Consent under Section 375 IPC can be vitiated by a false promise of marriage only if it is proven that such promise was made without any intention to fulfill it at the time of the promise.

ORDER :

Achal Kumar Paliwal, J.

With the consent of learned counsel for the parties heard finally at motion stage.

2. Present criminal revision petition has been filed under Section 397 /401 of Cr.P.C. assailing order dated 05.10.2021 whereby charge under Section 376 (2)(n) and 376 of IPC has been framed against present applicant.

3. Learned counsel for the applicant submits that in the instant case, alleged incident is said to have occurred from 08.03.2020 to 25.02.2021 and FIR has been lodged on 5.04.2021. It is also urged that prosecutrix is a guest teacher aged 24 years. Learned counsel for the applicant also submits that applicant was ready to marry prosecutrix but when family members of prosecutrix went to meet maternal uncle and aunt of applicant for discussing the issue, at that time, some dispute took place between the parties and thereafter, maternal uncle and aunt of applicant refused to marry applicant with prosecutrix. It is also urged that parents of applicant are not alive.

4. Learned counsel for the applicant has also referred to last 4-5 lines of para 1 of prosecutrix's statement recorded under Section 164 of Cr.P.C. as well as statements of prosecution witnesses recorded under Section 161 of Cr.P.C. to submit that in the instant case, even prima facie, it cannot be said that applicant established physical relation with prosecutrix on false pretext of marriage. Initially, both the parties were ready to solemnize marriage but later on account of some dispute between the parties, marriage could not be solemnized.

5. Further, after relying upon Dr.Dhruvaram Murlidhar Sonar Vs. State of Maharashra and Other , AIR 2019 SC 327 , Naim Ahamed Vs. State (NCT of Delhi), (2023) AIR (SC) Cri 1003, Pramod Suryabhan Pawar Vs. State of Mahrashtra and Another , (2019) 9 SCC 608 , Maheshwar Tigga Vs. State of Jharkhand , (2020) 10 SCC 108 and order passed by Co-ordinate Bench in MCRC No.1071 of 2023 ( Ashish Mishra @ Shivam Mishra Vs. State of M.P. and Another ) on 16.08.2024, MCRC No.42118 of 2022 ( Gaurav singh Chadhar Vs. State of M.P. and Others ) on 24.01.2023 and CRA No.12295/2022 ( Sunit Mishra Vs. State of M.P. ) on 09.02.2023, it is urged that in the instant case, even prima facie offence under Sections 376 (2)(n) and 376 of IPC is not made out. Learned Trial Court has erred in framing charges against applicant under (2)(n) and 376 of . Hence, petition filed by the petitioner be allowed and petitioner be discharged.

6. Learned counsel for the respondent/State has submitted that there is sufficient material on record to frame charges under Section 376 (2)(n) and 376 of IPC against applicant. Hence, revision petition filed by the applicant be dismissed.

7. Heard. Perused of record of the case.

Analysis and Findings :-

8. Perusal of record of the case as well as submissions of learned counsel for the parties reveals that primarily two legal issues are involved in the case i.e. what is the criteria/what are the parameters for framing of charge/discharge of accused and to decide as to whether consent of prosecutrix was free or was obtained under misconception of fact i.e. on false pretext of marriage. Hence, before adverting to the issue involved in the case, it would be appropriate to refer principles of law with respect to aforesaid legal issues.

Legal principles applicable in regard to framing of charge/ discharge :-

9. Hon’ble apex court in M.E. Shivalingamurthy Vs. Central Bureau of Investigation , (2020) 2 SCC 768 , after referring to (2011) 14 SCC 608 , State of A.P. V. Obulapuram Mining Co. (P) Ltd., (2010)