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GUJARAT HIGH COURT
Gita Gopi, J.
Rohit Dinanath Ray – Applicant
versus
State of Gujarat – Respondent
R/Criminal Revision Application No.434 of 2021
Decided on 11.7.2023
(A) Indian Penal Code, 1860 – Section 376 read with Section 90 – Criminal Procedure Code, 1973 – Section 227 – Rape – Misconception of fact – Rejection of application seeking discharge from criminal case – To establish a false promise, maker of promise should have had no intention to uphold it at the time of giving it – Complainant even during period of her marriage, was in relationship with applicant – She had during her marriage established physical relations with applicant – Since complainant was married, she would have no intention to marry applicant nor applicant could have given any promise to marry her – Accused can be convicted for rape only if court reaches conclusion that intention of accused was mala fide and that he had clandestine motives – Complainant was a married woman, mother of two children when she developed friendship with applicant – Applicant discharged from criminal case. (Paras 14, 16, 24, 25 and 26)
(B) Criminal Procedure Code, 1973 – Section 227 – Discharge from criminal case – While dealing with application under Section 227 of Cr.P.C., enquiry of Judge must necessarily be limited to deciding of facts emerging from record and documents constitute offence with which accused is charged – At that stage, he may sift evidence for limited purpose, but he is not required to marshal evidence with a view to separating grain from chaff – All that Judge is called upon to consider is whether there is sufficient ground to frame charge and for this limited purpose, he must weigh material on record as well as documents relied on by prosecution. (Para 22)
Result: Criminal Revision Application allowed.
JUDGMENT (ORAL)
The applicant is the accused in the First Information Report (FIR) bearing C.R. No.I-101 of 2018 registered with Gujarat University Police Station, Ahmedabad on 24.08.2018 for the offence punishable under Section 376 of the Indian Penal Code (IPC), who is before this Court to challenge the order passed below Exhibit 11 on 20.04.2021 in Sessions Case No.350 of 2019, whereby his Discharge Application came to be rejected.
2. Learned Advocate for the applicant Mr. A.B. Desai submitted that in the past, the complainant had lodged FIR on 10.05.2018 against the present applicant vide C.R. No.I-73 of 2018 registered with Mahidarpura Police Station, Surat for the offence punishable under Section 376, 406 and 420 of the IPC, and in view of the settlement arrived at between the parties, on filing a Criminal Miscellaneous Application No.14650 of 2018 before this Court, by way of an order dated 07.08.2018, the FIR came to be quashed under Section 482 of the Code of Criminal Procedure, 1973 (hereainafter referred to in short as ‘the Code’).
3. It is further submitted by learned Advocate Mr. A.B. Desai that there was no mention in the Affidavit, so filed by the complainant in the quashing proceedings, of any promise to marry her, nor was there any statement regarding returning of any money and inspite of quashment of the First Information Report, the complainant again preferred a FIR bearing C.R. No.I-101 of 2018, registered with Gujarat University Police Station, Ahmedabad under Section 376 of the IPC.
4. Learned Advocate Mr. A.B. Desai stated that the complainant on her own volition had filed the Affidavit in the Quashing Petition and the offences which were registered under Section 376 and other allied Sections of the IPC at Mahidarpura Police Station, Surat were quashed and thereafter, the complainant had preferred the First Information Report before the Gujarat University Police Station, Ahmedabad, so the present applicant had filed a Criminal Miscellaneous Application No.2948 of 2018 for quashing the FIR registered with Gujarat University Police Station, Ahmedabad. The same was disposed as withdrawn, with a liberty granted to applicant for moving an application for discharge.
4.1. The said order dated 18.03.2019 reads as under:—
“1. This is a petition seeking quashment of the FIR being IC.R.No.101 of 2018 registered with University Police Station, Ahmedabad for the offences punishable under Section 376 of the Indian Penal Code.
2. Learned advocate for the petitioner seeks permission to withdraw the present petition with a liberty to approach the trial Court for moving the application for discharge.
3. Permission, as sought for, is hereby granted with the aforesaid liberty. The present petition stands disposed of as withdrawn. If any such application is made, the same shall be decided on its own merits within a period of six weeks from the date of the application, without being influenced of the fact that the petitioner has withdrawn this petition. This Court has chosen not to go into the merits of the case.”
5. Learned Advocate for the applicant Mr. A.B. Desai contended that the learned Sessions Judge has committed an error in rejecting the Discharge Application, since the allegations made in the FIR are concocted, are not true and correct, no case is made out against the applicant for the alleged offences. It is further submitted that none of the allegations in the FIR, are in the charge-sheet nor any witness statement supports the allegations of the complainant, and the complainant has falsely implicated the applicant in the alleged offences with a malafide intention and ulterior motive. It is further submitted that no offence under Section 376 of the Indian Penal Code is made out, the FIR is after considerable delay and since no ingredients to spell out rape have been made out in the FIR, learned Advocate Mr. A.B. Desai stated that it is an abuse of process of law.
6. Referring to the facts of the case, i
(1) Accused can be convicted for rape only if court reaches conclusion that intention of accused was mala fide and that he had clandestine motives.(2) Discharge from criminal case – While dealing wit....
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 withou....
Consent under Section 375 cannot be considered valid if based on a false promise of marriage if the promise was not made with fraudulent intent from the outset. Subsequently, a prolonged consensual r....
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.
Consent obtained under false promise to marry could be a consent based on misconception of fact, and such consent would not excuse the offender.
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