HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Revision No. 243/2019
Maneesh Purushwani S/o Shri Ramchandra Purushwani, R/o Plot
No A-1 Basant Bahar Tonk Road Jaipur Raj.
—-Petitioner
Versus
State Of Rajasthan Through Pp, Raj.
—-Respondent
For Petitioner(s) : Mr. Pankaj Gupta with mr. Rahul
Aggarwal
For Respondent(s) : Mr. Sudesh Saini, PP
HON’BLE MR. JUSTICE PANKAJ BHANDARI
Judgment
06/02/2019
1. The petitioner has preferred this Criminal Revision Petition
aggrieved by order dated 26.11.2018 passed by learned Additional
Sessions Judge (Woman Atrocities Cases) No.1, Jaipur in Sessions
Case No.388/2018, whereby charges have been framed against
the petitioner under Section 376 of India Penal Code.
2. Succinctly stated the facts of the case are that a missing
person report was lodged by sister of the prosecutrix on
06.09.2017 at 19:44 PM, reporting missing of her sister since
05.09.2017. Prosecutrix returned back on 08.09.2017, her
statement was recorded by the police wherein she mentioned that
she went on her own to Ajmer, she called up her sister’s fiancee
Shubham and then Shubham had brought her from Ajmer.
Prosecutrix herself and her mother on the same day gave a letter
to the SHO that they do not want to proceed with the missing
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person report. The missing person report was then closed on
09.11.2017. On the same day prosecutrix filed the present FIR
bearing No.558/2017 at 9:40 PM. On 18.09.2017, prosecutrix
submitted an affidavit to the Police, which was signed by the
prosecutrix and her mother to the effect that she does not want to
proceed with her FIR No.558/2017. On the next date i.e.
19.09.2017, in her statement under Section 164 Cr.P.C., she
alleged that petitioner was having relationship with her on the
pretext that he would marry her and threatened the prosecutrix
that if she does not agree to the relationship he would get her
removed from service. FIR was also lodged by father of the
petitioner on 28.09.2017 bearing FIR No.604/2017 alleging that
the prosecutrix her sister’s fiancee Shubham and mother of
prosecutrix are blackmailing his son and demanding Rs.60 lacs. In
the FIR lodged by father of the petitioner. Police arrested
Shubham and has already submitted charge-sheet. Offence was
found to be made out against the prosecutrix as well. However,
the matter was kept pending under Section 173(8) CrPC against
the prosecutrix as prosecutrix was not traceable.
3. It is contended by counsel for the petitioner that the fact of
filing of affidavit was in the notice of the Investigating Officer, who
has submitted the charge-sheet. It is contended that from the
statement under Section 164 Cr.P.C., it is revealed that prosecutrix
was in relationship with the petitioner, in the affidavit submitted
by her before the police, she had specifically deposed that
petitioner had never given her any assurance that he would marry
her. It is contended that since the affidavit is part of the record
and is admittedly given by the prosecutrix after lodging of the
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present FIR. The same ought to have been considered by the
Court before framing charge.
4. Counsel for petitioner has placed reliance on 2013(3)
Cr.L.R. (Raj.) 1097 Satvinder Pal Kaur @ Sonia vs. State of
Rajasthan Anr., Dr. Dhruvaram Murlidhar Sonar Vs. State
of Maharasthra Ors. Criminal Appeal No.1443 of 2018
decided by the Apex Court on 22.11.2018, Uday Vs. State of
Karnataka (2003) 4 SC Cases 46, Deepak Gulati Vs. State of
Haryana, (2013) 7 SCC675 and (2017) 1 RCR (Criminal)
715 Akshay Manoj Jaisinghani Vs. State of Maharashtra.
5. Learned Public Prosecutor has opposed the revision petition.
His contention is that as per the statement recorded under Section
164 CrPC prosecutrix was subjected to sexual intercourse on the
misconception that petitioner would marry her.
6. I have considered the contentions, the Apex Court in Dr.
Dhruvaram Murlidhar Sonar Vs. State of Maharasthra
Ors. (supra) referred to Vineet Kumar Ors. Vs. State of
Uttar Pradesh Anr. (2017) 13 SCC 369, wherein the Apex
Court observed as under:-
“Inherent power given to the High Court under
Section 482 CrPC is with the purpose and object of
advancement of justice. In case solemn process of
Court is sought to be abused by a person with some
oblique motive, the Court has to thwart the attempt
at the very threshold. Judicial process is a solemn
proceeding which cannot be allowed to be converted
into an instrument of oppression or harassment.
When there are materials to indicate that a criminal
proceeding is manifestly attended with mala fide and
(4 of 8) [CRLR-243/2019]proceeding is maliciously instituted with an ulterior
motive, the High Court will not hesitate in exercise of
its jurisdiction under Section 482 CrPC to quash the
proceeding. The present is a fit case where the High
Court ought to have exercised its jurisdiction under
Section 482 CrPC and quashed the Criminal
proceedings”.
7. The facts before the Apex Court in Dr. Dhruvaram
Murlidhar Sonar (supra) were that the accused was serving as
a Medical Officer in the Primary Health Centre and the complainant
was working as an Assistant Nurse in the same Health Centre, the
complainant was a widow, who agreed that she had fallen in love
with the accused and that she needed a companion. The
appellant-accused informed her that he was a married man and
had differences between his wife. Complainant also admitted that
she was having love affair with the accused and accordingly used
to reside sometimes at her home and some time at his home.
They were in a relationship with each other for quite some time
and enjoyed each other’s company. When the complainant came
to know that the appellant had married some other woman, she
lodged the complaint. The Court observed that it is not a case of a
passive submission in the face of any psychological pressure
exerted and there was a tacit consent and the tacit consent given
by her was not the result of a misconception created in her mind.
The Apex Court observed that even if the allegations made in the
complaint are taken at their face value and accepted in their
entirety, no case ia made out against the accused. The Apex Court
held that the complainant has failed to prima facie show the
commission of rape and quashed the charge-sheet.
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8. In Uday Vs. State of Karnataka (supra), the Apex Court
was considering the case where the prosecutrix, aged about 19
years, had given consent to sexual intercourse with the accused
whom she was deeply in love with, on a promise that he would
marry her on a later date. The prosecutrix continued to meet the
accused and often had sexual intercourse and became pregnant. A
complaint was lodged on failure of the accused to marry her. The
Apex Court observed as under:-
“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 there is no strait jacket formula
for determining whether consent given by the
prosecutrix to sexual intercourse is voluntary, or
whether it is given under a misconception of fact. In
the ultimate analysis, the tests laid down by the
Courts provide at best guidance to the judicial mind
while considering a question of consent, but the Court
must, in each case, consider the evidence before it
and the surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar
facts which may have a bearing on the question
whether the consent was voluntary, or was given
under a misconception of fact. It must also weigh the
evidence keeping in view the fact that the burden is
on the prosecution to prove each and every ingredient
of the offence, absence of consent being one of them.
23. Keeping in view the approach that the Court must
adopt in such cases, we shall now proceed to consider
(6 of 8) [CRLR-243/2019]the evidence on record. In the instant case, the
prosecutrix was a grown up girl studying in a college.
She was deeply in love with the appellant. She was
however aware of the fact that since they belonged to
different castes, marriage was not possible. In any
event the proposal for their marriage was bound to be
seriously opposed by their family members. She
admits having told so to the appellant when he
proposed to her the first time. She had sufficient
intelligence to understand the significance and moral
quality of the act she was consenting to. That is why
she kept it a secret as long as she could. Despite this,
she did not resist the overtures of the appellant, and
in fact succumbed to it. She thus freely exercised a
choice between resistance and assent. She must have
known the consequences of the act, particularly when
she was conscious of the fact that their marriage may
not take place at all on account of caste
considerations. All these circumstances lead us to the
conclusion that she freely, voluntarily, and consciously
consented to having sexual intercourse with the
appellant, and her consent was not in consequence of
any misconception of fact.”
9. In Deepak Gulati Vs. State of Haryana (supra), the Apex
Court pointed out the distinction between rape and consensual
sex. The Court observed that where there is a promise of
marriage, 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. Failure to keep a promise made with respect to a
future uncertain date, due to reasons that are not very clear from
the evidence available, does not always amount to misconception
of fact. In order to come within the meaning of the terms
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misconception of fact, the fact must have an immediate relevance.
Section 90, IPC cannot be called into aid in such a situation, to
pardon the act of a girl in entirety, and fasten criminal liability on
the other, unless the Court is assured of the fact that from the
very beginning, the accused had never really intended to marry
her.
10. In Shiv Sankar @ Shiva Vs. State of Karnatka reported
in 2018 SCC SC 3106, the Apex Court held that where
relationship has continued for eight years and complainant’s own
version was that they lived together as man and wife, the charges
levelled against the appellant, who may have possibly made a
false promise of marriage to the complainant cannot be sustained.
11. It is revealed from the fact of this case that when petitioner
got engaged to a different girl, prosecutrix lodged the present FIR.
Prosecutrix admittedly was in relationship with the petitioner for
two years, she in her affidavit specifically mentioned that she was
in relationship and the relationship was not on account of promise
made by the petitioner that he would marry her. Charge-sheet has
also been filed against the complainant party for blackmailing in
the FIR lodged by the father of the petitioner, wherein there is an
allegation that demand of Rs.60 lacs was made. It is mentioned in
the FIR that petitioner’s father was agreeable to marry his son
with the prosecutrix but they refused and they were only
interested in receiving money, which transcript was recorded by
father of the petitioner and which is part of the charge-sheet
submitted against Shubham.
12. Taking note of the above as also the fact that the prosecutrix
had herself submitted an affidavit, which is part of the record that
the sexual relations were not on account of false promise of
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marriage. This Court is of the opinion that ex-facie, the case set
up by the complainant that the accused induced her under a false
promise of marriage and thereafter fraudulently established
physical relations with her is without any basis. The Trial Court has
thus, committed an error in charging the petitioner for the offence
under Section 376 IPC.
13. The Apex Court in Prashant Bharati Vs. State of NCT of
Delhi in SLP (Cri.) No.1800/2009 decided on 23.01.2013,
discharged the accused in a case with almost in similar facts.
Similarly, this Court in Satvinder Pal Kaur @ Sonia (supra)
discharged the accused, exercising the suo moto powers of
revision and the direction issued by the Trial Court for framing
charges under Section 417 IPC was quashed.
14. This Court is of firm view that even if the allegations made in
the complaint are taken at their face value and accepted in their
entirety. No case is made out against the accused, as prosecutrix
was in consensual relationship with the petitioner and had herself
given an affidavit that consensual relations were not on account of
false promise of marriage. No case is thus, made out under
Section 376 of IPC, the impugned order dated 26.11.2018 passed
by the Court below therefore, deserves to be quashed and the
Criminal Revision Petition deserves to be allowed.
15. The Criminal Revision Petition is accordingly allowed. The
impugned order dated 26.11.2018 is quashed. Petitioner is
discharged.. The stay application stands disposed.
(PANKAJ BHANDARI),J
Upendra/27
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