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2024 Supreme(Bom) 504
IN THE HIGH COURT OF BOMBAY
A. S. Gadkari, Neela Gokhale, JJ.
Amol Bhagwan Nehul - Appellant
Versus
The State of Maharashtra & Anr. - Respondents
Criminal Writ Petition No. 3181 of 2023
Decided On : 28-06-2024
Mr. Abhang Suryawanshi i/b Mr. Narayan Rokade for the Petitioner; Smt. Anamika Malhotra, Addl.P.P. Mr. Mahindra Deshmukh, for the Respondent.
IMPORTANT POINT
The court established that consent in sexual relationships must be continuous, and any withdrawal of consent transforms the nature of the relationship, making any subsequent sexual acts without consent amount to rape.
Headnote:
CRIMINAL LAW - RAPE AND SEXUAL ASSAULT - IPC SECTIONS 376, 376(2)(n), 377, 504, 506 - The court discussed the provisions of Sections 376 and 377 of the IPC, emphasizing that consent must be continuous and that a relationship does not justify sexual assault. The court highlighted the importance of the victim's testimony and the legal standards for quashing FIRs, asserting that the allegations in the FIR prima facie constituted offenses under the IPC. The interpretations reinforced the court's decision to dismiss the petition for quashing the FIR.
Fact of the Case:
The petitioner sought to quash an FIR for offenses under IPC Sections 376, 376(2)(n), 377, 504, and 506, alleging that the complainant had a consensual relationship with him. The complainant accused the petitioner of forcing her into sexual relations despite her refusals, threatening her, and engaging in unnatural sex.
Finding of the Court:
The court found that the FIR clearly indicated the commission of offenses, rejecting the petitioner's claims of a consensual relationship. It emphasized that consent must be ongoing and that the allegations of forceful sexual intercourse were credible and warranted further investigation.
Issues: Whether the relationship between the petitioner and the complainant was consensual and whether the FIR contained sufficient grounds to proceed with the charges under the IPC.
Ratio Decidendi: The court held that a relationship may begin as consensual but can change if one party withdraws consent. The court reiterated that the victim's testimony should be taken seriously and that the High Court cannot conduct a mini-trial when considering a petition to quash an FIR.
Final Decision: The petition was dismissed, and the rule was discharged, allowing the criminal proceedings to continue.
JUDGMENT
Dr Neela Gokhale, J. - Rule. Rule made returnable forthwith. With the consent of all parties, the Petition is heard finally.
2. The Petitioner seeks quashing and setting aside of C. R. No.490 of 2023 dated 31st July 2023 registered at Karad Taluka Police Station, Satara, for the offense punishable under Sections 376, 376(2)(n), 377, 504 & 506 of the Indian Penal Code, 1860 ('I.P.C.'). During pendency of the Petition, charge-sheet was filed by the Police officials on 26th September 2023 in the proceedings in R.C.C. No. 378 of 2023 pending before the Additional Sessions Judge at Karad. The Petitioner was given liberty to amend the Petition to challenge the proceedings which accordingly are also now assailed.
3. Mr. Abhang Suryawanshi, learned counsel appears for the Petitioner. Mr. Mahindra Deshmukh, learned counsel appears for the Respondent No. 2 and Smt. Anamika Malhotra, learned Addl. P.P. represents the State. Perused entire record produced before us.
4. It is the case of Respondent No. 2 ('Complainant') that, she has obtained Khulanama from her husband as per the practices of Muslim Religion. Her parents expired in 2021 during the Corona Pandemic. She resides with her four-year-old son viz. Abraham at Kale, Taluka-Karad, District-Satara. Since 25th May 2022, the Petitioner came to live on rent next door to the Complainant along with three friends. The Complainant became acquainted with him as her neighbor. They started chatting with each other on mobile phone and gradually their relationship became intimate. The Petitioner declared his love for her and promised to marry her. He demanded that, they should indulge in sexual relationship however, the Complainant consistently refused for the same.
4.1 It is the case of Complainant that, in July 2022, the Petitioner came to her house and threatened her that, if she refused to marry him, he would commit suicide. Ignoring her resistance and consistent refusal, he forced her for sexual relationship and raped her. Thereafter on 21 st September 2022 during celebration of the Petitioner's birthday, in Rajyog Lounge, Varunji Phata, Airport Karad, he again forcibly raped her.
4.2 It is also stated in the First Information Report ('F.I.R.') that, the Petitioner borrowed money from the Complainant from time to time and has not repaid the same. Even in January 2023, he called her to meet him at Pushkar Lounge, Ogalewadi, Karad. The Complainant then demanded that, he marry her and reveal their relationship to his family members. The Petitioner told her that, he will marry her after he gets a job and once again raped her despite her resistance.
4.3 The Complainant has also made a specific allegation that the Petitioner forced her to indulge in unnatural sex with him. Thereafter the Petitioner distanced himself from the Complainant and started avoiding her. When she asked his parents and relatives regarding their marriage, they abused her and told her that, she belonged to a different caste and hence, there was no question of marriage between the parties. The family members of Petitioner then abused and beat her. The Petitioner also joined his relatives in abusing the Complainant and threatened to kill her and her son Abraham. She was frightened and thereafter went to the Police Station and lodged the impugned F.I.R.
5. At the outset, we expressed our view to the learned counsel of Petitioner that, the F.I.R. clearly revealed commission of the offense and hence enquired with Mr. Suryawanshi as to whether he would like to consider availing the alternate remedy of filing a discharge Application before the trial Court. He refused and was determined to proceed with the hearing of present Petition. Hence, we heard the Petition on merits.
5.1 Mr. Suryawanshi attempted to portray the relationship between the parties to be consensual. He submitted that the sexual relationship is a result of love-affair between the parties. He also harped on the fact that the Complainant was already married, which ac
