V.C. Vargese vs State Of Madhya Pradesh And Another

This petition under Section 482 of the Cr.P.C. has been filed to quash the FIR (Crime No.107/2019) registered at Police Station Adhartal, District Jabalpur for the offence punishable under Sections 376(2)(n), 506 of the IPC against the applicant and its consequential proceedings arises out of the aforesaid crime number.

Brief facts which are relevant for the disposal of the case are that on 31/01/2019 non-applicant No.2 lodged a report at Police Station Adhartal, Distt. Jabalpur averring that she lived at Mispa Mission Compound, Jay Prakash Nagar, Adhartal and she was working as Principal in Mispa Mission Higher Secondary School, Adhartal. In the year 2004, she had applied for the post of Teacher at Mispa Mission School, Sehora, where the applicant was posted as Director and for the first time she met with the applicant there. Thereafter, non-applicant No.2/prosecutrix worked there as a Physics Teacher. At that point of time, she was living at Hemant Sharma's house on rent situated at Agrawal Colony, Madan Mahal separately from her husband and divorce case between them was also pending in the Court. During that period non-applicant No.2/prosecutrix became a friend of the applicant and in the Month of October, 2004 applicant came to her house situated at Agrawal Colony and made sexual relation with her on the pretext of marriage. Thereafter, when prosecutrix came to know that the applicant is married and had two children, she denied to make a relation with the applicant, but the applicant stated that the mental condition of his wife is not good, so he wanted to live with her (prosecutrix) and he will soon marry her and made sexual relation with her and continuously sexually exploited her from the year 2008 to 2016 on the pretext of marriage. When the relationship between the applicant and non-applicant No.2/prosecutrix came to the notice of the applicant's wife, non-applicant No.2/prosecutrix asked the applicant for marriage, but the applicant denied to marry her and pressurized her for making sexual relations. Applicant also threatened to defame her and threatened to kill her. On that Police registered Crime No.107/2019 against the applicant for the offence punishable under Sections 376(2)(n), 506 of the IPC. Being aggrieved from registration of FIR and its consequential proceedings applicant preferred this petition.

Learned counsel for the applicant submitted that from the perusal of the FIR no offence under Section 376(2)(n), 506 of the IPC is made out against the applicant. In the FIR non-applicant, No.2/prosecutrix clearly mentioned that when she came into contact with the applicant, at that time she was married and her divorce case was pending. She also mentioned in the FIR that in the Month of October, 2004 when applicant made sexual relations with her, at that time she knew that the applicant was married and had two children, even then prosecutrix made sexual relation with the applicant up to 2016, which clearly shows that the prosecutrix made sexual relation with the applicant knowing it well that the applicant is married, so no offence is made out against the applicant. The prosecutrix is a major divorcee and she is well versed in the ways of life, yet she claimed that she succumbed to the promise of marriage made by the applicant and continued to submit to sexual intercourse for a considerable period. In these circumstances, it cannot be said that the consent given by the prosecutrix to sexual intercourse was based on a misconception of facts. It is not a case of the prosecutrix that the applicant had physical relations for once or twice, but according to her, she had physical relations with the applicant for 15 years and respondent no.2 knew this fact that the applicant is already married, therefore, her marriage was not possible with him. Even then, if she had consensual sex with the applicant, then it is not a case where consent of the prosecutrix was obtained either by misrepresentation or misconception of fact. This is a clear case of a relationship between two consenting adults for mutual sexual gratification. Therefore, no offence under Section 376 of the IPC is made out against the applicant.

Learned counsel further submitted that when applicant gave notice to the non-applicant No.2/prosecutrix to expel her from the said School, then prosecutrix lodged false report against the applicant, hence the FIR and its consequential proceedings be quashed. In this regard learned counsel also placed reliance on a judgment of Hon'ble Apex Court passed in the cases of Deepak Gulati vs. State of Haryana, AIR 2013 SC 2071, Tilak Raj vs. State of Himachal Pradesh, AIR 2016 SC 406, Yedla Srinivasa Rao vs. State of Andhra Pradesh, (2006) 11 SCC 615, Uday vs. State of Karnataka, (2003) 4 SCC 46 and Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra & Ors, AIR 2019 SC 327.

On the other hand, learned counsel of the State as well as prosecutrix/non-applicant No.2 vehemently opposed the petition and submitted that the consent of sexual intercourse accorded by the prosecutrix was on account of the false promise of marriage held out by the applicant. Hence, the consent was not valid consent and the sexual intercourse committed by the applicant would fall under the purview of rape. It has also been contended that at any rate, such a question of fact which depends upon the evidence of the parties cannot be considered at this stage. Thus counsel prayed for rejection of the petition.

This court has gone through the record and arguments put forth by the learned counsel of the parties.

From the judgments of Apex Court passed in the cases of Deepak Gulati vs. State of Haryana (supra), Tilak Raj vs. State of Himachal Pradesh, Yedla Srinivasa Rao vs. State of Andhra Pradesh, (Supra), Uday vs. State of Karnataka (Supra) & Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra & Ors. (Supra) the position that emerges on the point whether consensual sex on the promise of marriage can be called rape or not is that 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 control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. But in such cases where the intention of the accused was mala fide, and that he had clandestine motives and where the accused right from the inception had mala fide intention and that he had made such false promise of marriage from the very beginning, in order to lure the victim to have sexual relations with him.Such acts comes under the preview of rape.

But whether in a particular case the relationship of the prosecutrix with the accused was her conscious decision or consent for physical relationship was given by the prosecutrix under the misconception of fact is to be tested independently depending on the facts and circumstances of each and every case and no straight-jacket formula can be adopted. In the cases of Deepak Gulati vs. State of Haryana (supra), Tilak Raj vs. State of Himachal Pradesh, Yedla Srinivasa Rao vs. State of Andhra Pradesh, (Supra) and Uday vs. State of Karnataka (Supra) Hon'ble Apex Court gave the findings after evaluating the evidence on merits at the time of judgement. While in this case, the applicant has filed this petition for quashing of FIR. Similarly, in the case of Dr. Dhruvaram Murlidhar Sonar vs. State of Maharashtra & Ors. (Supra) also Hon'ble Apex Court after evaluating the whole charge-sheet quashed the criminal proceedings. Even, in that case it was alleged that applicant made sexual relation with the prosecutrix after informing him that he is a married man, while in this case according to FIR applicant for the first time made sexual relation with the prosecutrix without informing her that he was married. Applicant also did not file copy of charge-sheet and has clearly submitted that he has filed this petition for quashing of FIR and only filed copy of FIR alongwith the petition. So, the abovementioned judgments do not help much to the applicant at this stage.

Regarding quashing of FIR Hon'ble Apex Court in the case of Vinod Raghuvanshi vs. Ajay Arora, (2013) 10 SCC 581" held "It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a stillborn child", and appropriate prosecution should not be stifled unless there are compelling circumstances to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein.

Hon'ble Apex court in the case of Dineshbhai Chandubhai Patel vs. State of Gujarat, (2018) 3 SCC 104 held "In our considered opinion, once the court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code."

In the instant case although it appears from the FIR that prosecutrix who was a major even after knowing the fact that applicant is married continued sexual relation with him for a long time. But from the FIR prima facie offence under Section 376 of the IPC is made out. So, the FIR cannot be quashed at this stage.

Accordingly, petition is dismissed.

However, applicant is free to raise all his objections at an appropriate stage before the trial Court.

Certified copy as per rules.