SC and HC Judgments Online at MyNation

Judgments of Supreme Court of India and High Courts

Tanveer Iqbal vs State & Ors. on 6 March, 2018

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU

561-A Cr.P.C No. 08/2018
MP No. 01/2018
Date of decision: 06.03.2018

Tanveer Iqbal Vs. State ors.
_
Coram:
Hon’ble Mr. Justice Janak Raj Kotwal, Judge.
Appearing Counsel:
For petitioner(s) : Mr. Rohit Verma, Advocate.
For respondent(s) : Mr. Amit Chopra, GA.

i. Whether approved for
reporting in Press/Media : Yes/No
ii. Whether to be reported in
Digest/Journal : Yes

1. Petitioner invokes inherent jurisdiction of this Court under Section
561-A Cr. P. C. to seek quashing of FIR No. 01 of 2018 of Police Station,
Manjakote (Distt. Rajouri) under Section 376 RPC registered against him
on a complaint filed by respondent No.3 (hereinafter to be referred as the
prosecutrix).

2. The prosecutrix filed complaint in the court of the Chief Judicial
Magistrate, Rajouri. She alleged that the petitioner, who hails from her
village, was well acquainted with her. He developed relation with her 4/5
years back in the year 2013 and said that he will marry her. He remained
in constant telephonic touch with her and had been committing sexual
intercourse with her under the pretext that he will marry her. He used to
make her reject all other offers of marriage received by her. The
petitioner, however, has now refused to marry her and has thereby spoiled
her life. She thus alleges that the petitioner has committed heinous
offence on her continuously for 4/5 years under the pretext of marrying
her. Learned Chief Judicial Magistrate, as is evident from the impugned

561-A Cr.P.C. No. 08/2018 Page 1 of 5
FIR, forwarded the complaint to SHO, Police Station, Manjakote for
“action under law” and pursuant thereto the impugned FIR was
registered.

3. In order to seek the quashing of the impugned FIR, the petitioner
contends that he is serving in the Central Reserve Police Force (CRPF)
since June, 2012 and has generally remained posted at different stations.
He used to visit his house during holidays. The prosecutrix, aged 27
years, who is his next door neighbour, is infatuated with him and wants to
marry with him by all possible means. She had been sending proposal for
marriage to him ever since he was absorbed in the CRPF but the proposal
has been rejected by him. Consequent upon the refusal of marriage by
him, the prosecutrix in order to wreck vengeance upon him filed false and
fabricated complaint and has got him implicated in a false case under
Section 376 RPC.

4. Learned counsel for the petitioner, Mr. Rohit Verma, argued vehemently
that the complaint filed by the prosecutrix, which is similarly reflected in
the impugned FIR, on its plain reading fails to make out a prima facie
case of commission of offence of rape on her by the petitioner. In this
context, it is contended in para 8 of the petition that even if allegations
are believed to be true, the beaten law is that “if parties develop physical
intimacy during their courtship and the boy later on resiles from promise
to marry, the same cannot be brought within the scope of Section 376
RPC and the same would, rather be an act of promiscuity on the part of
prosecutrix.” Learned counsel argued further that registration of the FIR
by the police on a false, concocted and motivated complaint under the
garb of direction of the learned Chief Judicial Magistrate to take action
under law is sheer abuse of process of court and the case is fit for
invoking inherent jurisdiction of this court to prevent the abuse of the
process of the court and in the interest of justice. Learned counsel cited

561-A Cr.P.C. No. 08/2018 Page 2 of 5
the Supreme Court Judgment in Uday v. State of Karnataka, (2003) 4
SCC 46.

5. State has resisted this petition by filing statement of facts and learned
Government Advocate, appearing on behalf of the State, produced a copy
of the statement of the prosecutrix recorded under Section 164-A Cr.P.C.
It is contended that prosecutrix in her statement has stated that the
petitioner committed rape on her on 20.12.2017 also and that the
investigation of the case has established commission of offence under
Section 376 RPC by the petitioner.

6. In Uday’s case (supra), the Supreme Court has held as under:

“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.”

7. In another case, Deepal Gulhati v Stae, (2013) 7 SCC 675 Supreme
Court has held:

“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.

561-A Cr.P.C. No. 08/2018 Page 3 of 5

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 mis-representation
made to her by the accused, or where an accused on
account of circumstances which he could not have
foreseen, or which were beyond his control, was unable to
marry her, despite having every intention to do so. Such
cases must be treated differently. 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.”

8. Clearly, the allegation in the complaint filed by the prosecutrix is not that
of forcible commission of sexual intercourse with the presecutrix by the
petitioner. Going by the statement in the complaint, there was rather a
long duration consensual physical relation between the two. The
allegation, however, is that the petitioner committed repeated sexual
intercourse with the prosecutrix for 4 to 5 years under the pretext or
promise that he will marry her but has now backed out. It has not been
alleged by the presecutrix even that the false promise of marriage was
made by the petitioner only with the purpose of establishing physical
relation with her.

9. It is not denied that the prosecutrix is a grown up person, aged 27 as on
today. It is evident from her own say that she remained in courtship with
the petitioner for 4 to 5 years and during this period there were repeated
acts of sexual intercourse among them inasmuch as one such act took
place on 20. 12. 2017, that is, only few days prior to the filing of the

561-A Cr.P.C. No. 08/2018 Page 4 of 5
complaint by her. The complaint filed by her does not indicate that false
promise to marry her was made by the petitioner only with the purpose of
committing sexual intercourse with her. The complaint rather indicates
that since they had agreed to marry each other so they had been indulging
in physical relation also. It is, thus, simply a case of courtship and
consensual physical relation between two grown up persons, which did
not end up in tying the nuptial knot and not a case of commission of rape.
A false promise of marriage made only with the purpose of obtaining
consent of a woman for sexual favour may, having regard to other facts
and circumstances of the case, amount to misrepresentation and consent
so obtained may not exonerate a person from liability for commission of
rape but the same principle does not apply where a grown up women
consents for repeated sexual intercourse with a person with whom she is
in love.

10. Filing of the complaint and registration of FIR against the petitioner,
therefore, is sheer abuse of process of the court and therefore, a fit case
for showing indulgence by this Court under Section 561-A Cr.P.C. is
made out.

11. Viewed this, this petition has merit and is allowed. In the result, the
impugned FIR as also the entire proceedings, whatsoever, are quashed.

(Janak Raj Kotwal)
Judge
Jammu:

06.03.2018
Pawan Chopra

561-A Cr.P.C. No. 08/2018 Page 5 of 5

Leave a Reply

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

Copyright © 2018 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 to read Group Rules – CLICK HERE, If You agree then Please Register CLICK HERE and after registrationJOIN WELCOME GROUP HERE

We handle Women centric biased laws like False 498A, Domestic Violence(DV ACT), Divorce, Maintenance, Alimony, Child Custody, HMA 24, 125 CrPc, 307,312, 313,323 376, 377, 406, 420, 506, 509; and also TEP, RTI etc

Web Design BangladeshWeb Design BangladeshMymensingh