Consent for sexual intercourse given by a grown-up woman with whom the accused is in love, even based on a false promise of marriage, does not necessarily constitute rape.

1. Petitioner invokes inherent jurisdiction of this Court under Section 561-A Cr.P.C. to seek quashing of FIR No. 01 of 2018 of Police Station, Manjakote (Distt. Rajouri) under Section 376 RPC registered against him on a complaint filed by respondent No. 3 (hereinafter to be referred as the prosecutrix).

2. The prosecutrix filed complaint in the court of the Chief Judicial Magistrate, Rajouri. She alleged that the petitioner, who hails from her village, was well acquainted with her. He developed relation with her 4/5 years back in the year 2013 and said that he will marry her. He remained in constant telephonic touch with her and had been committing sexual intercourse with her under the pretext that he will marry her. He used to make her reject all other offers of marriage received by her. The petitioner, however, has now refused to marry her and has thereby spoiled her life. She thus alleges that the petitioner has committed heinous offence on her continuously for 4/5 years under the pretext of marrying her. Learned Chief Judicial Magistrate, as is evident from the impugned FIR, forwarded the complaint to SHO, Police Station, Manjakote for “action under law” and pursuant thereto the impugned FIR was registered.

3. In order to seek the quashing of the impugned FIR, the petitioner contends that he is serving in the Central Reserve Police Force (CRPF) since June, 2012 and has generally remained posted at different stations. He used to visit his house during holidays. The prosecutrix, aged 27 years, who is his next door neighbour, is infatuated with him and wants to marry with him by all possible means. She had been sending proposal for marriage to him ever since he was absorbed in the CRPF but the proposal has been rejected by him. Consequent upon the refusal of marriage by him, the prosecutrix in order to wreck vengeance upon him filed false and fabricated complaint and has got him implicated in a false case under Section 376 RPC.

4. Learned counsel for the petitioner, Mr. Rohit Verma, argued vehemently that the complaint filed by the prosecutrix, which is similarly reflected in the impugned FIR, on its plain reading fails to make out a prima facie case of commission of offence of rape on her by the petitioner. In this context, it is contended in para 8 of the petition that even if allegations are believed to be true, the beaten law is that “if parties develop physical intimacy during their courtship and the boy later on resiles from promise to marry, the same cannot be brought within the scope of Section 376 RPC and the same would, rather be an act of promiscuity on the part of prosecutrix.” Learned counsel argued further that registration of the FIR by the police on a false, concocted and motivated complaint under the garb of direction of the learned Chief Judicial Magistrate to take action under law is sheer abuse of process of court and the case is fit for invoking inherent jurisdiction of this court to prevent the abuse of the process of the court and in the interest of justice. Learned counsel cited the Supreme Court Judgment in Uday v. State of Karnataka, (2003) 4 SCC 46.

5. State has resisted this petition by filing statement of facts and learned Government Advocate, appearing on behalf of the State, produced a copy of the statement of the prosecutrix recorded under Section 164-A Cr.P.C. It is contended that prosecutrix in her statement has stated that the petitioner committed rape on her on 20.12.2017 also and that the investigation of the case has established commission of offence under Section 376 RPC by the petitioner.

6. In Uday’s case (supra), the Supreme Court has held as under:

“It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fac