The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1990 of 2019 Dr. Dilip Kumar ..... … Petitioner 1. State of Jharkhand 2. Inderpal Kaur Versus -------- ..... … Opposite Parties
Legal Reasoning
Thus, prima facie, the ingredients of Section 376 IPC is not made out. 8. Reference may be made to the case of Pramod Suryabhan Pawan Versus State of Maharashtra & Anr., reported in (2019) 9 SCC 608, wherein the Hon’ble Supreme Court in paras-14, 16 and 18, it has been held as follows:- is the complainant “14 In the present case, the “misconception of the fact” alleged by appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh, this Court held: 12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a the promise to -3- consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.” Similar observations were made by this Court in Deepak Gulati v State of Haryana (“Deepak Gulati”): “21. … 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…” 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”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed: fact” where of “21. … 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 misrepresentation 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 -4- control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. ********* 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. 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.” (Emphasis supplied) by vitiated “consent” was 18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. 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.” In view of the above and considering the judgment of 9. Hon’ble Supreme Court in the case of Pramod Suryabhan Pawar (Supra), the First Information Report including the order taking cognizance dated 01.09.2020, by which, cognizance for the offence -5- under Section 376 IPC has been taken against the petitioner, in connection with Kadma P.S. Case No. 102 of 2019 corresponding to G.R. No. 1168 of 2020, pending in the court of learned S.D.J.M., Jamshedpur, are hereby, quashed. 10.
Arguments
CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioner ------ : : : ------ 06/ 23.01.2024 Earlier the petitioner was directed to take steps for Mr. Rajiv Sinha, Advocate. Mr. Rohit Sinha, Advocate. Mrs. Priya Shrestha, Spl.P.P. For the State substituted service of notice upon the O.P. No. 2 by way of paper publication, pursuant to that the step has been taken by the petitioner and the paper cutting of the same has been brought on record by way of filing the supplementary affidavit. 2. When the matter was taken up, nobody has responded on behalf of the O.P. No. 2 in spite of the efforts taken by the court, in view of that, this matter is being taken up on merits in absence of O.P. No. 2. 3. Heard Mr. Rajiv Sinha, learned counsel appearing for the petitioner and Mrs. Priya Shrestha, learned Spl.P.P. for the State. 4. This petition has been filed for quashing of the First Information Report including the order taking cognizance dated 01.09.2020, by which, cognizance for the offence under Section 376 IPC has been taken against the petitioner, in connection with Kadma P.S. Case No. 102 of 2019 corresponding to G.R. No. 1168 of 2020, pending in the court of learned S.D.J.M., Jamshedpur. 5. Mr. Rajiv Sinha, learned counsel appearing for the petitioner submits that the case has been lodged against the petitioner stating that the physical relationship was established by the petitioner with O.P. No. 2 and the case under Section 376 IPC has been registered against the petitioner. He submits that in the chargesheet it has been reported that the O.P. No. 2 was married when the relationship was established with the O.P. No. 2 and in view of that no case under Section 376 IPC is made out. 6. Mrs. Priya Shrestha, learned Spl.P.P. appearing for the State submits that the petitioner has established the physical relationship with the O.P. No. 2 on the false pretext of marriage, in view of that rightly -2- the case has been lodged under Section 376 of the Indian Penal Code. 7. In view of the contents of the FIR, it is an admitted position that the petitioner and the O.P. No. 2 were in the relationship. The question remains that when two adult have established relationship particularly considering that the informant is a married woman, whether section 376(2)(n) IPC can be attracted or not? In the case in hand, the victim who is a married woman voluntarily had sex with the petitioner, knowing that she cannot enter into marriage with the petitioner in view of the fact that she was a married woman. Even assuming that promise by the petitioner for marriage, she was knowing that she is a married woman and marriage will not take place, and in spite of that she has established relationship with the petitioner that promise is illegal and that cannot be a basis for prosecution under section 376(2)(n) of the IPC. In the case in hand, there is no question that this petitioner has allured as she was already married and she was not divorced and in spite of that she has established the relationship with this petitioner.
Decision
This petition is allowed and disposed of. Amitesh/- [A.F.R.] (Sanjay Kumar Dwivedi, J.)