Mr. Jatan Singh, Advocate v. THE STATE

Judgment

1. The instant petition has been filed under Section 482 of Code of Criminal Procedure, 1973 (hereinafter “CrPC”) [now under Section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter “BNSS”)] seeking quashing of FIR No. 200/2023 dated 12th February, 2023, registered at Police Station – Maurya Enclave, Delhi for the offence punishable under Section 376 of the Indian Penal Code, 1860 (hereinafter “IPC”) and the consequential proceedings emanating therefrom. FACTUAL MATRIX 2. As per the contents of the instant FIR, the petitioner and respondent no. 2/prosecutrix have known each other since the year 2009 and share a Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 1 of 34 distant familial relation. Over the years, they maintained regular contact and developed a close relationship. 3. In 2019, the petitioner relocated from Pune to Gurugram for professional reasons and was working as a Data Engineer with Worldwide Technology in Gurugram. During this period, both the petitioner and the prosecutrix were frequently meeting each other, with the prosecutrix visiting the petitioner‟s residence in Gurugram and the petitioner visiting the prosecutrix‟s residence in Pitampura, Delhi. 4. Thereafter, on multiple occasions, the petitioner allegedly promised to marry respondent no. 2 and based on the said assurances, she had given her consent to engage in physical relations with him, which allegedly occurred at the petitioner‟s residence in Gurugram, prosecutrix‟s residence in Pitampura, Delhi and during their stays at various hotels. 5. On 4th November, 2022, on petitioner‟s invitation, respondent no. 2 left her residence intending to solemnize her marriage with the petitioner. However, the petitioner allegedly dropped her at her sister‟s house in Gandhi Nagar, Delhi, on the pretext of seeking familial approval for the marriage and subsequently changed his phone number and started to avoid calls, messages and emails of respondent no. 2 6.

On 12th February, 2023, respondent no. 2 lodged FIR No. 200/2023 at Police Station - Maurya Enclave, Delhi under Section 376 of the IPC, alleging that the petitioner has committed rape on her on the pretext of false promise of marriage, thereby inducing her to give consent to the petitioner for establishing physical relations with her. Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 2 of 34

7. Thereafter, the petitioner was arrested on 14th February, 2023 and subsequently, the petitioner was granted regular bail on 20th February, 2023 by the learned Additional Sessions Judge, North West District, Rohini on the grounds that no previous involvement of the petitioner in any criminal activities has been shown and the custodial interrogation of the accused is not being sought by the investigating authority, hence, no fruitful purpose would be served with the continued detention of the petitioner. Upon completion of the investigation in the instant matter, the police filed a chargesheet against the petitioner for the offence under Section 376 of the IPC. 8. Aggrieved by the instant FIR and the consequential proceedings emanating therefrom, the petitioner filed the present petition seeking the quashing of the same as no offence under Section 376 of the IPC is made out against the petitioner. PLEADINGS BEFORE THIS COURT 9. The instant petition has been filed on behalf of the petitioner seeking the quashing of the FIR and all the consequential proceedings based on the following grounds: ―A. That the present case is a perfect example of abuse of process of law as prosecution machinery is set in motion by the Respondent No.2 by making false and frivolous allegations against the Petitioner. The continuation of the prosecution against the Petitioner would amount to an abuse of the process of law and principles of natural justice. Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 3 of 34 B. That the allegations in the FIR do not in any manner fall within the ambit of Section 90 IPC as the consent of the Respondent No.2 has not been obtained under fear of injury or under a misconception of fact. In the present case every act of the Respondent No.2 alleging rape, if any, is consensual/with the consent of the Respondent No.2. The allegations in FIR and Chargesheet do not infer that the promise by Petitioner was false or that Respondent No. 2 engaged in sexual relations on the basis of this promise or that the promise was made in bad faith in order to cheat her. The Respondent No.2 herself has admitted that the Petitioner is a distant relative of her. The Petitioner is son of the brother-in-law (saala) of the father of the Respondent No.2 and it is a matter of common parlance that a marriage cannot happen between two relatives. In view of the said relation between the families, at no point of time any promise was made by the Petitioner to marry the Respondent No.2. C. That the Hon'ble Supreme Court of India in Pramod Suryabhan Pawar Vs. The State of Maharashtra & Anr. Crl. Appeal No. 1165/2019 @ SLP (Crl.) No. 2712/2019, while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations: ―16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a ―misconception of fact‖ that vitiates the woman's "consent". *** 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.‖ Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 4 of 34 D. That the Hon'ble Supreme Court had categorically distinguished between rape and consensual sex, as well as the distinction between the mere breach of a promise, and not fulfilling a false promise in Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. It had been stated as follows: ―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. *** 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.‖ E. That there is an inordinate delay in registration of the subject FIR. The last alleged incident of establishing physical relations with the Respondent No. 2 by the Petitioner, as per the FIR, occurred in the month of June 2019 and the present FIR was lodged by the Respondent No. 2 in the month of February 2023, after a lapse of around 45 months. The said delay has nowhere been explained by the Respondent No. 2 in the Chargesheet. The Respondent No.2 has leveled the allegation that the relations were made on the promise of marriage, on a perceptible legal advice, only to add weight to her allegations. F. That there is no medical or scientific evidence to corroborate the version of the Respondent No. 2. The Respondent No.2 did not get herself internally examined at the time of her medical examination. *** Copy of MLC of the Respondent No.2 is annexed herewith as ANNEXURE-D. Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 5 of 34 G. That all the Hotel Bookings where the Respondent No.2 and the Petitioner went together, were made by the Respondent No.2 herself. The screenshots of said hotel bookings were given the Respondent No.2 to the Investigating Officer during investigation in the subject FIR. Copies of screenshots of the Hotel Bookings made by the Respondent No.2 are annexed herewith as ANNEXURE-E. H. That the Respondent No. 2 has stated in her supplementary statement recorded U/s 161 CrPC that she does not want her father and sister to be involved in the present case, as her father does not know anything, though her sister knows everything about the Petitioner and requested that they may not be enquired from. *** A detailed and thorough enquiry from the said witnesses would have unearthed the actual chain of events which would not have supported the manipulated version of the Respondent No. 2, hence she very ingeniously requested the Investigating Agency to not to examined the said witnesses. I. That the owner of the flat No. 401, G-506, Near MKM Market, Sec 57, Gurugram, Haryana, where the Petitioner resided, was examined by the Investigating Officer and his statement was recorded U/s 161 CrPC wherein the said witness stated that in the month of April, 2022, the Petitioner and Respondent No.2 representing themselves as husband-wife came to his flat and told that they will stay there for 5-6 days and if they like the flat, they would continue their stay. He has further stated that they left thereafter and took his flat on rent in June and stayed there till November. He has further stated that the Respondent No. 2 used to come there on weekends and stay for 2-3 days and he was informed by his cleaning boy that Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 6 of 34 the Petitioner and Respondent No. 2 used to quarrel a lot. The said statement of an independent witness is totally in contrast with the version of the Respondent No.2. *** K. That in view of the aforesaid reasons, there is no justification to proceed with the criminal proceedings instituted by the Respondent against the Petitioner as any further proceeding with the case would be proved as futile exercise without there being any believable allegation against the Petitioner. Therefore, for the purpose of securing the ends of justice the indulgence of this Hon'ble Court is absolutely necessary to quash the proceedings. L. That the indulgence of this Hon’ble Court becomes necessary to quash the present FIR for the purpose of securing the ends of justice.‖

10. The petitioner has also filed the written submissions dated 7th November, 2024, relevant portion of which is hereunder: ―a. That the allegations in the FIR do not in any manner fall within the ambit of Section 90 IPC as the consent of the respondent no.2 has not been obtained under fear of injury or under a misconception of fact. In the present case every act of the respondent no.2 alleging rape, if any, is consensual/with the consent of the Respondent no.2. The allegations in F.I.R. and chargesheet do not infer that the promise by Petitioner was false or that Respondent no. 2 engaged in sexual relations on the basis of this promise or that promise was made in bad faith in order to cheat her. b. The respondent no.2 herself has admitted that the petitioner is a distant relative of her. The petitioner is son of the brother- in-law (saala) of the father of the Respondent no.2 (jija) and it is a matter of common parlance that a marriage cannot happen Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 7 of 34 between two relatives as per section 5 of the Hindu Marriage Act, 2005 which states that a marriage between the two Hindus is not valid if both the parties are within the degrees of prohibited relationship. c. That there is inordinate delay in registration of the FIR. The last alleged incident of establishing physical relations with the respondent no.2 by the petitioner, as per the FIR, occurred in the month of 2019 and the present FIR was lodged by the Respondent no.2 in the month of February 2023, after the lapse of around 45 months (3.5 years). The said delay has nowhere been explained by the Respondent no.2 in the chargesheet. d. That there is no medical or scientific evidence to corroborate the version of the Respondent no.2. The respondent no.2 did not get herself internally examined at the time of her medical examination. She had herself refused the local examination of Gentals and no external injuries were found on the respondent no.2. Moreover, as the incident was old, no samples were collected by the doctor conducting the medical examination of the respondent no.2. e. All the hotel bookings where the respondent no.2 and the petitioner went together, were made by the respondent no.2 herself…That the screenshots of the hotel bookings were given to the Investigating officer and also annexed with the present quashing petition as Annexure – E. *** *** h. That a detailed and thorough enquiry from the said witnesses would have unearthed the actual chain of events which would not have supported the manipulated version of the Respondent no.2, hence she very ingeniously requested the Investigating Agency to not to examined the said witnesses.‖

11. Rebutting the instant petition, the respondent no. 2 has filed her written submissions, and the relevant extracts are as follows: Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 8 of 34 ―2. That the charge sheet submitted by the concerned police officials is deficient and lacks in properly invoking the other different provisions of IPC and other penal laws as chargesheet has been filed only under section 376 IPC. 3. It is respectfully submitted that the investigating officer has failed to take into account in accusation levelled against the Petitioner/accused person by respondent no. 2 comprehensively and has submitted the charge sheet 1n conventional and archaic manner. *** 7. That even after the arrest of the petitioner/accused and granting of Bail, family member of the petitioner/accused and relatives were continuously creating pressure upon respondent no. 2/Complainant and her father to settled the matter and take her complaint back and this information has been given to the IO by the victim but IO has completely ignored the said fact and even refused to submit in this respect at the time of argument on bail. 8. That father and other relative of the Petitioner/accused Divyansh Bajpai, who assured the respondent no. 2 /victim that after getting regular bail from Hon’ble court, accused will marry the respondent no. 2/victim but after releasing from the jail, Petitioner/accused and his family member have change their mind and never marry with the respondent no. 2/victim and further making false accusation upon the respondent no. 2/victim herself and this aspect has been completely ignored by the I.O and did not even mentioned in the charge-sheet. to delete *** 12.That there are some video which respondent no. 2/victim begging Petitioner/accused but Petitioner/accused never deleted the same and those obscene, naked photos and videos may still in the mobile phone of the Petitioner/accused and he used to click and keep the same with him on the pretext so that he can call the respondent no. 2/victim at any time for satisfying his lust. the mobile phone of Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 9 of 34 *** 14. That petitioner/accused always used to feed I-pill to the respondent no. 2/victim after every sexual intercourse so that respondent no. 2/victim never got pregnant but those pills miserably affected the health and body of the respondent no. 2/victim. It is further submitted that sometimes those I-pills were order from 1 MG online site and other phrama site and some times he brings from the his own from any medical shop and those order are still existed in the mobile phone of the Petitioner I accused but I.O has neither investigated the matter in this respect nor seized the mobile phone of the Petitioner I accused to help the petitioner/accused. 15. That Petitioner/accused teach how to make booking Hotel and thereafter always used to asked the victim to book the Hotel and later on used to give money for the same but IO has never investigation the matter in this regards. 16. That on various occasion, petitioner /accused used to demand money from the respondent no. 2/victim and accused always used to extort money in the name love and respondent no. 2/victim used to transfer the said amount in the account of petitioner/accused. *** 24.That petitioner/ accused always treated the respondent no. 2/victim like his wife and always portraits her like his wife before every one but I.O did not bother to even investigate the matter in this respect and also did not file any documents in the charge-sheet while respondent no. 2/victim had everything with her. *** 28.That IO of the present case was very harry in filling the charge-sheet and when respondent no. 2/victim used to inform the same to the I.O, I.O never bother to take it seriously and file the charge-sheet mechanically in a casual manner without investigating the case properly.‖ Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 10 of 34 SUBMISSIONS (on behalf of the petitioner) 12. Learned counsel appearing on behalf of the petitioner submitted that the instant FIR and subsequent proceedings are a gross misuse of process as the same was registered with the sole intention of coercing the petitioner to enter into marriage with the respondent no. 2. It is further submitted that the allegations, even if accepted in their entirety, fail to disclose any offence under Section 376 of the IPC against the petitioner. 13. It is submitted that the respondent no. 2 willingly entered into physical relation with the petitioner and the said relation between them was consensual in nature, and based on mutual affection and understanding and therefore, her consent to establish physical relations with her was neither induced nor obtained through deceit or coercion. 14. It is submitted that the petitioner made the promise of marriage in good faith and with genuine intent to marry respondent no.2 but was unable to do so due to unforeseen familial and personal circumstances. It is further submitted that the inability of the petitioner to marry the respondent no. 2 cannot cause the criminal proceedings to be set in motion against him under Section 376 of the IPC. 15. It is submitted that there is a significant delay in lodging the instant FIR as the alleged incidents, as per the FIR, date back to June, 2019, whereas the FIR was filed in February, 2023, which is almost four years after the said alleged incidents took place. It is further submitted that the Signature Not Verified Digitally Signed By:GAURAV SHARMA Signing Date:29.01.2025 17:01:52 CRL M.C. 4228/2023 Page 11 of 34 unexplained delay casts serious doubt on the veracity of the said allegations, which suggests that the FIR may have been filed with ulterior motives. 16. It is submitted that respondent no. 2‟s own admission of hotel bookings and visits to petitioner‟s residence corroborates the consensual nature of the relationship between them and that the same was not predicated on any coercion or deceit but entered into voluntarily. 17. Learned counsel for the petitioner relies upon judgments of the Hon‟ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra1 and Deepak Gulati v. State of Haryana2, to submit that there exists a distinction between a false promise of marriage and a breach of promise. It is further submitted that the facts, at best, constitute a breach of promise, which is a civil matter and does not attract criminal liability under Section 376 of the IPC. 18. It is submitted that there is no medical evidence to substantiate the allegations made by the respondent no. 2 as she refused to undergo an internal medical examination during the preparation of her MLC. 19. In view of the foregoing submissions, it is prayed that the instant petition may be allowed. (on behalf of Respondent No. 2/prosecutrix) 20. Learned counsel appearing on behalf of respondent no. 2 vehemently opposed the instant petition submitting to the effect that the same being devoid of any merit is liable to be dismissed.