cri.appln.1052-2018-J.F..doc 1/25
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1052 OF 2018
Mr.Rajesh Sankarsan Tripathy
Aged 49 years, Occ. Business
Residing at , A-7/1 Elite Apartment,
Shahibag, Ahmedabad, …Applicant
Gujrat State 380 004.
Versus
1. State of Maharashtra
At the instance of Inspector of Police
Malad Police Station, Mumbai.
2. XYZ … Respondents
Mr.Prem Keshwani a/w. Mr.K.V. Phoole for applicant.
Mrs.Aruna S. Pai, APP for respondent No.1.
Ms.Deepika Motilal Bafna a/w. Ms. Sonali Mahale for respondent
No.2.
CORAM: RANJIT MORE
N. J. JAMADAR, JJ.
RESERVED ON : 19th SEPTEMBER, 2019
PRONOUNCED ON : 3rd OCTOBER, 2019
JUDGMENT (PER N.J. JAMADAR)
1. By virtue of this application under section 482 of the Code of
Criminal Procedure, 1973, (‘the Code’), the applicant, who has been
arraigned for the offences punishable under section 376(2)(n), 377,
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 2/25
417, 504 and 506 of the Indian Penal Code, 1860 (‘The Penal Code’),
seeks quashment of the first information report bearing C.R.No.
195/2017 and the resultant prosecution, being Sessions Case No.333 of
2019, pending on the file of the Sessions Judge at Dindoshi, Mumbai.
2. The gravamen of indictment against the applicant can be stated
in brief as under :-
[A] The respondent No.2 (hereinafter referred to as
‘the first informant’) claims to have got acquainted
with the applicant through a friend in the month of
March 2013. The first informant was then married.
However, on account of marital discord between the
first informant and her husband, the proceedings
were pending before the Courts including a
matrimonial petition in the Family Court, Dwarka,
New Delhi. The applicant gave assurance to the first
informant to help her out in her matrimonial
disputes. By persuasive conduct, the applicant
induced the first informant to repose confidence in
him. On 8th September 2013, the applicant
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 3/25
accompanied the first informant for the hearing of
the proceedings before the Court at New Delhi. The
applicant made a promise that he would marry the
first informant and desired to have physical relations
with the first informant. Despite resistance, the
applicant had forcible sexual intercourse with the
first informant. The applicant visited the native
place of the first informant and assured the mother
and brother of the first informant that he would
keep the first informant happy.
[B] The first informant further alleges that the
applicant had physical relations with the first
informant, under promise of marriage, on a number
of occasions at various places. The first informant
further claims that the applicant also forcibly
subjected her to unnatural sex. According to the
first informant, the said state of affairs continued
upto the year 2016. It is the claim of the first
informant that in the year 2016, she came to know
that the applicant is already married and, thus,
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 4/25
confronted the applicant. Thereupon, the applicant
replied that since six years prior thereto, he had no
physical relations with his wife as she was not of a
good character and he would get divorce from his
wife.
[C] In the month of November 2016, the first
informant claimed to have categorically informed
the applicant that she would not maintain relations
with the applicant thenceforth. The applicant had,
at that point of time, threatened to upload the
obscene photos and videos of the first informant.
The applicant had also threatened to cause harm to
the 11 year old daughter of the first informant.
[D] Thus, the first informant addressed a complaint
in writing to Malad Police Station on 17 th April
2017. Pursuant thereto, the report of the first
informant came to be recorded on 21 st May 2017.
Investigation commenced thereon. After completion
of the investigation, charge-sheet has been lodged
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 5/25
against the accused for the offences punishable
under sections, 376(2)(n), 377, 417, 504, 506 of the
Penal Code.
3. In the backdrop of the aforesaid allegations, the applicant has
invoked the inherent powers of this Court, on the premise that the
instant prosecution is a clear abuse of the process of Court. The
applicant claims that it is imperative in the interest of justice to quash
the prosecution to secure the ends of justice.
4. The applicant averred in the application that though he became
acquainted with the first informant in the year 2013, yet, the further
allegations of the alleged liaison between the applicant and the first
informant are patently false, imaginary and mala-fide. The applicant
claims that the first informant was also a Facebook friend of his wife.
In the month of Deceased 2016, as the first informant started to
blackmail the applicant by threatening to file a false prosecution, and
demanded huge amount, the applicant had lodged a report with the
Commissioner of Police, Ahmadabad on 28th December 2016.
5. Even otherwise, the allegations in the FIR, even if taken at par,
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 6/25
do not make out a prima-facie case of commission of any of the
offences alleged against the applicant. The situation in the life of the
first informant, the fact that the first informant was already married
when the applicant allegedly made a promise to marry her and
thereby induced to have sexual intercourse with him, and the
inordinate and unexplained delay in lodging the FIR, according to the
applicant, cumulatively indicate that the instant prosecution is
initiated to wreak vengeance. The alleged relations between the
applicant and the first informant for over three years, without any
demur, justify an inference that the relations were completely
consensual and it cannot be said that the first informant had given
consent for the physical relations under a misconception of facts.
Thus, the applicant prayed for quashing and setting aside the FIR and
the resultant prosecution.
6. We have heard Shri Prem Keshwani, the learned counsel for the
applicant, the learned APP for the respondent No.1 and Ms.Bafna, the
learned counsel for the respondent No.2-first informant at some
length. We have also perused the material on record including the
charge-sheet lodged against the accused.
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 7/25
7. Shri Keshwani urged with a degree of vehemence that the
instant prosecution is a striking manifestation of abuse of the process
of the Court at the instance of the first informant. At the outset, Shri
Keshwani submitted that the period of over three years for which the
first informant had relations with the applicant, by itself, demonstrates
that the relationship was nothing but consensual between two grown-
up persons. It was further urged that the veracity of the allegations in
the FIR is required to be considered in the backdrop of the situation
of life of the first informant. It is indisputable that the first informant
was already in a wedlock, when the applicant allegedly had physical
relations with the first informant. The latter was married not once but
twice. Taking us through the FIR, an endeavor was made to show
that the physical relations were established between the applicant and
the first informant for the first time in the month of September 2013
and the last one was in the year 2016. In between, from the own
showing of the first informant, the latter accompanied the applicant at
various places and they had physical relations at times without
number. In this backdrop, the circumstances in which the FIR came to
be lodged, are of material significance, urged Shri Keshwani.
8. Firstly, the FIR is a result of embellishment and creature of
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 8/25
after-thought as the first informant claimed to have consulted a legal
practitioner and got the compliant drafted on 10 th February 2017.
However the said complaint was tendered to Malad Police station on
17th April 2017. Secondly, this inordinate and unexplained delay in
lodging the FIR, on the one hand, erodes the veracity of the claim
and, on the other hand, lends credence to the case of the applicant
that the first informant had threatened to falsely implicate him in a
prosecution for rape, as reported to Ahmadabad Police in the month
of December 2016 itself.
9. In the light of the aforesaid facts, Shri Keshwani strenuously
urged that even if the case of the first informant is taken, at its face
value, no offence of rape or any other offence, as alleged, can be said
to have been prima-facie made out. The allegation that the applicant
had made a false promise of marriage and then induced the first
informant to give consent for sexual relations with the applicant, in
the backdrop of the aforesaid facts was urged to be groundless and
unworthy of acceptance, ex-facie.
10. In order to lend support to this submission, the learned counsel
for the applicant placed strong reliance upon the judgments of the
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 9/25
Supreme Court in the cases of Pramod Suryabhan Pawar Vs. The State
of Maharashtra Anr. 1., Dr. Dhruvaram M. Sonar Vs. The State of
2 3
Maharashtra Ors. , Deepak Gulati Vs. State of Haryana and
Madhya Pradesh High Court in the case of Umesh Lilani Vs. State of
4
Madhya Pradesh Anr.
11. In opposition to this, the learned APP would submit that the
material on record indicates that the charge against the applicant
cannot be said to be groundless. On the contrary, if the averments in
the application are considered in the backdrop of the conduct
attributed to the applicant, as emerged from the material collected
during the course of investigation, it becomes evident that the
applicant had no intention to solemnize marriage with the first
informant since the inception of their relationship and repeatedly
violated the first informant on the premise of marriage, which he
never intended to perform. Thus, according to the learned APP, it
cannot be said that the continuation of the prosecution would be
either an abuse of the process of the Court or its quashment is
necessary for securing the ends of justice.
1 2019 (11) SCALE 209
2 AIR 2019 Supreme Court 327
3 (2013) 7 SCC 675
4 Misc. Cri.Case No.16158/2019 dt. 18.7.2019
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 10/25
12. Ms.Bafna, the learned counsel for the respondent No.2 stoutly
submitted that the claim of the applicant that he had no relations
with the first informant is shown to be patently false not only by the
material collected during the course of the investigation, but even
from the conversations between the parties, of which the transcript
has been placed on record. Inviting the attention of the Court to
certain portions of the conversation, Ms.Bafna urged that no other
inference than that of the applicant having subjected the first
information to sexual harassment to gratify his lust, is possible. The
learned Counsel further submitted that the first informant had
categorically stated in the report that while she was under severe
mental stress on account of the matrimonial dispute with her former
husband, the applicant gave a promise of marriage and induced her to
have sexual relations with him. Therefore, the case clearly falls within
the tentacles of section 375 of the Penal Code, urged Ms.Bafna.
13. We have given our anxious consideration to the submissions
across the bar. At the threshold, it is necessary to note that the
averments in the application proceed on the premise as if the
applicant had no relationship with the first informant. It was sought
to be demonstrated that the applicant got acquainted with the first
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 11/25
informant in the course of business and social meetings. The first
informant was also a Facebook friend of the wife of the applicant,
and in the year 2016, the first informant started blackmailing the
applicant on the threat of falsely implicating him in a prosecution for
rape. Thus, the applicant claimed to have lodged a report with the
Commissioner of Police, Ahmadabad City. From the perusal of the
copy of the letter dated 20 th December 2016 addressed to the
Commissioner of Police, Ahmadabad, it becomes evident that the
applicant has not disclosed the nature and duration of the relationship
between him and the first informant, and attributed harassment at the
hands of the first informant since 15 days prior thereto.
14. Undoubtedly, an accused has the right to maintain silence.
However, when the accused invokes the inherent power of the Court
and seeks the discretionary relief of quashing the prosecution, at the
nascent stage, the accused is expected to approach the Court bonafide.
In the context of the defence sought to be developed that the physical
relations were consensual and the consent of the first informant was
not vitiated, in our view, it was incumbent upon the accused to
indicate the circumstances in which the applicant had the relations
with the first informant. Nonetheless, we proceed to examine the
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 12/25
material on record to find out whether the continuation of the
prosecution would amount to an abuse of the process the Court, as
claimed by the applicant.
15. With the changing dynamics and a little less taboo about the
relationship between the couples without and beyond marriage, the
Courts are often confronted with the question like the one posed by
the facts of the instant application. The relations develop, over a
period of time, leading to physical relations. In some cases, however,
the relationship does not take the turn desired by both or one of the
parties. In that context, when the relationship comes to an end, it is
alleged that the aggrieved party was made to give consent for physical
relations on the promise of marriage. The question which then arises
is whether the consent for sexual intercourse was vitiated by the false
promise of marriage and does it amount to a consent given under
misconception of facts. The accused assert that the relationship was
thoroughly consensual and the promise of performing the marriage
was not the immediate cause for the alleged relations. The criminality
often turns on the question as to whether the accused had no
intention to solemnize the marriage, as promised, since the inception
of the relationship and the first informant was made to believe the
Shraddha Talekar PS
::: Uploaded on – 04/10/201904/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 13/25
false promise to gratify the lust.
16. The considerations which weigh, while determining the said
aspect, have been delved into and expounded by the Courts. In the
5
case of Uday Vs. State of Karnataka , the Supreme Court, after
adverting to the provisions of clause fourthly and fifthly of section
375 and section 90 of the Penal Code, and the previous
pronouncements, observed 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 Penal Code. The Court, however, cautioned
that 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 the 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
5 (2003) 4 SCC 46
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 14/25
own peculiar facts which may have a bearing on the question whether
the consent was voluntary, or was given under a misconception of
fact.
17. The aforesaid observations of the Supreme Court in the case of
Uday (Supra) were further explained by the Supreme Court in the case
6
of Deelip Singh alias Dilip Kumar Vs. State of Bihar . The
observations in paragraph No.28 are important. They read as under :
“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
Clause secondly. …………………”
(emphasis supplied)
6 (2005) 1 SCC 88
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 15/25
18. In the case of Deelip Singh alias Dilip Kumar (Supra), the
Supreme Court further explained that the reading of the judgment in
the case of Uday (Supra) as a whole, does not indicate that in the
case of Uday (Supra), the Supreme Court laid down a broad
proposition that a promise to marry could never amount to
misconception of fact. The Court observed in express terms that,
“That is not, in our understanding, the ratio of the decision.”.
19. In the case of Deepak Gulati (Supra), the Supreme Court again
considered the previous pronouncements including the judgments in
the case of Uday (Supra) and Deelip Singh alias Dilip Kumar (Supra),
and the legal position was expounded in paragraph 19 and 21 as
under :
“19 This Court considered the issue
involved herein at length in the case of Uday v.
State of Karnataka, AIR 2003 SC 1639; Deelip
Singh @ Dilip Kumar v. State of Bihar, AIR 2005
SC 203; Yedla Srinivasa Rao v. State of A.P.,
(2006) 11 SCC 615; and Pradeep Kumar Verma v.
State of Bihar Anr., AIR 2007 SC 3059, and
came to the conclusion that in the event that the
accused’s promise is not false and has not been
made with the sole intention to seduce the
prosecutrix to indulge in sexual acts, such an
act(s) would not amount to rape. Thus, the same
would only hold that where the prosecutrix,
under a misconception of fact to the extent that
the accused is likely to marry her, submits to the
lust of the accused, such a fraudulent act cannot
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 16/25
be said to be consensual, so far as the offence of
the accused is concerned.
…..
21. Consent may be express or implied,
coerced or misguided, obtained willingly or
through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing,
as in a balance, the good and evil on each side.
There is a clear distinction between rape and
consensual sex and in a case like this, the court
must very carefully examine whether the accused
had actually wanted to marry the victim, or had
mala fide motives, and had made a false promise
to this effect only to satisfy his lust, as the latter
falls within the ambit of cheating or deception.
There is a distinction between the mere breach of
a promise, and not fulfilling a false promise.
Thus, the court must examine whether there was
made, at an early stage a false promise of
marriage by the accused; and whether the consent
involved was given after wholly, understanding
the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love
and passion for the accused, and not solely on
account of misrepresentation made to her by the
accused, or where an accused on account of
circumstances which he could not have foreseen,
or which were beyond his control, was unable to
marry her, despite having every intention to do
so. Such cases must be treated differently. An
accused can be convicted for rape only if the
court reaches a conclusion that the intention of
the accused was mala fide, and that he had
clandestine motives.”
(emphasis supplied)
20. As regards the finding which was required to establish the
charge of rape, where the allegations are of seducing the prosecutrix
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 17/25
to indulge in sexual intercourse on the promise of marriage, the Court
enunciated the legal position in paragraph No.24 as under :
“24 Hence, it is evident that there must be
adequate evidence to show that at the relevant
time, i.e. at initial stage itself, the accused had
no intention whatsoever, of keeping his promise
to marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing
to various unavoidable circumstances. The
“failure to keep a promise made with respect to
a future uncertain date, due to reasons that are
not very clear from the evidence available, does
not always amount to misconception of fact. In
order to come within the meaning of the term
“misconception of fact”, the fact must have “an
immediate relevance.”. Section 90 IPC cannot be
called into aid in such a situation, to pardon the
act of a girl in entirety, and fasten criminal
liability on the other, unless the court is assured
of the fact that from the very beginning, the
accused had never really intended to marry
her.”
(emphasis supplied)
21. In the case of Dr. Dhruvaram M. Sonar (Supra), the Supreme
Court again took a survey of the authorities on this aspect and
postulated the law, pointing out the distinction between rape and
consensual sex. The observations in paragraph 20 are instructive and
thus extracted below :-
“20 Thus, there is a clear distinction
between rape and consensual sex. The
court, in such cases, must very carefully
examine whether the complainant had
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 18/25
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 later falls within the ambit of
cheating or deception. There is also a
distinction between mere breach of a
promise and not fulfilling a false promise. If
the accused has not made the promise with
the sole intention to seduce the prosecutrix
to indulge in sexual acts, such an act would
not amount to rape. 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 the misconception created by
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. Such cases must be
treated differently. If the complainant had
any mala fide intention and if he had
clandestine motives, it is a clear case of
rape. The acknowledged consensual physical
relationship between the parties would not
constitute an offence under Section 376 of
the IPC.”
(emphasis supplied)
22. Lastly, in the case of Pramod Suryabhan Pawar (Supra), the
Supreme Court was again called upon to examine the question of
culpability for the offence of rape and the justifiability of the
quashment of the proceedings at the threshold, in exercise of the
powers under section 482 of the Code, on the premise that the act
was consensual. The Supreme Court adverted to the previous
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 19/25
judgments, noted the facts and propositions postulated therein,
including the judgment in the case of Dr. Dhruvaram M. Sonar
(Supra), and culled out the legal position in paragraph 18 as under :
“18 To summarise the legal position that emerges
from the above cases, the “consent” of a woman
with respect to Section 375 must involve an active
and reasoned deliberation towards the proposed
act. To establish whether the “consent” was
vitiated by a “misconception of fact” arising out
of a promise to marry, two propositions must be
established. The promise of marriage must have
been a false promise, given in bad faith and with
no intention of being adhered to at the time it
was given. The false promise itself must be of
immediate relevance, or bear a direct nexus to the
woman’s decision to engage in the sexual act.”
(emphasis supplied)
23. In the backdrop of the aforesaid exposition of the legal position,
we now advert to examine the facts of the instant case. At this stage,
for the purpose of this proceeding, there is not much controversy over
the fact that the applicant and the first informant became acquainted
in the year 2013 and the relationship was in existence upto November
2016. The material on record, prima-facie, supports the allegations
that there were physical relations between the applicant and the first
informant during the said period and on multiple occasions. The
controversy boils down the question as to whether the applicant
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 20/25seduced the first informant to give consent for the sexual act under
the promise of marriage? Was the said promise of marriage false?
Whether the applicant never intended to perform the said promise?
Whether the promise of marriage was the immediate cause for the
first informant to give consent for the sexual act?
24. The learned counsel for the applicant would urge that the very
fact that the first informant was still in the wedlock when the
applicant and the first informant allegedly engaged in the sexual act
for the first time, on 8th September 2013, runs counter to the theory
of the first informant having given consent for the sexual act on
account of the promise of marriage.
25. The learned counsel for the applicant drew our attention to the
judgment passed by the learned Judge, Family Court, Dwarka, New
Delhi on 19th November 2013 in Hindu Marriage Application No.127
of 2013 whereby, the marriage between the first informant and her
former husband (Shri Saurabh Harit), was declared to be null and
void under section 11 of the Hindu Marriage Act, 1955 as it was
found that on the date of marriage between them, i.e., 5 th September
2005, the marriage between the first informant and Mr.Vishwamitra
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 21/25
Marwah her quondam husband was still in subsistence, since the
decree of divorce by mutual divorce under section 13(b) of the Hindu
Marriage Act was passed on 15th October 2005 thereby dissolving the
marriage between the first informant and Vishwamitra Marwah.
26. The submission appears attractive at the first blush. However,
the submission is required to be scrutinized in the backdrop of the
attendant circumstances. It is the claim of the first informant that the
applicant gave assurance to help her come out from her matrimonial
disputes and the first sexual intercourse occurred when the applicant
had accompanied the first informant in connection with the
matrimonial proceedings then pending at Delhi. The fact that HMA
No.127 of 2013 came to be decided ex-parte on 19th November 2013
thus does not detract materially from the claim of the first informant.
Even the judgment in HMA No.127 of 2013 records the fact that the
first informant had appeared before the Family Court, Delhi on 9 th
September 2013. This factor lends ex-facie support to the claim of the
first informant that the applicant had accompanied her to Delhi and
the incident occurred on 8 th September 2013. Indubitably, the first
informant could not have married the applicant instantaneously.
However, the promise of marriage allegedly made by the applicant
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 22/25
whilst the first informant was facing matrimonial proceedings on
account of marital discord with her former husband, cannot be said to
be insufficient to induce her to give consent for the sexual act.
27. Conversely, it must be noted that the applicant claims to have
been married all along. Evidently, the applicant was also in the
wedlock when they allegedly engaged in the sexual act. Could the
applicant marry the first informant at that point of time or for that
matter during the subsistence of his first marriage? The empathetic
answer would be in the negative. If the first informant’s version is to
be believed, then the applicant could not have, in the given
circumstances, performed the said promise nay the applicant never
intended to solemnize the marriage with the first informant. Likewise,
the applicant can be said to have believed, at that point of time, that
he would not be in a position to honour the promise to marry the
first informant.
28. At this juncture, the material collected during the course of
investigation especially the transcript of the conversation between the
applicant and the first informant assumes critical significance. The
conversation bear upon the question as to whether the applicant had
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 23/25
no intention to honour the promise of marriage since inception of the
liaison. Upon perusal of the conversation, we are unable to restrain
ourselves from observing that the statements attributed to the
applicant reflect promiscuous and perverted character. One of the
comment attributed to the applicant is that the applicant loves
hurting small girls (Page No.181). The reference is in the context of
11 year old daughter of the first informant. We are, however,
dissuaded by two weighty considerations from observing anything
more. One, the compulsion to maintain restraint and sobriety in
judicial discourse. Two, the risk of prejudging the guilt of the
applicant.
29. The learned counsel for the applicant attempted to question the
admissibility of the said transcript of conversation. We are afraid to
countenance this submission. The question of admissibility of the said
evidence will have to be considered and determined at the trial. The
aspects of delay in lodging FIR and it being an outcome of
deliberation and consultation with advocate are also matters which
can be properly tested by recording evidence during the course of the
trial.
30. It is true that the circumstances of the case and the
Shraddha Talekar PS
::: Uploaded on – 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 24/25
material on record may not paint the first informant as a paragon of
virtue. However, that does not give a license to exploit and ravish the
first informant. The allegations that the applicant made a promise to
firstly help the first informant to come out of the matrimonial dispute
and then marry her; accompanied the first informant to her native
place and even assured her mother and brother, despite himself being
married, prima-facie, support the further allegation that the applicant
never intended to perform marriage with the first informant. To add
to this, the subsequent events, especially the statements attributed to
the applicant, would indicate that the allegation of interest of the
applicant in the liaison being actuated by lust, since the inception of
the relationship, cannot be said to be groundless.
31. We are conscious of the plenary power of this Court under
section 482 of the Code. The inherent powers are of wide amplitude.
However, the Court is vested with an element of discretion in the
matter of exercising the said power. In our view, the facts of instant
case are such that the exercise of the said power is not justifiable. As
observed above, the applicant has even not offered a version which
competes in probability with that of the case set up by the first
informant, especially on the aspect of consensual sexual relationship.
Shraddha Talekar PS
::: Uploaded on - 04/10/2019 04/10/2019 22:56:32 :::
cri.appln.1052-2018-J.F..doc 25/25Thus, we are not inclined to exercise the discretion to quash the
proceedings in exercise of the inherent power.
32. The conspectus of the aforesaid consideration is that the
application deserves to be dismissed. We, however, clarify that the
observations hereinabove are made only for the purpose of the
determination of the instant application and we may not be
understood to have expressed any opinion on the merits of the matter,
and, the learned Sessions Judge, who is seized of the matter, shall not
be influenced by any of the observations made hereinabove while
deciding the matter.
33. The application stands dismissed.
[ N.J. JAMADAR, J. ] [ RANJIT MORE ]Shraddha Talekar PS
::: Uploaded on - 04/10/2019 04/10/2019 22:56:32 :::