The consent of a woman under Section 375 is vitiated on the ground of a 'misconception of fact' where such misconception was the basis for her choosing to engage in the said act.

JUDGMENT

Purushaindra Kumar Kaurav, J. This petition under Section 482 of the Code of Criminal Procedure, 1973 (Cr.P.C.) seeks for quashment of FIR No. 295/2021, under Section 376 of the Indian Penal Code (IPC) registered at Police Station Vasant Kunj North, Delhi, and all the proceedings emanating therefrom

2. The facts of the case are that in May, 2020 the petitioner and prosecutrix started knowing each other being face-book friends. They first time met on 31.05.2020 and thereafter started frequently meeting each other. As per the allegations levelled in the FIR, the petitioner proposed the prosecutrix for marriage. On 14.06.2020 the petitioner made sexual relations with the prosecutrix on the pretext of marriage. The petitioner, thereafter, also made physical relations with the prosecutrix and as and when the prosecutrix used to raise her voice, she was told that he would marry her and there was nothing wrong in having pre-marital sexual intercourse. It is alleged that believing the petitioner, the prosecutrix continued to have sexual relations for about one year and during the said period the petitioner and the prosecutrix visited the native place of the prosecutrix at Dimapur, Nagaland expressing their interest to marry. It is alleged that during the aforesaid period the petitioner got the prosecutrix aborted two times against her will. However, on 28.05.2021, the petitioner suddenly without telling anyone has left the prosecutrix and when the prosecutrix tried to call her, she found that her number was blocked. It is alleged that since the petitioner promised to marry, therefore, the prosecutrix made sexual relations with the petitioner. After registration of the FIR the statement of the prosecutrix under Section 164 of Cr.P.C. was recorded. After completion of the investigation, the police has submitted the charge sheet before the competent court and the matter is pending at the stage of framing of charge.

3. Learned counsel appearing on behalf of the petitioner submits that no offence under Section 376 IPC is made out as the prosecutrix was well aware about the subsistence of her earlier marriage. According to him, sexual intercourse between the petitioner and the prosecutrix was consensual and based on their free will. He submits that there is no reason for any false promise, as the prosecutrix was already married. He placed reliance on the decisions of this court in the cases of Mohit Nagar v. State and Anr., (2017) SCC OnLine Del 7616, Mohit Narula v. State of NCT of Delhi & Anr., (2018) SCC OnLine Del 8764, Rahul Mishra v. State Govt. of NCT of Delhi & Ors., (2018) SCC OnLine Del 7231 and Sabhajeet Maurya v. State NCT of Delhi, (2020) SCC OnLine Del 1525. He submits that in all these cases prosecution for offence under Sections 376 and 313 of IPC has been quashed by this court in exercise of power under Section 482 of Cr.P.C. under the similar circumstances.

4. Learned counsel appearing on behalf of the State vehemently opposed the instant petition. He submits that the same is not maintainable at this stage. According to him, the stage of framing of charge has not yet reached and the petitioner can raise all his points before the court at the time of framing of charge. He further submits that on account of allegation of abortion without the will of the prosecutrix, the police has filed the charge sheet not only for the offence punishable under Section 376 of IPC, but for the offence punishable under Section 313 of IPC also. He therefore, submitted that the decision relied upon by learned counsel for the petitioner would not be any assistance, as in those cases offence under Section 313 of IPC was not involved.

5. I have heard learned counsel appearing on behalf of the parties and have perused the material available on record.

6. The Hon'ble Supreme Court in the matter of Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and Others, (2021) SCC OnLine SC 315, conducted a detailed study of the situations