Chaina Ram vs State & Anr on 12 July, 2017

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc(Pet.) No. 3338 / 2016
Chaina Ram S/o Shri Roopa Ram, Jakharo Ki Dhani, Village Jajiwal
Jakhara, District Jodhpur
—-Petitioner
Versus
1. The State of Rajasthan

2. Rajeshwari D/o Natha Ram, Village Bhojas, Tehsil Khinvsar,
District Nagaur, Presently Residing As Tenant of Pukhraj Prajapat
House, Beniwal Hotel Line, Ganeshpura, Ratanada, Jodhpur
—-Respondents

__
For Petitioner(s) : Mr.Hemant Jain
For Respondent(s) : Mr.V.S.Rajpurohit PP for the State.
Mr.Laxman Bishnoi, Mr.Anil Limba
__
HON’BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Order
12/07/2017

1. This criminal misc. petition under Section 482 Cr.P.C.

has been preferred for quashing the registration and investigation

in the matter of FIR No.383/2016 registered at Ratanada Police

Station, District Jodhpur for the offences under Sections 376, 420,

315 and 120-B IPC.

2. Brief facts of the case, as noticed by this Court, are

that respondent No.2 submitted a complaint before the SHO,

Police Station, Ratanada, Jodhpur against the petitioner with the

allegation that the marriage of the complainant had been

solemnized with one Shiva Ram. While she was having a dispute

with her husband, the present petitioner assured her of all
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possible help and also intended to solemnize marriage with the

complainant, as disclosed to the family members. The petitioner

and respondent No.2/complainant lived together, and during such

period, it is alleged that twice abortion was carried upon the

respondent No.2. However, they continued to stay together,

firstly, in a hotel, and thereby, in a rented premises. The petitioner

thereafter, went back from his promise to marry the complainant

and left the complainant, and thus, allegedly, he committed sexual

intercourse by inducing the complainant to solemnize marriage

with her. Respondent No.2 admittedly, was married to Shiva

Ram, but when she fell out of the marriage, she consensually

stayed with the present petitioner.

3. The facts of this case are akin to the precedent law laid

down by a coordinate Bench of this Court in Anup K. Paul Vs.

State of Rajasthan Ors., reported in 2016 Cri.LJ 509,

relevant paras of which read as under:-

“The Hon’ble Supreme Court in plethora of
judgments has laid down the guidelines with regard
to exercise of jurisdiction by the High Courts
under
section 482 CrPC. In State of Haryana v.
Bhajan Lal 1992 Supp(1) SCC 335, the Hon’ble
Supreme Court has listed the categories of cases
when the power under
section 482 CrPC can be
exercised by the High Courts. The law laid down by
the Hon’ble Supreme Court in
State of Haryana v.
Bhajan Lal (supra) has later on followed in various
decisions. To mention a few —
Madhavrao Jiwajirao
Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1
SCC 692;
State of Haryana v. Bhajan Lal,1992 Supp
(1) SCC 335;
Rupan Deol Bajaj v. Kanwar Pal Singh
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Gill (1995) 6 SCC 194; Central Bureau of
Investigation v. Duncans Agro Industries Ltd (1996)
5 SCC 591;
State of Bihar v. Rajendra Agrawalla
(1996) 8 SCC 164,
Rajesh Bajaj v. State NCT of
Delhi,(1999) 3 SCC 259;
Medchl Chemicals Pharma
(P) Ltd. v. Biological E. Ltd(2000) 3 SCC 269
Hridaya Ranjan Prasad Verma v. State of Bihar
(2000) 4 SCC 168,
M. Krishnan v. Vijay Singh (2001)
8 SCC 645 and
Zandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque( 2005) 1 SCC 122. The
principles relevant are as under:

“(i) A complaint can be quashed where the allegations made in
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 the case alleged against the accused.

For this purpose, the complaint has to be examined as a whole,
but without examining the merits of the allegations. Neither a
detailed inquiry nor a meticulous analysis of the material nor an
assessment of the reliability or genuineness of the allegations
in the complaint, is warranted while examining prayer for
quashing of a complaint.

(ii) A complaint may also be quashed where it is a clear abuse
of the process of the court, as when the criminal proceeding is
found to have been initiated with mala fides/malice for wreaking
vengeance or to cause harm, or where the allegations are
absurd and inherently improbable.

(iii) The power to quash shall not, however, be used to stifle or
scuttle a legitimate prosecution. The power should be used
sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the
legal ingredients of the offence alleged. If the necessary factual
foundation is laid in the complaint, merely on the ground that a
few ingredients have not been stated in detail, the proceedings
should not be quashed. Quashing of the complaint is warranted
only where the complaint is so bereft of even the basic facts
which are absolutely necessary for making out the offence.
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(v) A given set of facts may make out: (a) purely a civil wrong;
or (b) purely a criminal offence; or (c) a civil wrong as also a
criminal offence. A commercial transaction or a contractual
dispute, apart from furnishing a cause of action for seeking
remedy in civil law, may also involve a criminal offence. As the
nature and scope of a civil proceeding are different from a
criminal proceeding, the mere fact that the complaint relates to
a commercial transaction or breach of contract, for which a civil
remedy is available or has been availed, is not by itself a
ground to quash the criminal proceedings. The test is whether
the allegations in the complaint disclose a criminal offence or
not.”

Recently the Hon’ble Supreme Court in
Rishipal Singh vs. State of U.P. and Anr., AIR 2014
SC 2567 has held as under:
“12. This Court in plethora of judgments has laid down the
guidelines with regard to exercise of jurisdiction by the Courts
under
Section 482, Cr.P.C. In State of Haryana v. Bhajan Lal
1992 Supp(1) SCC 335, this Court has listed the categories of
cases when the power under
Section 482 can be exercised by
the Court. These principles or the guidelines were reiterated by
this Court in
Central Bureau of Investigation v. Duncans Agro
Industries Ltd. 1996 (5) SCC 591;
Rajesh Bajaj v. State NCT of
Delhi 1999 (3) SCC 259 and;
Zandu Pharmaceuticals Works
Ltd. v. Mohd. Sharaful Haque Anr (2005) 1 SCC 122. This
Court in Zandu Pharmaceuticals Ltd., observed that:

“The power under Section 482 of the Code should be
used sparingly and with to prevent abuse of process of Court,
but not to stifle legitimate prosecution. There can be no two
opinions on this, but if it appears to the trained judicial mind
that continuation of a prosecution would lead to abuse of
process of Court, the power under
Section 482 of the Code
must be exercised and proceedings must be quashed”. Also
see
Om Prakash and Ors. V. State of Jharkhand 3012 (12)
SCC 72.

What emerges from the above judgments is that when a
prosecution at the initial stage is asked to be quashed, the
tests to be applied by the Court is as to whether the
uncontroverted allegations as made in the complaint prima
facie establish the case. The Courts have to see whether the
continuation of the complaint amounts to abuse of process of
law and whether continuation of the criminal proceeding results
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in miscarriage of justice or when the Court comes to a
conclusion that quashing these proceedings would otherwise
serve the ends of justice, then the Court can exercise the
power under
Section 482, Cr.P.C. While exercising the power
under the provision, the Courts have to only look at the
uncontroverted allegation in the complaint whether prima facie
discloses an offence or not, but it should not convert itself to
that of a trial Court and dwell into the disputed questions of
fact.”

As per law laid down by the Hon’ble Supreme
Court in the above referred cases, the High Court
should be very careful while exercising power under
section 482 CrPC, however, at the same time, it
should not allow a litigant to file vexatious
complaints to otherwise settle his or her scores by
setting the criminal law into motion, which is a
pure abuse of process of law and it has to be
interdicted at the threshold.

In view of the above legal position well
settled by the Hon’ble Supreme Court, I would like
to deal with the facts of the present case, which
lead to file the impugned FIR against the
petitioner for the offences punishable under
sections 376 and 313 IPC.

Initially, the respondent No.2 has filed a
written complaint before the SHO, Police Station,
Bajaj Nagar, Jaipur on 29.09.2014 with a prayer to
stop the petitioner from marrying another girl on
29.09.2014 at Kerala. In the said complaint, it is
stated that the respondent No.2 was doing job in
Jodhpur in 2011, where she met with the petitioner
and gradually they became friends, thereafter, by
giving a false promise of marriage, he developed
physical relations with her and she became pregnant
in 2012 and the petitioner got her pregnancy
terminated by giving her contraceptive pills while
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stating that at present he has no money for
marriage but later on, with the consent of the
parents, they would marry with each other. It is
further stated that thereafter with the consent of
their parents, the marriage was fixed in May, 2013,
however, the petitioner did not inform to anybody
about her pregnancy. In April, 2013, the parents of
the petitioner refused to marry but he used to talk
to her and assured that he would marry her only and
not marry to anyone else but now he is going to
marry some another girl at Kerala on 29.09.2014. In
the bottom of the said written complaint, one line
is also written that he has sexually exploited her.

At this stage, it will be useful to make a
reference of the definition of rape as defined in
section 375 IPC as it stood prior to coming into
force of Criminal Law (Amendmend) Act, 2013 and
thereafter
section 375 IPC as it stood prior to
coming into force of Act of 2013.
“375. Rape.– A man is said to commit “rape” who, except in
the case hereinafter excepted, has sexual intercourse with a
woman under circumstances falling under any of the six
following descriptions:-

First.- Against her will.
Secondly.- Without her consent.
Thirdly.- With her consent, when her consent has been
obtained by putting her or any person in whom she is
interested in fear of death or of hurt.
Fourthly.- With her consent, when the man knows that he is
not her husband, and that her consent is given because she
believes that he is another man to whom she is or believes
herself to be lawfully married.
Fifthly.- With her consent, when, at the time of giving such
consent, by reason of unsoundness of mind or intoxication or
the administration by him personally or through another of
any stupefying or unwholesome substance, she is unable to
understand the nature and consequences of that to which
she gives consent.
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Sixthly.- With or without her consent, when she is under
sixteen years of age.
Explanation.- Penetration is sufficient to constitute the sexual
intercourse necessary to the offence of rape.
Exception.- Sexual intercourse by a man with his own wife,
the wife not being under fifteen years of age, is not rape.”

Section 375 IPC as it exists after coming
into force of
Criminal Law (Amendment) Act, 2013
reads as under:

“[375. Rape.-A man is said to commit “rape” if he—
(a) penetrates his penis, to any extent, into the vagina,
mouth, urethra or anus of a woman or makes her to do
so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body,
not being the penis, into the vagina, the urethra or
anus of a woman or makes her to do so with him or
any other person; or
(c) manipulates any part of the body of a woman so as to
cause penetration into the vagina, urethra, anus or any
part of body of such woman or makes her to do so
with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a
woman or makes her to do so with him or any other
person, under the circumstances falling under any of
the following seven descriptions:–

First.–Against her will.
Secondly.–Without her consent.
Thirdly.–With her consent, when her consent has been
obtained by putting her or any person in whom
she is interested, in fear of death or of hurt.
Fourthly.–With her consent, when the man knows that he
is not her husband and that her consent is
given because she believes that he is another
man to whom she is or believes herself to be
lawfully married.
Fifthly.– With her consent when, at the time of giving
such consent, by reason of unsoundness of
mind or intoxication or the administration by
him personally or through another of any
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stupefying or unwholesome substance, she is
unable to understand the nature and
consequences of that to which she gives
consent.
Sixthly.–With or without her consent, when she is under
eighteen years of age.
Seventhly.–When she is unable to communicate
consent.
Explanation I.–For the purposes of this section, “vagina”
shall also include labia majora.
Explanation 2.–Consent means an unequivocal
voluntary agreement when the woman by words, gestures
or any form of verbal or non-verbal communication,
communicates willingness to participate in the specific
sexual act:
Provided that a woman who does not physically resist to
the act of penetration shall not by the reason only of that
fact, be regarded as consenting to the sexual activity.
Exception I.–A medical procedure or intervention shall
not constitute rape.
Exception 2.–Sexual intercourse or sexual acts by a man
with his own wife, the wife not being under fifteen years of
age, is not rape.]

As per section 375 IPC as it stood prior to
Criminal Law (Amendment) Act, 2013 and as it
exists thereafter, consent of a woman is the prime
consideration in the cases involving allegations
of rape.
Now the question, which comes for
consideration, is whether the petitioner has
obtained the consent of the respondent No.2 with
the sole intention to seduce her to indulge in
sexual act by making false promise to marry her
without intention to do so since beginning or
whether he has obtained her consent fraudulently.
The Hon’ble Supreme Court has considered this
aspect of the matter extensively in various
judgments.
In Uday vs. State of Karnataka (supra),
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the Hon’ble Supreme Court while deciding a case
having almost similar facts as of instant case has
held as under:
“It, therefore, appears that the consensus of judicial
opinion is in favour of the view that the consent given by
the prosecutrix to sexual intercourse with a person with
whom she is deeply in love on a promise that he would
marry her on a later date, cannot be said to be given
under a misconception of fact. A false promise is not a
fact within the meaning of the Code. We are inclined to
agree with this view, but we must add that there is no
strait jacket formula for determining whether consent
given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception of
fact. In the ultimate analysis, the tests laid down by the
Courts provide at best guidance to the judicial mind while
considering a question of consent, but the Court must, in
each case, consider the evidence before it and the
surrounding circumstances, before reaching a conclusion,
because each case has its own peculiar facts which may
have a bearing on the question whether the consent was
voluntary, or was given under a misconception of fact. It
must also weigh the evidence keeping in view the fact
that the burden is on the prosecution to prove each and
every ingredient of the offence, absence of consent being
one of them.”
[Emphasis supplied]

Later on, the Hon’ble Supreme Court in case
of
Pradeep Kumar Verma vs. State of Bihar Anr.
(supra) while taking into consideration the
decision passed by it in
Uday vs. State of
Karnataka (supra) has held as under:

“9. The crucial expression in Section 375 which
defines rape as against her will. It seems to connote that
the offending act was despite resistance and opposition
of the woman.
IPC does not define consent in positive
terms. But what cannot be regarded as consent is
explained by
Section 90 which reads as follows:
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“consent given firstly under fear of injury and
secondly under a misconception of fact is not consent at
all.”

That is what is explained in first part of Section 90.
There are two grounds specified in
Section 90 which are
analogous to coercion and mistake of fact which are the
familiar grounds that can vitiate a transaction under the
jurisprudence of our country as well as other countries.
The factors set out in first part of
Section 90 are from the
point of view of the victim and second part of
Section 90
enacts the corresponding provision from the point of view
of the accused. It envisages that the accused has
knowledge or has reason to believe that the consent was
given by the victim in consequence of fear of injury or
misconception of fact. Thus the second part lays
emphasis on the knowledge or reasonable belief of the
person who obtains the tainted consent. The
requirements of both the parts should be cumulatively
satisfied. In other words, the Court has to see whether
the person giving the consent has given it under fear or
misconception of fact and the court should also be
satisfied that the person doing the act i.e. the alleged
offender is conscious of the fact or should have reason to
think that but for the fear or misconception, the consent
would not have been given. This is the scheme of
Section
90 which is couched in negative terminology. As
observed by this Court in
Deelip Singh @ Dilip Kumar v.
State of Bihar (2005 (1) SCC 88),
Section 90 cannot be
considered as an exhaustive definition of consent for the
purposes of
IPC. The normal connotation and concept of
consent is not intended to be excluded.

10. In most of the decisions in which the meaning of the
expression consent under the
IPC was discussed, reference was
made to the passages occurring in Strouds Judicial Dictionary,
Jowitts Dictionary on English Law, Words and Phrases,
Permanent Edn. and other legal dictionaries. Stroud defines
consent “as an act of reason, accompanied with deliberation, the
mind weighing, as in a balance, the good and evil on each side”
Jowitt, while employing the same language added the following:

“Consent supposes three things a physical power, a
mental power and a free and serious use of them. Hence
it is that if consent be obtained by intimidation, force,
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meditated imposition, circumvention, surprise, or undue
influence, it is to be treated as a delusion, and not as a
deliberate and free act of the mind.”

11. In Words and Phrases, Permanent Edn., Vol. 8-A, the
following passages culled out from certain old decisions of the
American courts are found:

“…adult females understanding of nature and
consequences of sexual act must be intelligent
understanding to constitute consent.”

Consent within penal law, defining rape, requires
exercise of intelligence based on knowledge of its
significance and moral quality and there must be a choice
between resistance and assent…”

12. It was observed in Uday v. State of Karnataka (2003 (4) SCC
46) as under:

“12. The courts in India have by and large adopted
these tests to discover whether the consent was
voluntary or whether it was vitiated so as not to be legal
consent.”

13. There is a good analysis of the expression consent in the
context of
Section 375 IPC in Rao Harnarain Singh Sheoji Singh v. State
(AIR 1958 Punj 123). The learned Judge had evidently drawn inspiration
from the above passages in the law dictionaries. The observation of the
learned Judge is as follows:

“there is a difference between consent and
submission and every consent involves a submission but
the converse does not follow and a mere act of
submission does not involve consent”,

14. The said proposition is virtually a repetition of what was said by
Coleridge, J. in
R. v. Day (173 E.R. 1026) in 1841 as quoted in Words
and Phrases (Permanent Edn.) at p. 205. The following remarks in
Harnarains case (supra) are also pertinent:

“Consent is an act of reason accompanied by
deliberation, a mere act of helpless resignation in the
face of inevitable compulsion, non- resistance and
passive giving in cannot be deemed to be consent.”

15. The passages occurring in the above decision were either
verbatim quoted with approval or in condensed form in the subsequent
decisions: vide Anthony, In Re (AIR 1960 Madras 308),
Gopi Shanker v.
State of Rajasthan (AIR 1967 Rajasthan 159),
Bhimrao v. State of
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Maharashtra (1975 Mah.LJ 660) and Vijayan Pillai v. State of Kerala (1989
(2) KLJ 234). All these decisions have been considered in Uday’s case
(supra). The enunciation of law on the meaning and content of the
expression consent in the context of penal law as elucidated by Tekchand,
J. in Harnarains case (supra) (which in turn was based on the above
extracts from law dictionaries) has found its echo in the three-Judge
Bench decision of this Court
inState of H.P. v. Mango Ram (2000 (7) SCC
224). It was observed as follows:

“Submission of the body under the fear of terror
cannot be construed as a consented sexual act. Consent
for the purpose of
Section 375 requires voluntary
participation not only after the exercise of intelligence
based on the knowledge of the significance and moral
quality of the act but after having fully exercised the
choice between resistance and assent. Whether there
was consent or not, is to be ascertained only on a careful
study of all relevant circumstances.”

16. On the facts, it was held that there was resistance by the
prosecutrix and there was no voluntary participation in the sexual act.
That case would, therefore, fall more appropriately within clause first of
Section 375.

17. It would be appropriate to deal with the specific phraseology of
Section 90 IPC. We have an illuminating decision of the Madras High
Court rendered in 1913 in N. Jaladu, Re (ILR (1913) 36 Madras 453) in
which a Division Bench of that Court considered the scope and amplitude
of the expression misconception of fact occurring in
Section 90 in the
context of the offence of kidnapping under
Section 361 IPC. The 2nd
accused in that case obtained the consent of the girls guardian by falsely
representing that the object of taking her was for participating in a festival.
However, after the festival was over, the 2nd accused took her to a temple
in another village and married her to the 1st accused against her will. The
question arose whether the guardian gave consent under a misconception
of fact. While holding that there was no consent, Sundara Ayyar, J.

speaking for the Bench observed thus:

We are of opinion that the expression ‘under a
misconception of fact’ is broad enough to include all
cases where the consent is obtained by
misrepresentation; the misrepresentation should be
regarded as leading to a misconception of the facts with
reference to which the consent is given. In Section 3 of
the Evidence Act Illustration (d) that a person has a
certain intention is treated as a fact. So, here the fact
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about which the second and third prosecution witnesses
were made to entertain a misconception was the fact that
the second accused intended to get the girl married. In
considering a similar statute, it was held in England in R.
V. Hopkins (1842) Car M 254 that a consent obtained
by fraud would not be sufficient to justify the taking of a
minor. See also Halsburys Laws of England, Vol. 9, p.

623. In Stephens Digest of the Criminal Law of England
(6th Edn.,p. 217) the learned author says with reference
to the law relating to abduction of girls under sixteen
thus … if the consent of the person from whose
possession the girl is taken is obtained by fraud, the
taking is deemed to be against the will of such a person.
Although in cases of contracts a consent obtained by
coercion or fraud is only voidable by the party affected by
it, the effect of
Section 90 IPC is that such consent
cannot, under the criminal law, be availed of to justify
what would otherwise be an offence.”

18. This decision is an authority for the proposition that a
misrepresentation as regards the intention of the person seeking
consent i.e. the accused, could give rise to the misconception of fact.
This view of the Madras High Court was accepted by a Division Bench
of the Bombay High Court in
Parshottam Mahadev v. State (AIR 1963
Bombay 74). Applying that principle to a case arising under
Section 375,
consent given pursuant to a false representation that the accused
intends to marry, could be regarded as consent given under
misconception of fact.

19. On the specific question whether the consent obtained on the
basis of promise to marry which was not acted upon, could be regarded
as consent for the purpose of
Section 375 IPC, was dealt with by a
Division Bench of the Calcutta High Court in Jayanti Rani Panda v. State
of WB (1984 Cr.L.J. 1535). The relevant passage in this case has been
cited in several other decisions. This is one of the cases referred to by
this Court in Uday’s case (supra) approvingly. Without going into the
details of that case, the crux of the case can be discerned from the
following summary given at para 7:

“Here the allegation of the complainant is that the
accused used to visit her house and proposed to marry
her. She consented to have sexual intercourse with the
accused on a belief that the accused would really marry
her. But one thing that strikes us is … why should she
keep it a secret from her parents if really she had belief in
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that promise. Assuming that she had believed the
accused when he held out a promise, if he did at all,
there is no evidence that at that time the accused had no
intention of keeping that promise. It may be that
subsequently when the girl conceived the accused might
have felt otherwise. But even then the case in the petition
of complainant is that the accused did not till then back
out. Therefore it cannot be said that till then the accused
had no intention of marrying the complainant even if he
had held out any promise at all as alleged.”

The discussion that follows the above passage is important and is
extracted hereunder:

“The failure to keep the promise at a future uncertain
date due to reasons not very clear on the evidence does
not always amount to a misconception of fact at the
inception of the act itself. In order to come within the
meaning of misconception of fact, the fact must have an
immediate relevance. The matter would have been
different if the consent was obtained by creating a belief
that they were already married. In such a case the
consent could be said to result from a misconception of
fact. But here the fact alleged is a promise to marry we
do not know when. If a full-grown girl consents to the act
of sexual intercourse on a promise of marriage and
continues to indulge in such activity until she becomes
pregnant it is an act of promiscuity on her part and not an
act induced by misconception of fact.
Section 90 IPC
cannot be called in aid in such a case to pardon the act of
the girl and fasten criminal liability on the other, unless
the court can be assured that from the very inception the
accused never really intended to marry her.”

(Emphasis supplied)

The learned Judges referred to the decision of the Chancery Court in
Edgington v. Fitzmaurice (1885 (29) Ch.D.459) and observed :

“This decision lays down that a misstatement of the
intention of the defendant in doing a particular act may be
a misstatement of fact, and if the plaintiff was misled by it,
an action of deceit may be founded on it. The particular
observation at p. 483 runs to the following effect: There
must be a misstatement of an existing fact. Therefore, in
order to amount to a misstatement of fact the existing
state of things and a misstatement as to that becomes
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relevant. In the absence of such evidence Section 90
cannot be called in aid in support of the contention that
the consent of the complainant was obtained on a
misconception of fact.”

After referring to the case-law on the subject, it was observed in
Uday’s case (supra):

“It therefore appears that the consensus of
judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual
intercourse with a person with whom she is
deeply in love on a promise that he would
marry her on a later date, cannot be said to be
given under a misconception of fact. A false
promise is not a fact within the meaning
of the
Code. We are inclined to agree with this view,
but we must add that there is no strait-jacket
formula for determining whether consent given
by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a
misconception of fact. In the ultimate analysis,
the tests laid down by the courts provide at
best guidance to the judicial mind while
considering a question of consent, but the
court must, in each case, consider the
evidence before it and the surrounding
circumstances, before reaching a conclusion,
because each case has its own peculiar facts
which may have a bearing on the question
whether the consent was voluntary, or was
given under a misconception of fact. It must
also weigh the evidence keeping in view the
fact that the burden is on the prosecution to
prove each and every ingredient of the
offence, absence of consent being one of
them.”

20. The first two sentences in the above passage
need some explanation. While we reiterate that a promise
to marry without anything more will not give rise to
misconception of fact within the meaning of
Section 90, it
needs to be clarified that a representation deliberately
made by the accused with a view to elicit the assent of
the victim without having the intention or inclination to
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[ CRLMP-3338/2016]

marry her, will vitiate the consent. If on the facts it is
established that at the very inception of the making of
promise, the accused did not really entertain the intention
of marrying her and the promise to marry held out by him
was a mere hoax, the consent ostensibly given by the
victim will be of no avail to the accused to exculpate him
from the ambit of
Section 375 clause second. This is
what in fact was stressed by the Division Bench of the
Calcutta High Court in the case of Jayanti Rani Panda’s
case (supra) which was approvingly referred to in Uday’s
case (supra). The Calcutta High Court rightly qualified the
proposition which it stated earlier by adding the
qualification at the end – unless the court can be assured
that from the very inception the accused never really
intended to marry her. (emphasis supplied). In the next
para, the High Court referred to the vintage decision of
the Chancery Court which laid down that a misstatement
of the intention of the defendant in doing a particular act
would tantamount to a misstatement of fact and an action
of deceit can be founded on it. This is also the view taken
by the Division Bench of the Madras High Court in Jaladu
case (vide passage quoted supra). By making the solitary
observation that a false promise is not a fact within the
meaning
of the Code, it cannot be said that this Court has
laid down the law differently. The observations following
the aforesaid sentence are also equally important. The
Court was cautious enough to add a qualification that no
straitjacket formula could be evolved for determining
whether the consent was given under a misconception of
fact. Reading the judgment in Uday’s case as a whole,
we do not understand the Court laying down a broad
proposition that a promise to marry could never amount
to a misconception of fact. That is not, in our
understanding, the ratio of the decision. In fact, there was
a specific finding in that case that initially the accused’s
intention to marry cannot be ruled out.”

[Emphasis supplied]

Recently, the Hon’ble Supreme Court in
Deepak Gulati vs. State of Haryana (supra), while
considering the question whether the action of
developing physical relation while making promise
to marry and later on not fulfilling the said
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[ CRLMP-3338/2016]

promise would amount to rape or not, has held as
under:

“13. Admittedly, the prosecutrix has never raised any
grievance before any person at any stage. In fact, she
seems to have submitted to the will of the appellant,
possibly in lieu of his promise to marry her. . Thus, a
question arises with respect to whether, in light of the
facts and circumstances of the present case, the
appellant had an intention to deceive her from the very
beginning when he had asked the prosecutrix to leave for
Kurukshetra with him from Karnal.

14. The undisputed facts of the case are as under:

I. The prosecutrix was 19 years of age at the time of the
said incident.

II. She had inclination towards the appellant, and had
willingly gone with him to Kurukshetra to get married.

III. The appellant had been giving her assurance of the
fact that he would get married to her.

IV. The physical relationship between the parties had
clearly developed with the consent of the prosecutrix, as
there was neither a case of any resistance, nor had she
raised any complaint anywhere at any time despite the
fact that she had been living with the appellant for several
days, and had travelled with him from one place to
another.

V. Even after leaving the hostel of Kurukshetra University,
she agreed and proceeded to go with the appellant to
Ambala, to get married to him there.

15. Section 114-A of the Indian Evidence Act, 1872
(hereinafter referred to as the ‘Act 1872’) provides, that if
the prosecutrix deposes that she did not give her
consent, then the Court shall presume that she did not in
fact, give such consent. The facts of the instant case do
not warrant that the provisions of
Section 114-A of the Act
1872 be pressed into service. Hence, the sole question
involved herein is whether her consent had been
obtained on the false promise of marriage. Thus, the
provisions of
Sections 417,375 and 376, IPC have to be
taken into consideration, along with the provisions of
Section 90 of the Act 1872. Section 90 of the Act, 1872
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[ CRLMP-3338/2016]

provides, that any consent given under a misconception
of fact, would not be considered as valid consent, so far
as the provisions of
Section 375, IPC are concerned, and
thus, such a physical relationship would tantamount to
committing rape.

16. This Court considered the issue involved herein at
length in the case of
Uday v. State of Karnataka, AIR
2003 SC 1639: Deelip Singh alias
Dilip Kumar v. State of
Bihar, AIR 2005 SC 203:
Yedla Srinivasa Rao v. State of
A.P. (2006) 11 SCC 615; and
Pradeep Kumar Verma v.
State of Bihar Anr., AIR 2007 SC 3059: and came to
the conclusion that in the event that the accused’s
promise is not false and has not been made with the sole
intention to seduce the prosecutrix to indulge in sexual
acts, such an act(s) would not amount to rape. Thus, the
same would only hold that where the prosecutrix, under a
misconception of fact to the extent that the accused is
likely to marry her, submits to the lust of the accused,
such a fraudulent act cannot be said to be consensual, so
far as the offence of the accused is concerned.

17…………..

18. 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 mis-representation made to her by the
accused, or where an accused on account of
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[ CRLMP-3338/2016]

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.

19. In Deelip Singh (supra), it has been observed as
under:

“20. The factors set out in the first part of
Section 90 are from the point of view of the
victim. The second part of
Section 90 enacts the
corresponding provision from the point of view of
the accused. It envisages that the accused too
has knowledge or has reason to believe that the
consent was given by the victim in consequence
of fear of injury or misconception of fact. Thus,
the second part lays emphasis on the
knowledge or reasonable belief of the person
who obtains the tainted consent. The
requirements of both the parts should be
cumulatively satisfied. In other words, the court
has to see whether the person giving the
consent had given it under fear of injury or
misconception of fact and the court should also
be satisfied that the person doing the act i.e. the
alleged offender, is conscious of the fact or
should have reason to think that but for the fear
or misconception, the consent would not have
been given. This is the scheme of
Section 90
which is couched in negative terminology.”

20. This Court, while deciding Pradeep Kumar Verma
(Supra), placed reliance upon the judgment of the Madras
High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad
453, wherein it has been observed:

“We are of opinion that the expression “under
a misconception of fact” is broad enough to
include all cases where the consent is
obtained by misrepresentation; the
misrepresentation should be regarded as
leading to a misconception of the facts with
reference to which the consent is given. In
(20 of 29)
[ CRLMP-3338/2016]

Section 3 of the Evidence Act Illustration (d)
states that a person has a certain intention is
treated as a fact. So, here the fact about
which the second and third prosecution
witnesses were made to entertain a
misconception was the fact that the second
accused intended to get the girl
married…….. “thus … if the consent of the
person from whose possession the girl is
taken is obtained by fraud, the taking is
deemed to be against the will of such a
person”. … Although in cases of contracts a
consent obtained by coercion or fraud is only
voidable by the party affected by it, the effect
of
Section 90, IPC is that such consent
cannot, under the criminal law, be availed of
to justify what would otherwise be an
offence.”

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

[Emphasis supplied]

From the above mentioned authoritative
pronouncements of the Hon’ble Supreme Court, the
position of law emerges that in the event that the
accused’s promise is not false and has not been
made with the sole intention to seduce the
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[ CRLMP-3338/2016]

prosecutrix to indulge in sexual acts, such an act
would not amount to rape.

In the impugned FIR, the respondent No.2
has not alleged that the petitioner has no
intention to marry her since beginning. I am
convinced that from bare reading of initial written
complaint and the contents of the impugned FIR, no
offences under
sections 376 and 313 IPC are made
out. However, since the police has carried out
thorough investigation and the learned Public
Prosecutor as well as the counsel for the
respondent No.2 have argued that from the
investigation carried out by the police, the
offences punishable under
sections 376(2)(n), 313
and
420 IPC are made out against the petitioner,
I have decided to go through the case diary, which
is made available by the learned Public Prosecutor,
to ascertain whether any case is made out against
the petitioner for the aforesaid offences on the
basis of evidence and material collected by the
police.

During the course of investigation, the
police has got recorded the statement of respondent
No.2 under
section 164 CrPC on 09.10.2014. The
extract of the said statement is as under:

** c;ku xokg

vt vnkyr A.C.J. M.M. No.6 dke tks/kiqj egkuxj

vkSj eqdnesa C.R. No. la- 229 lu 2014

uksV % xokg us fcuk fdlh Hk; ncko o mRizsj.kk ds c;ku viuh

LorU bZPNk ls nsuk tkfgj fd;kA xokg dh LohdkjksfDr ij c;ku fy;s

tk jgs gSA
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[ CRLMP-3338/2016]

eSa o”kZ 2009 esa tks/kiqj esa Hkkjr Iyktk esa tkWc djus vkbZ FkhA ;gka

twu 2011 rd tkWc fd;kA ebZ 2011 esa blh Hkkjr Iyktk dEiuh esa esjh

eqykdkr vuwi ds- ikWy ls gqbZ FkhA vuwi ds- ikWy us eqs izikst Hkh fd;k

FkkA tqykbZ 2011 esa eSaus Hkkjr Iyktk dEiuh NksM+dj eSa t;iqj esjs ?kj

pyh xbZ rc vuwi eqs yxkrkj esjs eksckby ij Qksu djrk FkkA og esjs

ihNs2 t;iqj Hkh vk x;k FkkA vuwi eqls ‘kknh djus dh ckr dgrk

FkkA

vuwi ds dgus ls eSa flrEcj 2011 esa okil tks/kiqj esa vkbZ ogka

ij tkSgjh fMftVy gsYi ds;j fyfeVsM] cksjkukMk esa tkWc djus yx

xbZA eSa gkbZdksVZ dkWyksuh esa nks ekg fdjk;s dk edku ysdj jgh ogka

vuwi vkrk tkrk jgrk FkkA vuwi us idkj dkWyksuh esa viuh ppsjh

cfgu ds ?kj dk dejk fdjk;s ls fnyk;k Fkk] ogkW Hkh og vkrk tkrk

jgrk FkkA vuwi gh eqs vkWfQl ls ?kj o ?kj ls vkWfQl ykrkystkrk

FkkA ?kj dk dksbZ vko’;d dk;Z lCth] nw/k] oxSjk Hkh og eqs lkFk ys

tkdj fnykrk FkkA og lHkh yksxksa us ;gh dgrk Fkk fd eSa mldh iRuh

gwWaA og eqs fdlh vU; ls feyus ugha nsrk FkkA vuwi dk jkst idkj

dkWyksuh fLFkr ?kj esa vkuk tkuk jgrk FkkA mlh nkSjku vuwi us eqls

‘kknh dk dgdj esjs lkFk esa ‘kkjhfjd lEca/k cuk;s FksA vuwi us esjs lkFk

laca/k cuk;s] ftlls esjs cPpk Bgj x;kA fQj MkW- js[kk tk[kM++ ds ;gka

tkdj cPpk fxjok;k FkkA vuwi eqs fØlel dh rS;kfj;ksa ds le; [kqn

ds ?kj Hkh ysdj x;kA ogkW eSa lkr fnuksa rd :dhA vuwi us o eSaus

vius2 ?kjksa esa gekjs fj’rs ds ckjs esa ckr dh FkhA tc gekjs ?kj okys

jkth gks x,A rc vuwi us ekpZ 2013 esa eqs t;iqj] esjs ?kj ‘kknh dh

rS;kfj;ksa ds fy, Hkst fn;k FkkA eSa o esjs ?kj okys ‘kknh dh rS;kfj;kW dj

jgs Fks rc /khjs2 vuwi o mlds ifjokj okys fdlh u fdlh ckr dk
(23 of 29)
[ CRLMP-3338/2016]

cgkuk cukdj euk djus yxsA 25 flrEcj 2014 dks tc eSa tks/kiqj

vuwi ds ?kj ‘kknh ds ckjs esa ckr djus vkbZ rc blds ?kj ij rkyk yxk

FkkA eSaus vkl ikl ds yksxksa ls iwNk rks irk pyk fd vuwi o mldk

ifjokj dsjy vuwi dh ‘kknh ds fy, x, gq, gSA vuwi us eqs ‘kknh dk

kalk nsdj esjk nsg ‘kks”k.k fd;kA

uksV % xokg dks c;ku idj lquk;s o lek;s x,A c;ku lgh gksuk

Lohdkj dj gLrk{kj fd;sA**

From the above statement also, it is clear
that respondent No.2 has nowhere alleged that the
petitioner has no intention to marry her since
beginning. On the other hand, it is clearly stated
that the petitioner had proposed her and parents of
both of them had agreed to the marriage of them and
the same was fixed in May, 2014, however, later on,
the petitioner and his parents refused for it. In
her statement recorded under
section 164 CrPC, the
respondent No.2 has even stated that she had stayed
at the house of the petitioner for seven days for
Christmas’s preparation. During the course of
investigation, the police has recorded the
statements of brother, father, mother and other
relatives of respondent No.2 and all of them have
stated that the mother and father of the petitioner
had visited Jaipur in October, 2012 to fix the
marriage of the petitioner and respondent No.2 and
the date of the marriage was fixed as 13.05.2014.
The police has also interrogated the petitioner,
his mother and father and all of them have stated
that they had visited the house of respondent No.2
at Jaipur to fix her marriage with the petitioner
and the date of marriage was fixed as 13.05.2014.
In the interrogation note, the petitioner, his
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[ CRLMP-3338/2016]

mother and father have specifically stated that on
account of some dispute with the respondent No.2,
proposal of marriage could not be materialized and
they have informed the parents of the respondent
No.2, who also agreed to it and in June, 2014,
mother of respondent No.2 had asked them that they
should marry their son to somewhere else, so that
they also marry their daughter in Indore, wherefrom
a proposal came.

From all the above material available on
record, it is clear that there is no iota of
evidence available on record to suggest that the
petitioner had no intention to marry respondent
No.2 since beginning and made a false promise of
marrying her only with the intention to satisfy his
lust. If the petitioner had no intention to marry
with the respondent No.2 since beginning, there was
no occasion for him to bring her to his house for
Christmas’s preparation and to ask his parents to
visit residents of parents of respondent No.2 at
Jaipur to fix his marriage with respondent No.2.
As stated earlier, respondent No.2, her brother,
parents and other relatives have stated in their
statements before the police that the petitioner
and his parents did visit their house to fix the
marriage of the petitioner and the respondent No.2
and date for their marriage was also fixed.

Admittedly, the respondent No.2 had never
raised any grievance before any person at any stage
and for the first time filed the complaint against
the petitioner in September, 2014 i.e. after 17
months when the petitioner had refused the marry
her in April, 2013. It is also to be noticed that
the respondent No.2 has not informed her parents
and brother about her pregnancy, which was
terminated in the month of October, 2012. In their
(25 of 29)
[ CRLMP-3338/2016]

statements recorded under section 161 CrPC, the
parents and brother of the respondent No.2 have not
mentioned that respondent no.2 has ever informed
them about her pregnancy in October, 2012.

In the light of the above facts and
circumstances of the present case, it cannot be
said that the petitioner had no intention to marry
the respondent No.2 from beginning or the
petitioner had any intention to deceive her from
very beginning. The respondent No.2 was 26 years of
age at the time of incident. She was in love with
the petitioner and both of them promised to marry
each other. Even the respondent No.2 has informed
her brother and parents that she is in love with
the petitioner and wants to marry him. Looking from
all these angles, it cannot be said that the
petitioner had no intention to marry the respondent
No.2 since beginning and developed physical
relation with her while making a false promise of
marriage only with intention to satisfy his lust.

It appears that the petitioner and the
respondent No.2 were in deep love, and their love
translated into physical relation. Their parents
agreed to the marriage of them but later on, due to
some disputes between the petitioner, his mother
and respondent No.2, the marriage could not be
materialized and then the petitioner decided to
marry with some another girl in September, 2014.
When the respondent No.2 came to know about the
same, she filed the criminal complaint against the
petitioner out of vengeance.

Looking to overall facts and circumstances
as noted above, I have no hesitation in holding
that no offence under
section 376 IPC is made out
against the petitioner. So far as offence
punishable under
section 420 IPC is concerned, when
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[ CRLMP-3338/2016]

this Court has already come to the conclusion that
the petitioner did not make any false promise to
marry the respondent No.2, no case of cheating is
made out against the petitioner.

So far as offence punishable under section
313 IPC is concerned, it is important to note that
the respondent No.2 in the impugned FIR has alleged
that in the year 2012, when she became pregnant,
the petitioner got her child aborted by giving her
contraceptive pills. It is noticed that in her
statement recorded under
section 164 CrPC the
respondent No.2 has stated that in October, 2012,
she got aborted her child through Dr. Rekha Jakhar
at Jodhpur. The police, during the course of
investigation, has recorded the statement of Dr.
Rekha Jakhar and also collected the prescription
slip prepared by her on 01.10.2012. In her
statement recorded under
section 161 CrPC, Dr.
Rekha Jakhar has stated that on 01.10.2012 one lady
Mrs. Divya visited her residence for the purpose of
checking. She checked Mrs. Divya and found her
pregnancy test positive, then that woman asked
Dr.Rekha Jakhar that she does not want this child.
Despite making her understand by the Doctor, she
insisted to get her child aborted while saying that
her job and studies would be disturbed. Dr. Rekha
Jakhar further stated that when the lady was not
convinced, then she asked her to come with her
husband and she again visited with her husband.
Dr.Rekha Jakhar informed them about ill effects of
abortion but both of them told that they want to
abort this child. Then Doctor asked them to give
this in writing, on which both of them gave in
writing that they have been told about ill effects
of abortion even though, they want to get the child
aborted and they will only be held responsible for
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[ CRLMP-3338/2016]

any mishappenings. The prescription slip dated
01.10.2012 with the endorsement of petitioner and
respondent No.2 is the part of the case diary.
From the statement of Dr. Rekha Jakhar, it is clear
that it was the respondent No.2, who voluntarily
caused miscarriage of her child and there is no
iota of evidence that the petitioner had caused
miscarriage of child of the respondent No.2 without
her consent and as such no offence under
section
313 IPC is made out against the petitioner.

Looking to the above facts and
circumstances of the case, this Court is convinced
that even if the FIR and the evidence/material
collected by the police is taken as it is, then too
the same is not sufficient to hold the petitioner
guilty of the offences punishable under
sections
376,
313 and 420 IPC. Hence, the continuance of the
impugned FIR against the petitioner and other
proceedings of the impugned FIR will result in
abuse of process of the Court and the same is
liable to be quashed.

Resultantly, this criminal misc. petition
under
section 482 CrPC is allowed. The impugned
FIR No.229 dated 01.10.2014 of Police Station,
Shashtri Nagar, Jodhpur and ongoing investigations
are quashed and set aside.”

4. A coordinate Bench of this Court, in the aforementioned

judgment, has dealt at length with consensual relationship,

inducement to marriage, causing abortion with consent, live-in

relationship, impact of criminal proceedings, the precedent laws

laid down by the Hon’ble Apex Court as well as the other Hon’ble

High Courts and all other facets, which are mostly matching with

the facts of the present FIR.

(28 of 29)
[ CRLMP-3338/2016]

5. After hearing the learned counsel for the parties as well

as perusing the record of the case, this Court is of the opinion that

when it is admitted that respondent No.2/complainant and the

present petitioner were residing together in a live-in relationship,

after marriage of respondent No.2 went bad, and initially, there

was inducement to marriage, but the relationship between

respondent No.2 and the present petitioner did not materialize to

marriage, and thus, compelled the respondent No.2 to lodge the

present FIR, whereas all the previous acts were consensual and

cannot be permitted to fall within the ambit of any kind of criminal

activity.

6. The aforementioned precedent law is well discussed

and an elaborate judgment dealing with each and every aspect of

the incidents arising out of consensual relationships and the same

going bad on account of one of the partners stepping back and the

conclusion derived by this Court is that such cases are not fit to be

allowed to continue.

7. Learned Public Prosecutor submitted that though the

facts are glaring, but it is difficult to wriggle out of the precedent

law laid down in Anup K. Paul Vs. State of Rajasthan Ors.

(supra).

8. This Court has also noted the vehement opposition

made by the learned counsel for the respondent

No.2/complainant, but he could not convince this Court regarding

the incident arising out of the consensual relationship between the

respondent No.2 and the present petitioner. Thus, looking to the
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[ CRLMP-3338/2016]

facts and circumstances of the present case, this Court is

convinced, on a bare look at the FIR and the material collected by

the police, that the same is not sufficient to hold the petitioner

guilty of the alleged offences, and therefore, the continuance of

the impugned FIR and any proceeding pursuant thereto is nothing,

but an abuse of the process of the court and the same is thus

liable to be quashed.

9. Consequently, the present misc. petition is allowed and

FIR No.383/2016 registered at Ratanada Police Station, District

Jodhpur for the offences under Sections 376, 420, 315 and 120-B

IPC and entire proceedings pursuant thereto are quashed and set

aside.

(DR. PUSHPENDRA SINGH BHATI)J.

Skant/-

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