2024:BHC-NAG:1273
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION [APL] NO.45 OF 2023
Applicant : Gaurav s/o Ravi Wankhede,
Aged about 31 years, Occu : Service,
R/o. 6/7, Shri Ganesh Residency,
Narendra Nagar Extension, Manish Nagar,
Nagpur.
– Versus –
Non-Applicants : 1. State of Maharashtra,
Through Police Station Officer,
Police Station, Beltarodi, Nagpur.
2. XYZ,
in Crime No.213/2019,
Registered with P.S. Beltalrodi, Nagpur.
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Mr. J.M. Gandhi, Advocate for the Applicant.
Mr. S.A. Ashirgade, A.P.P. for Non-Applicant No.1.
Ms. A.P. Murrey, Advocate (Appointed) for Non-Applicant No.2.
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CORAM : M.W. CHANDWANI, J.
RESERVED ON : 19th DECEMBER, 2023.
PRONOUNCED ON : 30th JANUARY, 2024.
JUDGMENT :
Rule. Rule made returnable forthwith. Heard finally with the
consent of the learned Counsel for the parties.
02] The application seeks quashing of Sessions Case No.569/2019
arising out of First Information Report (F.I.R.) No.213/2019 registered with
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Police Station Beltarodi, District Nagpur for the offence punishable under
Sections 376(2)(n) and 417 of the Indian Penal Code (I.P.C. for short).
03] The facts, which give rise to the present application, can be culled
out as under :
On 26/07/2019, the victim lodged F.I.R. alleging that she got
acquainted with the applicant through her sister Devita and was working as an
Insurance Consultant with him. They used to meet and also used to go
together for the purpose of work. The applicant proposed for marriage to the
victim, to which she agreed. In the month of March 2016, the applicant took
the victim on his bike for the purpose of work and thereafter to his house at
Manish Nagar, Nagpur. In his house, the applicant established physical
relations with the victim on the promise of marriage. Thereafter, the said
physical relations continued at the rented room of the sister of the victim. The
applicant also established physical relations with the victim at Hotel Green on
the pretext of promise of marriage. Suddenly, the victim came to know that
the applicant’s marriage is fixed with another girl and the engagement
ceremony was also performed. Initially, on 16/07/2019, the victim lodged a
complaint with Police Station Beltarodi, Nagpur, wherein the applicant was
called. He informed to the Police that he is ready to perform the marriage
with the victim, but his parents were not agreeing. The victim went to meet
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the father of the applicant, however, his father refused to agree for the
marriage of the applicant with the victim. Therefore, on 26/07/2019, the
victim lodged F.I.R. against the applicant, on which the aforesaid offences
came to be registered. Thus, in the complaint, the victim alleged that by
giving false promise of marriage, the applicant kept physical relations with
her.
04] After completion of investigation, charge-sheet came to be filed
and the case was committed to the Court of Sessions vide Sessions Case
No.569/2019. The applicant applied under Section 227 of Cr.P.C. for
discharge from the case. By the impugned order, the application for discharge
(Exh.11) came to be rejected by the learned Additional Sessions Judge. The
applicant approached this Court for quashing of the said sessions case.
05] Heard Mr. J.M. Gandhi, learned Counsel for the applicant as well
as Mr. S.A. Ashirgade, learned Additional Public Prosecutor for the State
assisted by Ms. A.P. Murrey, learned Counsel for non-applicant No.1.
06] The learned Counsel appearing on behalf of the applicant, by
relying on the averments in the F.I.R., submits that the victim is a 33 year old
girl. The physical relations between the applicant and the victim were
consensual and were out of love affair. From 2016, according to him, the
applicant was rather ready to marry the victim, but the victim was not
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interested at all, and thereafter all of a sudden, when the applicant got an
attractive job and engagement of the applicant with another girl was
performed, she took a U-turn and lodged false complaint against the applicant.
According to him, the WhatsApp chats would reveal that it is the victim, who
initially denied to get married. Even, the allegations in the F.I.R. and the
material collected by the prosecution in the charge-sheet are accepted as it is,
they show that physical relations between the applicant and the victim were
consensual and no offence under Section 376(2)(n) of I.P.C. is made out
against the applicant. Subsequently, the victim got married to one Aman
Chandrakant Sharma on 17/08/2021.
07] Per contra, the learned A.P.P. strenuously urged that the contents
of the F.I.R. clearly make out a case that the consent of the victim was
obtained under false promise of marriage and since inception, the applicant
had no intention to marry the victim. According to him, the Police initially
registered offence under Section 417 of I.P.C. The said offence being a non-
cognizable one, permission of the learned Magistrate was taken under Section
155(2) of Cr.P.C. and thereafter investigation was carried out. On the
complaint of the victim, the aforesaid offence came to be registered against
the applicant. According to him, consent has been obtained under
misconception and, therefore, is no consent. In absence of consent, the
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offence under Section 375 of I.P.C. against the applicant will attract. He
supports the impugned order of the learned Additional Sessions Judge
rejecting the discharge application of the applicant.
08] Perusal of the charge-sheet reveals that the victim was 33 years
old. She was well acquainted with the applicant and had friendly relations
with him prior to 2016 and the relations converted into love affair. From
2016, on several occasions, they indulged with each others physically and the
version of victim is, it was under the pretext of marriage. Even by reading the
complaint, it can been seen that the applicant’s promise to marry the
prosecutrix, was not the only reason for permitting the applicant to have the
sexual indulgence. She was fully conscious about the effect of sexual
indulgence and pursued relationship continuously for a considerable length of
time. This does not give rise to a conclusion that on every occasion, only on
the promise of marriage sexual relations were established. There is distinction
between breach of a promise and not fulfilling a false promise
09] The Hon’ble Apex Court in the case of Pramod Suryabhan Pawar
vs. State of Maharashtra & Anr.1, while dealing with an Appeal seeking
quashing of First Information Report under Section 482 of the Cr.P.C. drew a
distinction between a false promise to marry and not fulfilling a promise to
marry. By relying upon the earlier decision in the case of Deepak Gulati vs.
1 (2019) 9 SCC 608
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State of Haryana2, the relevant portion was gainfully reproduced as under :
“21. There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a
false promise of marriage by the accused; and whether the
consent involved was given after wholly understanding the
nature and consequences of sexual indulgence. There may be
a case where the prosecutrix agrees to have sexual
intercourse on account of her love and passion for the
accused, and not solely on account of misrepresentation made
to her by the accused, or where an accused on account of
circumstances which he could not have foreseen, or which
were beyond his control, was unable to marry her, despite
having every intention to do so. Such cases must be treated
differently.
24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time 1.e. at the initial
stage itself, the accused had no intention whatsoever, of
keeping his promise to marry the victim. There may, of
course, be circumstances, when a person having the best of
intentions is unable to marry the victim owing to various
unavoidable circumstances. The "failure to keep a promise
made with respect to a future uncertain date, due to reasons
that are not very clear from the evidence available, does not
always amount to misconception of fact. In order to come
within the meaning of the term "misconception of fact", the
fact must have an immediate relevance". Section 90 IPC
cannot be called into ald in such a situation, to pardon the act
of a girl in entirety, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry
her."
2 (2013) 7 SCC 675
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10] In another decision of the Supreme Court in the case of Dr.
Dhruvaram Murlidhar Sonar vs. State of Maharashtra and others 3, it has been
held in paragraph 20, as under :
“20. Thus, there is a clear distinction between rape and
consensual sex. The court, in such cases, must very carefully
examine whether the complainant had actually wanted to
marry the victim or had mala fide motives and had made a
false promise to this effect only to satisfy his lust, as the later
falls within the ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not
fulfilling a false promise. If the accused has not made the
promise with the sole intention to seduce the prosecutrix to
indulge in sexual acts, such an act would not amount to rape.
There may be a case where the prosecutrix agrees to have
sexual intercourse on account of her love and passion for the
accused and not solely on account of the misconception
created by accused, or where an accused, on account of
circumstances which he could not have foreseen or which
were beyond his control, was unable to marry her despite
having every intention to do. Such cases must be treated
differently. If the complainant had any mala fide intention and
if he had clandestine motives, it is a clear case of rape. The
acknowledged consensual physical relationship between the
parties would not constitute an offence under section 376 of
the IPC."
11] Coming back to the facts of the present case, the history narrated
by the victim in the FI.R. reveals that there was a love affair between the
applicant and the victim from 2016. Rather, as per her own case, the
applicant was ready to marry the victim, but that was not acceptable to the
family members of the applicant.
3 2019 AIR (SC) 327
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12] It also appears from the WhatsApp chats between the applicant
and the victim that, initially the applicant was ready to marry the victim, but it
is the victim, who denied and informed the applicant that she will marry
another boy. It is only when the applicant got engaged with another girl, the
victim lodged the complaint. Even the allegations in the F.I.R. do not on their
face value indicate that the promise by the applicant was false. At the most, it
is a case of non-fulfillment or a breach of promise on account of
circumstances, which the applicant could not have foreseen or which were
beyond his control as he was unable to marry the victim, despite having every
intention to do so, as explained in the cases of Pramod Pawar and Dr.
Dhruvaram Sonar. Thus, the ratios laid down in Pramod Pawar and Dr.
Dhruvaram Sonar (supra) are squarely applicable to the facts of the present
case.
13] There is no material on record to show that since the beginning,
the applicant had no intention to marry the victim and that he had made a
false promise only to satisfy his lust. It is clear from the allegations in the
F.I.R. that it is the applicant, who was ready to marry. Merely because he
resiled from his promise to marry, since his parents were not agreeable to
their marriage, it cannot be said that the applicant committed the offence
punishable under Section 375 of I.P.C. In the fact of the present case, no
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offence is made out against the applicant.
14] This takes me to the decision in the case of State of Haryana and
Ors. vs. Ch. Bhajan Lal4, wherein the Supreme Court issued some guidelines
for quashing the proceedings, which are reproduced here:
“(1) where the allegations made in the First Information Report or
the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence
or make out a case against the accused;
(2) where the allegations in the First Information Report and other
materials, if any, accompanying the F.I.R. do not disclose a
cognizable offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of the Code;
(3) where the uncontroverted allegations made in the FIR or
'complaint and the evidence collected in support of the same do not
disclose the commission of any offence and make out a case against
the accused:
(4) where the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no
investigation is permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2) of the Code;
(5) where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no prudent
person can ever reach a just conclusion that there is sufficient
ground for proceeding against the accused;
(6) where there is an express legal bar engrafted in any of the
provisions of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and continuance
of the proceedings and/or where there is a specific provision in the
Code or the concerned Act, providing efficacious redress for the
grievance of the aggrieved party;
4 1992 SCC (Cri.) 426
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(7) where a criminal proceeding is manifestly attended with mala
fide and/or where the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the accused and with a
view to spite him due to private and personal grudge. ;”
15] The case of the applicant is covered under guidelines No.1 and 3
issued in the decision of Ch. Bhajan Lal (supra). Continuation of proceedings
against the applicant, will be an abuse of the process of law.
16] In the wake of aforesaid discussions, the order of the learned
Additional Sessions Judge rejecting the application for discharge does not
stand and requires to be set aside. Resultantly, I proceed to pass the
following order :
ORDER
I. The impugned order (Exh.11) dated 29/09/2022 passed by the
learned Additional Sessions Judge, Nagpur is quashed and set
aside.
II. The applicant is discharged in Sessions Case No.569/2019
pending on the file of the learned Additional Sessions Judge-12,
Nagpur for the offences punishable under Sections 376(2)(n) and
417 of I.P.C.
III. The Secretary to the High Court Legal Services Sub-Committee,
Nagpur to quantify and release professional fees for the
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appointed learned Counsel appearing on behalf of non-applicant
No.2, as per rules.
IV. In the aforesaid terms, rule is made absolute.
(M.W. CHANDWANI, J.)
*sandesh
Signed by: Mr. Sandesh Waghmare
Designation: PS To Honourable Judge
Date: 01/02/2024 18:04:34
