1. Appeal against refusal to quash proceedings under Section 376 IPC involving a long-term consensual relationship and allegations of a broken promise to marry. (Para 3 , 4 , 5 , 6 )
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2022 Supreme(SC) 1747
SUPREME COURT OF INDIA
DHANANJAYA Y. CHANDRACHUD, A.S. BOPANNA, JJ.
Shambhu Kharwar – Appellant
Versus
State of Uttar Pradesh and Another – Respondents
Criminal Appeal No. 1231 of 2022, SLP (Crl) No. 7426 of 2022
Decided On : 12-08-2022
Important Points
The crucial ingredients of the offence under Section 375 IPC were not established, and the High Court dismissed the application under Section 482 of Cr.P.C. on a completely misconceived basis.
Subject
Criminal Law - Quashing of Criminal Proceedings
Act Referred
Headnote
Delay condoned. Leave granted. The appeal arises from a judgment dated 5 October 2018 of a Single Judge of the High Court of Judicature at Allahabad. The High Court dismissed an application instituted by the appellant under Section 482 of the Code of Criminal Procedure 1973 ["Cr.P.C."] for quashing Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First) Ballia arising out of Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia for an offence punishable under Section 376 of the Indian Penal Code 1860 ["IPC"]. The appellant had also sought the quashing of a charge-sheet bearing charge-sheet No 94 of 2018 dated 23 April 2018 submitted under Section 173 of Cr.P.C. and the order taking cognizance dated 24 May 2018.
Fact of the Case:
The appellant sought to quash Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First) Ballia arising out of Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia for an offence punishable under Section 376 of the Indian Penal Code 1860 ["IPC"]. The appellant had also sought the quashing of a charge-sheet bearing charge-sheet No 94 of 2018 dated 23 April 2018 submitted under Section 173 of Cr.P.C. and the order taking cognizance dated 24 May 2018.
Finding of the Court:
The High Court dismissed the application under Section 482 of Cr.P.C. The High Court, in the course of its judgment, has merely observed that the dispute raises a question of fact which cannot be considered in an application under Section 482 of Cr.P.C.
Issues: The crucial issue which is to be considered is whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship.
Ratio Decidendi: The crucial ingredients of the offence under Section 375 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of Cr.P.C. on a completely misconceived basis.
Final Decision: The appeal was allowed and the impugned judgment and order of the High Court dated 5 October 2018 in application u/s 482 No 33999 of 2018 were set aside. The application under Section 482 of Cr.P.C. was allowed, and the Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia, charge-sheet dated 23 April 2018 in the aforementioned case and the order dated 24 May 2018 in Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First), Ballia taking cognizance of the charge-sheet were quashed.
Legal Category Hierarchy
Table of Contents
2. The appellant sought quashing of the criminal case and charge-sheet, contending that the allegations did not disclose the commission of a cognizable offence. (Para 3 )
3. The relationship was consensual and continued during the respondent's marriage and after her divorce, failing to establish a false promise to marry at inception. (Para 12 , 13 , 14 )
4. Consent under Section 375 IPC is vitiated by misconception of fact only if a promise to marry was false and made in bad faith from inception. (Para 11 )
5. Appeal allowed; High Court order set aside and criminal proceedings, including the charge-sheet and cognizance order, quashed. (Para 15 )
6. When does a promise to marry vitiate consent under Section 375 IPC?
Consent is vitiated by a misconception of fact if the promise to marry was false, given in bad faith, and with no intention of being adhered to at the time it was given, and this promise had a direct nexus to the decision to engage in the sexual act. (Para 11 )
7. What is the distinction between a false promise to marry and a breach of promise?
A false promise is one where the maker had no intention of upholding it at the time of giving it to deceive the woman. A breach of promise occurs when a promise was made in good faith but subsequently not fulfilled. (Para 11 )
8. What is the test for quashing criminal proceedings under Section 482 CrPC?
The primary test is whether the allegations in the FIR or complaint, taken at face value and accepted in their entirety, prima facie constitute a cognizable offence or disclose the commission of an offence. (Para 7 , 8 )
JUDGMENT :
DHANANJAYA Y. CHANDRACHUD, J.
1. Delay condoned.
2. Leave granted.
3. The appeal arises from a judgment dated 5 October 2018 of a Single Judge of the High Court of Judicature at Allahabad. The High Court dismissed an application instituted by the appellant under Section 482 of the Code of Criminal Procedure 19731 [“Cr.P.C.”] for quashing Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First) Ballia arising out of Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia for an offence punishable under Section 376 of the Indian Penal Code 18602 [“IPC”]. The appellant had also sought the quashing of a charge-sheet bearing charge-sheet No 94 of 2018 dated 23 April 2018 submitted under Section 173 of Cr.P.C. and the order taking cognizance dated 24 May 2018.
4. Case Crime No 11 of 2018 was registered on 18 January 2018 at Police Station Rasra, District Ballia on the basis of information furnished by the second respondent. In her complaint, the second respondent stated as follows:
“I was having affair with Shambhu Kharwar as his wife, who is also the resident of Village-Sarai Bharti, Post-Rasada, District-Ballia. I hereby give my statement that there was love affair between us since a period of about 3 years and Shambhu Kharwar gave an assurance to me regarding solemnization of marriage and as a result of the same started living with me under the same roof and also used to have sexual relationship with me and also used to make a demand of certain amount time to time. But I always followed him and till date I am unmarried and whenever I asked him regarding the solemnization of marriage, he used to make false and frivolous averments and at last without informing me solemnized marriage with someone else on 10.12.2017 and after the same, returned to me and told nothing regarding the solemnization of marriage, but on being pressurized by me again and again he had admitted that he has entered into a ring ceremony with someone else, this information has been received by me from him only. I am very sad and whenever I asked him to solemnize marriage with me, he kept on making lame excuses and gave false assurances by saying that he will leave her by sexually assaulting her and thereafter, will solemnize marriage with me. After hearing the same, I have decided to initiate criminal proceedings against him. Therefore, it is prayed that suitable action may kindly be taken against him. Shambhu Kharwar Son of Lallan Kharwar, resident of Sarai Bharti Rasada, Ballia Date 18.01.2018.”
5. The statement of the second respondent was recorded under Section 161 of Cr.P.C. during investigation. Her statement was recorded under Section 164. In the statement under Section 164, the second respondent stated that during the course of training at a Teachers’ Training College, she came in contact with the appellant in 2013 and they got into a relationship. On 12 June 2014, the marriage of the second respondent was solemnized with someone else in spite of which the relationship with the appellant continued. The second respondent stated that the appellant had compelled her to break away from the marriage and her matrimonial relationship had come to an end since March 2015, barely three months after she stayed in the matrimonial home. The second respondent states that she thereafter returned to the parental home and then started living with the appellant. After the completion of her training in 2016, the second respondent continued to live with the appellant until December 2017. The grievance of the second respondent was that the appellant got engaged to someone else on 10 December 2017. Though the appellant is alleged to have agreed to break off his engagement, he failed to abide by his assurance.
6. Apart from the above narration, it is of significance to note that the second respondent was granted a divorce by mutual consent by an order dated 17 September 2017 of the Principal Judge of the Family Court at B
