Mahesh Damu Khare v. The State of Maharashtra & Anr.

False promise of marriage; Forciable sexual intercourse; Consent; Long consensual relationship; Misconception of fact; Quashing of FIR; Rape; Cheating; Harassment. Case Arising From CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 4882 of 2024 From the Judgment and Order dated 12.02.2018 of the High Court of Judicature at Bombay in CRWP No. 5190 of 2017 Appearances for Parties Ms. Mrunal Dattatraya Buva, Dhairyashil Salunkhe, Gunnam Venkateswara Rao, Advs. for the Appellant. Ms. Yugandhara Pawar Jha, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh Dubey, Advs. for the Respondents. Judgment / Order of the Supreme Court Judgment Nongmeikapam Kotiswar Singh, J. Leave granted.

The present appeal has been filed challenging the order dated 12.02.2018 passed by the Bombay High Court in Criminal Writ Petition (CRWP) No. 5190 of 2017 by which the High Court dismissed the petition filed under Section 482 of the Code of Criminal Procedure, 1973 (in short “CrPC”) by the present appellant seeking quashing of the FIR being CR No. 302 of 2017 dated 15.08.2017 filed by the complainant (Respondent no. 2 herein) registered with Kharghar Police Station, Navi Mumbai for offences punishable under Sections 376, 420, 504 and 506 of the Indian Penal Code, 1860 (in short “IPC”) holding, inter alia, that the offence under Section 376 of IPC is an offence against the society which would require further investigation into the matter and does not warrant interference. Digital Supreme Court Reports [2024] 11 S.C.R. 889

The brief facts leading to the filing of the said Writ Petition as culled from the records may be stated as follows:

3.1 The appellant claims to be a social worker since 1985 and is engaged in various socio-political activities, who provides help and assistance to the needy whenever sought. It was contended that in 2012 the appellant was approached by the complainant (Respondent no. 2) seeking help in resolving the issue of kidnapping of her elder daughter which he successfully accomplished. Thereafter, the complainant started visiting the office of the appellant and was regularly assisting in the socio-political works of the appellant. The appellant also on her request used to extend financial help for support and education of the children of the complainant. The complainant, however, continued to seek more financial assistance from the appellant which he could not afford any longer and accordingly, helped her to find employment.

3.2 It is the case of the appellant that the complainant continued to seek more attention and financial help from the appellant, because of which the appellant tried to ignore her, to which she became aggressive and started issuing threats not only to the appellant but also to his family members to extort more money from the appellant which led to filing of several complaints against the complainant (Respondent no. 2) by the wife of the appellant. In all, five complaints were lodged with Nerul Police Station by the appellant, his wife and his office staff against the harassment tactics of the complainant for extorting money from the appellant. However, the complainant continued her aggressive, abusive behaviour towards the appellant and family members.

The appellant, to his shock, learnt later that a complaint was filed by Respondent no. 2 as a counter blast which was registered as FIR No. 302 of 2017 dated 15.08.2017 under Sections 376, 420, 504 and 506 of the IPC stating, inter alia, as follows:- (i) The complainant was married in 1994 by performing Christian rituals out of which two daughters were born. Her husband died in the year 2003. Thereafter, she came to reside at Sarsole in Navi Mumbai and was looking for a job as she had no means of livelihood. While looking for a job she was introduced to the appellant who was also in need of a helper to look after his ailing wife. Mahesh Damu Khare v. The State of Maharashtra & Anr. 890 [2024] 11 S.C.R. (ii) Accordingly, she met the appellant in 2008. The appellant told the complainant that his wife had skin disease, thyroid problem and paralytic stroke and the complainant has to look after his wife at his own residence at Kharghar Sector 12, behind HDFC ATM. (iii) Accordingly, on the next day in the morning she went to the house of the appellant along with her daughter.

Consequently, an FIR case was registered against the appellant who then moved the Session Court seeking anticipatory bail in CR No. 302 of 2017 in which he was granted an interim protection vide order dated 16.08.2017 and was ultimately granted anticipatory bail vide order dated 12.09.2017 by observing, inter alia, that the very fact that the complainant had indulged in sexual relations for a long period of 10 years goes to show that the sexual relation was not forcible but was consensual.

According to the appellant, the complainant being aggrieved by the grant of anticipatory bail to the appellant, lodged another FIR by making false allegations being FIR No. 319/2017 dated 05.10.2017 with Nerul Police Station against the appellant under Sections 354, 506 of the IPC and Section 8 of Protection of Children from Sexual Offences Act, 2012 alleging that the appellant had molested her daughter at her home on 30.12.2016 and on 25.01.2017 at 8 pm.

As against the aforesaid second FIR, the appellant again approached the Sessions Court, Thane to secure anticipatory bail in CR No. 319 of 2017 which was granted vide order dated 23.10.2017, in which the Sessions Court Judge observed that the complainant did not raise any complaint against the appellant immediately after the first or second incident and after 10 to 11 years she lodged the FIR and the second FIR was in respect of outraging the modesty of the complainant’s daughter which occurred in December 2016 or January 2017 which could have been mentioned in the first FIR dated 15.08.2017. Mahesh Damu Khare v. The State of Maharashtra & Anr. 892 [2024] 11 S.C.R.

After the appellant was granted anticipatory bail in both the FIRs by the competent courts primarily on the ground that these allegations have been made belatedly, thus throwing doubt on the credibility of these allegations as it appears to be a case of consensual relationship, the appellant approached the Bombay High Court seeking quashing of the FIR being CR No. 302 of 2017 registered with Kharghar Police Station by filing Writ Petition No. 5190 of 2017 which, however, was dismissed by the High Court against which the present appeal has been preferred.

While dismissing the petition seeking quashing of the FIR, the High Court noted that:

The petitioner herein denies having any relationship with the Respondent No.2 and it is the case of the petitioner that he has been roped in a false case by the Respondent No.2. In our view, those would be the aspects in respect of the investigation that would be carried out and the offence being one under Section 376 of the Indian Penal Code which is considered to be an offence against the society, we do not deem it appropriate to interfere in our writ jurisdiction. The reliance placed on the order passed by a Division Bench of this Court sitting at Nagpur does not further the case of the petitioner as the facts involved in the said case stand apart from the facts involved in the present case, as in the said case it appears that the accused had approached the Court on the ground that the relationship between the parties was consensual, such are not the facts in the instant case. The above Writ Petition is accordingly dismissed.

Ms. Mrunal Dattatraya Buva, learned counsel for the appellant submits that the High Court made an error in declining to quash the FIR by ignoring the aspect of consensual sex between the parties which is clearly evident from the factual matrix of the case which would take out the sting of criminal culpability attached to the offence of rape. It was submitted that if the above allegations made in the FIR were examined in the proper context, it would clearly indicate that the sexual relationship between the appellant and the complainant was on the basis of consent, and would not amount to forcible sexual act perpetrated by the appellant as alleged. Digital Supreme Court Reports [2024] 11 S.C.R. 893 According to the appellant, the complainant herself admits that she was in a relationship with the appellant since they met for the first time in 2008 which continued till 2017. Though it was alleged that the appellant had sexual relationship with her against her consent, it would be inconceivable that the appellant would force himself upon her for so many years without there being any protest or complaint from the side of complainant (Respondent no. 2). This behaviour of the complainant clearly shows that it was a consensual relationship and the allegation of rape was concocted only after the appellant refused to provide any further financial assistance to her or succumb to her demand of marrying her.

Though notice was served on complainant (Respondent no. 2), no one appeared on her behalf and only the State-respondent appeared and contested without filing any counter affidavit.

It was contended on behalf of the State-respondent that whether the said relationship was consensual or not is a matter of fact which will come out during the course of investigation and trial and it is not a fit case where this Court should intervene with the criminal process initiated against the appellant and consequently, the decision of the Bombay High Court in refusing to quash the FIR does not warrant interference.

In order to appreciate the rival contentions of the parties, it would be necessary to revisit the relevant laws. As far as the scope of Section 482 of CrPC which has been invoked by the appellant for quashing the FIR is concerned, it is a saving clause which deals with the inherent powers of the High Court to pass any order as may be necessary to give effect to any order under the CrPC, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

Law relating to quashing of FIRs has already been well-settled as reiterated by this Court in the State of Haryana and Ors. vs. Bhajan Lal and Ors.1 in which this Court held as below: “102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their 1 [1992] Supp. 3 SCR 735 : (1992) Supp. 1 SCC 335 Mahesh Damu Khare v. The State of Maharashtra & Anr. 894 [2024] 11 S.C.R. face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2). xxxxxxxxxx (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously Instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

It is to be noted that while considering these aspects, the Court does not have to go in detail by way of minute examination about the correctness or otherwise of the facts alleged and the Court has to examine the same by taking a prima facie view of the matter based on the materials on record and if on consideration of the factual matrix of the allegations, no prima facie case is made out of commission of any offence of which cognizance can be taken, the High Court would be within its power to intervene and quash any such complaint or FIR in exercise of the inherent power under Section 482 CrPC. In this regard, one may also refer to the decision of this Court in R.P. Kapur v. State of Punjab,2 wherein this Court while dealing with Section 561-A, the counterpart provision of Section 482 in the erstwhile Code, observed that the High Courts should be cautious in interfering with a criminal proceeding at the stage of investigation.

Having underscored the power of the High Court to exercise inherent power under Section 482 CrPC for quashing of FIR, we need to understand the scope of the offence under Section 375 IPC which deals with rape, punishable under Section 376 IPC. While the said Mahesh Damu Khare v. The State of Maharashtra & Anr. 896 [2024] 11 S.C.R. Section 375 deals with various aspects of rape, in the present case, the allegation against the appellant is that the appellant had forced himself on Respondent No. 2 without her consent and engaged in sexual intercourse. What amounts to rape without a consent has been mentioned under Section 375 as follows: - “375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.—With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another Digital Supreme Court Reports [2024] 11 S.C.R. 897 of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. Seventhly.—When she is unable to communicate consent.”

In this regard, one may also refer to Section 90 of the IPC which deals with consent given either under fear or misconception. Section 90 provides that a consent is not a consent under the IPC if such a consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequences of such fear or misconception. Section 90 IPC reads as follows:

90. Consent known to be given under fear or misconception.— A consent is not such a consent as it intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or...

It is the case of the complainant that the appellant had engaged in sexual intercourse without her consent. She mentioned that there was a promise made by the appellant that he would be marrying her. Thus, the contention of the complainant was that she consented to have physical relationship with the appellant on the misconception of fact that he would marry her because of the promise made by the appellant that he would ultimately marry her.

Section 375 of the IPC clearly postulates that a person is said to have committed rape if he performs any of the sexual acts mentioned under sub-clauses (a), (b), (c) and (d) without the consent of the woman. As mentioned above, in terms of Section 90 of the IPC, if the consent is given under a misconception of fact, such a consent is no consent in the eyes of law and cannot be considered to be wilful and voluntary consent. Mahesh Damu Khare v. The State of Maharashtra & Anr. 898 [2024] 11 S.C.R.

Keeping this aspect in mind as to what amounts to consent with reference to Section 375 of the IPC, this Court has examined and considered in a number of cases that if the person acts with an active understanding of the circumstances, actions and consequences of the act, it would indicate the presence of consent. It was observed in the case of Shambhu Kharwar v. State of Uttar Pradesh and Anr.4 as follows:-