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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
GITA GOPI, J.
Rohit Dinanath Ray – Appellant
Versus
State of Gujarat – Respondent
Criminal Revision Application No. 434 of 2021
Decided On : 11-07-2023
Indian Penal Code, 1860 - Section 90, 376, 406 and 420 - Code of Criminal Procedure, 1973 - Section 482, 227 - Promise to marry – Offence of Rape - Applicant is accused in First Information Report (FIR) who is before this Court to challenge order passed whereby his Discharge Application came to be rejected – Held, Complainant was very well knowing pros and cons of relation - After having relation with accused applicant for considerable long time, complainant’s husband gave divorce to her - Thereafter too, she continued with her relationship with accused probably with hope of a marriage - FIR was quashed, which was on consent of complainant and while withdrawing charges, complainant had not secured any assurance of marriage, to presume that there was any false promise of marriage thereafter to give rise for a cause to lodge an FIR for offence of rape - No case is made out against applicant-accused and there is no sufficient ground to pursue case against applicant-accused - There is no ground to even assume that applicant-accused has committed offence to consider culpable mentality of accused - Case is of consensual sex - Order passed by learned Additional Sessions Judge, City Civil and Sessions Court in Criminal Case is quashed and set aside - Application allowed.
JUDGMENT :
GITA GOPI, J.
1. 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 (hereinafter 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:
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 mala-fide 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, it
(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 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 a misconception of fact does not constitute valid consent under Section 90 IPC; a consensual relationship does not amount to rape.
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