2024 Supreme(SC) 1086

SUPREME COURT OF INDIA
B.V. NAGARATHNA, NONGMEIKAPAM KOTISWAR SINGH, JJ.
Mahesh Damu Khare – Appellant
Versus
The State Of Maharashtra & Anr. – Respondents
Criminal Appeal No. of 2024 (@ Special Leave Petition (Crl.) No. 4326 of 2018)
Decided On : 26-11-2024

IMPORTANT POINTS
(1) Exercise of inherent jurisdiction – High Court does not have to go in detail by way of minute examination about correctness or otherwise of facts alleged – Court has to examine the same by taking a prima facie view of matter based on materials on record.
(2) Rape – Misconception of fact – Unless it can be shown that physical relationship was purely because of promise of marriage, thereby having direct nexus with physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.

Headnote:

(A) Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Exercise of inherent jurisdiction – High Court to pass any order as may be necessary to give effect to any order under Cr.P.C, or to prevent abuse of process of any court or otherwise to secure ends of justice – High Court does not have to go in detail by way of minute examination about correctness or otherwise of facts alleged – Court has to examine the same by taking a prima facie view of matter based on materials on record – If on consideration of factual matrix of allegations, no prima facie case is made out of commission of any offence of which cognizance can be taken, the High Court would be within its power to intervene and quash any such complaint or FIR in exercise of inherent power under Section 482 Cr.P.C.(Paras 13, 14 and 15)

(B) Indian Penal Code, 1860 – Section 376 read with Section 90 [Bharatiya Nyaya Sanhita, 2023 – Section 64 read with Section 28] – Rape – Misconception of fact – If a man is accused of having sexual relationship by making false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to false promise made and not qualified by other circumstances or consideration – A woman may have reasons to have physical relationship other than promise of marriage made by the man, such as personal liking for male partner without insisting upon formal marital ties – In a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that physical relationship was purely because of alleged promise made by appellant to marry her – Unless it can be shown that physical relationship was purely because of promise of marriage, thereby having direct nexus with physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact – It must also be clear that for a promise to be a false promise to amount to misconception of fact within meaning of Section 90 of IPC, it must have been made from very beginning with intention to deceive the woman to persuade her to have physical relationship – If it is established that such consent was given under misconception of fact, said consent is vitiated and not a valid consent – There may be occasions where promise to marry was made initially but for various reasons, a person may not be able to keep promise to marry – If such promise is not made from very beginning with ulterior motive to deceive her, it cannot be said to be a false promise to attract penal provisions of Section 375 IPC, punishable under Section 376 IPC. (Paras 21, 22, 23 and 24)

(C) Indian Penal Code, 1860 – Sections 376, 420, 504 and 506 read with Section 90 [Bharatiya Nyaya Sanhita, 2023 – Sections 64, 318, 352 and 351 read with Section 28] – Criminal Procedure Code, 1973 – Section 482 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 528] – Rape, cheating, insult and criminal intimidation – Misconception of fact – Dismissal of quashing petition by High Court – Physical relationship between appellant and complainant continued for a long period of about a decade and as such it is difficult to infer that appellant had made a false promise since initial stage and continued to make false promises to marry her on the basis of which she also continued to have physical relationship with him – Complainant does not appear to be a naive and gullible woman who was susceptible to deceit while maintaining physical relationship with appellant and allegation of false promise surfaced only when appellant refused to provide further financial and other assistance – Conduct of complainant clearly shows that she is a mature person clearly capable of understanding consequences of her acts and she was fully aware of kind of illicit relationship she was maintaining with a married person – Complainant was fully aware that appellant was already married – Longer the duration of physical relationship between partners without protest and insistence by female partner for marriage would be indicative of a consensual relationship rather than a relationship based on false promise of marriage by male partner and based on misconception of fact – If criminality is to be attached to such prolonged physical relationship at a very belated stage, it can lead to serious consequences – It will open scope for imputing criminality to such long term relationships after turning sour, as such allegation can be made even at a belated stage to drag a person in juggernaut of stringent criminal process – There is always a danger of attributing criminal intent to an otherwise disturbed civil relationship of which Court must also be mindful – Criminal proceeding against appellant quashed. (Paras 25, 26, 27, 31, 35 and 36)

Facts of the case:

High Court dismissed petition filed under Section 482 of Code of Criminal Procedure, 1973 by present appellant seeking quashing of FIR filed by complainant (Respondent no. 2 herein), for offences punishable under Sections 376, 420, 504 and 506 of Indian Penal Code, 1860 holding that offence under Section 376 of IPC is an offence against society which would require further investigation into the matter and does not warrant interference.

Findings of Court:

Quashing of FIR against appellant will not be a bar to respondent no. 2 to seek any other remedy available under law.

Result : Appeal allowed.