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Rajesh Sankarsan Tripathy vs The State Of Maharashtra And Anr on 3 October, 2019

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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,

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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

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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,

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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

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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,

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

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seduced 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

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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

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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

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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

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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.

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Thus, 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 ]

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