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Judgment
(A.M. Kalita, J)
Heard Mr. Rajesh Sonar, learned counsel appearing for the petitioner. Also heard Ms. Topi Jini, learned Addl. PP, representing the State respondent, as well as Mr. Mukbom Pertin, learned counsel appearing for the respondent No. 2.
The instant application under Section 528 of BNSS has been filed by the petitioner praying for quashing and setting aside of the FIR dated 31.08.2022, Charge-Sheet No. 149/2022 of Naharlagun Police Station (corresponding to ITA WPS Case No. 106/2022), registered under Section 376 of the Indian Penal Code and proceedings under Sessions Case No. 05/2023, pending before the learned District and Sessions Court, Yupia.
The brief facts of the case leading to filing of the instant criminal petition are summarized herein below: -
An FIR was lodged on 31.08.2022 by the respondent No. 2 before the Women Police Station, Itanagar, Arunachal Pradesh, alleging, inter alia, that the respondent No. 2 (informant) got into a relationship with the petitioner after meeting him in a party through common friends. Thereafter, though initially the respondent No. 2 was reluctant to get into any relationship with the petitioner, however, since the petitioner was persisting on a relationship with her, she started liking him and therefore, got into a relationship; that on 04.02.2022, the sister of the informant expired and the petitioner came to visit her residence and paid his condolences; thereafter, they started meeting each other and the petitioner stated that he wanted to marry her; that thereafter, they had physical relationship with each other since the petitioner promised to marry her; that sometime in the month of March, the petitioner came to the informant's house and met her mother and promised the family that he would like to marry the informant; that he stated that he would take permission from his parents and get married to her; that thereafter, both of them visited Guwahati for certain works of the petitioner; that after coming back from Guwahati, both travelled to Seppa to meet the petitioner's parents and the informant stayed happily for 9 days in their house, wherein his parents introduced her to their relatives as petitioner's would-be wife; that after 9 days, the informant came back to Itanagar for some exam; that later on, after a couple of weeks, the petitioner asked her to move in with him in Seppa and to prepare for her examinations from there; that the petitioner stated that he would focus on his business and she can prepare for her exams from their home; that the informant was reluctant to move in before the marriage, and so she intimated the petitioner about that; that however, after considering the fact that the petitioner would be her husband, the informant started to visit them for a couple of months frequently and while staying there, the informant got pregnant; that after that, the petitioner started acting a little bit differently and started behaving in a rude manner and used to pick arguments and fight with her now and then on petty issues; that on July 2022, both came back to Itanagar for her exam, and the petitioner left for Seppa on 04.07.2022, promising her that he would be coming back on 15.07.2022 with his parents to ask her hand for marriage from her family; that on 10.07.2022, the petitioner and his parents left for Bomdila and started evading her calls and messages since then; the informant tried on many occasions, but the petitioner failed to respond to her calls; that her health was not keeping well and her parents came to know about her pregnancy; that on 11.07.2022, the informant called the petitioner and asked him why he was avoiding her calls after knowing that she was pregnant with his child; that the petitioner rudely told her that his father did not want her to be a part of his family anymore therefore, he could not marry her, and told her that he would be focusing on his career rather than marrying her, which completely shattered and stunned the informant; that later on, the informant asked the petitioner about their child in her womb, then the informant told her that he did not want the child and suggested her to abort it, for which, he transferred Rs. 25,000/- to her mom's account; that after that incident, she intimated the facts to her mother, and since the petitioner was not responding, her mother tried to contact his parents, however, they refused to entertain her requests and started blaming the informant about the pregnancy; that thereafter, the petitioner neither paid any visit to her nor asked about her health conditions and whereabouts; that faced with that situation, the informant and her family stopped contacting the petitioner.
On receipt of the FIR, police registered the Itanagar PS Case No. 106/2022, under the abovementioned sections and started the investigation. After completion of the investigation, the police filed the charge-sheet No. 149/2022 dated 31.11.2022, under Section 376 IPC against the petitioner, and the same is pending before the learned District and Sessions Court, Yupia.
The trial has commenced and at the stage of consideration of charges, the petitioner filed an application for discharging him. However, the learned trial court, vide order dated 20.09.2023, framed charges against the petitioner under Sections 376/417/312 IPC. The case has proceeded to the stage of evidence and prosecution witnesses are to be examined.
The petitioner, being aggrieved by the framing of charge against him by the trial court, has filed the instant petition before this court praying for quashing of the order dated 20.09.2023 along with the charge-sheet dated 31.11.2022.
Mr. R. Sonar, the learned counsel appearing for the petitioner submits that both the petitioner and the respondent No. 2 were very young in the year 2022 when they got to know each other and thereafter, involved in a love relationship. He submits that petitioner was deeply in love with her and really wanted to marry her. He submits that his intention of marrying her is apparently clear from his conduct that he has been with her all throughout the time when their relationship existed, and he took her to his family. He submits that he got her introduced to his parents and other family members, and his parents were also thinking that they would be bringing her as a bride. He submits that due to that fact, the informant also stayed with him in Itanagar as well as in Seppa with his family. He submits that when the petitioner got to know about the demise of informant's sister, he visited the family of the informant and consoled her family. He submits that he met up with the informant's mother and intimated her also that he would like to marry her daughter. He submits that after some point of time when the informant got pregnant, she started behaving a little bit differently. He submits that the informant also divulged various personal issues including her problems to the petitioner, and during such disclosure, she disclosed that she has taken up a loan of about Rs. 20 lakhs and the same has to be paid. He submits that the petitioner, being a young person and shares all his personal details to his parents, intimated them about the informant's loan also. The learned counsel submits that after getting to know about the loan, the parents of the petitioner got a little bit surprised as the informant, being a young lady, had taken such a big loan. He submits that his parents got worried as the petitioner was being supported by the parents and putting their hard-earned money on him to establish his business. He submits that due to that fact, the parents of the petitioner got worried as to what would happen if the informant is married to the petitioner, as the petitioner is a young boy and has started his business recently. The learned counsel further submits that, though there is an allegation by the informant that due to his indifference, she had to go for termination of the pregnancy, the same fact is not correct, as the petitioner had, in fact, intimated the informant to wait for some time and think about the matter. He submits that it is the adamancy of the informant that she had gone for termination of her pregnancy. He submits that since she had asked for some money, he has given her the money and also intimated her that if she required some more, then same could be arranged. He submits that, in fact, at no point of time, he indulged in any kind of activity whereby it can be termed that he had instigated her to do away with her pregnancy.
The learned counsel for the petitioner submits that in the instant case there is no ingredient of commission of any rape. He submits that whatever physical relationship they had, the same happened in consensus. He submits that the petitioner never forced her for any sexual intimacy. He submits that the petitioner, from the very beginning, was of the intention of marrying her, and there is no material to suggest that he had no intention to marry her and falsely promised her to marry, and thereby induced her to get into a physical relationship with her. He further submits that there is no material to suggest that he has done any cheating, as from the very beginning, he was having the intention of marrying her, and due to that he had taken her to his parents and other family members and got her introduced to his family members. He submits that, however, due to certain differences and due to certain compelling circumstances, the parents, being the well-wisher of their son, has objected to the marriage with the informant. He submits that, though there was an objection from the parents, the petitioner wanted the informant to wait for some time. However, she refused to do so and, accordingly, filed the FIR against the petitioner. He submits that after the filing of the FIR and passing of time, both the petitioner and the informant got married to their respective partners. In view of the aforesaid facts, the learned counsel submits that there is no offences under Sections 376 or 417 or 312 of the Indian Penal Code, has been committed by the petitioner. Therefore, the FIR lodged by the informant dated 31.08.2022, the charge-sheet dated 31.11.2022, as well as the framing of the charge against the petitioner by the learned trial court, vide order dated 20.09.2023 and the proceedings under the Sessions Case No. 05/2023, should be quashed and set aside.
In support of his submissions that this Court has sufficient powers to quash the instant proceeding under the inherent powers of Section 528 of BNSS, he has referred to the case of State of Haryana and Others v. Bhajan Lal and Others, reported in 1992 Supp (1) SCC 335.
In support of his argument that there was no false promise of marriage made by the petitioner for sexual relationship, and therefore, the ingredients of Section 376 are not made out in the instant case, he has referred to the following cases: -
Amol Bhagwan Nehul v. State of Maharashtra and Another, reported in 2025 SCC OnLine SC 1230.
Ravish Singh Rana v. State of Uttarakhand and Another, reported in 2025 SCC OnLine SC 1055.
Pramod Suryabhan Pawar v. State of Maharashtra and Another, reported in (2019) 9 SCC 608.
Mr. M. Pertin, the learned counsel appearing for the respondent no. 2 submits that the petitioner has clearly misled the informant and falsely promised to marry the informant, and thereby induced her to get into a physical relationship. He submits that these facts are apparent from the FIR lodged by the informant itself and, therefore, finding sufficient material against the petitioner, the police, after investigation, have filed charge-sheet against the petitioner under Section 376 as well as 417 and 312 of IPC. He submits that due to such physical relationship between the petitioner and the informant, the informant got pregnant, and thereafter, when she requested the petitioner to marry her, he avoided the same. He submits that rather, the family of the petitioner wanted the informant to go for termination of her pregnancy. Faced with the situation of non-support from the petitioner as well as his family, she was compelled to terminate her pregnancy. He submits that the ingredients of Section 376 and 417 are well made out in the FIR itself, and therefore, the charges have been framed by the trial court against the petitioner. In view of the aforesaid, he submits that since the petitioner has induced the informant to get into physical relationship with a false promise of marriage, and since the trial has already started, this court should not interfere with the trial, and the instant petition should be dismissed.
In support of his arguments, the learned counsel has relied on the following cases: -
State of Uttar Pradesh v. Naushad, reported in (2013) 16 SCC 651.
Pradnya Pranjal Kulkarni v. State of Maharashtra and Another, reported in (2026) 6 SCC 813.
Ms. T. Jini, the learned Addl. PP, on the other hand, fairly submits that in the instant case, though the petitioner and the informant got into a physical relationship, but apparently, at the very beginning, the petitioner seemed to have the intention of marrying the informant. However, due to compelling circumstances, as his parents were not agreeable to the marriage, the petitioner had to avoid the marriage. In this connection, she has referred to the case of Kunal Rameshbhai Kalyani v. State of Gujarat and Another, reported in 2026 Supreme (SC) 1108.
The statements of the witnesses including the victim, petitioner, and other witnesses have been perused and duly considered by this Court.
The inherent power of the High Court, under section 528 of BNSS has been well-settled and the same has been laid down by the Hon’ble Supreme Court in the landmark case of Bhajan Lal (supra). The relevant paragraph no. 102 of the aforesaid case is extracted here in below: -
“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 channelized 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 the case of Pramod Suryabhan Pawar (supra), the Hon’ble Supreme Court has observed as follows: -
“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."
Similarly, in the case of Ravish Singh Rana (supra), the Hon’ble Supreme Court has observed as follows: -
“14.In the instant case also, we find that the relationship between the appellant and the second respondent (the informant) was spread over two years. Further, they not only admit of having physical relations with each other but also of living together in a rented accommodation as a live-in couple. In our view, if two able-minded adults reside together as a live-in couple for more than a couple of years and cohabit with each other, a presumption would arise that they voluntarily chose that kind of a relationship fully aware of its consequences. Therefore, the allegation that such relationship was entered because there was a promise of marriage is in the circumstances unworthy of acceptance, particularly, when there is no allegation that such physical relationship would not have been established had there been no promise to marry.
15.Moreover, in a long drawn live-in relationship, occasions may arise where parties in that relationship express their desire or wish to formalize the same by a seal of marriage, but that expression of desire, or wish, by itself would not be indicative of relationship being a consequence of that expression of desire or wish. A decade or two earlier, live-in relationships might not have been common. But now more and more women are financially independent and have the capacity to take conscious decision of charting their life on their own terms. This financial freedom, inter alia, has led to proliferation of such live-in relationships. Therefore, when a matter of this nature comes to a court, it must not adopt a pedantic approach rather the Court may, based on the length of such relationship and conduct of the parties, presume implied consent of the parties to be in such a relationship regardless of their desire or a wish to convert it into a marital bond.”
In the case of Amol Bhagwan Nehul (supra), the Hon’ble Supreme Court has observed as follows: -
“8.Having heard both sides in this case and after carefully considering the material on record, the following attributes come to the fore:
(a)Even if the allegations in the FIR are taken as a true and correct depiction of circumstances, it does not appear from the record that the consent of the Complainant/Respondent no. 2 was obtained against her will and merely on an assurance to marry. The Appellant and the Complainant/Respondent no. 2 were acquainted since 08.06.2022, and she herself admits that they fell in love. The interacted frequently and Complainant/Respondent no. 2 engaged in a physical relationship alleging that the Appellant had done so without her consent, however she not only sustained her relationship for over 12 months, but continued to visit him in lodges on two separate occasions. The narrative of the Complainant/Respondent no. 2 does not corroborate with her conduct.
(b)The consent of the Complainant/Respondent no. 2 as defined under section 90 IPC also cannot be said to have been obtained under a misconception of fact. There is no material to substantiate "inducement or misrepresentation" on the part of the Appellant to secure consent for sexual relations without having any intention of fulfilling said promise. Investigation has also revealed that the Khulanama, was executed on 29.12.2022 which Complainant/Respondent no. 2 had obtained from her ex-the husband. During this time, the parties were already in a relationship and the alleged incident had already taken place. It is inconceivable that the Complainant had engaged in a physical relationship with the Appellant, on the assurance of marriage, while she was already married to someone else. Even otherwise, such promise to begin with was illegal and unenforceable qua the Appellant.
(c)There is no evidence of coercion or threat of injury to the Complainant/Respondent no. 2, to attract an offence under section 506 IPC. It is improbable that there was any threat caused to the Complainant/Respondent no. 2 by the Appellant when all along the relationship was cordial, and it was only when the Appellant graduated and left for his hometown Ahmednagar, the Complainant/Respondent to no. 2 became the conduct cannot ignore agitated. We also of the Complainant/Respondent no. 2 in visiting the native village of the Appellant without any Intimation, which is also unacceptable and reflects the agitated and unnerved state of mind of the Complainant/Respondent no. 2. For the same reason, the criminal prosecution against the Appellant herein is probably with an underlying motive and disgruntled state of mind.
(d)There is also no possibility that the reasonable Complainant/Respondent no. 2 or any woman being married before and having a child of four years, would continue to be deceived by the Appellant or maintain a prolonged association or physical relationship with an individual who has sexually assaulted and exploited her.
9.In our considered view, this is also not a case where there was a false promise to marry to begin with. A consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. Such conduct not only burdens the Courts, but blots the identity of an individual accused of such a heinous offence. This Court has time and again warned against the misuse of the provisions, and has termed it a folly to treat each breach of promise to marry as a false promise and prosecute a person for an offence under section 376 IPC.”
From the above observations of the Hon’ble Supreme Court, it is evident that for an offence under section 376 of IPC, a false promise and thereby an inducement to get into a sexual relationship must be there. The consent, which may be expressed or implied, coerced or misguided, must have been obtained through deceit or misleading facts. There is a clear distinction between rape and consensual sex, and the court is required to carefully examine whether the accused had actually wanted to marry the victim or had mala fide motives and had made a false promise at the very beginning to that effect only to satisfy his sexual needs. If it is found out from the materials that there is a false promise with the intention to cheat the victim, then the same falls within the ambit of cheating or deception. It is also true that there is a distinction between mere breach of promise and not fulfilling a promise. From the material facts, if it is found that though the intention of marriage was present at the very beginning and due to such intention a relationship had developed, but due to certain compelling circumstances, the promise could not be fulfilled on a later stage, then the ingredients of cheating as well as rape may be absent. It is required to examine the facts and circumstances of the case, as there may be certain occasions wherein the victim agreed to have sexual intercourse on account of her love and passion for the accused and not solely on account of any false promise. It may also happen that due to various circumstances, though promise of marriage was there, the accused could not fulfill his marriage despite his intention of marrying her. It is a settled law that an accused can be convicted for rape only if the court comes to a finding that the intention of the accused was mala fide and he had ill motives to exploit the victim.
In so far as the cases relied on by the counsel appearing for the respondent no. 2 (informant), the same have been duly considered by this court.
In the case of Naushad (supra), the Hon’ble Supreme Court has come to a finding that in that facts and circumstances of the case, the accused was found to have falsely promised the victim to get married, and when the victim got pregnant, he completely abandoned her by refusing to marry her. Therefore, in that facts and circumstances, the Hon’ble Court has come to a conclusion that the ingredients of 376 are made out in that case.
As far as the case of Pradnya Pranjal Kulkarni (supra), is concerned, the issue was different and therefore, the same is not relevant for the purpose of the instant case.
In the case of Kunal Rameshbhai Kalyani (supra), the Hon’ble Supreme Court has considered a similar issue involving Section 69 of BNSS, i.e., sexual intercourse by employing deceitful means, etc., wherein the Hon’ble Supreme Court has observed as follows: -
“4.Under the IPC, the false promise of marriage was prosecuted under Section 375 read with Section 90. Therein the requirement was to find that the consent, if at all coming out from the facts, was tainted insofar as the victim having been led to believe a promise of marriage and physical relations having been permitted only on the belief that the promise will be complied with; which the promisor even at the time of giving such promise had no intention to comply with. It was held in the aforesaid decision that misconception of fact cannot be alleged if the promise is made with good intention and later for unavoidable circumstances, the person is forced to resile from the aforesaid promise. The BNS by incorporating Section 69 brought in a separate offence carving out the fraudulent and deceitful conduct as spoken of therein from the grave offence of rape, while at the same time providing a penalty for the deceptive conduct alleged therein. The word employed
"deceitful means or by making a promise to marry to a woman without any intention of fulfilling the same" brings in the same rigor of the promise having been given with an intention of never being fulfilled, which is the deceitful conduct sought to be punished.
5.In the present case, the FIR has been extracted by the High Court and it clearly indicates that the appellant and the complainant came into contact through a digital platform and a friendship developed between them, which later became a love affair. It is also stated in the complaint that the appellant communicated his desire to marry the complainant on the first physical meeting. The complainant is said to have succumbed to his entreaties and allowed sexual intercourse. This was on 12.02.2024 and again in April 2024, the victim is said to have stayed in a hotel for two days with the appellant. The statements made in the complaint clearly indicate a consensual relationship and we do not find anything to find a deceitful conduct, of, the appellant having induced the complainant into sexual intercourse, which she succumbed to only on the promise to marry. Here we reiterate that on the first occasion when they met, the complainant succumbed to the appellant's entreaties, is the specific statement made without even stating that it was on the promise to marry that physical relationship was permitted.
6.On the mere communication of the desire of the appellant to marry her, we are unable to find the appellant having used any deceitful means. In any event, the very complaint is that the appellant refused to marry her later, because his mother did not permit it, which indicates that the promise was made with all good intention, if at all it was made.”
In the above-mentioned case of Kunal Rameshbhai Kalyani (supra), the Hon’ble Supreme Court has held that on the mere communication of the desire of the accused to marry the victim, and later on, the accused person's refusal to marry the victim due to his mother's non-acceptance, has been held as the promise was made with all good intention, if at all it was made.
From the facts involved in the instant case, it is seen that there was intention from the side of the petitioner to marry the informant and his good intentions can be prima facie seen from his behavior and conduct that he had taken his would-be wife (i.e., the victim) to his parents and convinced his parents that he would be marrying her. It is also seen the relationship between the petitioner and the informant (victim) lasted for about two years before they got separated. It is also not disputed that the victim stayed with the family of the petitioner on many occasions, and in fact, she voluntarily traveled with him to other places like Guwahati. During their courtship, which was consensual, the victim got pregnant, and the same was intimated to the petitioner. But the problem arose when the petitioner's parents came to know about the heavy debt that the victim girl was having at that point of time. It seems, they got worried about the future of their son (the petitioner), as he was a young person who had recently started his business. From the materials and evidence available, this seems to be the reason why the petitioner avoided the marriage with the victim.
From the materials brought on record, it is also seen that, in fact, the petitioner wanted the victim to give him some time, and also take some time to think about the relationship. But it is seen that the victim took a hurried decision to break the relationship, and thereby filing the FIR in this case. Therefore, from the materials and evidence available, and from the pleadings, it cannot be said that the petitioner was having an ill intention of cheating the victim from the very beginning and thereby getting into a physical relationship with her. The failure of the relationship apparently seems to be due to the reason that the parents of the petitioner objected to the marriage of their son with the victim.
Having discussed as above, and coming to a finding that the necessary components of the offences alleged in the FIR being absent in the instant case, this Court is of the considered opinion that injustice will be caused to the petitioner if the proceedings pending against him in the court of the learned District and Sessions Judge, Yupia, in Sessions Case No. 05/2023 is allowed to go ahead.
Accordingly, for the reasons as discussed above, the instant criminal petition stands allowed by quashing and setting aside the FIR dated 31.08.2022, which has been registered as ITA WPS Case No. 106/2022, under Sections 376 Indian Penal Code, Charge-sheet No. 149/2022, Order dated 20.09.2023, and the proceedings under Sessions Case No. 05/2023, pending before the learned District and Sessions Court, Yupia.
Trial Court Record to be sent back immediately.