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Chandan Sawhney vs State on 13 February, 2020

$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI

Reserved on: 07.01.2020
Pronounced on: 13.02.2020

+ CRL.REV.P. 716/2017 Crl.M.A. 15747/2017
CHANDAN SAWHNEY ….. Petitioner
Through Mrs.Rebeeca M. John, Sr. Adv. with
Mr.B.Badrinath Ms.Megha Bahl,
Adv.

versus

STATE ….. Respondent
Through Mr. Hirein Sharma, APP for State.
Mr.Maninder Singh, Adv. with
Ms.Aekta Vats, Mr.Vikram Kalra,
Mr.Sankalp Kolhi, Mr.Aahil Arora
Mr.Dinhar Takiar, Advs. for R-2.
W/SI Mukesh Kumari PS Ambedkar
Nagar.

CORAM:
HON’BLE MR. JUSTICE SURESH KUMAR KAIT

JUDGMENT

1. Present petition is preferred under section 397 read with section 401

Cr.P.C. against order on charge dated 14.02.2017 and order framing charge

dated 22.02.2017 passed by learned ASJ, FTC, Patiala House Courts, New

Delhi in SC 9416/2016 arising from FIR No.305/2016 registered at Police

CRL.REV.P. 716/2017 Page 1 of 66
Station Vasant Vihar for offences punishable under sections 376/377/420

IPC.

2. It is stated in present petition that above FIR came to be registered on

a complaint dated 08.04.2014 for an incident which purportedly took place

on 12.08.2013. Entire substance of accusation is based on the allegation that

having entered into a settlement dated 13.02.2012 and promising to pay a

sum of Rs.9 Crore towards permanent alimony, petitioner induced

complainant to execute settlement deed dated 31.08.2012 and obtained

divorce by making a payment of Rs.5 Crores (Rs.2.5 Crore in favour of their

daughter and Rs.2.5 crore in favour of the complainant). It has been alleged

that after obtaining divorce on 04.09.2012, the petitioner did not pay any

money to complainant in terms of agreement dated 13.02.2012 thereby

cheated the complainant. It has further been alleged that despite verbally

demanding for an amount payable under agreement dated 13.02.2012, the

petitioner refused to make any payment. In order to avoid payment to

complainant, petitioner induced her with a false promise of marriage (re-

marriage) stating that upon marriage, the question of payment of such

amounts would not arise. By making false promise of marriage, petitioner

indulged in a physical relation with complainant on 12.08.2013.

CRL.REV.P. 716/2017 Page 2 of 66

3. Ms. Rebeeca M. John, learned senior counsel appearing on behalf of

the petitioner submits that Ld. Trial Court discharged the petitioner for the

offence punishable u/s 420 IPC and proceeded to frame charge u/s 376

(2)(n) IPC. Background of the case is that on 21.11.1992, complainant and

petitioner got married in New Delhi. The couple got two children from the

wedlock, son (presently aged about 19 years) and daughter (presently aged

about 15 years). In 2010, due to relationship of the complainant with one

Sumit Walia, petitioner and complainant decided to withdraw their

matrimonial company from each other after 18 years of marriage. On

06.02.2012, petitioner and complainant presented first motion application

under section 13B of the Hindu Marriage Act for dissolution of their

marriage. Therein, petitioner paid a sum of Rs.5 lacs out of Rs.1 crore

towards permanent alimony and maintenance which was mutually agreed

between the parties. From 15.02.2012 to 30.08.2012, petitioner and

complainant held various meetings and prepared various agreements to

decide the terms of settlement, including matters pertaining to custody and

permanent maintenance. However, due to various differences, same could

not be finalized. On 31.08.2012, petitioner and complainant executed

Settlement Agreement enumerating various terms of settlement between the

CRL.REV.P. 716/2017 Page 3 of 66
parties. The said Settlement Agreement was made part and parcel of the

second motion petition and acknowledged by complainant in her statement

made before the court. The parties inter-alia agreed that complainant would

receive a sum of Rs.2.5 Crores and their daughter would receive Rs.2.5

Crores towards maintenance. Consequently, on 04.09.2012, marriage

between the parties was dissolved by a decree of divorce and all monies

payable under the agreement dated 31.08.2012 were tendered and accepted

by complainant.

4. Learned senior counsel further submitted that on 08.09.2012,

petitioner preferred a complaint against above named Sumit Walia which

was registered as FIR No.294/12 with PS Vasant Vihar, New Delhi, u/s

384/506/509 IPC and 66(1)/67 of the Information Technology Act 2000, on

the allegations that Sumit Walia demanded Rs.40 lacs from complainant and

threatened to circulate nude pictures and video of complainant to malign her

image. Said case is presently under investigation and is pending before

Cyber Cell of EOW, Delhi Police.

5. Also submitted that on 26.07.2013, complainant preferred a complaint

against said Sumit Walia alleging rape and criminal misappropriation of

Rs.4 Crores. Consequently, FIR no.280/13 was registered u/s 376/406/506

CRL.REV.P. 716/2017 Page 4 of 66
IPC with PS Vasant Vihar, New Delhi. On 27.07.2013, statement of the

complainant was recorded under section 164 Cr.P.C. wherein she stated that

Sumit Walia was the sole reason for divorce with petitioner. However,

despite being in relation with Sumit Walia, complainant levelled allegation

of rape for recovering Rs.4 crores from him.

6. Ms.Rebeeca, learned senior counsel submits that in July 2013, since

complainant had lost all her money to Sumit Walia, she requested petitioner

to pay school fee of their daughter. Looking at the financial condition of

complainant, petitioner paid school fee, which was in arrears. In September

2013, since complainant was facing financial difficulties, she requested

petitioner to provide financial assistance. Accordingly, petitioner gave his

credit card to the daughter for purchasing articles for daily use. However,

complainant used that credit card to purchase expensive articles and spent

about Rs.9 Lacs. On 15.11.2013, due to the spendthrift habits of

complainant, petitioner blocked the credit card given to daughter. On getting

such information, complainant and her daughter started sending SMSs to

petitioner and demanded money. On 18.11.2013, petitioner preferred a

complaint with PS Vasant Vihar, New Delhi against complainant with

regard to various threats given by her. On 12.12.2013, 28.01.2014

CRL.REV.P. 716/2017 Page 5 of 66
29.01.2014, complainant filed a reply to the complaint dated 18.11.2013. In

addition to reply, she also preferred two complaints on 28.01.2014 and

29.01.2014 seeking action against petitioner. However, all the complaints

were closed after thorough enquiry, stating that the complaints pertain to

matrimonial dispute and no cognizable offence was made out.

7. However, on 09.04.2014, complainant lodged FIR no.305/2014 u/s

376B/377/420 IPC with PS Vasant Vihar, New Delhi alleging cheating and

rape. Therein, complainant states that allegations made by the petitioner in

FIR 294/2012 were correct and she was pressurized by Sumit Walia to

support him. She also stated that Sumit Walia misappropriated the alimony

amount given to her by petitioner. On 22.05.2014, petitioner was granted

pre-arrest bail by Ld. ASJ, Patiala House Courts. Thereafter, in December,

2014, complainant preferred civil suit bearing no.04/2014 before Ld. Family

Courts, New Delhi seeking declaration of divorce decree dated 04.09.2012

as null and void. In February 2015, after concluding investigation, the

Investigating Officer filed a final report against petitioner, under section

376/377/420 IPC. On 04.03.2015, the petitioner was summoned by the court

of Ld.MM, Patiala House Court, New Delhi. On 07.04.2015, petitioner was

admitted to bail by the said court. On 20.04.2015, upon service of summons

CRL.REV.P. 716/2017 Page 6 of 66
in Civil Suit no.04/2014, petitioner filed Cont. Cas. No.315/2015 before this

Court seeking initiation of contempt proceedings against complainant for

violation of the terms of settlement dated 31.08.2012 and the undertaking

dated 01.09.2012. After hearing complainant on 09.10.2015, this Court was

pleased to record the undertaking of complainant that she would withdraw

Civil Suit no.04/2014 and consequently, disposed of the contempt petition.

On 12.10.2015, in compliance with the order of this Court dated 09.10.2015,

statement of complainant was recorded by ld. Family Court and on

04.11.2015, Civil Suit bearing no.04/2014 was dismissed as withdrawn.

Thereafter, on 19.08.2016, petitioner preferred an application under section

91 Cr.P.C. seeking summoning of documents necessary for determination on

the point of charge. In October 2016, ld. ASJ, FTC, Patiala House Courts,

New Delhi permitted petitioner to place certified copies of the following

documents:

• Record of this Court in Cont. Case (C) 315/2015.

• Record of CS 4/2014 of the Ld. Family Court, New Delhi.

8. Consequently, said documents were placed on record of Ld. Trial

Court. On 14.02.2017, after hearing petitioner, the Prosecutor and

complainant, Ld. ASJ, FTC, Patiala House Courts, New Delhi was pleased

CRL.REV.P. 716/2017 Page 7 of 66
to pass a detailed order on charge directing charge to be framed under

section 367 IPC. However, Ld. ASJ observed that the prosecution has failed

to make out any prima facie case against the accused for cheating. On

22.02.2017 framed charge against petitioner under section 376(2)(n) of IPC.

9. Learned senior counsel has informed this Court which is not disputed

that on 10.04.2017, Ld. ASJ, FTC, Patiala House Courts, New Delhi was

pleased to acquit Sumit Walia in FIR 280/2013 registered with PS Vasant

Vihar, u/s 376/406/506 IPC.

10. Mrs.Rebeeca M. John, learned senior counsel submitted that FIR itself

reveals that complainant preferred a complaint only on 08.04.2014 for the

alleged incident which took place on 12.08.2013 i.e. after a delay of about 8

months (240 Days). The said delay has not been explained anywhere. Even

as per the complainant after 12.12.2013, she did not communicate with

petitioner. The complainant herself states in her complaint that she had made

representations to police on 12.12.2013 vide DD No. 79b, she again filed an

application dated 28.01.2014 vide DD No. 47b and to DCP on 29.01.2014

vide DD No. 292 yet no complaint was made regarding the allegations of

rape dated 12.08.2013 or non-payment of monies under agreement dated

13.02.2012 or the fact that petitioner had resumed relation with the

CRL.REV.P. 716/2017 Page 8 of 66
complainant on the pretext of marriage to avoid payment of Rs.9 Crores.

Moreover, from September, 2012 till April, 2014, complainant was in

contact with various police officials and lawyers in connection with various

complaint preferred by her, yet no complaint was made regarding alleged

incident dated 12.08.2013 or non-payment of monies under agreement dated

13.02.2012.

11. Further submitted that case of prosecution is not corroborated with

sufficient evidence and the case is riddled with gaps. The prosecution has

not placed any evidence on record to prove the presence of petitioner and

complainant in hotel Oodles on the date of incident i.e. 12.08.2013. No eye-

witness has been made to prove presence of petitioner in the hotel.

12. Moreover, CDR reveals that on 12.08.2013, there was a telephonic

conversation between complainant and petitioner for 324 Seconds at

17:05:24. Had complainant and petitioner been together at the same place,

there would not have been any telephonic conversation for almost 5 ½

minutes (324 seconds). In her supplementary statement dated 20.05.2014,

complainant stated that on 12.08.2013, she reached hotel Oodles at 4 PM

and remained there till 7:30 PM.

CRL.REV.P. 716/2017 Page 9 of 66

13. Learned counsel submits that the said statement is ex-facie

unbelievable and is belied by the telephonic conversation between

complainant and petitioner for 324 Seconds at 17:05:24. It is unbelievable

that two persons sitting together at the same place would talk to each other

over telephone for 5 ½ minutes. As per the record maintained by hotel only

one person stayed in the room and no other person visited over there.

14. To strengthen her arguments, learned counsel for the petitioner has

relied upon the case of Dilawar Babu Krane vs. State of Maharashtra:

(2002) 2 SCC 135 whereby the Hon‟ble Supreme Court has held as under:

“12. Now the next question is whether a prima facie case
has been made out against the appellant. In exercising
powers under Section 227 of the Code of Criminal
Procedure, the settled position of law is that the Judge
while considering the question of framing the charges
under the said section 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; 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; by and large 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 justified to
discharge the accused, and in exercising jurisdiction
under Section 227 of the Code of Criminal Procedure, the
Judge cannot act merely as a post office or a mouthpiece

CRL.REV.P. 716/2017 Page 10 of 66
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 but should
not make a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting a
trial (see Union of India v. Prafulla Kumar Samal).”

15. She also placed reliance upon the case of Shashidharan Kollery

Ors. vs. State Anr.: 2019 SCC Online Del 8969 whereby the Hon‟ble

Supreme Court has held as under:

“25. At the time of framing a charge, it is the duty of the
Trial Court to assess the entire material collected by the
prosecution during investigation and not to frame a
charge merely because an allegation is made by the
complainant. It is the duty of the Trial Court to assess
whether there is material on record to raise grave
suspicion of the accused having committed the said
offence. The material both against or in favour of the
accused has to be assessed by the Trial Court to come to
a conclusion as to whether grave suspicion arises or not.

26. The Trial Court in the impugned order has proceeded
solely on the basis of the statement recorded under
Section 164 Cr.P.C. and completely ignored the
contemporaneous e-mails which were available on
record. Trial Court completely lost sight of the fact that
the statement under Section 164 Cr.P.C. was recorded
after one year of the complainant having been removed
from office. The contemporaneous material in the form of
e-mails written by the complainant from September till
February 2013 as also the complaint lodged with the
Delhi Commission for Women (DCW) on 13.02.2013
completely contradicted and belied the statement given
under Section 164 Cr.P.C. It may be noticed that in the
statement under Section 164 Cr.P.C. there are

CRL.REV.P. 716/2017 Page 11 of 66
substantive improvements in the version by the
prosecutrix and she has even leveled allegations of
physical sexual assault by petitioner Nos.1 and 2, with
regard to which she was completely silent in her
complaints and grievances raised for over a year.”

16. Learned senior counsel submits that complainant has improved her

case in her supplementary statement dated 20.05.2014 and alleged further

incidents of physical intercourse with petitioner, at various places. However,

she has not disclosed said incidents either in her complaint dated 09.04.2014

or her statement recorded under section 164 Cr.P.C.

17. Further submitted that FIR came to be registered on a complaint dated

08.04.2014 for an incident which purportedly took place on 12.08.2013.

The entire substance of accusation is based on the allegation that having

entered into a settlement dated 13.02.2012 and promising to pay a sum of

Rs. 9 crore towards permanent alimony, petitioner induced complainant to

execute a settlement deed dated 31.08.2012 and obtained divorce by making

a payment of Rs. 5 Crores. However, after obtaining divorce on 04.09.2012,

petitioner did not pay any amount in terms of agreement dated 13.02.2012

thereby cheated the complainant. Further alleged that despite verbally

demanding for the monies payable under agreement dated 13.02.2012,

petitioner refused to make any payment. In order to avoid making any

CRL.REV.P. 716/2017 Page 12 of 66
payment, petitioner induced her with a false promise of marriage (re-

marriage) stating that upon marriage, the question of payment of such

amounts would not arise. Thus, by making false promise of marriage, the

petitioner indulged in a physical relation with complainant on 12.08.2013.

18. On the other hand, Mr.Maninder Singh, learned counsel appearing on

behalf of the complainant/prosecutrix has relied upon the case of State of

Orissa vs. Debendra Nath Padhi: 2005 (1) SCC 568, wherein the

Constitutional Bench of Hon‟ble Supreme Court made following

observations and held:

“5. … It was contended that on true construction of
Section 227 of the Code only the material sent by
prosecution along with the record of the- case and the
documents sent along with it can be considered by the
trial court at the time of framing of the charge. The
accused at that stage has no right to place before the
court any material.

6. At the stage of framing charge, the trial court is
required to consider whether there are sufficient grounds
to proceed against the accused. Section 227 of the Code
provides for the eventuality when the accused shall be
discharged. If not discharged, the charge against the
accused is required to be framed under Section 228.

These two sections read as under:

“Section 227 of Cr.PC. Discharge- If, upon consideration
of the record of the case and the documents submitted
therewith, and after hearing the submissions of the

CRL.REV.P. 716/2017 Page 13 of 66
accused and the prosecution in this behalf, the Judge
considers that there is not sufficient ground for the
proceeding against the accused, he shall discharge the
accused and record his reasons for so doing.

Section 228 of Cr.P.C.

Framing of charge(l) If, after such consideration and
hearing as aforesaid, the Judge is of opinion that there is
ground for presuming that the accused has committed an
offence which

(a) is not exclusively triable by the Court of Session,
he may, frame a charge against the accused and, by
order, transfer the case for trial to the Chief Judicial
Magistrate, and thereupon the Chief Judicial Magistrate
shall, try the offence in accordance with the procedure
for the trial of warrant-cases instituted on a police
report;

(b) is exclusively triable by the Court, he shall
frame in writing a charge against the accused. Where the
Judge frames any charge under clause (b) of sub-section
(1), the charge shall be read and explained to the accused
and the accused shall be asked whether he pleads guilty
of the offence or claims to be tried.'”

7. Similarly, in respect of warrant cases triable by
Magistrates, instituted on a police report. Sections 239
and 240 of the Code are the relevant statutory provisions.
Section 239 requires the Magistrate to consider ‘the
police report and the documents sent with it under
Section 173’ and, if necessary, examine the accused and
after giving accused an. opportunity of being heard, if the
Magistrate considers the charge against the accused to
be groundless, the accused is liable to be discharged by
recording reasons thereof.

8. What is to the meaning of the expression ‘the record of
the case’ as used in Section 227 of the Code. Though the

CRL.REV.P. 716/2017 Page 14 of 66
word ‘case’ is not defined in the Code but Section 209
throws light on the interpretation to be placed on the said
word. Section 209 which deals with the commitment of
case to Court of Session when offence is triable
exclusively by ‘it, inter alia, provides that when it appears
to the Magistrate that the offence is triable exclusively by
the Court of Session, he shall commit ‘the case’ to the
Court of Session and send to that court ‘the record of the
case’ and the document and articles, if any, which are to
be produced in evidence and notify the Public Prosecutor
of the commitment of the case to the Court of Session. It
is evident that the record of the case and documents
submitted therewith as postulated in Section 227 relate to
the case and the documents referred in Section 209.
That is the plain meaning of Section 227 read with
Section 209 of the Code. No provision in the Code grants
to the accused any right to file any material or document
at the stage of framing of charge. That right is granted
only at the stage of the trial.

9. Further, the scheme of the Code when examined in the
light of the provisions of the old code of 1898, makes the
position more clear. In the old code, there was no
provision similar to Section 227. Section 227 was
incorporated in the Code with a view to save the accused
from prolonged harassment which is a necessary
concomitant of a protracted criminal trial. It is calculated
to eliminate harassment to accused persons when the
evidential materials gathered after investigation fall short
of minimum legal requirements. If the evidence even if
fully accepted cannot show that the accused committed
the offence, the accused deserves to be discharged. In the
old Code, the procedure as contained in Sections 207 and
207 (A) was fairly lengthy. Section 207, inter alia,
provided that the Magistrate, where the case is
exclusively triable by a Court of Session in any
proceedings instituted on a police report, shall follow the
procedure specified in Section 207 (A). Under Section

CRL.REV.P. 716/2017 Page 15 of 66
207 (A) in any proceeding instituted on a police report
the Magistrate was required to hold inquiry in terms
provided under sub-section (1), to take evidence as
provided in sub-section (4), the accused could cross-
examine and the prosecution could re-examine the
witnesses as provided in sub-section (5), discharge the
accused if in the opinion of the Magistrate the evidence
and documents disclosed no grounds for committing him
for trial, as provided in sub-section (6) and to commit the
accused for trial after framing of charge as provided in
sub-section (7), summon the witnesses of the accused to
appear before the court to which he has been committed
as provided in sub-section (11), and send the record of
the inquiry and any weapon or other thing which is to be
produced in evidence, to the Court of Session as provided
in sub-section (14). The aforesaid Sections 207 and
207(A) have been omitted from the Code and a new
Section 209 enacted on the recommendation of the Law
Commission contained in its 41st Report. It was realised
that the commitment inquiry under the old Code was
resulting in inordinate delay and served’ no useful
purpose. That inquiry has, therefore, been dispensed with
in the Code with the object of expeditious disposal of
cases. Instead of committal Magistrate framing the
charge, it is now to be framed by Court of Session under
Section 228 in case the accused is not discharged under
Section 227. This change brought out in the code is also
required to be kept in view while determining the
question. Under the Code, the evidence can be taken only
after framin2 of charge.

11. In State of Bihar v. Ramesh Singh [(1977) 4 SCC 39]
considering the scope of Sections 227 and 228 of the
Code, it was held that at the stage of framing of charge, it
is not obligatory for the Judge to consider in any detail
and weigh in a sensitive balance whether the facts, if
proved, would be incompatible with the innocence of the
accused or not. At that sta2e, the court is not to see
whether there is sufficient ground for conviction of the

CRL.REV.P. 716/2017 Page 16 of 66
accused or whether the trial is sure to end in his
conviction, Strong suspicion, at the initial stage of
framing of charge, is sufficient to frame the charge and in
that event it is not open to say that there is no sufficient
ground for proceedings against the accused.

12. In Superintendant and Remembrancer of legal
Affairs, West Bengal v. Anil Kumar Bhunja and Others
[(1980) 1 SCR 323] a three-judge Bench held that the
Magistrate at the stage of framing charges had to see
whether the facts alleged and sought to be proved by the
prosecution prima facie disclose the commission of
offence on general consideration of the materials placed
before him by the investigating police officer (emphasis
supplied). Though in this case the specific question
whether an accused at the stage of framing of charge has
a right to produce any material was not considered as
such, but that seems implicit when it was held that the
Magistrate had to consider material placed before it by
the investigating police officer.

13. In State of Delhi v. Gyan Devi and Others [(2000) 8
SCC 239] this Court reiterated that at the stage of
framing of charge the trial court is not to examine and
assess in detail the materials placed on record by the
prosecution nor is it for the court to consider the
sufficiency of the materials to establish the offence
alleged against the accused persons.

16. All the decisions, when they hold that there can only
be limited evaluation of materials and documents on
record and sifting of evidence to prima facie find out
whether sufficient ground exists or not for the purpose of
proceeding further with the trial, have so held with
reference to materials and documents produced by the
prosecution and not the accused. The decisions proceed
on the basis of settled le2al position that the material as
produced by the prosecution alone is to be considered
and not the one produced by the accused. The latter

CRL.REV.P. 716/2017 Page 17 of 66
aspect relating to the accused though has not been
specifically stated, yet it is implicit in the decisions. It
seems to have not been specifically so stated as it was
taken to be well settled proposition. This aspect, however,
has been adverted to in State Anti-Corruption Bureau,
Hyderabad and Another v. P. Suryaprakasam [1999 SCO
(Crl.) 373] where considering the scope of Sections 239
and 240 of the Code it was held that at the time of
framing of charge, what the trial court is required to, and
can consider are only the police report referred to under
Section 173 of the Code and the documents sent with it.
The only right the accused has at that stage is of being
heard and nothing beyond that (emphasis supplied). The
judgment of the High Court quashing the proceedings by
looking into the documents filed by the accused in
support of his claim that no case was made out against
him even before the trial had commenced was reversed by
this Court. It may be noticed here that learned counsel
for the parties addressed the arguments on the basic that
the principles applicable would be same – whether the
case be under Sections 227 and 228 or under Sections
239 and 240 of the Code.

17. As opposed to the aforesaid legal position, the
learned counsel appearing for the accused contended that
the procedure which deprives the accused to seek
discharge at the initial stage by filing unimpeachable and
unassailable material of sterling quality would be illegal
and violative of Article 21 of the Constitution since that
would result in the accused having to face the trial for
long number of years despite the fact that he is liable to
be discharged if granted an opportunity to produce the
material and on perusal thereof by the court. The
contention is that such an interpretation of Sections 227
and 239 of the Code would run the risk of those
provisions being declared ultra vires of Articles 14 and
21 of the Constitution and to save the said provisions
from being declared ultra vires, the reasonable

CRL.REV.P. 716/2017 Page 18 of 66
interpretation to be placed thereupon is the one which
gives a right, howsoever, limited that right may be, to the
accused to produce unimpeachable and unassailable
material to show his innocence at the stage of framing
charge.

18. We are unable to accept the aforesaid contention. The
reliance on Articles 14 and 21 is misplaced. The scheme
of the Code and object with which Section 227 was
incorporated and Sections 207 and 207 (A) omitted have
already been noticed. Further, at the stage of framing of
charge roving and fishing inquiry is impermissible. If the
contention of the accused is accepted, there would be a
mini trial at the stage of framing of charge. That would
defeat the object of the Code. It is well-settled that at the
stage of framing of charge the defence of the accused
cannot be put forth. The acceptance of the contention of
the learned counsel for the accused would mean
permitting the accused to adduce his defence at the stage
of framing of charge and for examination thereof at that
stage which is against the criminal jurisprudence. By way
of illustration, it may be noted that the plea of alibi taken
by the accused may have to be examined at the stage of
framing of charge if the contention of the accused is
accepted despite the well settled proposition that it is for
the accused to lead evidence at the trial to sustain such a
plea. The accused would be entitled to produce materials
and documents in proof of such a plea at the stage of
framing of the charge, in case we accent the contention
put forth on behalf of the accused. That has never been
the intention of the law well settled for over one hundred
years now. It is in this light that the provision about
hearing the submissions of the accused as postulated by
Section 227 is to be understood. It only means hearing
the submissions of the accused on the record of the case
as filed by the prosecution and documents submitted
therewith and nothing more. The expression ‘hearing the
submissions of the accused’ cannot mean opportunity to
file material to be granted to the accused and thereby

CRL.REV.P. 716/2017 Page 19 of 66
changing the settled law. At the state of framing of charge
hearing the submissions of the accused has to be confined
to the material produced by the police.”

19. He further submitted that the Hon‟ble Supreme Court has upheld these

observations in recent Judgement dated 07.01.2020, in the case of, “M.E

Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru”,

Criminal Appeal No. 957/2017 whereby held that there is a difference

between “suspicion” and “grave suspicion” and the accused is only entitled

to discharge when there is no grave suspicion. However, this is not true in

the present case. A bare perusal of the Charge-Sheet along with the list of

Documents placed on record by the Prosecution, it is evident that grave

suspicion arises against the Petitioner to show that he had repeatedly raped

Respondent No. 2 on the false promise of marriage. Even though the

Petitioner could have explained/interpreted the documents that the

Prosecution had placed on record in the Charge-Sheet, he chose not to and

on the contrary, placed on record documents of his own, which is

impermissible at the stage of Charge. Instead of explaining the documents

with the Charge-Sheet, the Petitioner himself raised disputed question of fact

which have to be decided during Trial and cannot be adjudicated at this stage

of charge. Undoubtedly, the Complaint, Photographs, content of Text

Messages exchanged between the Petitioner and prosecutrix, Complaints

CRL.REV.P. 716/2017 Page 20 of 66
filed by complainant against the investigating agency for not performing

their duty, the presence of the Petitioner vide the Hotel Entry Register, etc,

clearly prima facie raise a grave and strong suspicion against Petitioner for

having committed the offence u/s 376(2)(n) of IPC.

20. Learned counsel submits that Petitioner has acted dishonestly and

fraudulently and has induced and allured prosecutrix to sign the divorce

documents with the intention of cheating her to the tune of Rs. 9 Crores

causing wrongful loss to the prosecutrix. After obtaining the Divorce

Decree, when prosecutrix asked the Petitioner to fulfil his commitments

towards her by paying Rs. 9 Crores as ‘per the agreement dated 13.02.2012,

Petitioner coaxed her into believing him that he wanted to re-marry her and

on that pretext, repeatedly raped her on various occasions. Thus, the consent

of prosecutrix was thus obtained by the Petitioner fraudulently and under the

misconception of fact that he would in fact marry her. The messages placed

on record in the Charge-Sheet evidently show as to how the Petitioner had

been coaxing prosecutrix to believe that he had the intentions to marry her.

21. To strengthen his arguments, learned counsel has relied upon the case

of State of U.P vs. Naushad: (2013) 16 SCC 651, the Hon’ble Apex Court

made the following observations: –

CRL.REV.P. 716/2017 Page 21 of 66

“15. We have heard the rival legal contentions and
perused the evidence on record. The following issues
arise for our consideration:

15 1 (i) Whether the High Court has rightly reversed the
conviction and sentence of the accused for the offence of
rape punishable under Section 376 of the IPC?

15.2 (ii) Whether the trial court was correct in convicting
the accused for the offence of rape punishable under
Section 376 of the IPG by holding that the victim did not
give her free consent to the act of sexual intercourse but
it was consent given under misconception of fact?

15.3 (iii) Whether the trial court was right in holding that
the crime was of a very grave nature and was thus
justified in sentencing the accused to the maximum
punishment of, life imprisonment as provided for under
Section 376 of the IPC?

16. We will answer point nqs. 1 and 2 together as they
are related to each other.

17. Section 376 of IPC prescribes the punishment for the
offence of rape. Section 375 of the IPC defines the offence
of rape, and enumerates six descriptions of the offence.
The description secondly speaks of rape without her
consent. Thus, sexual intercourse by a man with a woman
without her consent will constitute the offence of rape. We
have to examine as to whether in the present case, the
accused is guilty of the act of sexual intercourse with the
prosecutrix against her consent. The prosecutrix in this
case has deposed on record that the accused promised
marriage with her and had sexual intercourse with her on
this pretext and when she got pregnant, his family refused
to marry him with her on the ground that she is of bad
character.

CRL.REV.P. 716/2017 Page 22 of 66

18. How is consent defined? Section 90 of the I^PC
defines consent known to be given under fear or
misconception which reads as under :

“90. Consent known to be given under fear or
misconception A consent is not such consent as it
intended by any section of this Code, if the consent is
given by a person under fear of injury, or under a
misconception of fact, and if the person doing the act
knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception ”

22. Learned counsel submits that if consent is given by the prosecutrix

under a misconception of fact, it is vitiated. In the present case, the

petitioner had sexual intercourse with the prosecutrix by giving false

assurance to the prosecutrix that he would marry her. After she got pregnant,

he refused to do so. From this, it is evident that he never intended to marry

her and broken her consent only for the reason of having consensual

relations with her, which act of petitioner false squarely under the definition

of rape as he had sexual intercourse with her consent which was obtained

under a misconception of fact as defined under section 90 of the IPC. Thus,

the alleged consent said to have obtained by petitioner was not voluntarily

consent and this court is of the view that the petitioner indulged in sexual

intercourse with the prosecutrix by misconstruing to her his true intentions.

CRL.REV.P. 716/2017 Page 23 of 66

23. Mr.Maninder further submits that it is apparent from the evidence that

petitioner only wanted to indulge in sexual intercourse with her and was

under no intention of actually marry the prosecutrix.

24. Learned counsel has relied upon the case of Yedla Srinivas Rao vs.

State of A.P. with reference to similar facts, the court in para 10 held as

under:

“10. It appears that the intention of the accused as per the
testimony of PW1 was, right from the beginning, not
honest and he kept on promising that he will marry her,
till she became pregnant. This kind of consent obtained
by the accused cannot be said to be any consent.”

Further, in para 17 of the said judgment, this Court held
that:-

“In the present case in view of the facts as mentioned
above we are satisfied that the consent which had been
obtained by the accused was not a voluntary one which
was given by her under misconception of fact that the
accused would marry her but this is not a consent in law.
Thus, this Court held that the accused in that case was
guilty of the offence of rape as. he had obtained the
consent of the prosecutrix fraudulently, under a
misconception of fact.”

25. Further submits that all the grounds relied upon by the petitioner are

clearly disputed questions of fact. The genuineness of the same can only be

tested at the stage of trial and not at the stage of charge. Regarding the

CRL.REV.P. 716/2017 Page 24 of 66
consensual or under misconception of fact, this Court in Ashok Chawla vs.

State (NCT of Delhi): 2015 SCC OnLine Del 8973, has refused to discharge

petitioner therein since disputed questions of facts will have to stand the test

of trial. It is held in Para 6 of the Judgment that: –

“6. … It is settled law that at the time of framing of
charge, the Trial Court is required to examine the
evidence brought before it only for the limited purpose of
deciding as to whether a prima facie case has been made
out against the accused or not. Based on said evidence, if
the Judge is satisfied that a sufficient case is made out
then he ought to proceed to direct the framing of charges
and conduct the trial based thereon. However, at that
stage, the Judge is not required to shift the entire
evidence and discuss the relative merits and demerits of
the case to arrive at conclusive decision. The only
requirement is that if the Judge is satisfied that the
evidence produced before him gives rise to suspicion,
enough-for him to discharge the accused, then he ought
to be discharged but if that is not the case and the
material on record is sufficient to make a conviction
reasonably possible, then the Court should proceed to
frame the charges. The learned Trial Court was right in
observing that the factum of intercourse being consensual
is required to be ascertained during the course of trial. In
her complaint as well as her statement under Section 164
Cr.P.C the complainant has alleged that she was raped
by the accused after she fell unconscious as she was
offered some coffee after which she lost her
consciousness. The main thrust of learned counsel for the
petitioner is on CCTV footage however complainant has
to be confronted with CCTV footage during the course of
her examination and her identity is required to be
ascertained. The observations made while granting bail
to the accused cannot be made a ground for discharge of

CRL.REV.P. 716/2017 Page 25 of 66
the accused. In Prashant Bharti’s case the complainant
herself had filed a limit petition before High Court
seeking quashing of the FIR lodged by her. Further,
presence of the complainant as well as of the accused at
the alleged place of occurrence on the fateful day at the
relevant time was negated by the call details of the
parties. The allegations made by the complainant could
not be verified by the police from any direct or scientific
evidence. The material relied upon by the accused was
not refuted by the complainant rather she herself
approached the High Court for quashing of the FIR. Even
the Investigating Officer had acknowledged in the
chargesheet that he could not find any proof to
substantiate the charges and that the chargesheet was
filed only on the basis of the statement of the prosecutrix
under Section 164 Cr.P.C. Taking note of all these
circumstances appearing in the case, the order of framing
charge was quashed. However, things are different in the
instant case. Truthfulness or falsity of the allegations
cannot be prejudge at this initial stage. Complainant has
to be afforded an opportunity regarding the CCTV
footage. The complaints and counter complaints made by
parties against each other will also required to be
considered at the appropriate stage. In view of the
aforesaid facts and circumstances and upon perusing the
impugned order, this Court is of the opinion that no such
illegality, arbitrariness or perversity has been pointed out
in the conclusion arrived at by learned Additional
Sessions Judge while framing the charges against the
petitioner for this Court to interfere therein. As a result,
the present petition is dismissed.”

26. Further submitted that in the present case, the documentary /scientific/

forensic evidence like the medical of prosecutrix, Call Detail Records, Hotel

Entry Register, Whatsapp Messages and Photographs have to be proved at

CRL.REV.P. 716/2017 Page 26 of 66
the stage of trial, therefore, the Petitioner cannot be discharged when “there

are disputed questions of facts”.

27. Similarly, recently, on 08.03.2019, this Court, in the case of Gurpreet

Singh Rakhi vs. State (NCT of Delhi) Anr.: 2019 SCC OnLine Del 7830,

refused to discharge the Petitioner therein. The relevant Paras are reproduced

as follows: –

“10. In view of the submissions made before the trial
court at the time of consideration of charge, as noted in
the order dated 23.05.2018 and the contentions raised
before this Court in these proceedings, it not being
disputed that the petitioner and the prosecutrix had had
sexual intimacy, the core issue which would require
adjudication is as to whether such sexual relationship
was consensual as is the defence plea or under duress
which is the case alleged by the prosecution.

11. It does appear that the petitioner seeks to place
reliance on certain material including social media chat
in support of his claim of consent for sexual relationship.
But then, that is a matter of defence, the material or
documents requiring to be authenticated or proved in
accordance with law. The statement of the prosecutrix
alleging criminal intimidation of various kinds at
different points of time cannot be disbelieved at this
stage. When the case is for consideration of charge, it is
not proper to ask for a scrutiny of the evidence in the
manner it would require to be done at the stage of final
analysis.

12. It does appear that in the first head of charge on the
allegations concerning the offence under Section 316

CRL.REV.P. 716/2017 Page 27 of 66
IPC, no’ specific dates have been indicated. But it has to
be remembered that the version of the prosecutrix is that
she had been raped multiple times over the period which,
given the plea of the petitioner himself, might run into
more than two years, may be for almost five years. If the
prosecutrix has not remembered the specific dates on
which she was raped, the charge cannot mention the
specific dates. It will be for the petitioner to bring out
necessary facts, if possible, during the cross-examination.

There is, thus, no error or defect or deficiency in the
charge which has been framed for the said offence on
23.05.2016.

14. For the foregoing reasons, this court finds no ground
to order discharge. The prayer for quashing of the
criminal case is, thus, declined.”

28. Learned counsel submits that the Call Detail Record and the Hotel

Entry Register clearly show, prima facie, Petitioner had called prosecutrix

around 5 pm and they spoke for around 5 minutes, whereafter, he managed

to convince her to meet him at the Cafe in Hotel Oodles. At the cafe,

photographs were taken on the phone of the prosecutrix, the same show that

it was taken on 12.08.2013 at 5.30pm. The Petitioner then proceeded to book

a room in the Hotel at 5.45pm. All the said documents form part of the

Charge-Sheet. The prosecutrix had her reservation about submitting her

phone with the Investigating Agency due to the biased nature of the

investigation, she therefore, moved an application to send the same on

13.10.2016 and thereafter, during her, examination-in-chief. Therefore, the

CRL.REV.P. 716/2017 Page 28 of 66
petitioner’s argument that the photograph does not bears any time and date,

is incorrect. The presence on the date of incident .i.e. 12.08.2013, is not

disputed and also, establishes prima facie, that he did in fact rape her at

Hotel Oodles on 12.08.2013 by obtaining consent under misconception of

fact.

29. He submits that there is no delay in lodging the Complaint against the

Petitioner. The Petitioner had repeatedly raped her to avoid the fulfilment of

paying her an additional Rs. 9 Crore which he was contractually bound to

pay but to avoid the same, had been coaxing her to believe that he would in

fact marry her, over the next few months. The WhatsApp messages placed

on record in the Charge-Sheet, evidently show the same.

30. Even otherwise, in the case of Bhupinder Kumar vs. State: 2015 SCC

OnLine Del 9457, this Court has observed that delay in lodging of the FIR

by a Prosecutrix is not fatal to the Prosecution case. Relevant paras are

reproduced as under:

“12. One of the major contention of learned counsel for
the appellant is that there is delay of 16 days in lodging
the FIR therefore, the delay in lodging the FIR is fatal.
The submission is devoid of any merit inasmuch case in
Karnel Singh v. State of M.P, (1995) 5 SCC 518, it was
held by Apex Court that merely because the complaint

CRL.REV.P. 716/2017 Page 29 of 66
was lodged less than promptly does not raise the
inference that the complaint was false. The reluctance to
go to the police is because of society’s attitude towards
such women; it casts doubt and shame upon her rather
than comfort and sympathise with her. Therefore, delay in
lodging complaints in such cases does not necessarily
indicate that her version is false. In Gurmit Singh
(supra), it was observed that that in sexual offences delay
in the lodging of the FIR can be due to variety of reasons
particularly the reluctance of the prosecutrix or her
family members to go to the police and complain about
the incident which concerns the reputation of the
prosecutrix and the honour of her family. It is only after
giving it a cool thought that a complaint of sexual offence
is generally lodged.

13. In the case of Tulshidas Kanolkarv. The State of Goa:
(2003) 8 SCC 590, the Hon’ble Supreme Court has
observed as under:

“… … The unusual circumstances satisfactorily explained
the delay in lodging of the first information report. In any
event, delay per se is not a mitigating circumstances for
the accused when accusation of rape are involved. Delay
in lodging first information report cannot be used as a
ritualistic formula for discarding prosecution case and
doubting its authenticity. It only puts the court on guard
to search for and consider if any explanation has been
offered for the delay. Once it is offered, the Court is to
only see whether it is satisfactory or not. In a case if the
prosecution fails to satisfactorily explain the delay and
there is possibility of embellishment or exaggeration in
the prosecution version on account of such delay, it is a
relevant factor. On the other hand satisfactory
explanation of the delay is weighty enough to reject the
plea of false implication or vulnerability of prosecution
case. As the factual scenario shows, the victim was totally
unaware of the catastrophe which had befallen to her.
That being so the mere delay in lodging of first

CRL.REV.P. 716/2017 Page 30 of 66
information report does not in any way render
prosecution version brittle.”

31. Regarding the issue of extortion of money from the petitioner is

concerned, learned counsel for the prosecutrix submitted that story of the

petitioner is highly concocted and even otherwise the same, only for the sake

of argument, if presumed to be true, can only be tested during Trial .i.e. by

examining Respondent No. 2. During examination-in-chief of the

prosecutrix, she not only submitted her phone, but also placed on record her

Certificate u/s 65-B of the Indian Evidence Act, 1872. Therefore, the

argument of the Petitioner is unsustainable.

32. While concluding his argument, counsel for the prosecutrix submits

that acquittal of one Sumit Walia with whom prosecutrix was in a

relationship after her divorce with Petitioner, by trying to portray her as a

habitual complainant or of bad character. Firstly, prosecutrix reserves her

right to challenge his acquittal and has not done the same due to her

obligations towards educating her daughter and also due to financial

limitations. Moreover, the acquittal of Sumit Walia has no effect on the

present case. This benefit cannot be given to Petitioner at the stage of Charge

and if the same is remotely beneficial to Petitioner, same can only be

demonstrated at the stage of evidence.

CRL.REV.P. 716/2017 Page 31 of 66

33. Lastly, learned counsel for the prosecutrix submits that raising fingers

at the character of the victim has been deprecated and been made

impermissible in Law. Section 146 of the Indian Evidence Act, 1872 is

relevant which reads as under:

“146. Questions lawful in cross-examination.–When a
witness is cross-examined, he may, in addition to the
questions hereinbefore referred to, be asked any
questions which tend–

(1) to test his veracity,
(2) to discover who he is and what is his position in life,
or

(3) to shake his credit, by injuring his character, although
the answer to such questions might tend directly or
indirectly to criminate him or might expose or tend
directly or indirectly to expose him to a penalty or
forfeiture:

Provided that in a prosecution for an offence under
section 376, section 376A, section 376AB, section 376B,
section 376C, section 376D, section 376DA, section
376DB or section 376E of the Indian Penal Code (45 of
1860) or for attempt to commit any such offence, where
the question of consent is an issue, it shall not be
permissible to adduce evidence or to put questions in the
cross-examination of the victim as to the general immoral
character, or previous sexual experience, of such victim
with any person for proving such consent or the quality of
consent.”

CRL.REV.P. 716/2017 Page 32 of 66

34. In view of above, it is argued that the intention of legislature is

absolutely clear that even during trial such question regarding immoral

character or previous sexual experience are not permissible. Therefore, at the

stage of charge such arguments are completely bizarre, illegal and untenable

in the eyes of law. Thus, present petition deserves to be dismissed.

35. I have heard learned counsel for the parties at length and perused the

material available on record.

36. It is not in dispute that complainant and petitioner got married on

21.11.1992 and divorced on 04.09.2012. The complainant is an educated

lady (Graduate in English (Hons.) hailing from an affluent family. She has

travelled across the world and is well known in social circles of Delhi. She

operates her own business. She is capable of understanding the

consequences of her acts. Moreover, complainant voluntarily entered into

agreement 31.08.2012 and obtained divorce on the basis of said agreement.

Statement of the complainant, on oath, was also recorded by Ld. Family

Court to the effect that she shall abide by the terms and conditions of

agreement dated 31.08.2012. Having novated agreement dated 13.02.2012

with the agreement dated 31.08.2012, agreement dated 13.02.2012 was

rendered unenforceable. However, complainant has not initiated any civil

CRL.REV.P. 716/2017 Page 33 of 66
suit to seek declaration regarding subsistence of agreement dated 13.02.2012

or enforcement of her right to money under said agreement.

37. Section 62 of the Contract Act reads as under:

“62. Effect of novation, rescission, and alteration of
contract.– If the parties to a contract agree to substitute
a new contract for it, or to rescind or alter it, the original
contract need not be performed. –If the parties to a
contract agree to substitute a new contract for it, or to
rescind or alter it, the original contract need not be
performed.”

38. It is not in dispute that prosecution has not placed any material on

record to show any communication between complainant and petitioner

between 13.02.2012 and 31.08.2012 i.e. after petitioner purportedly agreed

to pay Rs. 9 crores to complainant, till execution of the second agreement

dated 31.08.2012 seeking additional payment of Rs.9 crores as per

agreement dated 13.02.2012. Furthermore, even after the divorce on

04.09.2012, prosecution has not placed any documents/communication on

record to show that complainant ever demanded payment of money due to

her under agreement dated 13.02.2012.

39. It is also not in dispute that complainant has not placed any material

on record to show that petitioner had agreed to purchase a house for her in

CRL.REV.P. 716/2017 Page 34 of 66
addition to giving alimony for an amount of ₹5 crore. Moreover, prosecution

has not cited any witness to prove the said fact. To the contrary, in Clause 2

of agreement dated 31.08.2012, complainant has agreed to purchase a

residential house for herself out of Rs.2.45 crores paid by petitioner as

alimony.

40. It seems that after consciously agreeing to all the conditions of

agreement dated 31.08.2012, complainant has falsely alleged fraud only to

extort money from petitioner. However, no evidence has been placed on

record to show any demand being made by complainant to petitioner with

regard to payment of Rs.9 crores.

41. It is apparent from the material on record that communication

between complainant and petitioner were initiated by the complainant only

in June, 2013 (i.e. after about 10 months of divorce), when complainant

lodged an FIR against one Sumit Walia (FIR 280/2013 PS Vasant Vihar u/s

376/406/506 IPC) after having lost all her money to him. It is admitted case

of complainant that she herself contacted petitioner to seek financial

assistance because of having lost all her money to Sumit Walia.

42. It is apparent to mention here that complainant was initially defending

CRL.REV.P. 716/2017 Page 35 of 66
Sumit Walia in FIR 294/12 with PS Vasant Vihar, New Delhi, u/s

384/506/509 IPC and was in touch with various police officials and lawyers.

However, no complaint or demand was made vis-a-vis money purportedly

payable under agreement dated 13.02.2012. The said agreement appears to

have been attested only in December 2012 and not in March 2012. Upon

perusal of the document, alteration of the date of attestation is evident.

43. It is also pertinent to mention here that decree of divorce dated

04.09.2012 has not been set aside and has attained finality. Complainant

preferred a civil suit bearing no. 04/2014 before Ld. Family Courts, New

Delhi seeking declaration of decree dated 04.09.2012 as null and void. Upon

service of summons in the said suit, petitioner filed Cont. Cas. No. 315/2015

before this court seeking initiation of contempt proceedings against

complainant for violation of the terms of settlement dated 31.08.2012 and

undertaking dated 01.09.2012. This Court was pleased to record the

undertaking of complainant that she would withdraw said civil suit and

disposed of the abovementioned petition. On 12.10.2015, statement of

complainant was recorded by the Ld. Court and on 04.11.2015, the said suit

was dismissed as withdrawn. Hence the terms of settlement dated

31.08.2012 is binding on both parties.

CRL.REV.P. 716/2017 Page 36 of 66

44. Undisputed facts are that on 26.07.2013, complainant preferred a

complaint against one Sumit Walia and same was culminated into FIR

280/2013 at PS Vasant Vihar u/s 376/406/506 IPC. In said FIR,

complainant had alleged that Sumit Walia had engaged in sexual intercourse

with her after giving false promise of marriage. In the present case also,

complainant states that on 12.08.2013, i.e. after about 3 weeks of preferring

a complaint against Sumit Walia, she was assured by petitioner that he

would remarry her, on the basis of which, she agreed to have sexual relation

with him. Thus, conduct of complainant is unnatural in as much as she being

an educated lady and having known to petitioner for about 20 years. It is

unbelievable that such an educated person who having been a victim of

crime, gets falsely induced by none other than her ex-husband of 20 years,

that too on false assurance of re-marriage.

45. It is settled law that due weightage to the age, educational

qualifications, family and societal background of the victim to ascertain

whether her consent could have been obtained by fraud in such like cases.

The law on consent based on „misconception of fact‟ has been succinctly

laid down in various judgments of the Hon‟ble Supreme Court.

46. In the case of Vinod Kumar vs. State of Kerala: (2014) 5 SCC 678

CRL.REV.P. 716/2017 Page 37 of 66
the Hon‟ble Supreme Court observed that “the prosecutrix therein was a

graduate and even otherwise was not a gullible women of feeble intellect as

is evident from her conduct in completing her examination successfully even

on the eventful day. In fact she had displayed mental maturity of an

advanced and unusual scale. She was aware that a legal marriage could not

be performed and, therefore, was content for the time being that an

agreement for marriage be executed.

47. In the above case, further observed that the Court is duty bound when

assessing presence or absence of consent, to satisfy itself that both parties

are ad idem on essential features; in that case prosecutrix was lead to believe

that her marriage to appellant therein had been duly and legally performed.

The Hon‟ble Supreme Court opined that it is not sufficient that she

convinced herself of existence of this factual matrix, without appellant

inducing or persuading her to arrive at that conclusion. It is not possible to

convict a person who did not hold out any promise or make any

misstatement of facts or law or who presented a false scenario which had the

consequence of inducing the other party into commission of an act. There

may be cases where one party may, owing to his or her own hallucinations,

believe in existence of a scenario which is a mirage and in creation of which

CRL.REV.P. 716/2017 Page 38 of 66
other party has made no contribution. If other party is forthright or honest in

endeavouring to present the correct picture, such party cannot obviously be

found culpable.

48. In case of Dilip Kumar vs. State of Bihar: (2005) 1 SCC 88 thereby

the Hon‟ble Supreme Court has observed that the predominant reason which

weighed with her in agreeing for sexual intimacy with the accused was the

hope generated in her of the prospect of marriage with the accused. The

Court held that she came to the conclusion to have a sexual affair only after

being convinced that the accused would marry her and it is quite clear from

her evidence, which is in tune with her earlier version given in the first

information report. The Court noticed that she was fully aware of the moral

quality of the act and the inherent risk involved and that she considered the

pros and cons of the act.

49. In the case of Ram Das vs. State of Maharashtra: (2007) 2 SCC 170,

the Hon‟ble Supreme Court observed in para 23 that the conviction in a case

of rape can be based solely on the testimony of the prosecutrix, but that can

be done in a case where the court is convinced about the truthfulness of the

prosecutrix and there exist no circumstances which cast a shadow of doubt

over her veracity.

CRL.REV.P. 716/2017 Page 39 of 66

50. Whereas, Vijayan vs. State of Kerala: (2008) 14 SCC 763 was a case

where the complaint was made by the prosecutrix after the alleged

commission of rape on her by the accused. At the time of making the case,

the prosecutrix was pregnant for about seven months. The Hon‟ble Supreme

Court did not place reliance on the sole testimony of the prosecutrix. The

Court noticed the flaw that no DNA test was conducted to find out whether

the child was born out of the said incident and the accused was responsible

for the said child.

51. In the case of K. P. Thimmappa Gowda vs. State of Karnataka:

(2011) 14 SCC 475, the accused therein had assured prosecutrix that he

would marry her and had sexual affair, which was repeated on several

occasions as well. But he did not marry and she became pregnant. That was

a case where there was delay of eight months in filing the complaint. The

accused was given the benefit of doubt holding that it would not be possible

to conclude that alleged sexual act was committed without consent of the

prosecutrix.

52. In case of Deepak Gulati vs. State of Haryana: (2013) 7 SCC 675,

undisputed facts of the case were that the prosecutrix was 19 years of age at

the time of incident. She had inclination towards appellant and appellant had

CRL.REV.P. 716/2017 Page 40 of 66
been giving her assurance that he would get married to her. The prosecutrix,

therefore, left her home at Karnal in the State of Haryana voluntarily, of her

own free will to get married to appellant. She had called appellant on a

number given to her by him, to ask him why he had not met her at the place

that had been pre-decided by them. She also waited for him for a long time

and when he finally arrived she went with him to the „Karna‟ lake where

they indulged in sexual intercourse. She did not raise any objection at that

stage and made no complaints to anyone. Thereafter, she also went to

Kurukshetra with the appellant where she lived with his relatives. Here to,

prosecutrix voluntarily became intimate with appellant. She then, for some

reason, went to live in the hostel at Kurukshetra University illegally and

once again came into contact with the appellant at Birla Mandir. Thereafter,

she even proceeded with appellant to the old bus-stand in Kurukshetra, to

leave for Ambala so that two of them could get married in court at Ambala.

However, at the bus stand, appellant was arrested by police and he was

convicted under section 365/376 IPC. Consequently, he was before the

Hon‟ble Supreme Court in a special leave petition and in para 15 of the said

judgment, it was observed as under:

“………the facts of the instant case do not warrant that the
provisions of Section 114-A of the Evidence Act 1872 be

CRL.REV.P. 716/2017 Page 41 of 66
pressed into service. Hence, the sole question involved
herein is whether prosecutrix‟s 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, alongwith the provisions of
Section 90 of the Evidence Act, 1872. Section 90 of the
Evidence Act 1872 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.”

53. However, it was observed by the court in above cited case that

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. Thus, the

court must examine whether there was made, at an early stage a false

promise of marriage by the accused; and whether consent involved was

given after wholly, understanding the nature and consequences of sexual

indulgence. 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. An accused can be

convicted for rape only if the court reaches to a conclusion that the intention

CRL.REV.P. 716/2017 Page 42 of 66
of the accused was mala fide, and that he had clandestine motives. There is

a distinction between the breach of a promise, and not fulfilling a false

promise. 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 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 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. 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.

54. In above discussed case, the prosecutrix was 19 years of age and had

adequate intelligence and maturity to understand the significance and

morality associated with the act she was consenting to. The physical

relationship between parties had clearly developed with the consent of

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

CRL.REV.P. 716/2017 Page 43 of 66
with the appellant for several days, and had travelled with him from one

place to another. She was conscious of the complications and issues

surrounding her marriage to the appellant. It was difficult to impute to the

accused, knowledge of fact that prosecutrix had consented as a consequence

of a misconception of fact that had arisen from his promise to marry her.

There was no evidence to prove conclusively that appellant had never

intended to marry the prosecutrix. Even after leaving the hostel of

Kurukshetra University, she agreed and proceeded to go with appellant to

Ambala, to get married to him there. If this fact stands fully established from

the evidence on record, it is not clear as to on what basis the allegation of

“false promise of marriage” has been raised by the prosecutrix. It is not

possible to comprehend the circumstances in which a charge of deceit/rape

can be levelled against the appellant, in the light of afore-mentioned fact

situation. Accordingly, the Hon‟ble Supreme Court granted benefit of doubt

to the accused.

55. In the case of Pradeep Kumar @ Pradeep Kumar Verma vs. State of

Bihar Anr.: (2007) 7 SCC 413, wherein prosecutrix lodged First

Information Report alleging that with an assurance that the accused-

appellant therein would marry her, he had sexual relationship with her.

CRL.REV.P. 716/2017 Page 44 of 66
When this went on for some time, the informant had been taken to a temple

where in the presence of deity he accepted her to be his wife and there was

an agreement of marriage entered into. Alleging that the accused was likely

to get married with some other lady, an FIR was lodged. Investigation was

undertaken and statement of the informant was recorded under Section 164

of the Cr.P.C. wherein it was accepted that first, with a promise of marriage,

the accused had physical relationship with the informant and then, had

married her. Since the accused disowned having ever married the informant

and much less having ever had any physical relationship with her, she was

forced to file the FIR. After investigation, charge sheet was filed wherein it

was indicated that an offence punishable under Sections 376 and 406 of IPC

was made out. An application was filed by the accused before the Trial

Court for discharge in terms of Section 227 of Cr.P.C. By order dated

21.07.2005, the same was rejected. It was inter alia noted as follows:

“As a matter of fact the poor victim Binita Kumari was
put under misconception of fact as promise to marry her
by the accused and in this light the accused has done
sexual intercourse with her. The accused had done such
act with other girls also and further the accused has
made a Akrarnama for marriage with the victim. The love
letters and Akrarnama photocopy are also with the case
diary and the same are on the record. From the case
diary it is also clear that the accused has taken consent of
the victim girl on a false promise of marriage and further

CRL.REV.P. 716/2017 Page 45 of 66
a Akrarnama is also made here. Hence the consent is not
with free will or voluntary act. Hence there are sufficient
grounds for framing charge against the accused person”

56. Accordingly, charges were framed for offences punishable under

sections 376/406 IPC. The order was challenged before the High Court

which rejected the application in summary manner holding as follows:

“The learned Judge finding sufficient material showing
petitioner‟s complicity in the crime rejected his prayer for
discharge. I do not find any error in the same.
Application stands dismissed.”

57. However, in the case of Pradeep Kumar (supra), the Hon‟ble

Supreme Court has held as under:

8. As rightly submitted by learned counsel for the State,
Sections 376 and 406 prima facie do not appear to have
any application. It would have been appropriate for the
High Court to deal with various submissions and
consider their acceptability. That apparently has not been
done. This is not a case where the application should
have been dismissed in a summary manner.

9. The crucial expression in Section 375 defines “rape”
as “against her will”. It seems to connote that the
offending act was done despite resistance and opposition
of the woman.

10. “17. The Penal Code does not define „consent‟ in
positive terms, but what cannot be regarded as
„consent‟ … is explained by Section 90 which reads as
follows:

CRL.REV.P. 716/2017 Page 46 of 66

„90. Consent known to be given under fear or
misconception.–A consent is not such a
consent as is intended by any section of this
Code, if the consent is given by a person
under fear of injury, or under a
misconception of fact, and if the person
doing the act knows, or has reason to
believe, that the consent was given in
consequence of such fear or misconception;‟

18. 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.

19. 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,

CRL.REV.P. 716/2017 Page 47 of 66
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 v. State of
Bihar [(2005) 1 SCC 88] , SCC p. 99, paras 17-19.
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.

11. “21. In most of the decisions in which the meaning of
the expression „consent‟ under the Penal Code was
discussed, reference was made to the passages occurring
in Stroud’s Judicial Dictionary, Jowitt’s 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,
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.‟

22. 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 female’s understanding of nature
and consequences of sexual act must be

CRL.REV.P. 716/2017 Page 48 of 66
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….‟

23. It was observed … in Uday v. State of
Karnataka [(2003) 4 SCC 46 : 2003 SCC
(Cri) 775] : (SCC p. 53, para 12)

„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.‟

24. There is a good analysis of the
expression „consent‟ in the context of Section
375 IPC by Tekchand, J. in Rao Harnarain
Singh Sheoji Singh v. State [AIR 1958 Punj
123 : 1958 Cri LJ 563] . The learned Judge
had evidently drawn inspiration from the
above passages in the law dictionaries. The
observation of the learned Judge (at AIR p.
126, para 7) that „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‟, is
quite apposite. The said proposition is
virtually a repetition of what was said by
Coleridge, J. in R. v. Day [(1841) 9 CP
722 : 173 ER 1026] in 1841 as quoted in
Words and Phrases (Permanent Edn.) at p.

205. The following remarks in Harnarain
case [AIR 1958 Punj 123 : 1958 Cri LJ 563]
are also pertinent: (AIR p. 126, para 7)

CRL.REV.P. 716/2017 Page 49 of 66
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.

25. 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 Mad 308 : 1960 Cri LJ 927] ,
Gopi Shanker v. State of Rajasthan [AIR
1967 Raj 159 : 1967 Cri LJ 922] , Bhimrao
Harnooji Wanjari v. State of Maharashtra
[1975 Mah LJ 660] and Vijayan Pillai v.
State of Kerala [(1989) 2 Ker LJ 234] . All
these decisions have been considered in …
Uday case [(2003) 4 SCC 46 : 2003 SCC
(Cri) 775] . 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 Harnarain
case [AIR 1958 Punj 123 : 1958 Cri LJ 563]
(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 in State of H.P. v. Mango Ram
[(2000) 7 SCC 224 : 2000 SCC (Cri) 1331] .
It was observed as follows: (SCC pp. 230-31,
para 13)

„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

CRL.REV.P. 716/2017 Page 50 of 66
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.‟

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.

26. [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 Mad 453 : 15 Cri
LJ 24] 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 second accused in that case
obtained the consent of the girl’s guardian by
falsely representing that the object of taking
her was for participating in a festival.
However, after the festival was over, the
second accused took her to a temple in
another village and married her to the first
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: (ILR
pp. 456-57)

„We are of opinion that the expression
“under a misconception of fact” is broad

CRL.REV.P. 716/2017 Page 51 of 66
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 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 Halsbury’s Laws of England,
Vol. 9, p. 623. In Stephen’s 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.‟

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

CRL.REV.P. 716/2017 Page 52 of 66
Division Bench of the Bombay High Court in
Parshottam Mahadev v. State [AIR 1963
Bom 74 : (1963) 1 Cri LJ 573] . 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.

27. 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 W.B. [1984
Cri LJ 1535 : (1983) 2 CHN 290 (Cal)] 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 case
[(2003) 4 SCC 46 : 2003 SCC (Cri) 775]
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: (Cri LJ pp. 1537-38)
„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 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

CRL.REV.P. 716/2017 Page 53 of 66
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: (Cri LJ p. 1538, para 7)
„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 in original)

CRL.REV.P. 716/2017 Page 54 of 66
The learned Judges referred to the decision
of the Chancery Court in Edgington v.
Fitzmaurice [(1885) 29 Ch D 459 : 53 LT
369 (CA)] and observed thus: (Jayanti Rani
Panda case [1984 Cri LJ 1535 : (1983) 2
CHN 290 (Cal)] , Cri LJ p. 1538, para 8)

„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 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 case [(2003) 4 SCC
46 : 2003 SCC (Cri) 775] : (SCC pp. 56-57,
para 21)

„21. 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

CRL.REV.P. 716/2017 Page 55 of 66
there is no straitjacket 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.‟

28. 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 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

CRL.REV.P. 716/2017 Page 56 of 66
clause Secondly. This is what in fact was
stressed by the Division Bench of the
Calcutta High Court in Jayanti Rani Panda
case [1984 Cri LJ 1535 : (1983) 2 CHN 290
(Cal)] which was approvingly referred to in
Uday case [(2003) 4 SCC 46 : 2003 SCC
(Cri) 775] . The Calcutta High Court rightly
qualified the proposition which it stated
earlier by adding the qualification at the end
(Cri LJ p. 1538, para 7)–„unless the court
can be assured that from the very inception
the accused never really intended to marry
her‟. (emphasis in original) 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 [ILR
(1913) 36 Mad 453 : 15 Cri LJ 24] (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 case [(2003) 4 SCC 46 :
2003 SCC (Cri) 775] 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.

CRL.REV.P. 716/2017 Page 57 of 66

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.”

58. It is pertinent to mention here some important facts which are inter

alia that on 08.09.2012, petitioner preferred a complaint against above-

named Sumit Walia which was registered as FIR No.294/12 with PS Vasant

Vihar, New Delhi, for the offences punishable u/s 384/506/509 IPC and

66(1)/67 of Information Technology Act, 2000. On the allegations that

Sumit Walia demanded Rs.40 lacs from complainant and threatened to

circulate nude pictures and video of complainant to malign her image. Said

case is presently under investigation and is pending before Cyber Cell of

EOW, Delhi Police. On 26.07.2013, complainant preferred a complaint

against above-named Sumit Walia alleging rape and criminal

misappropriation of Rs.4 Crores. Consequently, FIR no.280/13 was

registered u/s 376/406/506 IPC with PS Vasant Vihar, New Delhi. On

27.07.2013, statement of the complainant was recorded under section 164

Cr.P.C. wherein she stated that Sumit Walia was the sole reason for divorce

with petitioner. However, despite being in relation with Sumit Walia,

complainant levelled allegation of rape for recovering Rs.4 crores from him.

CRL.REV.P. 716/2017 Page 58 of 66

59. It is further important to mention here that in July 2013, since

complainant had lost all her money to Sumit Walia, she requested petitioner

to pay school fee of their daughter. Accordingly, petitioner paid school fee,

which was in arrears. In September 2013, since complainant was facing

financial difficulties, she requested petitioner to provide financial assistance.

Accordingly, petitioner gave his credit card to the daughter for purchasing

articles for daily use. However, complainant used that credit card to

purchase expensive articles and spent about Rs.9 Lacs. On 15.11.2013, due

to the spendthrift habits of complainant, petitioner blocked the credit card

which was given to daughter. On getting such information, complainant and

her daughter started sending SMSs to petitioner and demanded money which

are on record. Consequently, on 18.11.2013, petitioner preferred a complaint

with PS Vasant Vihar, New Delhi against complainant with regard to

various threats given by her. On 12.12.2013, 28.01.2014 29.01.2014,

complainant filed a reply to the complaint dated 18.11.2013. In addition to

reply to the complaint, she also preferred two complaints on 28.01.2014 and

29.01.2014 seeking action against petitioner. However, all the complaints

were closed after thorough enquiry, stating that the complaints pertaining to

matrimonial dispute and no cognizable offence was made out. However, on

CRL.REV.P. 716/2017 Page 59 of 66
09.04.2014, the complainant lodged FIR no.305/2014 u/s 376B/377/420 IPC

with PS Vasant Vihar, New Delhi alleging cheating and rape. Therein, she

stated that allegations made by the petitioner in FIR 294/2012 were correct

and she was pressurized by Sumit Walia to support him. She has also stated

that Sumit Walia misappropriated the alimony amount given to her by

petitioner. On 22.05.2014, petitioner was granted pre-arrest bail by Ld. ASJ,

Patiala House Courts. Thereafter, in December, 2014, complainant preferred

civil suit bearing no.04/2014 before Ld. Family Courts, New Delhi seeking

declaration of divorce decree dated 04.09.2012 as null and void. In February

2015, after concluding investigation, the Investigating Officer filed a final

report against petitioner, under section 376/377/420 IPC. Consequently, on

04.03.2015, the petitioner was summoned by the court of Ld.MM, Patiala

House Court, New Delhi. On 07.04.2015, petitioner was admitted to bail by

the said court. On 20.04.2015, upon service of summons in Civil Suit

no.04/2014, petitioner filed Cont. Cas. No.315/2015 before this Court

seeking initiation of contempt proceedings against complainant for violation

of the terms of settlement dated 31.08.2012 and the undertaking dated

01.09.2012. After hearing complainant on 09.10.2015, this Court was

pleased to record the undertaking of complainant that she would withdraw

CRL.REV.P. 716/2017 Page 60 of 66
Civil Suit mentioned above and consequently, disposed of the contempt

petition. On 12.10.2015, in compliance with the order of this Court dated

09.10.2015, statement of complainant was recorded by ld. Family Court and

on 04.11.2015, Civil Suit bearing no.04/2014 was dismissed as withdrawn.

Thereafter, on 19.08.2016, the petitioner preferred an application under

section 91 Cr.P.C. seeking summoning of documents necessary for

determination on the point of charge. In October 2016, ld. ASJ, FTC, Patiala

House Courts, New Delhi permitted the petitioner to place certified copies

of the following documents:

• Record of this Court in Cont. Case (C) 315/2015.

• Record of CS 4/2014 of the Ld. Family Court, New Delhi.

60. Consequently, certified copies of the said documents were placed on

record of Trial Court. On 14.02.2017, after hearing petitioner, the Prosecutor

and complainant, Ld. ASJ, FTC, Patiala House Courts, New Delhi was

pleased to pass a detailed order and observed that the prosecution has failed

to make out any prima facie case against the petitioner for cheating.

However, on 22.02.2017 framed charge against petitioner under section

376(2)(n) of IPC.

61. It is pertinent to mention here that on 10.04.2017, Ld. ASJ, was

CRL.REV.P. 716/2017 Page 61 of 66
pleased to acquit Sumit Walia in FIR 280/2013 registered with PS Vasant

Vihar, u/s 376/406/506 IPC.

62. The present FIR itself reveals that complainant preferred a complaint

only on 08.04.2014 for the alleged incident which took place on 12.08.2013

i.e. after a delay of about 8 months (240 Days). The said delay has not been

explained anywhere. Even as per the complainant, after 12.12.2013, she did

not communicate with petitioner. The complainant herself states in her

complaint that she had made representations to police on 12.12.2013 vide

DD No. 79b, she again filed an application dated 28.01.2014 vide DD No.

47b and to DCP on 29.01.2014 vide DD No. 292 yet no complaint was made

regarding the allegations of rape dated 12.08.2013 or non-payment of

monies under agreement dated 13.02.2012 or the fact that petitioner had

resumed relation with the complainant on the pretext of marriage to avoid

payment of Rs.9 Crores. Moreover, from September, 2012 till April, 2014,

complainant was in contact with various police officials and lawyers in

connection with various complaint preferred by her, yet no complaint was

made regarding alleged incident dated 12.08.2013 or non-payment of monies

under agreement dated 13.02.2012.

CRL.REV.P. 716/2017 Page 62 of 66

63. On perusal of chargesheet, case of prosecution is not corroborated

with sufficient evidence and the case is riddled with gaps. The prosecution

has not placed any evidence on record to prove the presence of petitioner

and complainant in hotel Oodles on the date of incident i.e. 12.08.2013.

Moreover, no eye-witness has been made to prove presence of petitioner in

the hotel. However, CDR reveals that on 12.08.2013, there was a telephonic

conversation between complainant and petitioner for 324 Seconds at

17:05:24. If, they were together at the same place, there would not have been

any telephonic conversation for almost 5 ½ minutes (324 seconds). In her

supplementary statement dated 20.05.2014, complainant has stated that on

12.08.2013, she reached hotel Oodles at 4 PM and remained there till 7:30

PM. The said statement is ex-facie unbelievable and is belied by the

telephonic conversation between complainant and petitioner for 324 Seconds

at 17:05:24. Thus, it is unbelievable that two persons sitting together at the

same place would talk to each other over telephone for 5 ½ minutes. As per

the guest register maintained by hotel, only one person stayed at the room

and no other person visited over there.

64. Thus as per settled law, if the evidence on record as per the

prosecution case is accepted in toto, still conviction cannot be awarded to the

CRL.REV.P. 716/2017 Page 63 of 66
accused. Therefore, the accused could not be directed to face trial and at the

end, he will see acquittal.

65. In the present case, if this Court considers all the evidence of the

prosecution on record as it is , however, without any rebuttal or cross

examination, still conviction cannot be awarded in favour of the petitioner.

Therefore, there will be no purpose to ask the petitioner to face trial and take

the benefits of the material on record during trial in his favour. It will be

great injustice in favour of the petitioner.

66. I am conscious that the court should not comment upon the character

of the prosecutrix/complainant. The admitted facts are that due to elicit

relation of the complainant with Sumit Walia, petitioner and complainant got

divorced by mutual consent. Regarding relation, it is evident that on

08.09.2012, petitioner preferred a complaint against Sumit Walia which was

registered as FIR No.294/12 with PS Vasant Vihar, New Delhi, for the

offences punishable u/s 384/506/509 IPC and 66(1)/67 of Information

Technology Act, 2000. In the said FIR, allegations were that Sumit Walia

demanded Rs.40 lacs from complainant and threatened to circulate nude

pictures and video of complainant to malign her image. Said case is

presently under investigation and is pending before Cyber Cell of EOW,

CRL.REV.P. 716/2017 Page 64 of 66
Delhi Police. In addition to above, on 26.07.2013, complainant preferred a

complaint against said Sumit Walia alleging rape and criminal

misappropriation of Rs.4 Crores. Consequently, FIR no.280/13 was

registered u/s 376/406/506 IPC with PS Vasant Vihar, New Delhi. On

27.07.2013, complainant stated in her statement recorded under section 164

Cr.P.C. that Sumit Walia was the sole reason for divorce with petitioner.

Thus, present FIR is nothing but arm twisting for extorting money from

petitioner, which can not be allowed such misuse of judicial system as

happened in the present case.

67. In view of above facts and circumstances and the legal position

discussed, I am of the view that the petitioner cannot be charged for any

offence based upon the complaint filed by the complainant.

68. Therefore, I hereby set aside order dated 14.02.2017 and order on

charge dated 14.02.2017 and order framing charge dated 22.02.2017 passed

by learned ASJ, FTC, Patiala House Courts, New Delhi in SC No.9416/16

arising from FIR No.305/2016 registered at Police Station Vasant Vihar,

New Delhi.

69. The petition is allowed accordingly.

CRL.REV.P. 716/2017 Page 65 of 66
CM APPL. No. 15747/2017

70. In view of the order passed in the present petition, the application has

been rendered infructuous and is, accordingly, disposed of.

(SURESH KUMAR KAIT)
JUDGE
FEBRUARY 13, 2020
ab

CRL.REV.P. 716/2017 Page 66 of 66

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