Sunil Choudhary vs Union Territory J&K And Another

1 Instant petition, under Section 482 of the Code of Criminal Procedure, has been moved by the petitioner/accused seeking quashment of FIR No.

293/2020 dated 06.12.2020 for offence under Section 376 IPC registered with Police Station, Bari Brahamana, Samba as well as the consequent

proceedings emanating thereform.

Briefly stated, the case of prosecution is that on 06.12.2020, the prosecutrix lodged a written complaint with the Police of Police Station, Bari

Brahmana, Samba alleging therein that she had been continuously exploited and raped by the petitioner/accused since last 7 years on the promise of

marriage with her. Since the petitioner/accused refused to marry the prosecutrix, she filed a complaint before the Police. On the basis of this

complaint, the Police registered the aforesaid FIR for offence under Section 376 IPC and arrested the petitioner. It is pertinent to mention here that

during the course of investigation of the case, the statement of prosecutrix under Section 164 Cr.P.C has been recorded

3 The petitioner has challenged the aforesaid FIR on the ground that no case, much less a case punishable under Section 376 IPC is made out against

him. It is submitted that the prosecutrix was having deep love affair with him and that he had consensual sex with the prosecutrix and, therefore, it

cannot be said that an offence of rape was committed on her by him. It is further submitted that prosecutrix is a major, aged 24 years and therefore,

she must know the consequences of having sexual relations with the petitioner without being married to him.

4 Learned counsel for the petitioner submits that the present case is totally a case of consensual sex and, therefore, continuance of the criminal

proceedings against the petitioner would be an abuse of the process of Court. It is further submitted that the prosecutrix has executed an affidavit

before the Special Judicial Mobile Magistrate (Electricity), Sub Judge, Jammu on 11.01.2021, wherein she has stated that her statement under Section

164 CrPC was recorded under the influence of police officials as the police was threatening her that if she will not make the statement against the

petitioner, then they will registered a case against her. It is stated in the said affidavit that she was in deep love and affection with the petitioner.

Learned counsel for the petitioner submits that now the petitioner has married the prosecutrix in the Sub-Jail Hiranagar where both of them executed

marriage agreement and wherein it is stated that the petitioner and the prosecutrix have decided to live and reside like husband and wife. Lastly,

learned counsel for the petitioner, while relying upon a judgment of Hon’ble Supreme Court rendered in the case of State of Madhya Pradesh vs.

Laxmi Narayan and ors, (Criminal Appeal No. 349/2019, decided on 05.03.2019) submits that that in view of the agreement arrived at between the

parties, the offence alleged to have been committed by the petitioner may be allowed to be compounded.

5 Thus, on the basis of aforesaid submissions, learned counsel for the petitioner has prayed for quashment of the FIR and the consequent proceedings.

6 On the other hand, learned counsel appearing for the State opposes the prayer of the petitioner for quashing of FIR and the consequential

proceedings against the petitioner on the ground that the statement of the prosecutrix recorded under Section 164 of Cr.PC, prima facie indicates that

the petitioner is involved in the commission of offence. He thus prays for dismissal of the petition.

7 I have heard learned counsel for the parties and perused the record of the case.

8 At the outset, it would be pertinent to mention here that the judgment cited by learned counsel for the petitioner is not applicable to the present case

as the offence punishable under Section 376 IPC is non compoundable on account of settlement between the accused and the prosecutrix, therefore, it

cannot not be a ground to quash the criminal proceedings.

9 Before proceeding further, it would be appropriate to state here that the Supreme Court, in its celebrated decision rendered in the case of State of

Haryana Vs. Bhajanlal reported in 1992 Supp (1) , laid down certain parameters and mentioned the categories of cases where the High Court can

exercise its extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure and to quash the proceedings pending against the accused.

In the said judgment, the Supreme Court laid down that the power of the High Court under Section 482 CrPC can be exercised where the allegations

made in the First Information Report or 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.

10 In the instant case, admittedly the prosecutrix is a grown up girl, aged about 24 years who is well aware of consequences of having a physical

relationship with the petitioner prior to the marriage. It is settled that if a fully grown up girl consents to act of sexual intercourse on a promise of

marriage and continues to indulge in such activities until she becomes pregnant, it is an act of promiscuity on her part and not an act induced by

misconception of facts. The Hon’ble Supreme Court in the case of Jayanti Rani Panda vs. State of Bengal 1984 CrLJ, has held that failure to

keep the promise of marriage at a future uncertain date does not always amount to a misconception of fact at the inception of the act itself.

11 It is also an admitted fact that the prosecutrix has been in relationship with the petitioner since the last 7 years The Supreme Court in the case of

Uday vs State of Karnataka, (2003) 4 SCC 46, while considering the similar issue, made certain observations which are relevant in the context of the

present case. The same read as under:

“It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come

what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such

circumstances the promise loses all significance, particularly when they are over come with emotions and passion and find themselves in

situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears

to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she

was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult

to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise.

In any event, it was not possible for the appellant to know what was in the mind of the prosecutrix when she consented, because there were

more reasons than one for her to consentâ€​.

12 From the above, it becomes clear that for making out a charge of rape against an accused, there has to be material to show that the prosecutrix

had consented to sexual intercourse in consequence of a misconception of fact arising from the promise of the accused.

13 Admittedly, there was no specific allegation to the effect that the petitioner, at any time, forcibly had intercourse with the prosecutrix. The

prosecutrix voluntarily had sex with the petitioner which shows that she was a consenting party to the act committed on her by the petitioner.

14 The prosecutrix in her statement recorded under Section 164 CrPC has clearly stated that the petitioner/accused was all along willing and ready to

marry her and he is ready to marry her even today, but his parents are not in favour of this marriage. She further states that after the registration of

FIR even parents have agreed to the marriage. When the statement of prosecutrix recorded under Section 164 CrPC is read with her complaint, it is

evident that there had been no false promise of marriage by the petitioner/accused, that too, with a view to induce the prosecutrix to sexual act.

Reference in this regard is insisted to paras 21 and 24 of the judgement rendered in the case of Deepak Gulati vs State of Haryana, (2013) 7 SCC

675.

“21. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason,

accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape

and consensual sex and in a case like this, the court must very carefully examine whether the accused had actually wanted to marry the

victim, or had mala fide motives, and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of

cheating or deception. 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 mis-representation 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 control, was

unable to marry her, despite having every intention to do so. Such cases must be treated differently. An accused can be convicted for rape

only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motivesâ€​.

“24 Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at 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 herâ€​.

15 Having regard to the conduct of the prosecutrix and the legal position adumbrated above, it cannot be said that the petitioner has committed the

offence alleged against him. More so, the petitioner has married the prosecutrix in the jail and, therefore, promise allegedly extended has been fulfilled.

In these circumstances, even if, we were to put the petitioner/accused to trial, nothing but clean acquittal will come out.

16 For the foregoing reasons, the petition is allowed and the impugned FIR registered with Police Station, Bari Brahmana, Samba as well as the

proceedings emanating thereform are quashed. Since the FIR in question and the proceedings emanating therefrom have been quashed, Bail

Application No. 18/2021 is rendered infructuous. Superintendent Sub-Jail, Hiranagar is directed to release the petitioner forthwith, if not required in

any other case.