The main legal point established in the judgment is that consent to sexual intercourse obtained under a false promise of marriage must be a 'misconception of fact' within the meaning of the law. The court emphasized the need for the complainant's consent to be voluntary and not induced by any misconception of fact.

SUDIP AHLUWALIA, J.

In this Revisional application the petitioner is a Police personnel accused of offences punishable U/Ss. 417/376 of the IPC, in Sessions Case No. 9(7)13 arising out of Cossipore P.S. Case No. 29 of 2013 dated 20.02.2013, pending before the Court of the Ld. Fast Track, 2nd Court, at Sealdah.

2. His contention is that he has been falsely implicated in the case at the instance of the defacto complainant/opposite party no.2. She had lodged the FIR against him on the allegation that he had sexual intercourse with her by promising to marry her since September, 2012. But he subsequently refused to marry her and thereby committed the aforesaid offences. Further contention of the petitioner is that the FIR itself discloses no story of any force in the matter of physical intimacy between the parties, and since the complainant was admittedly of the age of majority at the relevant time and was also gainfully employed having sufficient mental maturity, so her complaint is out and out untenable. In addition, the petitioner has mentioned that earlier also the complainant had lodged a similar complaint against one Tapas Kumar Singha, also a Police Constable, being Jorabagan P.S. case No. 2612 of 2012 dated 22.03.2012 under identical Sections 417/376 of the IPC. As such, according to the petitioner, there is actually no truth and merit in her next FIR now lodged against him.

3. On the other hand the application is been opposed by the de-facto complainant who asserts that there is sufficient material against the petitioner warranting his Trial. A number of decisions have been cited by both sides to support their respective contentions.

4. In “Hemant Choubey v. State of M.P.”, reported in 2015 (1) Crimes 681 (M.P.) the High Court had quashed the proceedings under sections 417/376 of the IPC in which the accused had been similarly alleged to have had sexual intercourse with the prosecutrix on a false promise of marriage, after considering several previous decisions on this point. The discussion of the previous decisions in the High Court's decision are as follows -

“In the case of Uday v. State of Karnataka, [(2003) 4 SCC 46], Hon'ble the Apex Court has held that:-

“A. Penal Code 1860-Ss. 375 & 90 and 376 - Rape-“Consent” Voluntary consent or consent under misconception of fact-Determination of-Consent given by the prosecutrix to sexual intercourse with accused-appellant, with whom she was deeply in love, on a promise that he would marry her on a later date-Prosecutrix continuing to meet accused and often having sexual intercourse and becoming pregnant-Complaint lodged on (Hemant Choubey v. State of M.P.) 4 Cr.R. No. 845/2014 failure of appellant to marry her-In such case, held, the consent cannot be said to be given under misconception of fact- A false promise is not a fact within the meaning of the Penal Code-For determining whether consent given by the prosecutrix was voluntary or under a misconception of fact, held, there is no straitjacket formula and each case has to be decided considering the evidence and surrounding circumstances of that case-Where (I) the prosecutrix (aged 19 years on the date of occurrence) had sufficient intelligence to understand the significance and moral quality of the act she was consenting to, (ii) she was conscious of the fact that her marriage with the appellant was difficult on account of caste considerations, (iii) it was difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise, and (iv) there was no evidence to prove conclusively that the appellant never intended to marry the prosecutrix, held, appellant's conviction and sentence under S. 376 IPC was liable to be set aside-Question as to whether in a case of rape the misconception of fact must be confined to the circumstances falling under S. 375 fourthly and fifthly, or whether consent given under misconception of fact contemplated by S. 90 has