The promise to marry must be false from inception to constitute an offence under section 376 IPC; a consensual relationship over time does not amount to rape.

JUDGEMENT

1. The petitioner has filed the present petition for quashing the FIR No. 0125 of 2021, dated 21.04.2021 registered with Police Station, Samba for the commission of offence under section 376 IPC against the petitioner at the instance of the respondent No. 3.

2. It is stated that the FIR impugned does not disclose the commission of offence under section 376 IPC by the petitioner as the necessary ingredients of the offence are missing in the FIR. It is further averred that the allegations contained in the FIR unequivocally indicate the love-affair between the petitioner and the respondent No. 3 which commenced in the year 2015 and continued for a period of over six years as the respondent No. 3 has herself admitted that in the month of February, 2016, the petitioner induced the respondent No. 3 to enter into physical relation on the assurance that he would marry her but the respondent No. 3 refused. The further allegations levelled against the petitioner are that the respondent No. 3 accompanied the petitioner to Katra in the year 2017 and when they stayed in a hotel, the petitioner insisted the respondent No. 3 for physical relation by taking oath of Vaishno Devi that the petitioner would marry her and it was on the said assurance of marriage that the respondent No. 3 entered into physical relation for the first time. After that, she used to enter into physical relationship with the petitioner as and when the petitioner insisted after he used to come on leave. The respondent No. 3 has also alleged that now when she insisted the petitioner for solemnization of marriage, he initially delayed it on one pretext or the other and few days back, he refused to marry her and rather was planning to marry a well off and a smart girl. It is further stated that respondent No. 3 filed an application under section 156(3) Cr.P.C. before the Chief Judicial Magistrate and in compliance to the order dated 17.03.2021, a report was submitted by the Police Station, Samba stating that the matter was enquired through PSI, who submitted that during the course of inquiry, both the complainant and non-complainant had settled the dispute amicably and the respondent No. 3 also submitted that she did not want to pursue the said complaint. It is further urged by the petitioner that pursuant to the settlement, the marriage agreement was also drafted but to shock and dismay of the petitioner, the respondent No. 3, her counsel and family members demanded Rs. 10 lacs in order to withdraw the complaint.

3. Reply has been filed by respondent Nos. 1 and 2 stating therein that on 21.04.2021, the learned Munsiff (JMIC), Samba in an application under section 156(3) Cr.P.C. filed by the complainant/respondent No. 3, titled, 'Miss X vs. Mintu Kumar' vide order dated 17.03.2021 issued direction for registration of FIR against the petitioner herein. On receipt of the application accompanied with order dated 17.03.2021, FIR bearing No. 0125/2021 for commission of offence under section 376 IPC was registered at Police Station, Samba. During the course of investigation, the statement of the prosecutrix was recorded under section 164 Cr.P.C. and during the course of investigation, record of a hotel of District Kathua was checked and on the identification of the prosecutrix, an entry in the name of the petitioner was found in the record of one hotel at Kathua. From the statement of the prosecutrix, commission of offence under section 376 IPC was established against the petitioner.

4. Prosecutrix/respondent No. 3