Consent obtained under misrepresentation or misconception of fact does not constitute valid consent under Section 375 IPC.

JUDGMENT

1. The petitioner is the defecto complainant in Burdwan Women Police Station Case No. 164 of 2014 dated 30. 11. 2014, under sections 493, 376, 377, 420 of the Indian Penal Code and is aggrieved and dissatisfied with the impugned order of the trial Court dated 14.12.2015 passed by the Additional Sessions Judge 2nd Court at Burdwan, in Sessions Case No.177 of 2015 and has preferred to file the present case in this Court. By dint of the said Page 2 of 10 impugned order, the trial Court has discharged the accused person under provisions of section 227 CRPC.

2. Criminal proceedings were set in motion pursuant to the first information report lodged by the present petitioner/defecto complainant on November 29, 2014. The crux of the allegations made in the FIR may be narrated to be that the defecto complainant maintained a romantic relationship with the accused person, that is, opposite party No. 2 in this case, since previous six years from the date of filing of the said first information report. She stated to have consented to such relationship with the accused person due to his misrepresentation regarding his marital status as well as his false promise to marry the defecto complainant at any future point of time. She has stated that later on, when the accused severed relationship and contact with her, she pursuent to her own endeavour could come to know that the accused has been a married person from a previous date that is since previous two months from the date of her coming to know about the fact. These has prompted the defecto complainant to file the police case against the accused person for falsely representing to her and procuring her consent to the sexual relationship with him on such false representation and false promise to marry her.

3. The police investigated into the matter and ultimately filed charge sheet against the accused person/opposite party number two in this case under sections 393, 376, 420 and adding section 377 of the Indian Penal Code. Subsequent thereto the accused person preferred to file an application in the trial Court under section 227 of the CRPC praying for his discharge from the case. Upon hearing the parties the trial Court has passed the impugned order dated December 14, 2015, allowing his application for discharge. The petitioner being aggrieved with the said order has come up before this Court in the present case.

4. Ms. Jagriti Bhattacharya, Ld. Advocate, who started arguing for the petitioner, has vehemently challenged the findings and decision of the trial Court in the said impugned order. She has pointed out to the fact that due to misrepresentation by the accused person, the petitioner agreed for the romantic as well as sexual relationship with him, but for which the petitioner would not have indulged into any such alliance. According to her, any consent given by her client under such a misrepresentation of fact would not amount to be a consent under section 375 of the Indian Penal Code, to delink the criminal action of the accused person from coming within the purview of the penal provision of law.

5. Mr. Shataroop Purokayastha, Ld. Senior Counsel appearing for the petitioner who has later on, proceeded with the further arguments, has indicated that the Court must consider presence of the culpable intention of the accused person, his guilty mind, in misrepresenting his status and thereby indulging a like relationship with the defecto complainant. He emphasises that an act done by a person with a guilty mind, must be construed to be a crime as envisaged in the statute. He has suggested that even a long-standing personal relationship interse the parties in this case, would not benefit the accused person by muddling it up on the question of “consent” or “no consent”, as the very fact of the present case would clearly suggest that even if the defecto complainant has consented to be involved with the accused person sexually, such consent has been extended only under the misrepresentation