High Court

Legal Reasoning

1criappln No.582-2024IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO. 582 OF 2024Mohammed Shamsul Hudda Mohammed Bashir,Age : 34 Years, Occu. : Service, R/o. Magdum Nagar, Nanded, Dist. Nanded.…. ApplicantVERSUS1.The State of Maharashtra,Through In charge of New MondhaPolice Station, Parbhani.2.XYZ …. Respondents....Advocate for Applicant : Mr. Mahesh K. BhosaleAPP for Respondent No.1-State : Mr. N.R. DayamaAdvocate for Respondent No.2 : Ms. Sayali Tekale.…CORAM : SMT. VIBHA KANKANWADI & SANJAY A. DESHMUKH, JJ.Dated : 15th July 2025ORDER [PER SANJAY A. DESHMUKH, J.] :-1.Heard learned Advocate for both sides as well as learnedAPP for the State.2.This is an application for quashing the First InformationReport (hereinafter referred to as “the F.I.R.”) and charge-sheet in 2criappln No.582-2024Special Case No.123 of 2023, under Section 482 of the Code ofCriminal Procedure, 1973 (hereinafter referred to as “the Cr.P.C.”),pending before the learned Sessions Court, Parbhani, arising out ofCrime bearing No.0293 of 2023, registered with New Mondha PoliceStation, Parbhani, Dist. Parbhani, dated 23.08.2023, for the offencespunishable under Sections 376, 376(2)(j) and 376(2)(n) of the IndianPenal Code, 1860 (hereinafter referred to as “the I.P.C.”) and Sections3(1)(r)(s), 3(1)(w)(i)(ii) and 3(2)(v) of The Scheduled Castes andScheduled Tribes (Prevention of Atrocities) Amendment Act, 2015(hereinafter referred to as “the Atrocities Act”).3.Learned Advocate for the applicants pointed out thereport dated 23.08.2023, in which respondent No.2/informantaverred that she is residing with her parents, brother and sister. She ismarried. She has filed an application for divorce. In the year 2015,when she was serving as a nurse, she got acquainted with theapplicant, who was a lab technician. They became friends and lateron, love affair started between them. 4.The informant further averred in her report that on15.06.2016, at 11.00 p.m., the applicant came to meet her at a house,where she was residing on rent. He made her to drink the liquor and 3criappln No.582-2024established physical relationship with her without her consent.Thereafter, he started to blackmail her by saying that he hasphotographs of her and by pressurizing, repeatedly subjected her tosexual assault. She requested him for the marriage, but he gaveevasive answers and avoided to marry with her. On 18.08.2023, theapplicant called the informant at Nanded Court to meet with anAdvocate for consulting on marriage. They both went in the court atNanded. When she asked him for the marriage, he said that he isgoing to call the advocate. Thereafter, he came with his friend andbrother Mohammad Sohel. He said to Mohammad Sohel that she isforcing him to marry her and following him. Upon enraging on it, shebrought the five bottles of All Out mosquito killer and consumedbefore him. Thereafter, the applicant and others fled away. Sheinformed the said incident to her sister's son Sainath Sonkamle. Hecame there and took her for treatment at Asha Hospital. 5.The informant further averred in her report that, on15.06.2016, the applicant again came to her and committed sexualintercourse with her. She requested the applicant for the marriage,however, he avoided. On 18.08.2023, at about 11.00 a.m., again sheconsumed poison and attempted to commit suicide. 4criappln No.582-20246.The informant averred in the supplementary report that,in the year 2018, she came to know that the applicant is married. Shequestioned him about performing of marriage with her. He said to herthat in Muslim community, multiple marriages are permitted, she ishis first love and assured her to perform the marriage. In the year2019, she got married. She lived and cohabited with her husband forsix to seven months. As her husband was not working and onlystaying at home, she decided to take the divorce. The petition fordivorce is pending in the Court. Once she called the applicant to meetoutside. He took her on his motor cycle to a remote area at the farmhouse of his friend and assured her to perform the marriage andcommitted sexual intercourse with her. However, subsequently whenshe insisted for marriage, he refused. Therefore, she lodged thereport. 7.Learned Advocate for the applicant submitted that theapplicant is falsely implicated in the present crime. The informant hadattended the marriage ceremony of the applicant in the year 2018.Therefore, there cannot be sexual intercourse under the pretext ofmarriage. They had a consensual relationship. The essentialingredients of rape, etc. are not established against the applicant. If 5criappln No.582-2024he is compelled to face the trial, it would certainly be an abuse of theprocess of the Court. It is lastly prayed to allow the application.8.Learned APP for the State and learned Advocate forrespondent No.2/informant strongly opposed the application andsubmitted that the applicant has repeatedly committed rape on theinformant on the assurance of performance of marriage with her.When the informant insisted him for marriage, he refused. There arespecific incidents mentioned in the F.I.R. that, from time to time, theapplicant took the informant at different places and committed rapeon her. In such fact situation, the powers under Section 482 of Cr.P.C.cannot be exercised. It is lastly prayed to reject the application.9.We would like to rely on the decision of PramodSuryabhan Pawar Vs. State of Maharashtra and Another, [2019(9)SCC 608], wherein it is observed that, the consent with respect toSection 375 of the Indian Penal Code involves an activeunderstanding of the circumstances, actions and consequences of theproposed act. An individual who makes a reasoned choice to act afterevaluating various alternative actions (or inaction) as well as thevarious possible consequences flowing from such action or inaction,consents to such action. The informant and the applicant met 6criappln No.582-2024regularly, travelled great distances to meet each other, resided in eachother's houses on multiple occasions, engaged in sexual intercourseregularly over a course of five years and on multiple occasions, then itwas held that it cannot be said that acts fulfilled or occurred theoffence under Section 375 of the Indian Penal Code punishable underSection 376 of the IPC was attracted. We are also taking note of thedecisions in Shambhau Kharwar Vs. State of Uttar Pradesh, [2022SCC Online SC 1032]. Of course this was differentiated on the facts inRajkumar Vs. State of Karnataka, [2024 SCC Online SC 257].However, the core is the same as that of Pramod Suryabhan PawarVs. State of Maharashtra and Another (Supra).10.We have gone through the charge-sheet, particularly thereport and statements of witnesses. The witnesses have stated similarfacts as stated by the informant in her report. From the face value ofthe report, it is crystal clear that, it is a case of consensual relationshipbetween the informant and the applicant. 11.The informant in her report stated that the incident of15.06.2016 occurred at about 11.00 p.m. At that time, the applicantcame to her, made her to drink liquor, she felt giddiness and withouther consent, he committed sexual intercourse with her. He snapped 7criappln No.582-2024her naked photographs. At that time, he assured that he will performthe marriage with her. The informant did not lodge the report of thatincident. She has further alleged that repeatedly the applicant cameto her and committed sexual intercourse with her upon the assuranceof marriage. When the applicant refused, she consumed poison inorder to commit suicide. 12.In her supplementary statement also, the informant hasstated that the applicant committed forcible sexual intercourse withher by assuring to perform the marriage with her. Admittedly, theinformant and the applicant/accused are of different religion. The FIRand the supplementary statement is silent on the point as to how theyhad planned to overcome the situation. There were opportunities inthe past to her to go to police and lodge report; however, she has nottaken that step. What was the history given by her, when she wasadmitted to the hospital after trying to commit suicide, has not comeon record.13.All these conducts of the informant show that it wasconsensual relationship between her and the applicant as per thegeneral exception under Section 90 of the I.P.C. It is not the case ofthe informant that she was under fear of injury or under the 8criappln No.582-2024misconception of the fact that the applicant to have a sexualrelationship with her. Therefore, in view of the law laid down inPramod Suryabhan Pawar (Supra) and Shambhau Kharwar andRajkumar (Supra), the essential ingredients of rape as defined underSection 375 of the I.P.C. i.e. sexual relationship without the consentand against the will of the informant are not establishing. Further, itis not a case of the informant that her consent was obtained byputting her under fear of death.14.In the case of Deepak Gulati Vs. State of Haryana,[(2013) 7 Supreme Court Cases 675], the Hon'ble Supreme Courtheld that mere breach of promise of marriage without mala fideintention cannot amount to deception. 15.The essential ingredients of Section 376(2)(j) of the IPCare that whosoever commits rape, on a woman incapable of givingconsent, are not establishing as the informant has not stated herincapability to give consent. Though Section 376(2)(n) of the IPCcontemplates that rape has been committed repeatedly, in this case,the sexual intercourse between the informant and applicant occurredrepeatedly with her consent and her consent was not obtained underfear of death or of hurt. The alleged sexual intercourse was notcommitted against her will and without her consent. 9criappln No.582-202416.It is not in dispute that the informant belongs toScheduled Caste. In the report and charge-sheet, it is not averred bythe informant or stated by the witnesses that the applicant insultedand abused her intentionally in the name of caste within public viewand touched her intentionally. The criminal intention on the part ofthe applicant is lacking as contemplated under Section 3(1)(w)(i)(ii)of the Atrocities Act. Further, he did not use the words or gestures ofsexual nature towards the informant, who belongs to the ScheduledCaste to attract Section 3(2)(v) of the Atrocities Act. The essentialingredients of Sections 376, 376(2)(j) and 376(2)(n) of the I.P.C.and Sections 3(1)(r)(s), 3(1)(w)(i)(ii) and 3(2)(v) of the AtrocitiesAct are not established from the charge-sheet against the applicant. 17.Considering all these aspects, above reasons and the lawlaid down in the authorities cited supra, if the applicant is compelledto face the trial, it would certainly be an abuse of the process of theCourt. We are, therefore, inclined to exercise our powers underSection 482 of the Cr.P.C. to quash the report and charge-sheet in theinterest of justice to prevent the abuse of the process of the Court. Theapplication deserves to be allowed. Hence, the following order. 10criappln No.582-2024ORDERI)The application is allowed.II)The First Information Report and charge-sheet inSpecial Case No.123 of 2023, pending before thelearned Sessions Court, Parbhani, arising out of Crimebearing No.0293 of 2023, registered with NewMondha Police Station, Parbhani, Dist. Parbhani, dated23.08.2023, for the offences punishable under Sections376, 376(2)(j) and 376(2)(n) of the Indian Penal Code,1860 and Sections 3(1)(r)(s), 3(1)(w)(i)(ii) and3(2)(v) of The Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Amendment Act, 2015 standsquashed as against the applicant. [ SANJAY A. DESHMUKH ] JUDGE[ SMT. VIBHA KANKANWADI ] JUDGEasd