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JAMMU AND KASHMIR HIGH COURT
Sanjay Dhar, J.
Syed Shahid Hamdani – Appellant
versus
UT of J&K and Anr. – Respondents
Bail App No.109 of 2021 C/w CRM(M) No.274 of 2021 (O&M)
Decided on 2.3.2023
(A) Ranbir Penal Code, 1989 – Sections 376, 420 and 506 read with Section 90 – Criminal Procedure Code, 1973 – Section 482 – Rape, cheating and criminal intimidation – Misconception of fact – If consent has been given under misconception of a fact, same can be termed as no consent and when a person indulges in sexual activity with a woman on the basis of such consent, it would be presumed that there was no consent on part of woman – Where allegations in FIR do not indicate that promise by accused was false or that complainant had engaged in sexual relations on the basis of this promise, it cannot be stated that offence of rape is constituted – Petitioner and prosecutrix lived together for several years and they developed love and feelings for each other – It is not the case of prosecutrix that right from inception, petitioner had extended false promise of marriage to her, with a view to exploit her sexually – It is not a case of false promise to marry but it is a case of consensual sex between two adult parties – Impugned FIR and proceedings emanating therefrom quashed. (Paras 11, 20, 22, 24, 26 and 27)
(B) Indian Penal Code, 1860 – Section 375 – Consent – Consent as required under Section 375 IPC, means an active understanding of circumstances, actions and consequences thereof – A person who makes a choice after evaluating all facts and circumstances and possible consequences of such actions, consents to such an action – An inference to such an action can be drawn on the basis of conduct of prosecutrix while considering question of consent for the purpose of Section 375 of IPC. (Para 14)
Result: Petition allowed. FIR quashed.
JUDGMENT
CRM(M) No.274/2021
In the instant petition, the petitioner has challenged FIR No. 53/2021 for offences under Sections 376, 420 and 506 of RPC registered with Police Station, Bahu-Fort, Jammu.
2. If appears that the complainant, respondent No. 2 approached the Judicial Magistrate 1st Class (Munsiff), Jammu with an application under Section 156(3) Cr.P.C. seeking a direction upon the SHO, Police Station, Trikuta Nagar, Jammu to register an FIR and investigate the case. Vide order dated 03.02.2021, passed by the learned Magistrate, the SHO, Police Station, Bahu Fort, Jammu was directed to register FIR against the petitioner and to carry out the investigation. It would be profitable to reproduce the relevant extracts of the complaint as under:—
“2. That the applicant came in contact with one Shahid Hamdani in the month of June 2017 and both the parties having similarities in temperaments and mutual understandings started meeting each other frequently. During this time both the parties developed feelings for each other and accordingly expressed their mutual feelings to each other.
3. That said Shahid Hamdani expressed his desire to marry the applicant and in order to understand each other in a much better and efficient manner the said Shahid Hamdani proposed that they should start living together in a live-in relationship. The applicant was not initially opened to this suggestion and asked him that instead of living in a live-in relationship they should get married to each other. However the said Shahid Hamdani needed some time to get settled in his carrier and till that time the parties start living together in a live-in relationship in the house of applicant situated at Jalalabad, Sunjwan, Jammu.
4. That the parties reside together without any disturbance from any person till February 2019 and thereafter, he went back to his native palace. During this time the parties were in constant contact with each other and he assured that he will persuade his family for the marriage with the applicant. However despite the various attempts, the family of the said Shahid Hamdani that they will eliminate both of them as their marriage is not acceptable to them.
5. That the things became worse when the family members of the accused came to know that the applicant and said Shahid Hamdani were living together in a live-in relationship. The said family members of the accused openly extended threats to the applicant, that they will eliminate the applicant in case she insisted for marriage with Shahid Hamdani. However, despite all the odds the applicant as well as Shahid Hamdani decided to get marry with each other and date of marriage was decided in the second week of October 2019. The said Shahid HamdanI was supposed to meet the applicant on 04.10.2019 at Jammu. However he never reached Jammu and there is no information about the well being of said Shahid Hamdani.
6. That thereafter the applicant unaware of the nefarious designs of the accused filed a Habeas Corpus Petition in the Hon’ble High Court of J&K seeking production of the said accused. However, the accused again appeared before the applicant and expressed her inability to marry him as he was under family pressure. He again assured that he will marry the applicant in the month of November 2020 and thereafter started visiting the applicant again at her residence situated at Sunjawan where he again developed physical relation with the applicant.
7. That thereafter he never kept his promise of marriage and in the month of January 2021 met the applicant and told her that he never intended to marry her and in case the applicant will file any case he will eliminate her and also circulate her photos and videos on social media….”
3. Apart from narration of the above contents of complaint lodged by the prosecutrix/respondent No. 2, it is pertinent to mention here that during investigation of the case her statement under Section 164 Cr. P.C. has also been recorded. In her s
There is clear distinction between rape and consensual sex. If accused has not made promise with sole intention to seduce prosecutrix to indulge in sexual acts, such an act would not amount to rape.
Consent obtained under a misconception of a promise of marriage does not constitute valid consent for the purposes of rape under Section 375 IPC unless it can be shown that the promise was false and ....
(1) Exercise of inherent jurisdiction – High Court does not have to go in detail by way of minute examination about correctness or otherwise of facts alleged – Court has to examine the same by taking....
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