The main legal point established in the judgment is the requirement for an active and reasoned deliberation for consent under Section 375 of the IPC, and the distinction between false promise and breach of promise in cases involving sexual intercourse on the pretext of marriage.

JUDGMENT

amit B. Borkar, J. - Heard.

2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

3. By this application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter 'CrPC' for short), the applicant is challenging the registration of the first information report bearing Crime No. 161/2019 registered with the non-applicant no. 1-Police Station for the offence under Section 376(2)(n) of the Indian Penal Code, 1860 (hereinafter "IPC" for short).

4. In order to consider the grievance of the applicant, it would be necessary to advert to contents of the first information report. The first information report was lodged by the non-applicant no. 2 on 06.04.2019, which states that in the year 2015-16 the applicant's sister got acquainted with her while getting training in Nursing. On 05.08.2017, which was her birthday, the applicant expressed his willingness to marry her. The applicant also sent a Facebook friend request to her, which was accepted by her resulting in a friendship with him. In the month of June-2018, both exchanged their cell phone numbers. In July-2018, the applicant came to her house and expressed his willingness to marry her in front of her mother. after three months, i.e. in November-2018, the applicant took her near Mahan Dam and, by promising marriage, had sexual intercourse with her. Thereafter, again in December-2018, they had sexual intercourse in a hotel. Both were having continuous talk regarding marriage. However, the applicant refused to perform marriage with her, resulting in the registration of the first information report against the applicant.

5. The applicant, therefore, challenged the registration of the first information report by filing the present application. This Court, on 27.08.2019, issued notice to the non-applicants and directed the investigating agency not to file a charge sheet without leave of the Court. The non-applicant no. 1 filed reply stating that the applicant had promised to marry the non-applicant no. 2 and, on the said pretext, committed sexual intercourse but subsequently refused to marry her. It is stated that essential ingredients of an offence under Section 376 of the IPC are made out.

6. We have heard Shri S. V. Sirpurkar, learned advocate for the applicant and Shri S. M. Ghodeswar, learned aPP for State and Shri C. a. Joshi, learned advocate for the non-applicant no. 2.

7. Shri S. V. Sirpurkar learned advocate for the applicant submitted that the relationship between the applicant and the non-applicant no. 2 was consensual in nature. He submitted that bare reading of the first information report as well as material on record would indicate that there was absolutely no intention on the part of the applicant when he entered upon the relationship not to marry the non-applicant no. 2, nor it can be suggested that promise to marry was false. Hence, he submitted that no offence had been made out against the applicant within the meaning of Section 376(2)(n) of the IPC. Learned advocate appearing for the applicant has placed reliance upon the decision of the Hon'ble Supreme Court in the case of Shivshankar @ Shiva V/s. State of Karnataka Criminal appeal No. 504/2018, decided on 6th april,2018, Dr. Dhruvaram Murlidhar Sonar V/s. The State of Maharashtra and others Criminal appeal No. 1443/2018, decided on 22nd November 2018 and also the judgment of this Court in the case of akshay Gaikwad V/s. State of Maharashtra Criminal application (aPL) No. 285/2021, decided on 28th September 2021.

8. On the other hand, Shri C. a. Joshi, learned advocate appearing for the non-applicant no. 2, submitted that the first information report would indicate that the non-applicant no. 2 had developed friendship with the applicant as he had assured her that he would marry her. He submitted that the prosecution needs to be given the opportunity to lead evidence in support of its case. He placed reliance upon the judgment of the Hon'ble apex Court in the case of XYZ V/s