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Judgment
Rule. Rule made returnable forthwith. Heard finally by consent of the learned counsel appearing for the parties.
The applicant seeks quashing of the First Information Report bearing Crime No.781/2025 registered with Police Station, Kalmeshwar, District Nagpur (Rural) for the offences punishable under Section 69, 123 and 351(3) of the Bharatiya Nyaya Sanhita, 2023 (for short, “BNS”) and charge-sheet No.211/2025 as well as consequent proceedings arising out of the said FIR.
The charge-sheet indicates that the complainant/non-applicant no.2 is a widow and a mother. The applicant met the complainant at a gym, where both of them used to go for their workout. Their acquaintance soon turned into friendship and later on, into a love relationship. On 02.09.2025, the complainant lodged an FIR with Yashodhara Nagar Police Station alleging that the applicant took her to Kuber Lodge, Kalmeshwar Highway in the year 2021 and established forcible physical relations with her. When she refused, the applicant told her that he would marry her. Again, in the year 2022, the applicant took the complainant to the same lodge and established physical relations with her. The applicant used to repeatedly call her on the phone and used to demand sexual favours, which she used to refuse. It is claimed that now the applicant is pressurising her for a physical relationship and harassing her. It is also alleged that on 30.08.2025, the applicant called the complainant and demanded sexual favours. When she refused, the applicant threatened her with her life. Yashodhara Nagar Police Station, Nagpur, registered the offence as Zero FIR and transferred the same to Kalmeshwar Police Station, within whose jurisdiction the offence of sexual intercourse by deploying deceitful means allegedly occurred. Therefore, Kalmeshwar Police Station, Nagpur, on the said complaint, registered Crime No.781/2025.
Learned counsel for the applicant vehemently submits that the relationship between the applicant and the complainant was consensual and lasted for almost five years. Had there been any promise of marriage, the complainant would not have waited for more than three years to lodge the FIR, considering the fact that the alleged forceable sexual intercourse took place in the year 2021 and again in the year 2022. According to him, the applicant knew that the complainant is a widow and has a son. Since inception, there was a clear understanding that the relationship between the applicant and the complainant was merely a love relationship with no promise of any union in future. He submits that the applicant and the complainant were friends and were also engaged in consensual sexual intercourse as a mutual understanding, but the applicant never made any promise of marriage. Therefore, there was no question of the applicant promising to marry her and establishing sexual relations with her on the pretext of marriage. According to him, a few days before lodging of the present FIR, the complainant had lodged another FIR at Yashodhara Nagar Police Station bearing Crime No.658 of 2025 regarding other incidents where she did not disclose the fact that the applicant committed sexual intercourse with her on the false promise of marriage. A concocted story has been prepared by the complainant just to implicate the applicant. Even the statement under Section 183 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) dated 16.09.2025 is completely contrary to the statement made by the complainant in the oral report. Therefore, a false report has been filed against the applicant.
Per contra, learned Additional Public Prosecutor assisted by learned counsel for the complainant submitted that the applicant committed sexual intercourse by deceitful means not only on the pretext of promise of marriage but also after administering intoxicated substances to the complainant and therefore, Section 123 was later added by the police. According to the learned APP, the applicant is harassing the complainant. Even on 30.08.2025, the applicant assaulted the complainant. The charge has already been framed and the contentions put forth by the learned counsel for the applicant can be appreciated only during trial. Therefore, she sought rejection of the application.
Having heard the learned counsel for the respective parties as well as having gone through the entire charge-sheet, it transpires that the complainant is a widow and a mother to a son. The FIR itself reveals that the applicant and the complainant were in a love relationship. The FIR further depicts that the applicant and the complainant had been to Kuber Lodge on Kalmeshwar Highway, where the applicant forcibly established physical relations and thereafter, he promised to marry her. At the same lodge in the year 2022, physical relations were again established between the applicant and the complainant. In this instance of sexual intercourse, there is no allegation of forceful sexual intercourse or any promise of marriage made by the applicant. The complainant kept mum all the way from the year 2021 till the year 2025, i.e. almost for five years.
Notably, a week prior to lodging of the present FIR Non- applicant No. 2 had lodged an FIR against the applicant at Yashodhara Nagar Police Station, Nagpur, wherein she did not disclose any such incident of forceful or deceitful sexual intercourse on the promise of marriage. Rather, it says that the applicant and the complainant are in a love relationship. The said FIR speaks about the incident of assault dated 30.08.2025 with the intent to outrage the modesty of the complainant.
It is to be noted here that the statement of the complainant recorded by the Magistrate under Section 183 of the BNSS, tendered across the Bar by the learned counsel for the complainant, is taken on record and marked as “X” for identification. In this statement, the complainant came-up with an altogether different story. She stated that in the year 2021, she accompanied the applicant to Kuber Lodge. The applicant mixed beer in her cold drink as a result of which, she became unconscious. While she was under the influence of alcohol, the applicant committed sexual intercourse with her. It is also stated that the same incident was repeated in the year 2022, wherein the applicant offered her beer which she consumed and again, the applicant committed sexual intercourse with her when she was under the influence of alcohol. Whereas, there is no whisper about the promise of marriage given by the applicant as alleged by her in the FIR.
Perusal of the earlier FIR lodged on 31.08.2025, the present FIR as well as the statement of the complainant recorded before the magistrate reveals that the complainant has come up with three different versions of the same incident. In all the statements, one thing is common that there was a love relationship between the applicant and the complainant. The complaint/FIR dated 30.08.2025 does not speak anything about any forceable sexual intercourse at the hands of the applicant. The second version states that the applicant committed forceable sexual intercourse with the complainant and thereafter, promised to marry her. The third version states that the applicant administered alcohol to the complainant and then committed sexual intercourse with her while she was intoxicated. Thus, there are discrepancies in the statements of the complainant with regard to the alleged incident.
It will be apposite to deal with the allegations under Section 69 of the BNS first. The record does not indicate that the applicant obtained the consent of the complainant after making a promise of marriage to her and the complainant also agreed to establish physical relations only after such promise was made to her in order to obtain consent. The essential ingredient of Section 69 of the BNS is that the false promise of marriage should be made before the act of sexual intercourse is committed in order to obtain consent of the woman. It is the complainant who herself has stated in her supplementary statement recorded before the Magistrate that she asked the applicant to marry her after the incident of the year 2022, to which the applicant initially responded by stating that he is a Muslim man and she is a Hindu woman and therefore, their marriage is not possible. This further goes to show that the applicant did not make any promise of marriage in order to obtain consent from the complainant.
A useful reference can be made to the decision of the Supreme Court in the case of Mahesh Damu Khare v. State of Maharashtra 1 , wherein it has been held as under:
“27.In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties.
28.Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.
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31.In the present case, even assuming that the appellant had made the promise since 2008 when they met for the first time, the fact that they remained unmarried for a long period till 2017 without there being any protest or objection by the complainant, does not indicate the intention at the initial stage itself to make the promise falsely to marry the complainant. Making an allegation of non-fulfilment of promise to marry without undue delay by the promisee would, on the other hand, be an indicator of a false promise being made from the initial stage. In the present case, what is not in dispute is that the physical relationship between the appellant and the complainant continued for a long period of about a decade and as such it is difficult to infer that the appellant had made a false promise since the initial stage and continued to make false promises to marry her on the basis of which she also continued to have physical relationship with him.
34.In our opinion, the longer the duration of the physical relationship between the partners without protest and insistence by the female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by the male partner and thus, based on misconception of fact.
35.Moreover, even if it is assumed that a false promise of marriage was made to the complainant initially by the appellant, even though no such cogent evidence has been brought on record before us to that effect, the fact that the relationship continued for nine long years, would render the plea of the complainant that her consent for all these years was under misconception of fact that the appellant would marry her implausible. Consequently, the criminal liability attached to such false promise would be diluted after such a long passage of time and in light of the fact that no protest was registered by the complainant during all those years. Such a prolonged continuation of physical relationship without demurral or remonstration by the female partner, in effect takes out the sting of criminal culpability and neutralises it.
36.It will be very difficult to assume that the complainant who is otherwise a mature person with two grown-up children, was unable to discover the deceitful behaviour of the appellant who continued to have sexual relationship with her for such a long period on the promise of marriage. Any such mendacious act of the appellant would have been exposed sooner without having to wait for nine years.
37.The inference one can draw under the circumstances is that there was no such false promise made to the complainant by the appellant of marriage by continuing to have physical relationship so as to bring this act within the province of Section 376 IPC and therefore, there was no vitiation of consent under misconception of fact.
39.In our view if criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences. It will open the scope for imputing criminality to such long term relationships after turning sour, as such an allegation can be made even at a belated stage to drag a person in the juggernaut of stringent criminal process. There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which the Court must also be mindful.”
Thus, even if it is presumed that the same incident which happened in the year 2021 again repeated in the year 2022, the complainant still continued the relationship with the applicant till the year 2025, till the alleged incident of assault took place. This goes to show that the relationship between the applicant and the complainant was always consensual and physical relations were also established by both the parties out of free consent. It is only when applicant started frequently calling the complainant and thereafter allegedly assaulted her, that the relationship turned sour. Thus, it appears that the complainant has implicated the applicant after the relationship turned ugly, but this does not change the fact that the physical relationship was established by consent of both the parties. The sexual intercourse between them was a consequence of their consensual relationship. Therefore, after considering the material available on record, I do not find that deceitful means were deployed by the applicant by making a false promise of marriage to the complainant in order to obtain her consent for establishing physical relations with her.
Moving to the allegations under Section 123 of the BNS, the complainant has stated in her statement recorded before the Magistrate that the applicant committed sexual intercourse after administering alcohol to the complainant. The said allegations are completely contrary to what has been stated by the complainant in the FIR regarding the promise of marriage made by the applicant. The FIR does not speak anything about the allegations that the applicant forcibly administered alcohol to the complainant and committed sexual intercourse with her while she was intoxicated. The allegations just appear in the statement of the complainant recorded before the Magistrate. Had the applicant actually administered alcohol to the complainant in the incident which happened in the year 2021, she would have taken prompt action against him by breaking off the relationship and lodging an FIR against him. The fact that the relationship continued thereafter and the complainant again accompanied the applicant to the same lodge in the year 2022 shows that the complainant had consented to the same.
To conclude, the aforesaid contradictory stories, coupled with the fact that the relationship continued for almost five years clearly demonstrate that the relationship between the applicant and the complainant was consensual and the sexual intercourse between the applicant and the complainant was also consensual. The fact remains that the complainant, who is a major woman as well as a mother, cannot be said to have been sexually exploited on the alleged false promise of marriage or intoxication, particularly when the alleged sexual intercourse took place in the 2021 and 2022 and the relationship between the applicant and the complainant continued even thereafter. Perhaps, the relationship may have turned sour for the reason that the applicant kept calling the complainant frequently and made repeated demands for sexual favours, which led to the alleged incident dated 30.08.2025, wherein she was allegedly assaulted by the applicant. Hence, the offences punishable under Section 69 and 123 of the BNS are not made out against the applicant.
So far as Section 351(2) of the BNS is concerned, once it is held that the cognizable offences under Section 69 and 123 are not made out and the police did not obtain the order of the Magistrate under Section 174 of the BNSS (Section 155(2) of the CrPC) to investigate the non-cognizable offence under Section 351(3) the FIR is required to be quashed.
It is apt to mention the decision of the Supreme Court in the State of Haryana and others Vs. Bhajanlal and others 1, which reads thus:
““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.
(2)Where the allegations in the first information report and other materials, if any, accompanying the FIR 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.”
In view of the facts of the present case, looking at the contradictory stories putforth by the complainant as well as the attending circumstances of the case, the allegations made in the FIR are so absurd and inherently improbable that no prudent person can reach a conclusion that there is sufficient ground for proceeding against the applicant. The present case squarely falls under clause (5) of para 102 of the decision of Bhajanlal (supra).
Since, none of the cognizable offences are being made out against the applicant and no permission was obtained from the Magistrate to investigate the non-cognizable offence, the present case also falls under clause (4) of para 102 of the decision of Bhajanlal (supra).
Considering the facts mentioned above, a case is made out for quashing of the FIR and the consequential proceedings. Hence, the following order is passed:
The application is allowed.
First Information Report bearing Crime No.781/2025 registered with Police Station, Kalmeshwar, District Nagpur (Rural) for the offences punishable under Sections 69, 123 and 351(3) of the Bharatiya Nyaya Sanhita, 2023 and Charge-sheet No.211/2025 as well as consequent proceedings arising out of the said FIR are hereby quashed and set aside.
Rule is made absolute.