* IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision: 05th APRIL, 2022

IN THE MATTER OF:

+ CRL.REV.P. 175/2021 & CRL.M.A. 6024/2021
SHAILENDRA KUMAR YADAV ..... Petitioner
Through Mr. Badar Mahmood, Advocate.

versus

STATE ..... Respondent

Through Ms. Neelam Sharma, APP for the
State with SI Ajay Singh, Police
Station Paharganj.
Complainant - in person.
CORAM:
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD

SUBRAMONIUM PRASAD, J.

1. This petition under Sections 397/401 Cr.P.C. read with Section 482
Cr.P.C. has been filed for setting aside the Order dated 08.03.2021, passed
by the learned Additional Sessions Judge/SFTC – 2 (Central), Tis Hazari
Courts, Delhi, in Case No. 436/2020 arising out of FIR No. 319/2019 dated
10.11.2019 registered at P.S. Paharganj for offences under Section 376(2)(n)
of the Indian Penal Code, 1860 (hereinafter, “IPC”), framing charges against
the Petitioner for offences under Section 376(2)(n) IPC.
2. Facts, in brief, leading up to the instant petition are as follows:
a) It is stated that the Petitioner had extended a false promise of
marriage to the prosecutrix on the basis of which he had
sustained a physical relationship with her. The prosecutrix and

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 the Petitioner were engaged, and the wedding was postponed
due to some issues in the family of the prosecutrix. Thereafter,
arguments arose about the date of marriage as well as the
financial condition of the prosecutrix. It is stated that the
prosecutrix requested the Petitioner to marry her by way of
court marriage or in an Arya Samaj temple, and this request was
rejected by the Petitioner.
b) It is stated that the Petitioner and his family would quibble with
the prosecutrix with regard to her way of living and her
lifestyle, and other trivial matters, in order to put an end to the
marriage. The prosecutrix has alleged that the issues were being
raised by the Petitioner and his family due to the fact that the
prosecutrix was not financially well-off, and that the Petitioner
wanted to marry a girl whose father would have the
wherewithal to invest money in his marriage. On the basis of
this complaint, the instant FIR was registered under Section
376(2)(n) IPC against the Petitioner.
c) Vide Order dated 28.01.2020, this Court granted anticipatory
bail to the Petitioner herein. Chargesheet was filed on
19.08.2020, and vide Order dated 08.03.2021, the Ld. Trial
framed charges against the Petitioner under Section 376(2)(n)
IPC. Aggrieved by this, the Petitioner has approached this Court
by way of the instant revision petition.
3. Mr. Badar Mahmood, learned Counsel for the Petitioner, submits that
the Petitioner and the prosecutrix were involved in a serious relationship and
that physical relations between the two had never taken place. He states that

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 despite the incompatibility between the two, the Petitioner was in love with
the prosecutrix and intended to settle down with her. Mr. Mahmood states
that a roka ceremony had also taken place between the Petitioner and the
prosecutrix, and that the instant matter is merely a case of a relationship that
has ended on bad terms.
4. The learned Counsel for the Petitioner submits that the prosecutrix
would constantly fight with the Petitioner and taunt him about his profession
as well as his financial capacity. He states that the prosecutrix insisted on the
wedding ceremony being held at a venue which was too expensive for the
Petitioner to finance, and due to this, the marriage between the two was put
off which led to the parents of the Petitioners being forced to face a very
embarrassing position.
5. Mr. Mahmood brings to the attention of this Court that the prosecutrix
and her family threatened the Petitioner and his family that if they did not
get the Petitioner married to the prosecutrix immediately, they would file
false cases of rape and suicide against them. As a result, the Petitioner and
his father immediately filed a complaint dated 11.11.2019 with SHO, North
Rohini, Delhi. He states that they were later on made aware that FIR No.
319/2019 dated 10.11.2019 was registered at P.S. Paharganj.
6. With regard to the impugned Order dated 08.03.2021, the learned
Counsel for the Petitioner submits that the Ld. Trial Court has failed to apply
its judicial mind to the facts of the case and has mechanically framed
charges against the Petitioner under Section 376(2)(n) IPC. Mr. Mahmood
submits that the disclosure statement of the prosecutrix under Section 164
Cr.P.C. categorically notes that it had taken the Petitioner three months to
convince the parents of the prosecutrix to allow her to get married, and

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 therefore, the issue pertaining to false pretext of marriage. He states that the
allegations against the Petitioner are prima facie fabricated and that the Ld.
Trial Court has failed to take the same into account while discerning that
there was sufficient ground to proceed against the Petitioner. He, therefore,
prays for the impugned Order dated 08.03.2021 to be set aside.
7. Per contra, Ms. Neelam Sharma, learned APP for the State, submits
that the investigation has revealed that during investigation, a statement of
the prosecutrix under Section 164 Cr.P.C. had been recorded and the
allegations in the FIR were corroborated. She further submits that raids had
been repeatedly taken place at the residence of the Petitioner and he was
never found at the available address. She states that the Petitioner did not
join investigation initially, and that it was only after this Court granted
anticipatory bail to the Petitioner vide Order dated 28.01.2020 that he joined
investigation. She opposes the instant application on the ground that the Ld.
Trial Court has sufficiently satisfied itself that a prima facie case is made out
against the Petitioner.
8. The prosecutrix-in-person has also addressed this Court and put forth
her submissions with regard to the matter at hand. She has reiterated the
allegations that have been delineated in FIR No. 319/2019 and has opposed
the instant revision petition on the ground that the facts of the case clearly
make out the charges that have been framed against the Petitioner.
9. Heard Mr. Badar Mahmood, learned Counsel for the Petitioner, Ms.
Neelam Sharma, learned APP for the State, the prosecutrix-in-person, and
perused the material on record.
10. Before delving into the correctness of the impugned Order dated
08.03.2021 whereby the Ld. Trial Court framed charges under Section

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 376(2)(n) IPC against the Petitioner, this Court finds it necessary to reiterate
the law pertaining to the framing of charges and the scope of this Court to
interfere under Sections 397/401 Cr.P.C. In Union of India v. Prafulla
Kumar Samal, (1979) 3 SCC 4, the Supreme Court laid down the principles
that are to be followed while dealing with discharge under Section 227
Cr.P.C. or framing of charges under Section 228 Cr.P.C. The same has been
reproduced as under:

“10. Thus, on a consideration of the authorities

mentioned above, the following principles emerge:

1) That the Judge while considering the question of

framing the charges under Section 227 of the
Code has the undoubted power to sift and weigh
the evidence for the limited purpose of finding
out whether or not a prima facie case against the
accused has been made out.

2) Where the materials placed before the Court

disclose grave suspicion against the accused
which has not been properly explained the Court
will be fully justified in framing a charge and
proceeding with the trial.

3) The test to determine a prima facie case would

naturally depend upon the facts of each case and
it is difficult to lay down a rule of universal
application. By and large however if two views
are equally possible and the Judge is satisfied
that the evidence produced before him while
giving rise to some suspicion but not grave
suspicion against the accused, he will be fully
within his right to discharge the accused.

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 4) That in exercising his jurisdiction under Section
227 of the Code the Judge which under the
present Code is a senior and experienced court
cannot act merely as a Post Office or a
mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the
total effect of the evidence and the documents
produced before the Court, any basic infirmities
appearing in the case and so on. This however
does not mean that the Judge should make a
roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was
conducting a trial.” (emphasis supplied)

11. The Supreme Court has time and again held that at the stage of
framing of charges, the Court possesses the power to sift and weigh the
evidence for the limited purpose of ascertaining whether or not a prima facie
case has been made out against the accused. The Ld. Trial Court must
exercise its judicial mind to the facts of the case before arriving at the
conclusion that there is sufficient ground for proceeding against the accused.
This exercise must be undertaken so as to ensure that an individual does not
have to be put through the rigours of the criminal judicial system for no fault
of their own.
12. Similarly, in P. Vijayan v. State of Kerala, (2010) 2 SCC 398, the
Supreme Court had enunciated that a Judge was not a mere post office that
was to frame the charge at the behest of the prosecution, but was compelled
to apply its mind to the facts of the case. The relevant portion of the said
judgement has been reproduced as under:

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 “10. Before considering the merits of the claim of both
the parties, it is useful to refer to Section 227 of the
Code of Criminal Procedure, 1973, which reads as
under:
“227. Discharge.—If, upon consideration of the
record of the case and the documents submitted
therewith, and after hearing the submissions of the
accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for
proceeding against the accused, he shall discharge
the accused and record his reasons for so doing.”

If two views are possible and one of them gives rise to

suspicion only, as distinguished from grave suspicion,
the trial Judge will be empowered to discharge the
accused and at this stage he is not to see whether the
trial will end in conviction or acquittal. Further, the
words “not sufficient ground for proceeding against the
accused” clearly show that the Judge is not a mere post
office to frame the charge at the behest of the
prosecution, but has to exercise his judicial mind to the
facts of the case in order to determine whether a case
for trial has been made out by the prosecution. In
assessing this fact, it is not necessary for the court to
enter into the pros and cons of the matter or into a
weighing and balancing of evidence and probabilities
which is really the function of the court, after the trial
starts.

11. At the stage of Section 227, the Judge has merely to

sift the evidence in order to find out whether or not there
is sufficient ground for proceeding against the accused.
In other words, the sufficiency of ground would take
within its fold the nature of the evidence recorded by the
police or the documents produced before the court which

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 ex facie disclose that there are suspicious circumstances
against the accused so as to frame a charge against
him.” (emphasis supplied)

13. In the instant case, it has been alleged that the Petitioner has
committed an offence under Section 376(2)(n) IPC as per which whoever
commits rape repeatedly on the same woman shall be punished with rigorous
imprisonment for a term which shall not be less than ten years, but which
may extend to imprisonment for life, which shall mean imprisonment for the
remainder of that person’s natural life, and shall also be liable to fine. The
allegation is that under the garb of marriage, the Petitioner has repeatedly
raped the prosecutrix.
14. At this juncture, it would be pertinent to examine the difference
between a false promise of marriage and a breach of promise to marry. In the
latter, sexual relations are initiated on the premise that the two individuals
will marry at a later point of time. However, in the former, sexual relations
take place without any intention of marrying at all and the consent that is
obtained for the said relations to take place is vitiated by way of
misconception of fact. The Supreme Court has elaborated this aspect in
various judgements. In Pramod Suryabhan Pawar v. State of Maharashtra
and Anr., (2019) 9 SCC 608, the Supreme Court had observed as follows:
"16. Where the promise to marry is false and the
intention of the maker at the time of making the
promise itself was not to abide by it but to deceive the
woman to convince her to engage in sexual relations,
there is a “misconception of fact” that vitiates the
woman's “consent”. On the other hand, a breach of a

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 promise cannot be said to be a false promise. To
establish a false promise, the maker of the promise
should have had no intention of upholding his word at
the time of giving it. The “consent” of a woman under
Section 375 is vitiated on the ground of a
“misconception of fact” where such misconception
was the basis for her choosing to engage in the said
act. In Deepak Gulati [Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660]
this Court observed : (SCC pp. 682-84, paras 21 & 24)

“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 i.e. at the initial stage itself, the accused had
no intention whatsoever, of keeping his promise to

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 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 aid in such a situation, to pardon the
act of a girl in entirety, and fasten criminal
liability on the other, [Ed. : The matter between
two asterisks has been emphasised in original.]
unless the court is assured of the fact that from
the very beginning, the accused had never really
intended to marry her [Ed. : The matter between
two asterisks has been emphasised in original.] .”
(emphasis supplied)

18. To summarise the legal position that emerges from

the above cases, the “consent” of a woman with
respect to Section 375 must involve an active and
reasoned deliberation towards the proposed act. To
establish whether the “consent” was vitiated by a
“misconception of fact” arising out of a promise to
marry, two propositions must be established. The
promise of marriage must have been a false promise,
given in bad faith and with no intention of being
adhered to at the time it was given. The false promise
itself must be of immediate relevance, or bear a direct
nexus to the woman's decision to engage in the sexual
act."

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 15. Similarly, the Supreme Court had categorically distinguished between
rape and consensual sex, as well as the distinction between the mere breach
of a promise, and not fulfilling a false promise in Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675. It had been stated as follows:
“21. Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction
between rape and consensual sex and in a case like
this, the court must very carefully examine whether the
accused 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 latter falls
within the ambit of cheating or deception. 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. An accused can be
convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala
fide, and that he had clandestine motives.

*****

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 24. Hence, it is evident that there must be adequate
evidence to show that at the relevant time i.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 aid 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.”

16. Therefore, in order to arrive at the conclusion that sexual relations

were coerced, it is necessary to examine that whether at the stage of
rendering a promise to marry, it was done with the intention of not keeping
the promise and, therefore, was false at the inception itself (See also Sonu @
Subash Kumar v. State of Uttar Pradesh and Anr., 2021 SCC OnLine SC
181). If it is found that the promise of marriage was genuine and that the
marriage failed to fructify due to external circumstances, then the promise
cannot be said to be false, and consent as per Section 90 IPC is not vitiated.
17. The FIR as well as the Status Report stipulate that the Petitioner and
the prosecutrix were in a long-term relationship and even a
roka(engagement) had taken place. Pictures of the engagement ceremony
have also been produced before this Court. The FIR further states that a
wedding ceremony was supposed to take place and that it was only at the

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 instance of the prosecutrix that the marriage was postponed. The FIR goes
on to state that thereafter, arguments began to take place between the
prosecutrix and the Petitioner. Further, the prosecutrix started facing
resistance from the Petitioner’s family who were against the marriage and
that this led to the breaking off of the relationship between the Petitioner and
the prosecutrix. The Section 164 CrPC statement of the prosecutrix reveals
that it took the Petitioner three months to convince the prosecutrix’s parents
to allow her to marry him.
18. As per Section 90 IPC, consent given under fear or misconception
cannot be said to be consent, and in this context, it becomes relevant to
factor in the aspect that the prosecutrix and the Petitioner were in a long-
term relationship. Furthermore, even an engagement ceremony had taken
place between the two and the same was attended by all family members,
which indicates that the Petitioner did indeed intend to marry the
prosecutrix. Just because the relationship ended on hostile terms, it cannot be
said there was no intention of the Petitioner to marry the prosecutrix in the
first place. Flowing from this, this Court is of the opinion that the consent so
accorded by the prosecutrix for the establishment of a physical relationship
was not predicated upon misconception or fear.
19. The impugned Order dated 08.03.2021 fails to accord any reasons to
substantiate as to how there is sufficient material to proceed against the
Petitioner under Section 376(2)(n) IPC. The said Order has merely recorded
the submission of the Ld. APP therein that there is sufficient material on
record and has proceeded at the behest of the prosecutor, without providing
any reasons to justify its stand. As has been stated above, the Ld. Trial Court
is not a mere post office and must apply its mind to the facts of the case to

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 arrive at the conclusion as to whether a prima facie case is made out against
the accused that would warrant charges to be framed against them. The
impugned Order dated 08.03.2021 has evidently failed to perform its duty
and has rendered a mechanical order on charge without sifting or weighing
the evidence before it. Due to the legal infirmity replete in the said Order,
this Court deems it fit to exercise its jurisdiction under Sections 397/401
Cr.P.C. read with Section 482 Cr.P.C. to set the same aside.
20. In light of the above observations, the instant petition is allowed,
along with pending application(s), if any.

SUBRAMONIUM PRASAD, J.
APRIL 05, 2022
Rahul

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