SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Maneesh Purushwani S/O Shri … vs State Of Rajasthan Through Pp on 6 February, 2019

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
(2 of 8) [CRLR-243/2019]

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
(3 of 8) [CRLR-243/2019]

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.

(5 of 8) [CRLR-243/2019]

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
(7 of 8) [CRLR-243/2019]

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
(8 of 8) [CRLR-243/2019]

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

Powered by TCPDF (www.tcpdf.org)

Leave a Reply

Your email address will not be published. Required fields are marked *

Copyright © 2020 SC and HC Judgments Online at MyNation
×

Free Legal Help, Just WhatsApp Away

MyNation HELP line

We are Not Lawyers, but No Lawyer will give you Advice like We do

Please read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registration  JOIN WELCOME GROUP HERE

We handle Women Centric biased laws like False Sectioin 498A IPC, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307, 312, 313, 323, 354, 376, 377, 406, 420, 497, 506, 509; TEP, RTI and many more…

MyNation FoundationMyNation FoundationMyNation Foundation