Nitin vs State of Maharashtra

C.V. Bhadang, J.—Rule. Rule made returnable forthwith. Heard finally by consent. This is an application u/s 482 of the Code of Criminal Procedure for quashing the complaint/FIR bearing No. 246/2013 registered with Police Station Ambazari, Nagpur for the offence punishable u/s 376 and Section 417 of Indian Penal Code.

The brief facts of the case are as under:

Respondent No. 2 filed a complaint on 11.9.2013 with Police Station Ambazari with the following allegations. That respondent No. 2/complainant, who is a housewife, was married with one Raja Balkrushna Deshpande in the year 1998 and has two children out of the wedlock. On account of certain differences, there was a divorce between her and Raja Deshpande in February, 2007. However, in the interest of children, both of them continue to live together jointly in the same house.

Some time prior to the incident, the complainant had joined Manjusha Convent, situated at Dharampeth, Nagpur as a teacher, so as to maintain herself. In the year 2011, she came in contact with the applicant, who is running a tent house (Bichayat Kendra) on the first floor of the building, where Manjusha Convent is situated.

The acquaintance between applicant and respondent No. 2 developed and they started contacting each other on phone and texting messages. Respondent No. 2 also disclosed all her information to the applicant. The applicant tried to establish relationship of love with her and promised that he will marry her in future and take responsibility of the children.

The applicant called her to meet him at the house located on the third and sixth floor of Jagat Apartment and accordingly, respondent No. 2 had visited the house of the applicant. On one day, in the evening, the applicant called respondent No. 2.to his house. When she went accordingly the applicant took her to his house on the third floor of the Jagat Apartment and in front of the statue of Lord Krushna made her to wear Mangalsutra and put vermilion mark on her forehead, saying that now both of them are married. Two days thereafter the applicant again called her, took her to the sixth floor apartment and on that day for the first time had established physical relations with her saying that both of them are already married. Subsequently, the applicant had sexual relations with her on many occasions on the third floor and the sixth floor apartment whenever his parents were not at house.

In July, 2013 when respondent No. 2 had been to the house of the brother of applicant, he had established sexual relations with her on 4 to 5 occasions and during this period was promising that they would formally marry. However, subsequently the applicant started avoiding her and even stopped picking her calls. Somehow or the other, respondent No. 2 managed to see the applicant and when she asked about the marriage, he flatly refused. Thereafter, respondent No. 2 learnt that the applicant is planning to get married elsewhere. Thereupon, respondent No. 2 informed about the entire episode to the parents of the applicant, when she was called at their house, where one Nilesh Kumbhare, a friend of the applicant was also present. Respondent No. 2 had also visited the office of Agni Constructions of Nilesh Kumbhare. There, the applicant made allegations that respondent No. 2 is demanding Rs. 2,00,000/- from him. The applicant again refused to marry with respondent No. 2, saying that nobody would marry a divorced lady. It appears that prior to this, respondent No. 2 had lodged complaint against the applicant with Human Rights Commission. However, the relatives of the applicant managed to pacify respondent No. 2, whereupon she withdrew the complaint in writing.

In short, according to respondent No. 2, the applicant had repeated sexual intercourse with her on promise of marriage from September, 2011 to July, 2013. According to the complainant, subsequently, the applicant refused to marry her, whereupon she realized that she has been deceived and lodged the complaint.

According to the applicant, he is a law abiding and loving citizen, doing business of tent house and has clean antecedents. According to the applicant, respondent No. 2 was working in Manjusha Convent, which was situated above the business/proprietary concern of the father of the applicant. It was there that both of them got acquainted with each other since about one and half year. Except the bare acquaintance there was or is no relationship of any kind whatsoever between them. Once the former husband of respondent No. 2 Raja Deshpande was introduced by her to him, she had also informed that she was being ill-treated and is leading a miserable life and had expressed that she needs a financial support.

Some time in the month of April, 2013 at about 10:00 to 11:00 a.m. when the applicant was supervising the renovation work of his flat and was standing near his house as the material was being unloaded, respondent No. 2 had come there. At that time, respondent No. 2 had shown inclination to see his residential flats. She was accordingly taken to the third and sixth floor residence, where workers were working. Respondent No. 2 left after 10 to 15 minutes. Thereafter, once respondent No. 2 called the applicant and demanded Rs. 5,000/- by way of urgent financial accommodation, which was extended on humanitarian ground.

In the meantime, the marriage of the applicant was settled and there was engagement on 4.8.2013. Respondent No. 2 even wished and congratulated the applicant after having learnt this fact. Thereafter, all of a sudden, on 7.8.2013 she demanded a sum of Rs. 10,00,000/- from the applicant, failing which she threatened to rope the applicant in a fake criminal case of rape and sexual assault and cheating. Fearing a dent to his reputation, the applicant tried to pacify the matter in which on 8.8.2013 in the morning hours both of them met at Futala lake, Nagpur, wherein respondent No. 2 again repeated her demand of money assuring that she would withdraw the complaint, if the amount was paid. Left with no option, the applicant negotiated the amount and was required to shell out Rs. 2,00,000/-, which was paid to respondent No. 2 only with an intention to avoid unnecessary damage to his and the family reputation. The amount was paid in cash on 8.8.2013, whereupon respondent No. 2 sent a message from her mobile at 3:30 p.m., expressing gratitude as under:

Happy Na ? I know, Thanks 2 Lac Ke Liye. Jindagee bhar main aapke aabhari rahungee.

On 9.8.2013 the parties again met at Futala lake, whereupon it is said that respondent No. 2 executed a document on stamp paper withdrawing all allegations made and assuring not to interfere in the life of the applicant or his family. It is said that one Yashpal Babaiya had also accompanied respondent No. 2 and with his intervention matter was resolved.

Despite this, respondent No. 2 was unnecessarily texting messages to the applicant, which are not responded to by the applicant. In short, according to the applicant, respondent No. 2 is trying to pressurize applicant so as to extort money from him and has fabricated the story. It is contended that there is no offence either u/s 376 or Section 471 of Indian Penal Code, which can be said to be made out, even on a bare perusal of the complaint.

Respondent No. 2 has filed reply and has opposed the allegations and the prayer made. It is contended that the complaint clearly discloses the offence u/s 376 and 417 of Indian Penal Code and no grounds have been made out for exercise of the inherent powers u/s 482 of the Code of Criminal Procedure. So far as the alleged text message sent on 8.8.2013 is concerned, it is contended that no such amount is taken or received by respondent No. 2. The applicant himself misused the mobile of respondent No. 2 and sent the text message only to create false evidence.

We have heard Shri Sunil Manohar, the learned Senior Counsel for the applicant and Shri A.S. Mardikar, the learned Senior Counsel appearing for respondent No. 2. We have also heard Shri M.K. Pathan, the learned Additional Public Prosecutor for respondent No. 1.

It is submitted by the learned Senior Counsel appearing for the applicant that respondent No. 2 is a grown up lady, aged 34 years, already having gone through marriage, having children. It is submitted that respondent No. 2 was, therefore, aware of the meaning and the responsibility attached to the marital status. It is submitted that bare perusal of the complaint would show that the alleged sexual relations between the parties were from September, 2011 to July, 2013 and the complaint is lodged on 11.9.2013. It is submitted that thus the complaint is clearly by way of after thought and is filed with ulterior motive. It is submitted that the text message sent on 8.8.2013 and the document executed on 9.8.2013 would clearly show that whatever dispute was there between the parties was finally settled and there was no reason to file the complaint. It is submitted that the text message, in fact, would clearly establish that there was a demand of money, which was satisfied by the applicant.

The learned Senior Counsel has taken us through the contents of the complaint in the context of the provisions of Section 375 and Section 90 of Indian Penal Code, which respectively define rape and ''consent'', within the meaning of the said Code. The learned Senior Counsel was at pains to point out that the present case would not fall under clause "fourthly" of Section 375, as that clause would apply to a case of impersonation. The learned Senior Counsel submitted that there is a clear distinction between deceit wherein there is no intention to marry from the inception and the case where subsequently the parties are unable to marry for any reason. It is submitted that in the present case, even according to the complainant, in the penultimate para of the complaint, it has been stated that the same is filed on account of refusal by the applicant to marry. Thus, even according to the complainant, there are no allegations that, since inception, the applicant had no intention to marry. Thus, ex facie no offence u/s 417 of Indian Penal Code could be said to be made out. It is next submitted that in terms of Section 90 of Indian Penal Code, false promise of marriage would not amount to "misconception of fact'''' as a false promise is not a fact within the meaning of the Code. The learned Senior Counsel has placed reliance on the decision of the Hon''ble Apex Court in the case of Deelip Singh @ Dilip Kumar Vs. State of Bihar, in this regard. It is, thus, submitted that neither the complaint makes out any case u/s 376 of Indian Penal Code nor Section 417 of Indian Penal Code. It is next submitted that respondent No. 2 has filed a petition baring No. A. 1087/2013 against the applicant, before the family Court at Nagpur u/s 9 of the Hindu Marriage Act, for restitution of conjugal rights. It is submitted that she is claiming to be the legally wedded wife of the applicant. It is, therefore, submitted that respondent No. 2 is taking contrary stands. It is, therefore, submitted that the complaint is clearly by way of an abuse of process of the Court, calling for the exercise of inherent powers of this Court.

On the contrary, it is submitted by the learned Senior Counsel appearing for respondent No. 2 that the applicant had made false promise of marriage and on that count had established physical relations with respondent No. 2. It is submitted that later the applicant refused to marry her. It is contended that obtaining consent by exercising deceit would not extricate the applicant even prima facie of the offence punishable u/s 376 of Indian Penal Code. So far as the submission based on the petition filed before the family Court is concerned, it is submitted that it is on the basis of the act of the petitioner of taking her to the third floor flat, putting vermilion to her forehead and making her wear a ''Mangalsutra''. Even so far as the delay is concerned, it is submitted that it cannot be a ground to throw the complaint at the threshold. The learned Counsel has placed reliance on the decision of the Hon''ble Supreme Court in the case of Karthi @ Karthick Vs. State Rep. by Inspector of Police, Tamil Nadu, in order to submit that no case for exercise of inherent powers of this Court is made out.

The learned Additional Public Prosecutor for respondent No. 1 has supported the submissions made on behalf of respondent No. 2.

The Hon''ble Apex Court had an occasion to consider the scope and ambit of the powers exercised by this Court u/s 482 of the Code of Criminal Procedure and under Article 226 of the Constitution of India for quashing of complaint/FIR/criminal proceedings. The Hon''ble Apex Court without intending to be exhaustive, has set out certain categories, in which such powers can be legitimately exercised. The relevant portion of the judgment of the Hon''ble Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, can be reproduced as under:

The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers u/s 482 CrPC can be exercised by the High Court either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulate and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers u/s 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated u/s 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

Turning to the present case, it appears to be not in dispute that respondent No. 2 was married earlier, she has been divorced and has two children from the wedlock. It is also not in dispute that she was serving as a teacher in Manjusha Convent, which was situated in the building, where the applicant was doing the business of tent house. It is also not in dispute that the applicant has his residential accommodation on the third and sixth floor of the Jagat Apartment. From the allegations and the counter-allegations it also appears to be not in dispute that the applicant and respondent No. 2 were acquainted to each other and not only that respondent No. 2 had also visited the house of the applicant in Jagat Apartment. It is also not in dispute that respondent No. 2 had lodged complaint against the applicant with the Human Rights Commission, which was subsequently withdrawn. The fact that there was a message sent from the mobile of respondent No. 2 to the applicant, acknowledging the receipt of Rs. 2,00,000/- and expressing thanks, is also not disputed. Although, it is contended by respondent No. 2 that it was managed to be sent by the applicant himself by misusing her mobile. It is also not in dispute and is in fact a matter of record that the respondent has filed a petition for restitution of conjugal rights against the petitioner before the family Court, Nagpur, claiming herself to be the legally wedded wife of the applicant.

Section 375 of Indian Penal Code (as amended w.e.f. 3.2.2013), which defines rape, runs as under:

Rape. - A man is said to commit "rape" if he-

(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions-

First. - Against her will.

Secondly. - Without her consent.

Thirdly. - With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

Fourthly. - With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly. - With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly. - With or without her consent, when she is under eighteen years of age.

Seventhly. - When she is unable to communicate consent.

Explanation 1. - For the purposes of this section, "vagina" shall also include labia majora.

Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act;

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity.

Exception 1. - A medical procedure or intervention shall not constitute rape.

Exception 2. - Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.

So far as the clause fourthly is concerned, the contention is that it presupposes that there is a sort of impersonation, wherein the man knows that he is not the husband of the woman and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Even if the argument is to be accepted for a moment that the allegations would not fall under clause fourthly of Section 375 of Indian Penal Code the question is about applicability of clause secondly, that is, without her consent.

Section 90 of Indian Penal Code does not define consent in positive terms but states what cannot be regarded as consent. Section 90 reads as under:

Consent known to be given under fear or misconception. - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or

Consent of insane person. - if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child. - unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

The Section has two parts under which the consent will not be regarded as a consent, namely (i) when it is given under a fear of injury or (ii) under a misconception of fact.

The argument on behalf of the applicant is that admittedly the allegations would not take this case within the ambit of first part. So far as second part is concerned, it is contended that a false promise of marriage would not be a misconception of fact.

The case of Deelip Singh @ Dilip Kumar Vs. State of Bihar, arose out of a conviction recorded on trial. In that case, the girl, who was aged about 16 years, was raped with her consent even before promise to marry was given. In the facts and circumstances of that case, it was held that the victim girl cannot be said to have given consent on misconception of fact u/s 90 of Indian Penal Code.

In paragraph No. 17 of the judgment, it has been inter alia held as under:

The concept and dimensions of ''consent'' in the context of Section 375, IPC has been viewed from different angles. The decided cases on the issue reveal different approaches which may not necessarily be dichotomous. Of course, the ultimate conclusion depends on the facts of each case.

(Emphasis Supplied)

In paragraph No. 21 of the said judgment, it has been further held as under:

Section 90 cannot, however, be construed as an exhaustive definition of consent for the purposes of the Indian Penal Code. The normal connotation and concept of ''consent'' is not intended to be excluded. Various decisions of the High Court and of this Court have not merely gone by the language of Section 90, but travelled a wider field, guided by the etymology of the word ''consent''.

It would thus appear that as held by the Hon''ble Apex Court the definition of consent u/s 90 of Indian Penal Code is not exhaustive.

In the case of Karthi @ Karthick Vs. State Rep. by Inspector of Police, Tamil Nadu, it was held that obtaining of consent by exercising deceit cannot be a legitimate defence to exculpate the accused.

Even so far as filing of the petition for restitution of conjugal rights is concerned, that is allegedly on the basis of the incident in which the applicant has put vermilion to the forehead of respondent No. 2 and made her to wear a Mangalsutra. That matter is also pending before the Family Court and thus, at this stage, no opinion can be expressed on the same.

On overall consideration of the facts and circumstances and the submissions made, we are of the view that at this stage, it would not be possible nor appropriate to decide whether there was a promise of marriage, which was false even from the inception or there was a subsequent refusal by the applicant as claimed by respondent No. 2 or for the matter of that, there was no such relationship and the complaint is actuated by some ulterior motive. These are essentially questions of fact which cannot be gone into or decided in an application of the present nature. The case would not fall under any of the categories, as set out above, in which this Court would be required to exercise inherent powers to quash complaint and the FIR. For these reasons, we are of the view that the application deserves to be dismissed. Needless to mention that, we may not be understood to have expressed any opinion on the merits of the controversy as the observations are essentially of a prima facie nature looking to the stage at which the matter stands. Accordingly, the criminal application is dismissed. Rule is discharged. No order as to costs.