Md. Saif Ali Ansari vs State of Bihar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Pat) 11

IN THE HIGH COURT OF JUDICATURE AT PATNA
SONI SHRIVASTAVA, J.
Criminal Miscellaneous No. 3303 of 2022
(12.1.2026)
Md. Saif Ali Ansari ... Petitioner
vs.
State of Bihar & Anr. ... Opp. Parties

Advocates Appeared:
For the Petitioner: M/s Syed Masleh Uddin Ashraf, Sr. Adv., Shehan Ashraf.
For the State : Mr. Bhanu Pratap Singh, APP.

Headnote:
Indian Penal Code, 1860 – Sections 376 and 90 [Sections 64 and 28 of BNS] – Criminal Procedure Code, 1973 – Section 227 [Section 250 of BNSS] – Rape – Misconception of fact – Rejection of discharge petition – Prosecutrix is a 25 years old adult and had entered into relationship with petitioner, which was continuing for past one year leading to inference that there was consensual relationship between two adults – However, there is allegation that sexual exploitation of informant was done on pretext of marriage – There can be several reasons for developing physical intimacy between two consenting partners and question of entering into relationship under a misconception of fact needs to be established by way of specific assertion and material to show that informant was made to enter into such relationship upon false promise to marry – Facts and materials disclosed in present case, in no way, point towards any such intention of petitioner to have sexually exploited her without intending to marry her – There is clear cut distinction between a 'false promise' to marry, which would come under purview of misconception of fact as envisaged under Section 90 of IPC and a 'breach of promise' which is a result of some supervening circumstances on account of which a promise earlier made has not been honoured. (Paras 10 and 11)
Indian Penal Code, 1860 – Sections 376 and 90 [Sections 64 and 28 of BNS] – Criminal Procedure Code, 1973 – Sections 227 and 482 [Sections 250 and 528 of BNSS] – Rape – Misconception of fact – Rejection of discharge petition – There is nothing on record to indicate that it is only on account of a false promise to marry that prosecutrix had engaged herself in a physical relationship with petitioner and existence of any such assurance or promise to marry cannot be said to bear direct nexus with decision of informant to engage in any sexual act – Informant, who by virtue of her age and maturity, was capable enough to take her independent decisions and engaging in sexual relationship with petitioner was a conscious and informed choice made by informant, being in a position to assess morality or immorality attached to the act in which she indulged with petitioner without there being any force or coercion upon her – Criminal prosecution under Section 376 of IPC cannot be permitted to be initiated and to continue merely on account of reason that a cordial and consensual relationship between a consenting couple does not materialize and fructify into a marital relationship – Impugned order rejecting application for discharge suffers from illegality – Present prosecution against petitioner is not only frivolous and vexatious, but necessary ingredients of offence under Section 375 of IPC in order to prosecute petitioner particularly for offence under Section 376 of IPC is clearly and visibly not made out – Impugned order quashed – Application allowed. (Paras 14, 17, 18 and 19)
Criminal Procedure Code, 1973 – Sections 228 and 482 [Sections 251 and 528 of BNSS] – At the stage of framing of charge, Court concerned is not to act as a mere Post Office – There can be no meticulous sifting of evidence at this stage but satisfaction of Court with materials available to see whether case is made out for trial, has to be reached – Roving inquiry is not to be undertaken but a simple and necessary inquiry for proper adjudication of application for discharge is required to be undertaken by concerned Court – There is duty cast on Court to provide protection against vexatious and unwanted prosecution and in process of granting such protection, this Court would choose to exercise inherent jurisdiction provided under Section 482 Cr.P.C. on the ground of abuse of process of law. (Para 17)

Soni Shrivastava, J.—Heard Mr. S.M. Ashraf, learned Senior counsel for the petitioner assisted by Mr. Shehan Ashraf, learned Advocate and Mr. Bhanu Pratap Singh, learned APP for the State.

2. Despite valid service of notice, none appears on behalf of opposite party no.2.

3. The present application has been filed for quashing of the order dated 17.11.2021 passed by the learned Additional Sessions Judge-I, Bhagalpur in S.Tr. No. 161 of 2021 (arising out of Jagdispur P.S. Case No.121 of 2019) whereby and whereunder the petition dated 26.10.2021 filed by the petitioner under Section 227 Cr.P.C. to discharge the petitioner under Section 376 of the Indian Penal Code (hereinafter referred to as IPC) has been rejected.

4. The brief facts leading to the impugned order emanates from an F.I.R bearing Jagdishpur P.S. Case No. 121 of 2019 dated 26.04.2019, registered under Section 341, 376, 379/34 of the IPC on the written statement of the informant Rabina Tabassum aged about 25 years, alleging inter alia that on the allurement and pretext of marriage, the informant was subjected to sexual exploitation by the petitioner for the last one year. The F.I.R further discloses that on 22.04.2019, on being asked by the petitioner to come along with him for getting married, she left her home along with cash and jewellery and went along with the petitioner to his maternal uncle’s house where they stayed in a room where the father of the petitioner had arrived and upon his assurance for marriage, she, along with the petitioner, came back to her village whereafter the mother of the petitioner also assured the informant’s parents about marriage which never happened. Hence, the present case was instituted stating in the F.I.R that other members of the family are also preventing the marriage to happen.

5. After investigation, charge-sheet was submitted against the petitioner and others and cognizance was taken thereupon under Section 376, 341 read with Section 34 of the IPC and after commitment of the case to the Court of Sessions, the petitioner filed the discharge application under Section 227 of Cr.P.C. which stood rejected vide the impugned order dated 17.11.2021.

6. A report with regard to the stage of the case has been called for which reveals that charges have not been framed as yet.

7. Mr. S.M. Ashraf, learned Senior counsel appearing on behalf of petitioner has assailed the impugned order primarily on the ground that no offence is made out against the petitioner, much less an offence under Section 376 of the IPC. He has substantiated his submission on account of the fact that a bare perusal of the allegations made in the F.I.R itself would disclose that the petitioner and the informant/victim were having a relationship which was continuing for the past one year and the informant being a 25 years old adult, as she herself claims in the F.I.R, had entered into physical relationship with the petitioner with open eyes and there is no allegation of any threat perception or any force or coercion exercised upon her. He has thus submitted that a relationship between two consenting adults would not bring the case within the ambit of Section 376 of IPC. Learned Senior Counsel has further submitted that even in the statement of the informant/victim recorded under Section 164 Cr.P.C., she has not whispered a single word with regard to any sexual assault by the petitioner and has rather narrated the story in a different manner making reference to assurance given by the petitioner’s parents, specifically her mother about getting her married to the petitioner which is a definite pointer to the fact that there was a bona fide intention of marriage with the opposite party no.2 and there was no misconception of fact. The medical examination of the informant/victim has also been referred to by the learned Senior counsel to submit that the informant was an adult and upon vaginal swab examination, no spermatozoa was found, which is further indicative of the fact that medi