Criminal Case No. 809 of 2025 · High Court · 2025

4. Learned counsel for applicant submits that though applicant is a named and charge-sheeted accused, however, in view of the facts that have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. In the submission of the learned counsel for applicant the impugned criminal prosecution of applicant is not only malicious but also an abuse of the process of Court. Consequently, the present application is liable to be allowed by this Court.

5. In furtherance of aforesaid submission, the learned counsel for applicant first invited the attention of Court to the FIR dated

15.01.2025 lodged by the first informant-opposite party-2 copy of which is on record at page-47 of the paper book. With reference to above, the learned counsel for applicant submits that though in the date and time of occurrence column mentioned in the FIR it has been stated that the occurrence giving rise to present criminal proceeding occurred from 04.12.2024 to 09.12.2024, however, from the body of the FIR it is apparent that the prosecutrix was in long consensual relationship with the applicant. He therefore submits that FIR is highly belated. Since no explanation has come forward from the first informant opposite party-2 in the FIR itself explaining the delay and latches in filing the FIR, the impugned prosecution of applicant on the basis of such a belated FIR cannot be sustained.

6. It is next contended by the learned counsel for applicant that the prosecutrix is a well educated lady. The prosecutrix herself voluntarily and willingly entered into love relationship with the applicant and thereafter into consensual physical relationship with the applicant which continued for almost three years. The prosecutrix is major. She knowingly and willingly entered into relationship with the applicant. Since the prosecutrix is an adult, therefore, she understood the nature and effect of the relationship she entered into. As such the prosecutrix is a consenting party. Thus the prolonged physical relationship negates the chain of the promise regarding false promise of marriage. On the above premise, it is submitted by the learned counsel for applicant that no offence under Section 376 IPC can be said to be made out against applicant.

7. It is lastly contended by the learned counsel for applicant that the genesis of the FIR is that applicant is alleged to have extended a false promise of marriage, however, there is nothing on record to corroborate the genesis of the FIR. On the above premise, the learned counsel for applicant submits that the applicant and the prosecutrix were in consensual physical relationship for almost three years, therefore, by reason of the law laid down by the Apex Court in the case of Mahesh Damu Khare Vs. State of Maharashtra & Anr. 2024 SCC Online SC 3471, Prashant Vs. NCT of Delhi, 2024 Live Law (SC) 904, Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675, Shiv Shankar Vs. State of Karnataka, (2019) 18 SCC 204 and Rajnish Singh @ Soni Vs. State of U.P. and Anr. 2025 Live Law (SC) 279, wherein it has been held that once the parties are in consensual physical relationship for a long period then no offence under Section 376 IPC can be said to be made out against the accused, the impugned proceedings cannot be sustained. As such present application is liable to be allowed.

8. Per contra, the learned AGA for State-opposite party-1 has vehementally opposed the present application. He submits that applicant is a named and charge-sheeted applicant therefore no indulgence be granted by this Court in favour of applicant. During course of investigation, sufficient material was gathered by the Investigating Officer on the basis of which prima facie the criminality alleged to have been committed by applicant was found to be established. Accordingly applicant was charge-sheeted by the Investigating Officer. Applicant is guilty of dislodging the modesty of the prosecutrix repeatedly and continuously. Offence complained of against applicant is not only illegal but also immoral. The issue as to whether the applicant entered into relationship with the prosecutrix by extending a false promise of marriage or not is a question of fact which can be ascertained only during the course of trial. However, as per the statements of the prosecutrix recorded under Sections 180 and 183 BNSS, no such material has emerged therein on the basis of which it can be ex facie inferred that no false promise of marriage was extended by applicant.

9. On the above premise, the learned AGA for State-opposite party-1 submits that no indulgence be granted by this Court in present application. As such present application is liable to be dismissed by this Court.

10. When confronted with above, the learned counsel for applicant could not overcome the same.

11. Having heard the learned counsel for applicant, the learned AGA for State-opposite party-1, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that in the FIR giving rise to present criminal proceedings, the prosecutrix has detailed the series of events that have taken place from the inception up to lodging of the FIR. As per the allegations made in the FIR clear and categorical allegations have been made by the prosecutrix that only on account of promise of marriage made by accused applicant she entered into relationship with the applicant. Furthermore in the statements of the prosecutrix recorded under Section 180 and 183 BNSS, the prosecutrix has remained consistent and has duly supported the FIR. This Court while examining jurisdiction under Section 528 BNSS can neither conduct a view nor can it undertake an inquiry to examine the veracity of the statement of the prosecutrix. Therefore, this Court finds that at this stage there is no such material on record on the basis of which it can be conclusively concluded that no false promise of marriage was extended by applicant. Furthermore the said issue is a triable issue and can be decided either way only during the course of trial where parties at liberty to lead evidence framed against the said crime and not in summary proceeding under Section 528 BNSS. There is no such clinching fact on record on the basis of which the prosecution story as set out in the FIR can be said to be improbable.

12. In view of discussion made above, present application fails and is liable to be dismissed.

13. It is accordingly dismissed. Order Date :- 9.4.2025 R.S. Tiwari RAVI SHANKAR TIWARI High Court of Judicature at Allahabad

4. Learned counsel for applicant submits that though applicant is a named and charge-sheeted accused, however, in view of the facts that have now emerged on record, the criminal prosecution of applicant cannot be sustained any further. In the submission of the learned counsel for applicant the impugned criminal prosecution of applicant is not only malicious but also an abuse of the process of Court. Consequently, the present application is liable to be allowed by this Court.

5. In furtherance of aforesaid submission, the learned counsel for applicant first invited the attention of Court to the FIR dated

15.01.2025 lodged by the first informant-opposite party-2 copy of which is on record at page-47 of the paper book. With reference to above, the learned counsel for applicant submits that though in the date and time of occurrence column mentioned in the FIR it has been stated that the occurrence giving rise to present criminal proceeding occurred from 04.12.2024 to 09.12.2024, however, from the body of the FIR it is apparent that the prosecutrix was in long consensual relationship with the applicant. He therefore submits that FIR is highly belated. Since no explanation has come forward from the first informant opposite party-2 in the FIR itself explaining the delay and latches in filing the FIR, the impugned prosecution of applicant on the basis of such a belated FIR cannot be sustained.

6. It is next contended by the learned counsel for applicant that the prosecutrix is a well educated lady. The prosecutrix herself voluntarily and willingly entered into love relationship with the applicant and thereafter into consensual physical relationship with the applicant which continued for almost three years. The prosecutrix is major. She knowingly and willingly entered into relationship with the applicant. Since the prosecutrix is an adult, therefore, she understood the nature and effect of the relationship she entered into. As such the prosecutrix is a consenting party. Thus the prolonged physical relationship negates the chain of the promise regarding false promise of marriage. On the above premise, it is submitted by the learned counsel for applicant that no offence under Section 376 IPC can be said to be made out against applicant.

7. It is lastly contended by the learned counsel for applicant that the genesis of the FIR is that applicant is alleged to have extended a false promise of marriage, however, there is nothing on record to corroborate the genesis of the FIR. On the above premise, the learned counsel for applicant submits that the applicant and the prosecutrix were in consensual physical relationship for almost three years, therefore, by reason of the law laid down by the Apex Court in the case of Mahesh Damu Khare Vs. State of Maharashtra & Anr. 2024 SCC Online SC 3471, Prashant Vs. NCT of Delhi, 2024 Live Law (SC) 904, Deepak Gulati Vs. State of Haryana, (2013) 7 SCC 675, Shiv Shankar Vs. State of Karnataka, (2019) 18 SCC 204 and Rajnish Singh @ Soni Vs. State of U.P. and Anr. 2025 Live Law (SC) 279, wherein it has been held that once the parties are in consensual physical relationship for a long period then no offence under Section 376 IPC can be said to be made out against the accused, the impugned proceedings cannot be sustained. As such present application is liable to be allowed.

8. Per contra, the learned AGA for State-opposite party-1 has vehementally opposed the present application. He submits that applicant is a named and charge-sheeted applicant therefore no indulgence be granted by this Court in favour of applicant. During course of investigation, sufficient material was gathered by the Investigating Officer on the basis of which prima facie the criminality alleged to have been committed by applicant was found to be established. Accordingly applicant was charge-sheeted by the Investigating Officer. Applicant is guilty of dislodging the modesty of the prosecutrix repeatedly and continuously. Offence complained of against applicant is not only illegal but also immoral. The issue as to whether the applicant entered into relationship with the prosecutrix by extending a false promise of marriage or not is a question of fact which can be ascertained only during the course of trial. However, as per the statements of the prosecutrix recorded under Sections 180 and 183 BNSS, no such material has emerged therein on the basis of which it can be ex facie inferred that no false promise of marriage was extended by applicant.

9. On the above premise, the learned AGA for State-opposite party-1 submits that no indulgence be granted by this Court in present application. As such present application is liable to be dismissed by this Court.

10. When confronted with above, the learned counsel for applicant could not overcome the same.

11. Having heard the learned counsel for applicant, the learned AGA for State-opposite party-1, the learned counsel representing first informant-opposite party-2 and upon perusal of record, this Court finds that in the FIR giving rise to present criminal proceedings, the prosecutrix has detailed the series of events that have taken place from the inception up to lodging of the FIR. As per the allegations made in the FIR clear and categorical allegations have been made by the prosecutrix that only on account of promise of marriage made by accused applicant she entered into relationship with the applicant. Furthermore in the statements of the prosecutrix recorded under Section 180 and 183 BNSS, the prosecutrix has remained consistent and has duly supported the FIR. This Court while examining jurisdiction under Section 528 BNSS can neither conduct a view nor can it undertake an inquiry to examine the veracity of the statement of the prosecutrix. Therefore, this Court finds that at this stage there is no such material on record on the basis of which it can be conclusively concluded that no false promise of marriage was extended by applicant. Furthermore the said issue is a triable issue and can be decided either way only during the course of trial where parties at liberty to lead evidence framed against the said crime and not in summary proceeding under Section 528 BNSS. There is no such clinching fact on record on the basis of which the prosecution story as set out in the FIR can be said to be improbable.

12. In view of discussion made above, present application fails and is liable to be dismissed.

13. It is accordingly dismissed. Order Date :- 9.4.2025 R.S. Tiwari RAVI SHANKAR TIWARI High Court of Judicature at Allahabad