IMPORTANT POINT
Consent given under a false promise of marriage may vitiate the consent, but in this case, the court found that the physical relationship was consensual and not based on a false promise of marriage.

JUDGMENT :

M.S. KARNIK, J.

1. By this revision under Section 397 of the Code of Criminal Procedure (“Cr.P.C.” for short) the applicant challenges the order dated 28/07/2016 passed by the trial Court rejecting the application under Section 227 of the Cr.P.C. for discharge. The complainant lodged the complaint against the present applicant under Sections 376 and 506 of the Indian Penal Code (hereafter “IPC” for short) which came to be registered vide C.R. No. 351 of 2013 dated 05/12/2013 with Vishrantwadi Police Station, Pune.

2. Brief facts of the complaint are that the complainant at the time of registration of the First Information Report (FIR), was working with Aviva Life Insurance Company. Prior to the lodging of the FIR, it is her case that around 7 years ago, when she was working with ICICI Lombard General Insurance Company, she was introduced to the present applicant. Sometime in the year 2011 when the complainant was employed in Pune, she happened to meet the applicant. They exchanged their mobile numbers and that very night the applicant sent a message to the complainant. After a few days, the applicant proposed the complainant for a love relationship. The complainant initially hesitated, but later on accepted the proposal. The applicant went to the house of the complainant on 08/09/2011. He requested the complainant for a physical relationship. The applicant had sexual physical relations with the complainant on that day. On the promise of marriage, the applicant had physical relationship with the complainant on several occasions thereafter. When the complainant brought up the topic of marriage, the applicant avoided any response. Later, the complainant came to know that the applicant was in a relationship with another woman. The complainant was informed that the said woman was terminated from the service as some obscene photographs of her and the applicant which had surfaced were brought to the notice of the employer. On being questioned by the complainant about his relationship, the applicant told the complainant that the allegations were false. It is alleged that the applicant threatened the complainant with serious consequences if she tried to enquire about his relationship. It is alleged that the applicant thereafter started avoiding the complainant. When the complainant confronted the applicant about the promise of marriage he had made earlier, the applicant flatly refused to marry her. The complainant tried to persuade the applicant time and again to solemnise marriage which he did not pay any heed to and hence, the present complaint was made on 05/12/2013.

3. Learned counsel for the applicant while assailing the order passed by the trial Court rejecting the application for discharge, submitted that the applicant’s case is squarely covered by the decision of the Supreme Court in Naim Ahamed vs. State (NCT Of Delhi), 2023 SCC Online SC 89. He also relied upon the decision of the Supreme Court in Uday vs. State of Karnataka, (2003) 4 SCC 46 which is relied upon in Naim Ahamed (supra). My attention is also invited to the decision of the Supreme Court in Sheikh Arif vs. State of Maharashtra and Another, Criminal Appeal No. 1368 of 2023.

4. Learned APP on the other hand while opposing the application invited my attention to the accusations in the FIR and the relevant materials from the charge-sheet. It is submitted that the applicant should not be discharged as prima-facie, the accusations taken at its face value satisfy the ingredients of the alleged offence. It is submitted that the applicant had promised marriage and under this misconception, the complainant had consented to maintain the physical relationship and therefore, her consent was vitiated by fraud and misconception justifying framing of charges.

5. Heard. Before considering the rival submissions and analysing the materials on record, it would be relevant to seek guidance from the observations of the Supreme Court to arrive at a conclusion whether a case for di