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IN THE HIGH COURT OF ORISSA
G. Satapathy, J.
Bineet Kumar Patel - Appellant
Versus
State - Respondent
CRLMC No .227 of 2016
Decided On : 19-10-2023
CRIMINAL LAW - Rape and Consent - IPC Sections 375, 90, 417, 506, 34 - The court discussed the definitions of rape and consent under IPC, emphasizing that consent obtained under a misconception of fact is not valid. The court analyzed the circumstances surrounding the alleged sexual relationship, particularly the promise of marriage, and concluded that the allegations warranted further examination in trial, thus upholding the cognizance of the offence under Section 376 IPC.
Fact of the Case:
The petitioners challenged the order of the J.M.F.C. taking cognizance of offences under Sections 376, 417, 506, and 34 of the IPC based on a FIR lodged by the victim, alleging that petitioner No.1 had a physical relationship with her under the pretext of marriage, which led to her pregnancy, and that petitioner No.2 threatened her.
Finding of the Court:
The court found that the allegations in the FIR, if proven, could establish the ingredients of the offence of rape under Section 375 IPC, particularly considering the definitions of consent and misconception of fact. The court held that the victim's allegations warranted a trial to determine the veracity of the claims.
Issues: Whether the allegations made in the FIR constitute a case of rape under Section 376 IPC, and whether the cognizance taken by the J.M.F.C. was legally sustainable.
Ratio Decidendi: The court reiterated that consent must be informed and voluntary, and if obtained under a false promise of marriage, it may be vitiated. The court emphasized the need for a thorough examination of the facts to determine if the promise was false and if the victim's consent was valid.
Final Decision: The court dismissed the petitioners' application to quash the cognizance order, allowing the case to proceed to trial.
JUDGMENT
G. Satapathy, J.
The application by the petitioners U/S. 482 of Cr.P.C. impugns the order passed on 29.01.2010 by the learned J.M.F.C., Loisingha in G.R. Case No. 125 of 2009 taking cognizance of offences U/Ss. 376/417/506/34 of the IPC or alternatively for the offence U/S. 376 of the IPC.
2. The short background facts are, on 07.08.2009 at about 11.45 AM, OP No.2 lodged a FIR against the petitioners before the J.M.FC. Loisingha P.S. alleging therein that on the allurement of marriage, petitioner No.1 had been keeping physical relationship with her for since last six months and as a consequence thereof, when she became pregnant of two months, the petitioner No.1 is deceiving her and petitioner No.2 had been threatening to kill her if she disclose the incident.
On receipt of such FIR, Loisingha P.S. Case No. 125 of 2009 was registered U/Ss. 376/506/34 of the IPC which was investigated into resulting submission of charge sheet against the petitioners for offence U/Ss. 417/506/34 of the IPC, but not withstanding to the submission of charge sheet of aforesaid offences, the learned J.M.F.C., Loisingha by way of a detailed order took cognizance of offence U/Ss. 376/417/506/34 of the IPC and issued process against the petitioners which is the subject matter of challenge in the present CRLMC.
3. In the course of hearing, Mr. H.S. Mishra, learned counsel for the petitioners has submitted that the allegation on record never discloses a case of rape against the petitioner No.1 and by no stretch of imagination, the sexual act as alleged against the petitioner No.1 by the victim would vindicate the commission of offence U/Ss. 376 of IPC, but not withstanding to the submission of charge sheet against the petitioners for offence U/Ss. 417/506/34 of the IPC, the learned J.M.F.C., Loisingha erroneously took cognizance of offence U/S. 376 of IPC in addition to the aforesaid offences which is not at all legally sustainable and, therefore, the proceeding against the petitioner No.1 for offence U/S. 376 of IPC having not made out, the impugned order taking cognizance of offence is liable to be set aside and thereby, the present CR.LM may kindly be allowed by deleting the offence U/S. 376 of IPC. In support of his contention, Mr.H.S.Mishra relied upon the decision in Sambhu Kharwar Vrs. State of Uttar Pradesh and another; Criminal Appeal No. 1231 of 2022 disposed of on 12.08.2022.
4. On the other hand, Mr.R.B.Mishra, learned AGA, however, assiduously has contended that the act of the petitioner No.1 squarely covered by the definition of Section 375 of IPC and thereby, the impugned cognizance order does not suffer from any infirmity. In echoing the submission of learned AGA, Mr.S.Kanungo, learned counsel for the informant by producing the certified copy of statement of witnesses including that of victim recorded U/S. 161 of Cr.P.C., has submitted that the allegation leveled by the victim itself justify a case against petitioner No.1 for offence U/S. 376 of IPC and, therefore, the impugned order does not suffer from any infirmity. Mr.Kanungo while praying to dismissed the CR.LMC has relied upon the decision in Anurag Soni V. State of Chattisgarh; (2019) 13SCC 1.
5. Admittedly, the petitioners have approached this Court for quashing of impugned order taking cognizance of offence U/Ss.376/417/506/34 of IPC or alternatively quashing for the offence U/S.376 of IPC on the ground that the uncontroverted allegation on record do not prima facie constitute the aforesaid offences or make out a case against the petitioners. The ingredients of offence of rape is provided in Section 375 of IPC and the submission advanced for the petitioners makes it clear that the petitioners challenge the offence of rape on the ground of consensual relationship on the assurance of marriage. In such situation, the definition of rape as falling under description under second clause to Section 375 of IPC together with the definition of consent as provided in Section 90 of IPC is
Consent obtained under a false promise of marriage constitutes a misconception of fact, rendering it invalid under Section 375 IPC, and must be carefully evaluated in the context of the circumstances....
Consent obtained under a false promise of marriage does not constitute rape if the accused had no intention to deceive at the time of the promise.
Consent given under a misconception of fact does not constitute valid consent for rape; a distinction exists between a false promise of marriage and a breach of promise.
Prolonged consensual relationships undermine claims of rape under false promises, indicating that consent may not be vitiated by misconception of fact.
Section 375 of IPC states that a man is said to commit rape if he has had any form of sexual intercourse without consent of a woman.
Consent given under a misconception of fact does not constitute valid consent; a prolonged consensual relationship negates claims of forceful sexual relations.
Consent obtained under a false promise to marry does not constitute valid consent for sexual acts; the court must evaluate the intention behind the promise and the circumstances surrounding the conse....
Consent in sexual relationships requires active understanding and cannot be deemed vitiated solely by false promises of marriage unless proven that such promises were made in bad faith.
Consent obtained under a false promise of marriage is vitiated and does not constitute valid consent under Section 90 of IPC.
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