Consent induced by false representation can vitiate the sexual act, even if the prosecutrix knew the accused was married.

JUDGEMENT :

1. Rule. Rule made returnable forthwith and, with the consent of the counsels for the parties, heard finally.

This petition under Article 227 of the Constitution of India calls in question the legality, propriety and correctness of an order passed by the learned Additional Sessions Judge, Pune on 3rd September, 2021 on an application (Exhibit 20), in Sessions Case No. 188 of 2019 whereby the prayer of the petitioner to discharge him from the prosecution came to be rejected.

2. The background facts necessary for determination of this petition can be stated as under:

a] Ms. S (hereinafter referred to as “prosecutrix”) is an actress by profession. Her marriage was solemnized on 21st November, 2002. However, in the year 2004, the said marriage was dissolved by mutual consent. One of the friends of the prosecutrix introduced the petitioner to her. In the year 2008, the petitioner represented to her that he would assist her in procuring a flat at Mumbai under Government’s 10% discretionary quota. The petitioner induced the prosecutrix to part with a sum of Rs. 8 lakhs allegedly for payment to the middlemen. The flat could not be allotted till the month of March/April, 2010. The petitioner repaid a sum of Rs. 5 lakhs. The petitioner, however, developed intimacy with the prosecutrix.

b] In June, 2010 the petitioner proposed the prosecutrix. The petitioner represented that he was a bachelor. The petitioner met the mother and brother of the prosecutrix and gained their confidence as well. After the prosecutrix and her family members agreed to the said proposal, the marriage of the prosecutrix was solemnized with the petitioner on 23rd July, 2010 at Kita Cottage, Varsova, Andheri(w). Pre-marriage ceremonies were held at Flat No. 901, Pyramid Towers, Varsova, Andheri(w), which was taken on rent. None from the family members of the petitioner attended the said marriage. The petitioner claimed that since the marriage was inter caste, his family members did not attend the same.

c] In the month of September, 2010 a lady “M” called the prosecutrix and informed her that she was the wife of the petitioner and they had two issues out of the said wedlock. When confronted, the petitioner stated that the previous marriage was dissolved. The petitioner assured to show the divorce papers and also get the certificate of marriage with prosecutrix. In the meanwhile, the petitioner made the prosecutrix to open a joint account with ICICI Bank, Andheri branch, and withdrew huge amounts from the said account behind the back of the prosecutrix.

d] On 23rd July, 2010 the prosecutrix and the petitioner celebrated their first marriage Anniversary at Hotel Tunga, Andheri (E), Mumbai. The said event was reported in newspapers. “M” came to the house of the prosecutrix. In her presence, the petitioner conceded that the documents evidencing the alleged divorce between him and “M”, which he had shown to the prosecutrix, were false. The petitioner claimed that he would ensure that separate provision was made for her first wife and children.

e] Prosecutrix and her mother met the parents of the petitioner.

It transpired that the petitioner had deceived them by firstly representing that he was a bachelor and, later on, claiming that his first marriage was dissolved. The petitioner had allegedly obtained a forged marriage certificate as well. The prosecutrix thus instituted a petition for annulment of marriage in the Family Court, Pune.

3. The prosecutrix, thereafter, approached Dattwadi police station, Pune and lodged report leading to registration of C.R. No. 148 of 2013 for the offences punishable under sections 420, 406, 467, 471, 474, 376, 323, 504, 506(i) and 494 of Indian Penal Code, 1860. Post completion of investigation, charge-sheet came to be lodged against the petitioner.

4. The petitioner preferred an application for discharge contending, inter alia, that the prosecutrix had made false and baseless allegations against the petitioner. Those allegations were va