JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The instant petition has been filed challenging the impugned summoning/cognizance order dated 13.10.2020, passed in Special Sessions Trial No. 19 of 2020, State Vs. Nitin Sharma, pending in the court of District and Sessions Judge, Haridwar (for short, “the case") as well as the entire proceedings of the case.

2. Facts necessary to decide the controversy, briefly stated, are as follows:-

The respondent no.2 is the prosecutrix (“the prosecutrix), who filed an FIR on 16.06.2020 against the petitioner under Section 376 and 506 IPC. According to it, the prosecutrix had been working for the last 3 years since then, in a company in Human Resource Department. She was staying in Haridwar. She had also joined a Gym, where she met the petitioner. They both used to exercise together. During that period, the petitioner proposed the prosecutrix for friendship. They became friends and in due course of time, their friendship deepened. The petitioner proposed the prosecutrix for marriage, he visited the residence of the prosecutrix and established physical relations with her. The prosecutrix was also happy that the petitioner would marry her. But, subsequently, the petitioner stopped talking to the prosecutrix. When the prosecutrix questioned the petitioner to marry her, according to the FIR, the petitioner declined to marry and threatened her to life. It is this FIR, in which, after investigation, charge sheet under Sections 376 (2) (n), 506 IPC and Section 3 (1)(w)(ii) and 3 (2) (v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, “the Act") was submitted against the petitioner. Based on it, cognizance was taken It is impugned herein.

3. The State as well as the prosecutrix has filed their counter affidavits.

4. Heard learned counsel for the parties and perused the record.

5. Learned counsel for the petitioner would submit that the offences under the Act are not made out. There is no averment of any offence committed under the Act in the FIR. It is not also the case of the prosecution that only for the reason of the prosecutrix belonging to the scheduled caste category, the offence was committed.

6. Learned counsel referred to the averments made in the charge sheet to argue that, in fact, the Investigating Officer (for short, “the IO"), added the offence under the Act, merely on the basis of production of the caste certificate by the prosecutrix. Learned counsel raised the following points as well in his submission:-

(i) The relationship between the petitioner and the prosecutrix was consensual.

(ii) The petitioner never made any false promise to marry. He wanted to marry the prosecutrix, but it was the parents of the prosecutrix, who were against the marriage, as is evident from the statements of the witnesses.

(iii) The prosecutrix had consented to the act voluntarily. She was under no misconception. Her consent is not vitiated by “misconception of fact". Therefore, it is argued that no offence, even, prima facie, is made out against the petitioner and proceedings of the case deserves to be quashed.

7. In support of his contention, learned counsel placed reliance upon the principles of law, as laid down in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and another, (2019) 9 SCC 608, Hitesh Verma Vs. State of Uttarakhand and another, (2020) 10 SCC 710, Maheshwar Tigga Vs. State of Jharkhand, (2020) 10 SCC 108 and Uday Vs. State of Karnataka, (2003) 4 SCC 46.

8. In the case of Pramod Suryabhan Pawar (supra), the Hon'ble Supreme Court, discussed the law on the question of consent and in paragraph 18 summarized the legal position has hereunder:-

“18. To summarise the legal position that emerges from the above cases, the “consent" of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent" was vitiated by a “misconception of fact" arising out of a promise t