IMPORTANT POINT
Consent obtained under a false promise or misconception does not constitute valid consent for the purposes of Sec. 375 of IPC; a mere breach of promise does not amount to rape.

JUDGMENT/ORDER

BHARAT P.DESHPANDE, J. - Rule. The rule is made returnable forthwith. The matter is taken up for final disposal with the consent of the learned Counsel for the respective parties.

2. Heard Mr. A.D. Bhobe with Ms. A. Fernandes, Ms. S. Shaikh and Ms Ramona Prazeres, learned Counsel for the petitioner, Mr. Pravin Faldesssai, learned Additional Public Prosecutor for respondent Nos. 1 and 2 and Mr. S. Shetye h/f Mr. V. Amonkar, learned Counsel for respondent No.3.

3. The petitioner, who is an accused in FIR No.151/2018 lodged on 01/11/2018 for the offence punishable under Sec. 376, on a complaint made by respondent No.3, preferred the present petition under Sec. 482 of CrPC praying for quashing of such FIR.

4. Mr Bhobe learned Counsel for the petitioner submits that ingredients of Sec. 375 of IPC are not at all made out in the present matter since the complainant disclosed that she, along with the accused, were having a love relationship and were staying together. He would then submit that physical contact was not on the promise of marriage. Such physical contact was with the consent of respondent No.3, and only when she suspected another girl in the life of the petitioner she filed the complaint.

5. Mr. Bhobe would submit that, at the most, it could be considered as a breach of promise, and there was no such promise from the inception, only with an intention to cheat. He placed reliance on the following decisions:

1. Shambhu Kharwar v. State of Uttar Pradesh and Another [2022 SCC OnLine SC 1032]

2. Sonu alias Subhash Kumar v. State of Uttar Pradesh and Another [2021 SCC OnLine SC 181]

3. Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and Others [(2019) 18 SCC 191]

4. Pramod Suryabhan Pawar v. State of Maharashtra and another [(2019) 9 SCC 608]

5. Rajesh Sankarsan Tripathy v. State of Maharashtra and another [2019 SCC OnLine Bom 2376]

6. Tikal Raj v. State of Himachal Pradesh [(2016) 4 SCC 140]

7. Deepak Gulati v. State of Haryana [(2013) 7 SCC 675]

8. Uday v. State of Karnataka [(2003) 4 SCC 46]

6. The learned Public Prosecutor Mr. Faldessai would submit that the complaint disclosed that there was a promise to marry, and under that pretext, the physical relationship developed, but subsequently, the complainant realised that the petitioner made such a false promise and, therefore offence under Sec. 376 is made out.

7. Mr. S. Shetye h/f. Mr. Vibhav Amonkar would submit that the complaint itself shows that there was a promise to marry, and only on that basis the petitioner took advantage and developed physical relationship with the complainant and subsequently, it was observed that there was a false promise. He would submit that the aspect as to whether the promise from the inception was to deceive and to obtain consent by a misconception will have to be gone into during trial. He would submit that at this stage and from the contents of the FIR, which is supportive of the medicate evidence, ingredients of Sec. 376 of IPC are clearly made out.

8. The rival contentions fall for determination.

9. Sec. 375 of IPC deals with "Rape", wherein clause (d), secondly, it refers to "without her consent".

10. The question of consent is also covered under Sec. 90 of IPC, which reads thus :

"Consent known to be given under fear or misconception.-A consent is not such a consent as it intended by any sec. of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or"

11. Thus, when consent is either obtained under fear of injury or misconception of fact, it cannot be termed as free consent in the eyes of law and specifically for the offences under IPC.

12. The Supreme Court held that consent with respect to Sec. 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasone