Consent in relationships cannot be construed as rape unless proven to be obtained through fraudulent misrepresentation or misconception of fact.

ORDER

Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure seeking quashing of charge sheet/Final Report filed against the petitioner by respondent No. 1 on account of registration of a criminal case vide Crime No. 54/2021 at Police Station Mahila Thana, District Katni for the offence punishable under Sections 376 , 376(2)(n) , 506 and 366 of the Indian Penal Code .

2. As per the case of the prosecution and the contents of FIR, on 26.11.2021, a written complaint was made to the police at Mahila Thana, Katni by the prosecutrix alleging therein that the petitioner- Nageshwar Prasad Jaisal by making false promise of marriage has developed physical relation with her. In the complaint it is stated by the prosecutrix that she is a resident of Khitola, Thana Barhi, District Katni and acquired education till MA. She knows the petitioner, who is also a resident of same vicinity and belongs to the same caste as the prosecutrix and they know each other since last 11 years. It is stated by the prosecutrix that when the petitioner was studying in the Navoday Vidyalaya, Badwara, she was studying in 11^th Class. During summer vacation, petitioner used to come to his village and used to meet her. There was affair between them. The petitioner had also proposed and assured the prosecutrix for marriage and also asked her to continue her studies and as such in the month of June, 2010, when petitioner came to his village during summer vacation, he developed physical relation with the prosecutrix. This relationship continued till 2020 and whenever petitioner used to come to the village in summer vacation, he and prosecutrix used to develop physical relation. Thereafter petitioner got posted in Government Hospital, Katni as a doctor. He often called the prosecutrix in his house allotted to him in the hospital premises and used to develop physical relation with her, but later on the petitioner refused to marry her. Thereafter, prosecutrix informed her father and lodged a report alleging that the petitioner has threatened her that if report is lodged, he would kill her.

3. In her statement recorded under Section 164 Cr.P.C., the prosecutrix has reiterated the same facts which she has narrated in the written complaint given to the police.

4. Learned counsel representing the petitioner has argued that upon reviewing the facts mentioned in the complaint, it becomes evident that it is not a case of rape. According to the counsel, the relationship between the prosecutrix and the petitioner was consensual, and crucially, the consent was not obtained under a misconception of fact. It is also contended that the elements required to establish rape as defined under Section 375 of the Indian Penal Code are not available in present case. It is further contended by the learned counsel that as per the definition of ‘consent’ given in Section 90 of IPC and from the facts of the present case, it is clear that it is a clear-cut case of consent and therefore no offence as registered against the petitioner is made out and consequently he is claiming that the impugned FIR be quashed and all consequential action based upon the said registration of FIR, which has ultimately culminated into a final report is also required to be set aside. He has placed reliance upon the cases reported in (2003) 4 SCC 46 - Uday Vs. State of Karnataka , (201