Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Bom) 1933

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Sunil B.Shukre, M.W.Chandwani, JJ.
Devendra Vikas Pawar – Appellant
Versus
State of Maharashtra – Respondent
Criminal Application (Apl) No. 495 of 2022
Decided On : 22-12-2022

Advocates Appeared:
B.D.Sachdev, Advocate, S.S.Doifode, Advocate, C.F.Bhagwani, Advocate

Consent in sexual relations must be informed and free from misconceptions; a promise of marriage made after the fact does not vitiate consent if the relationship was consensual and ongoing.

Headnote:
[CRIMINAL LAW] - [QUASHING OF FIR] - [Cr.P.C. Sec. 482, IPC Ss. 376(1)(2)(f)(n), 506, SC/ST Act] - [The court discussed the inherent jurisdiction under Sec. 482 of the Cr.P.C. to quash FIRs that do not disclose a cognizable offence. It emphasized that consent obtained under a misconception of fact, particularly regarding a promise of marriage, can vitiate consent under Sec. 375 of the IPC. The court interpreted the legal standards for consent and the implications of a false promise of marriage, ultimately concluding that the allegations did not constitute an offence, leading to the quashing of the FIR.]
Fact of the Case:

The applicant was accused of rape and criminal intimidation by a married woman who had consensual sexual relations with him over several years, claiming that her consent was based on a false promise of marriage. The applicant sought to quash the FIR, arguing that the relationship was consensual and that the promise of marriage was made after the initial sexual acts.
Finding of the Court:

The court found that the initial sexual acts were consensual and that the promise of marriage was not made prior to these acts. It concluded that the woman's consent was not vitiated by a misconception of fact, as she was aware of her marital status and continued the relationship despite it. The court emphasized that the allegations did not constitute a prima facie case of rape.
Issues: Whether the FIR constituted a valid case of rape under Sec. 375 of the IPC, considering the nature of consent and the alleged promise of marriage.
Ratio Decidendi: The court established that consent given under a misconception of fact can vitiate consent, but in this case, the promise of marriage was not made prior to the sexual acts, and the relationship was consensual over a significant period. The court relied on precedents that clarified the legal interpretation of consent in sexual offences.
Final Decision: The court quashed the FIR and the charge-sheet against the applicant, ruling that the registration of the FIR was an abuse of the criminal process.

JUDGMENT

M.W.CHANDWANI, J. - Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel for the parties.

2. By this proceeding, the applicant invokes inherent jurisdiction of this Court under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as "Cr.P.C." for short) praying to quash and set aside the criminal proceedings i.e. Special Case No.543/2022 for the offence punishable under Ss. 376(1)(2)(f)(n) and 506 of the Indian Penal Code filed pursuant to First Information Report No.840/2021 registered at Police Station Jaripatka, Nagpur.

3. The facts germane to dispose of the application are as under :

Non-applicant No.2, who is a mother of two children aged about 16 and 14 years old, was residing separately from her husband. She came in contact with the applicant through social media. They developed friendship with each other. The applicant invited non-applicant No.2 to Jalgaon. On 30/09/2017, the applicant received her at Jalgaon Railway Station and took her at his friend's house. They had dinner there. After talking for some time, the applicant tried to have intercourse with non-applicant No.2, but she refused him. Anyhow, the applicant established physical relations with non-applicant No.2. When, non-applicant No.2 told to the applicant that she will lodge a complaint, the applicant promised to marry with her. Thereafter, many times consensual physical relations were established either at Nagpur or at Jalgaon. In the month of February, 2021. Non-applicant No.2 came to know that she is pregnant. At the instance of the applicant, she aborted foetus using pills. On 09/12/2021, when non-applicant No.2 went to the house of applicant, the father of the applicant did not allow her to enter in the house. Thereafter, she was threatened by two unknown persons not to lodge the complaint against the applicant. Ultimately, on 18/12/2021, she lodged complaint at Jaripatka Police Station, therefore, the aforesaid offences came to be registered against the applicant.

4. It is contended by Shri B.D. Sachdev, learned Counsel for the applicant that there is no offence is made out against the applicant, as it is the case of consensual sex. Non-applicant No.2 is a married woman and her first marriage is already in subsistence. Therefore, the question of promise of marriage does not arise. According to him, registration of F.I.R. is an abuse of process of law and the same is liable to be quashed. He submits that during pendency of these proceedings, charge-sheet came to be filed. The learned Counsel for the applicant submitted that the charge-sheet filed in pursuant to said F.I.R. is also required to be quashed by relying on the decisions of the Supreme Court in the cases of State of Haryana and others vs. Bhajan Lal and others - 1992 Supp (1) SCC 335, and Pramod Suryabhan Pawar vs. State of Maharashtra and another - (2019) 9 SCC 608.

5. Per contra, the learned A.P.P. Shri S.S. Doifode appearing for non- applicant No.1 State, as well as learned Counsel Shri C.F. Bhagwani appearing on behalf of non-applicant No.2 opposed to the contention of the learned Counsel for the applicant. According to them, the F.I.R shows that the consent was taken on false promise of marriage. The consent based on "misconception of fact" amounts to absence of "consent" under Sec. 375 of I.P.C. and therefore, the sexual acts committed by the applicant with non-applicant No.2 are amounting to rape. To substantiate his submission, the learned Counsel for non-applicant No.2 has placed reliance on the decisions rendered by the Supreme Court in the cases of Anurag Soni vs. State of Chhattisgarh - 2019 AIR (SC) 1857 and Dhruvaram Murlidhar Sonar vs. The State of Maharashtra and Ors. - (2019) 18 SCC 191.

6. We have given our anxious consideration to the rival submissions made by the learned Counsel for the respective parties and the circumstances of the case. The Supreme Court in the case of Pramod Pawar (supra) dealt with the asp