High Court
Legal Reasoning
cria-3032.231 IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPLICATION NO.3032 OF 2023Popat Asaram Munde,Age-29 years, Occu:Business,R/o-Chardari, Taluka-Dharur,District-Beed. ...APPLICANT VERSUS 1) The State of Maharashtra, Through Police Inspector, Wadwani Police Station, Beed,2) X. Y. Z. ...RESPONDENTS ... Mr. Ameya N. Sabnis Advocate for Applicant. Mr. A.D. Wange, A.P.P. for Respondent No.1. Mr. Prasanna Kutti Advocate for Respondent No.2 (Appointed). ... CORAM: SMT. VIBHA KANKANWADI AND SANJAY A. DESHMUKH, JJ. DATE : 14th FEBRUARY, 2025 ORDER [PER SMT. VIBHA KANKANWADI, J.] :1.Present Application has been filed for quashing theproceedings in R.C.C. No. 64 of 2023 pending before the learnedJudicial Magistrate First Class, Wadwani, District-Beed, arising cria-3032.232out of the First Information Report (for short “the FIR”) videCrime No. 115 of 2023 registered with Wadwani Police Station,District-Beed on 31st May 2023, for the offence punishable underSections 376(2)(n), 323 of the Indian Penal Code.2.Heard learned Advocate Mr. Sabnis for the applicant,learned APP Mr. Wange for respondent No.1 and learnedAdvocate Mr. Kutti, appointed to represent the cause ofrespondent No.2. 3.Learned Advocate for the applicant has taken us throughthe contents of the charge-sheet including the FIR. He points outthat respondent No.2, who had filed the FIR on 31st May 2023,is 19 years old girl i.e. major and taking into consideration hercontents in the FIR, it can be seen that it is a consensual act.The girl was preparing for the recruitment in police departmentand applicant and the informant were in relationship since 11thFebruary 2023. They had gone to Wadwani and then to thepolice recruitment ground at Mira Bhayandar, District-Thane,then to Mumbai and then to Satara, where they had stayed forabout 2 to 3 days, where they had sexual intercourse with eachother and then she says that when they came back and later onshe came to know that the applicant is performing marriage with cria-3032.233another girl, then she had contacted the girl with whom theapplicant was supposed to marry and thereafter the applicanthad performed marriage with the another girl. Here, there is noquestion of taking consent by fraud or misrepresentation as theyhad entered into the relationship voluntarily. Ingredients of theoffence under Section 375 of the Indian Penal Code are notmade out and therefore, there is no question of punishmentunder Section 376(2)(n) of the Indian Penal Code with Section417 of the Indian Penal Code. He, therefore, relies on thedecision in Nitin B. Nikhare vs. the State of Maharashtra andanother [Criminal Appeal No(s).----- of 2025 (Arising out of SLP(Crl.) No.1889/2024], by the Hon’ble Supreme Court decided on21st January 2025, in which the decision of the Co-ordinateBench at Principal Seat, Mumbai in Criminal Application No.850of 2022, decided on 19th October 2023 was challenged. In thiscase the catena of Judgments were considered, wherein themere fact that physical relations were established pursuant to apromise to marry were held to be not amounting to rape in everycase. In order for the offence of rape to be made out, twoconditions need to be satisfied i.e. that the promise of marriagewas made by the accused solely with a view to obtain consentfor sexual relations without having any intention of fulfilling said cria-3032.234promise from the very beginning, and that the false promise ofmarriage had a direct bearing on the prosecutrix giving herconsent for sexual relations. Learned Advocate also relies on thedecision in Mahesh Damu Khare vs. State of Maharashtra andanother, 2024 SCC OnLine SC 3471, wherein also the catena ofJudgments were considered and it has been observed inParagraph No.24 as under:-“24.It may be also noted that there may be occasions where apromise to marry was made initially but for various reasons, aperson may not be able to keep the promise to marry. If suchpromise is not made from the very beginning with the ulteriormotive to deceive her, it cannot be said to be a false promise toattract the penal provisions of Section 375 IPC, punishable underSection 376 IPC.” 4.Per contra, the learned APP as well as learned Advocateappointed to represent the cause of respondent No.2, stronglyopposed the application and submitted that the prosecutrix wasonly 19 years of age, though major, was still taking education.The facts of the case reveal that in fact the applicant’s mobilenumber was not known to the informant, yet he had given herwishes on the occasion of new year on 1st January 2023 andtherefore, she called him and asked him as to how he knows her.Thereupon the applicant disclosed his identity and told that he is cria-3032.235her relative. Thereafter they continued their conversation. On16th January 2023, the applicant asked her to come on BusStand. They had taken food in the hotel where he expressed hislove for her and promised to marry. She told that she would takepermission from her parents and will let him know. Thereafterthey met on 11th February 2023 and it appears that she was ata different place than her village, where she was takingeducation and was residing in the room. He had then taken herto a utensils shop, which he disclosed that it is owned by him.They had slept in the shop at night time. Though she wasresisting, under the promise to marry he had sexual intercoursewith her. Thereafter on the next day itself i.e. on 12th February2023, they had gone to police ground at Mira Bhayandar andthen to Mumbai. She says that they had no sexual intercoursethere but then on 13th February 2023, after her test on policeparade ground, the applicant took her to Satara where theyreached in the morning of 14th February 2023. They were theretill 16th February 2023 in a lodge, where again under the promiseto marry, he had sexual intercourse. Even at that time she hadasked as to when they are going to marry. At that time theapplicant told that after her recruitment papers are over, hewould ask her parents. On 17th February 2023, they again went cria-3032.236to Mumbai and then they again went to Satara where theystayed till 20th February 2023 and there also there was sexualintercourse. Applicant left her to Beed on 21st February 2023.She has specifically stated that in March and April, 2023 on twooccasions and on 9th May 2023 the applicant had taken her to hisutensil shop at Wadwani. When she asked him about marriage,at that time he had assaulted her and had forcible sexualintercourse with her and then on 26th May 2023, she came toknow that the applicant is going to perform marriage withanother girl on 1st June 2023. All these events would show thatthe applicant had no intention to fulfill his promise but theconsent or the promise was only for sexual intercourse andtherefore, that cannot be a consent within the terms of Section90 of the Indian Penal Code. Learned Advocate for respondentNo.2 relies on State of U.P. vs. Naushad, 2013(16) SCC 651 andAnurag Soni vs. State of Chhattisgarh, 2019(13) SCC 1, whereinit is held that if it is established and proved that from theinception the accused who gave the promise to the prosecutrixto marry, did not have any intention to marry and theprosecutrix gave the consent for sexual intercourse on such anassurance by the accused that he would marry her, such aconsent can be said to be a consent obtained on a misconception cria-3032.237of fact as per Section 90 of Indian Penal Code and, in such acase, such a consent would not excuse the offender and it can besaid that he has committed offence as defined in Section 375 ofthe Indian Penal Code for which he can be convicted underSection 376 of the Indian Penal Code. 5.Here, though the entire charge-sheet is produced, it can beseen that till 30th May 2023, the informant – prosecutrix had notdisclosed anything to her parents. In such cases there will bevery less direct evidence and therefore, we will have to considerthe FIR. The contents of the FIR show that the applicant andrespondent No.2 started talking with each other on 1st January2023, that too on phone without informant seeing the applicant.They met for the first time on 16th January 2023 and on 26th May2023, she came to know that the applicant would be performingthe marriage with another girl on 1st June 2023. Unfortunately,the investigating officer has not recorded the statement of thegirl with whom the applicant has performed marriage or anyother person’s statement as to when the applicant’s marriagewith the said girl was settled. She can be called for evidenceunder Section 311 of the Code of Criminal Procedure, or anyother person can also be called. cria-3032.2386.Informant says that she got knowledge on 26th May 2023,that the applicant is going to perform marriage with the girl on1st June 2023. Thereafter the informant had met the said girl andtold about the promise that was made by the applicant to herand also told that she should not marry the applicant. But then itis stated that the applicant performed the marriage with the saidgirl on 28th May 2023. That means, as it appears, the applicantgot the marriage preponed. Of course, he may come with hisown explanation, but at this stage when those statements havebeen made, there is no explanation as to what was the reasonfor the preponement of the marriage. Thus, taking intoconsideration the dates and events, it can be seen that it is not avery long relationship and certainly from the contents of the FIR,it is clear that only upon the promise to marry, there was sexualrelationship. Of course, the informant has stated each time whenthere was sexual intercourse, that she had resisted. Now shewent along with applicant at so many places, need not be takenagainst her at this stage. Certainly, in State of U.P. vs. Naushad,(supra), Anurag Soni vs. State of Chhattisgarh, (supra), Nitin B.Nikhare vs. the State of Maharashtra and another, (supra) andMahesh Damu Khare vs. State of Maharashtra and another,(supra), on the basis of facts in each case then it has been
Legal Reasoning
cria-3032.239arrived at, as to whether the physical relationship was on thebasis of false promise of marriage or not. Here, when theapplicant and the informant had returned on 21st February 2023and immediately thereafter within three months she comes toknow that the applicant is going to perform marriage withanother girl, then there is necessity of evidence to prove thatsince beginning the applicant had no intention to keep hispromise. We are also considering the aforesaid point ofpreponement of marriage for that purpose. When certainly caseis made out for evidence, we are of the opinion that this is not afit case where we should exercise our powers under Section 482of the Code of Criminal Procedure. 7.The Application stands rejected.8.The fees of learned Advocate Mr. Kutti, who has beenappointed to represent the cause of respondent No.2 isquantified at Rs.10,000/- (Rupees Ten Thousand) to be paid bythe High Court Legal Services Sub-Committee, Aurangabad.[SANJAY A. DESHMUKH] [SMT. VIBHA KANKANWADI] JUDGE JUDGE asb/MAR25