The requirement for active and reasoned deliberation towards the proposed act of consent and the distinction between false promise and breach of promise.

JUDGMENT :

1. This application filed under section 482 of Criminal Procedure Code assails the F.I.R. dated 19-5-2020 in Crime No. 298/2020.

2. In short, the case of applicant is that on 19-5-2020 complainant lodged the F.I.R alleging that applicant developed physical relation with her from 9-11-2018. As per the complaint, the complainant was in contact with applicant for more than two years. They had friendship which converted into a love affair. The applicant gave a promise to marry the complainant and on that pretext, developed physical relation with her at Narmada Mall, Hoshangabad.

3. Grievance of complainant is that when she made a request to actually solemnize marriage, the applicant declined to do so.

4. Shri Deepak Kumar Singh, learned counsel for the applicant placed reliance on the statement of complainant recorded under section 161 and 164 of Criminal Procedure Code. In addition, statement of her father recorded under section 161, Criminal Procedure Code was also relied upon. On the basis of these statements, it is submitted that it is a case of mutual consent of two adult persons. The offence as alleged against the applicant is not made out. If story of prosecution is read as such, offence under section 375/376 of Indian Penal Code is not made out. He placed reliance on the judgment of Supreme Court reported in AIR 2019 SC 4010, Pramod Suryabhan Pawar vs. State of Maharashtra and another and prayed for interference in the F.I.R.

5. Per contra, learned Government Advocate supported the F.I.R. and submits that at this stage, question of interference does not arise.

6. Shri R. S. Mehndiratta, learned counsel for the complainant supported the F.I.R. and submits that it is a question of trial whether complainant would be able to make out a case or not. At this stage, in this proceeding, no interference may be made. He placed reliance on the judgment of Supreme Court in Cr. A. No. 629 of 2019, Anurag Soni vs. State of Chhattisgarh. In addition, he placed reliance on Karnataka High Court judgment passed in Criminal Appeal No. 3587/2013, Shravan vs. State of Karnataka and a judgment of this Court in M.Cr.C. No. 16161/2019, Deepesh Bain vs. State of M. P. and another decided on 25-9-2019.

7. Parties confined their arguments to the extent indicated hereinabove.

8. I have heard the parties at length and perused the record.

9. In the recent judgment of Apex Court in Pramod Suryabhan Pawar (supra) the Apex Court has considered its previous judgments including the judgment in the case of Anurag Soni (supra) on which reliance is placed by learned counsel for the private respondent. It is apposite to quote certain portions of the judgment of Pramod Suryabhan Pawar (supra) because Supreme Court considered the impact of section 375 and 90 of Indian Penal Code. Relevant portion of this judgment reads as under :—

“14. In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni vs. State of Chhattisgarh, (2019) 13 SCC 1, this Court held : “37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per section 90, Indian Penal Code and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under sections 375, Indian Penal Code and can be convicted for the offence und