account of dispute and disagreement or a future change of mind.”

“6.

That a bare perusal of the FIR, Complaint, Statement u/s 164 Cr.P.C. reveal that it is case of consensual relationship whereby two consenting adults entered into a relationship but the relation could not culminate into marriage due to some family and other unforeseen problems. It is not a case of false promise on behalf of Accused/Petitioner as the relationship continued for 5 long years and the Complainant has admitted in her complaint that the Petitioner was loving and caring for her at all times.”

“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 have given 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. ***

(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. ***

(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. ***

(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.”

“Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person.”

“…. Initially I did not know his dishonest and cruel mental mind to utilized me in terms of financial physical needs to fulfill his Desired. Honey Singh Tokas was so connected to me by his extra-ordinary Love care understanding affection and concern towards me and assured me that he is everything for me and assured me that he will marry me and promised me that he will introduced to his parents. His shown cared love understanding made me believed that what ever he used to say and ask me to do I obeyed him without realizing his malafide intention for his sexual desirous … Initially are physical intimacy took place when he assured me that he will marry me …”

“20.

The following steps should ordinarily determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

(i)

Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the materials is of sterling and impeccable quality?

(ii)

Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

(iii)

Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

(iv)

Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal – proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”

“9.

In the present case, the allegations made by the complainant are serious in nature and raise questions that cannot be adjudicated at this stage. Whether the petitioner had, in fact, misled the complainant into believing that he would marry her and had induced her to obtain a divorce on the strength of such promises, or whether the relationship between them was purely consensual from the outset, are issues that cannot be adjudicated in a petition under Section 482 of the Cr. P.C. Furthermore, there are specific allegations that after she had obtained divorce from her husband on assurance of marriage by the petitioner, thereafter on false promise of marriage on 27.03.2018, when she had been divorced, he had established sexual relations with her. Thus clearly, she was divorced on 27.03.2018, at the instance and assurance of petitioner and after divorce, he had again on the assurance of marrying her, made physical relations with her.” (emphasis supplied)

“14.

Given these circumstances, the allegations against the petitioner necessitate a full trial, as they disclose a prima facie case of sexual exploitation under false assurances, making the quashing of the FIR unwarranted at this stage. ***

18.

In light of the petitioner's specific assurances of marriage, the complainant's consent to the physical relationship was premised on a legitimate expectation of marriage. If it is established that the petitioner never intended to marry her from the outset, such consent would be vitiated under Section 90 IPC as one obtained under misconception of fact, thereby attracting liability under Section 375 IPC for rape. The facts of the present case, coupled with the legal position laid down in Anurag Soni v. State of Chhattisgarh (supra), establish that the allegations warrant judicial scrutiny through trial.

19.

Given the prima-facie material on record and the gravity of the allegations, this Court finds no justification for quashing the FIR at this stage.” (emphasis supplied)

“50.

The intention of the petitioner at the time of making the alleged promise remains a matter of dispute and cannot be conclusively determined at this stage. It is a factual question that requires evidence to be tested during trial. While the allegations raise a prima facie case warranting further judicial scrutiny, the Court, at this juncture, cannot definitively conclude that the petitioner acted with mala fide intent.” (emphasis supplied)