IMPORTANT POINT
Consent in sexual relationships must be evaluated in the context of the relationship's nature, and a mere allegation of a false promise of marriage does not suffice to establish a case of rape without clear evidence of bad faith.

JUDGMENT/ORDER

1. The applicant impugns the order dtd. 20/5/2022 passed by the Additional Sessions Judge, Shrigonda below Exh.8, in Sessions Case No. 23 of 2020, thereby rejecting the application filed by the applicant under Sec. 227 of the Code of Criminal Procedure, seeking discharge of the offence punishable under Ss. 376 and 420 of IPC.

2. The respondent No.2 lodged complaint dtd. 13/6/2019 with Police Station, Karjat, Dist. Ahmednagar alleging that since 1997-98, she had love affair with Harish Panditrao Bhailume (present applicant). Both of them were pursuing education in Dada Patil College, Karjat. They had affection for each other and out of such love affair, they developed sexual relations. She alleges that under the false promise of marriage, the accused demanded sexual favour from the her and maintained sexual relationship. Twice she had conceived pregnancy but aborted on persuasion of the accused. When she realized that applicant is avoiding to marry her, she lodged report dtd. 17/12/2018 with police station, however, matter was settled when applicant took her at the house of his maternal uncle and then they resided together in a rented room of Rashidbhai Zarekari. Even thereafter, applicant suspected her character, tortured mentally and physically.

3. The police took cognizance of complaint, which culminated into registration of Crime No. 312 of 2019 for the offences punishable under Ss. 376 and 402 of IPC.

4. In pursuance of registration of offence, applicant approached this Court seeking protection of pre-arrest bail vide Anticipatory Bail Application No. 888 of 2019 which came to be allowed vide order dtd. 29/8/2019, with observation that the informant maintained sexual relations with the accused for 20 to 25 years. As such, prima facie, it is a case of consensual sexual relationship and cannot be termed as rape under false promise.

5. The investigation progressed. The statement of the informant, her father Kisan Sitaram Kadam, brother Rohan Kisan Kadam and Mother Lata Kisan Kadam are recorded. Finally, the charge sheet came to be filed against the applicant for the offences punishable under Ss. 376 and 420 of IPC. Pertinently, the applicant had approached this court under Sec. 482 of the Cr.P.C. vide Criminal Application No. 3109 of 2019 seeking to quash the FIR and further proceeding in Crime No. 312 of 2019. However, said application was dismissed as withdrawn with liberty to file an application for discharge before the trial court in deference to filing of charge sheet.

6. Mr. R.B. Temak, learned advocate appearing for the applicant vehemently submits that the respondent No.2 had consensual physical relationship with the applicant since school days i.e. for more than 20 years as can be gathered from the contents of the complaint itself. He would submit that the applicant and respondent No.2 had developed affinity during school days. The love affair continued between them. Eventually, physical relationship was developed. He would further submit that in the year 2011, the respondent No.2 married with Shrikant Pratap Kharat, resident of Ghatkopar. After residing for 5 years with him she again continued her relationship with the applicant and lastly, filed complaint alleging cheating and rape by applicant under the pretext of false promise of marriage.

7. Mr. Temak would submit that the physical relationship was developed out of affection and love affair but not because of false promise of marriage. The sexual relationship between the applicant and respondent No.2 cannot be given colour of cheating and rape. He would, therefore, submit that taking the entire material in charge sheet as it is, no triable case can be made out against the applicant. The Sessions Judge failed to exercise jurisdiction vested with him under Sec. 227 of the Code of Criminal Procedure in judicious manner, consequently, rejected the application below Exh.8 seeking discharge.

8. Mr. S.B. Narwade, learned APP appearing for the State vehemently op