IN THE HIGH COURT OF DELHI Crl.M.C. No.5023/2005 # Satyam Chugh ........ Petitioner ! through: Mr.K.K.Sud, Senior Advocate with Mr.A.A.Aron, Mr.Anish Shreshta and Mr.Atul Sahi. VERSUS $ State & Anr. ........ Respondents ^ through: Mr.Jaideep Malik for the State. Mr.Arvind Kumar Shukla, Ms.Sriparna Chatterjee, Mr.Atul Kumar and Ms.Soumita Chatterjee for the complainant. RESERVED ON : 28.09.2007 % DATE OF DECISION: 23.10.2007 CORAM: * Hon'ble Mr.Justice Pradeep Nandrajog 1. Whether reporters of local papers may be allowed to see the judgment? Y 2. To be referred to the Reporter or not? Y 3. Whether judgment should be reported in Digest? Y : PRADEEP NANDRAJOG, J. 1. Satyam Chugh prays that FIR No.265/05 under Section 376 IPC PS Nabi Karim be quashed and compensation be awarded to him as per guidelines laid down by the Supreme Court in the decision reported as 1994 (4) SCC 260 Joginder Kumar vs. State of Uttar Pradesh. Crl.M.C. No.5023/2005 Page No.1 of 20 2. In support of the petition, during arguments Shri K.K.Sud, learned senior counsel for the petitioner relied upon the 6 under noted decisions:- (1) Uday vs. State of Karnataka (2003) 4 SCC 46. (2) Deelip Singh @ Dilip Kumar vs. State of Bihar (2005) 1 SCC 88. (3) Yedla Srinivasa Rao vs. State of A.P. 2006 (4) Crimes 281. (4) Manish Kumar Jayant vs. State & Anr. 2005 (3) JCC 1611. (5) Abhoy Pradhan vs. State of West Bengal 1999 Cri.L.J. 3534. (6) Sansar Chand vs. State of Himachal Pradesh 1999 Cri.L.J. 3538. 3. Opposing the plea, Shri Jaideep Malik, learned counsel for the State assisted by Mr.Arvind Kumar Shukla, learned counsel for the complainant urged that no case is made out for quashing the FIR. 4. I may point out that investigation is complete and a charge sheet has been filed. Thus, as agreed between the learned counsel for the parties matter was considered strictly within the confines of power which this Court can exercise under Section 482 of the Code of Criminal Procedure while considering a FIR. Meaning thereby, learned counsel for the parties restricted Crl.M.C. No.5023/2005 Page No.2 of 20 submissions to the FIR and eschewed any reference to the charge- sheet which has been filed. 5. The FIR was registered pursuant to a complaint lodged by the prosecutrix RM aged 34 years when she filed the complaint. 6. RM appears to be an unfortunate lady. She was married in 1996. Her husband went missing. She obtained an ex- parte divorce in the year 2002. 7. Her alleged ordeal with the petitioner started, as per the FIR, when she placed an advertisement in a matrimonial site on the inter-net in July 2002. She states in the FIR that she gave her particulars on the website as a 30 years old divorcee. In August 2002 she received a marriage proposal from the petitioner who though was just 24 years, a fact which was learnt subsequently, disclosed his age as 29 years. He informed that he was born in the year 1974. He proposed a matrimonial alliance. That Satyam started calling her daily from September 2002 and stated that though he was about 2 years younger to her, it hardly mattered. Since Satyam was at Delhi she reached Delhi in December 2002 and stayed at a guest-house in Malviya Nagar. Satyam used to meet her daily. They spoke to each other in the presence of each other. She returned back to Nagpur on 5.1.2003. The two would talk daily for hours together. In March 2003 Satyam told her to come to Delhi to finalize the marriage Crl.M.C. No.5023/2005 Page No.3 of 20 plans. He arranged stay for her at Hotel Ajanta in Paharganj. She came to Delhi to finalize the marriage proposal. Satyam told her that his sister was to get married and therefore he had to postpone their marriage plans. She returned back to Nagpur. They continued to interact daily with each other. He called her once again to visit him at Delhi in May. Saying that he would marry her, she was enticed into a physical relationship. She was made to stay once again at Hotel Ajanta, Paharganj. She talked about the marriage. Satyam told her that his younger brother's senior secondary result had just been announced. His brother has not done too well. He had to make arrangements for his brother to be admitted in a good college. On said pretext he postponed the marriage plan. That in July 2003 Satyam came to Nagpur and stayed at Hotel Amrita. He assured her with marriage and persuaded her for another physical encounter. He assured her that he would marry her in August 2003. That he took her consent by fraud and on false assurance of marriage. That in August 2003 Satyam told her to reach Bangalore so that they could marry in an Arya Samaj Mandir. That she inquired as to why he was marring contrary to social customs in the absence of his parents and that too at a far off place in Bangalore. That he told her that his parents had left the choice of a life-partner to him. That her parents would accept her. That they stayed at Hotel Rama in Bangalore. That for a third time they had physical Crl.M.C. No.5023/2005 Page No.4 of 20 relations. She gave her consent as she was assured of marriage. That at Bangalore he kept on postponing the day of the marriage. They stayed at Bangalore for about 15 days. She went back to Nagpur and he to Delhi. In September 2003 she found that she was pregnant. Satyam was informed. He coerced her to terminate the pregnancy. She did so. That by October 2003 Satyam was introduced to her mother and sister. He told them not to worry. That they continued to speak to each other. She was assured that he would marry her. That Satyam postponed the marriage on the ground that he had suffered some financial losses. That soon he started avoiding her. That she managed to find out that Satyam had shifted residence to Ghaziabad. She found out his telephone number. When she called, his mother responded. She told Satyam's mother as to what had happened. That Satyam's mother abused her. That on 7.8.2004 she came to Delhi and contacted Satyam. He refused to marry her. But soon thereafter assured her that all would be fine. That on 21.9.2004 Satyam came to her hotel room and once again forced her into sex persuading her that he would get married to her. That soon thereafter Satyam told her to go back home and forget about everything. 8. Picking on the FIR, Shri K.K.Sud, learned senior counsel for the petitioner urges that from a bare reading of the FIR it is apparent that the complainant was in deep love with Satyam and Crl.M.C. No.5023/2005 Page No.5 of 20 aged 30 years was a matured person to understand the moral worth of her actions. Being a divorcee, she was aware of what is a matrimonial bond. That it was not any assurance of marriage which led complainant into the sexual relationship with his client but it was love which drove the two to the bed. 9. Learned senior counsel analyzed the FIR as under:- (a) The statements in the FIR that the complainant and Satyam spoke to each other daily from September 2002 and continued to do so till January 2003 evidences a deep love bond. (b) That the physical relationship between the parties was stated to be in May. But, twice earlier, the two had met. If intention of Satyam was to cheat the complainant and sex was on his mind, he would have seduced/induced the complainant into sex when the two met for the first time in December 2002. (c) That when the two went to Bangalore, as per the complainant the visit was with the intention of getting married at Bangalore. Admittedly, marriage did not took place, yet the couple had sex at Bangalore. The complainant has stated that she told Satyam that it was unusual for the marriage to take place away from the presence of the family members and in a remote city, meaning thereby, the complainant had Crl.M.C. No.5023/2005 Page No.6 of 20 apprehensions that the marriage would not materialize. Coupled with the fact that the complainant had mentioned in the FIR that she was aware of her being elder and also a divorcee as also the fact that in the Indian society such marriage may not be acceptable to the parents of Satyam had expressed to Satyam whether she would be acceptable in his family. The apprehension of the complainant as expressed in the FIR was prima facie sufficient to infer that while giving consent for sex, complainant was aware that marriage between the two was a distant possibility, meaning thereby consent for sex was motivated by the deep love bond. 10. With reference to the decision of the Supreme Court in Uday's case (supra) learned senior counsel pointed out that in said case, Hon'ble Supreme Court noted that as per the prosecutrix of said case, she was aged 19 years, meaning thereby, was a mature person. That the prosecutrix was aware that she and the accused came from different castes and marriage may not be possible. In any event, their marriage was bound to be seriously opposed by the family members and yet prosecutrix went into a sexual encounter with the accused. That she was sufficiently intelligent to understand the significance and moral guilt of the act she was consenting to. Crl.M.C. No.5023/2005 Page No.7 of 20 11. Counsel pointed out that from afore-noted facts, Supreme Court opined that the prosecutrix freely exercised a choice between resistance and assent. She knew the consequences of her act. Under the circumstances, it was held that the prosecutrix freely, voluntarily and consciously consented to having sexual intercourse with the accused. That it was held that her consent was not in consequence of any misconception of fact. 12. Learned senior counsel urged that ratio of Uday's case (supra) was followed with approval by the Supreme Court in Deelip Singh's case (supra). That it was consistently followed in 4 other cases noted in para 2 above. 13. In Uday's case (supra), Supreme Court considered the definition of rape as defined under Section 375 IPC with reference to circumstance second out of six circumstances as enumerated in Section 375 IPC having regard to Section 90 of IPC which deals with consent given under fear or misconception. 14. It would be useful to note Section 375 and Section 90 of the IPC. They read as under:- “375. Rape.– A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First. - Against her will. Secondly. - Without her consent. Crl.M.C. No.5023/2005 Page No.8 of 20 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 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 sixteen years of age. Explanation.– Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.– Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.” “90. Consent known to be given under fear or misconception.– A consent is not such a consent as it 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.” Crl.M.C. No.5023/2005 Page No.9 of 20 15. Dealing with the submission of learned counsel for the accused and as noted in para 10 in the decision in Uday's case (supra) that a belief that the promise of marriage was meant to be fulfilled is not a misconception of fact and that the question of misconception of fact will arise only if the act consented to is believed by the person consenting to be something else and on that pretext sexual intercouse is committed, the Hon'ble Judges of the Supreme Court referred to consent as defined in Stroud's Judicial Dictionary and as explained and applied in certain decisions. 16. It was noted by their Lordships in paras 10 to 16 of the report in Uday's case (supra) as under:- “10. ......................... In Stroud's Judicial Dictionary (5th Edn.) p.510 “consent” has been given the following meaning: “Consent is an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side.” It refers to the case of Holman v. R. 1970 WAR 2 wherein it was held that:- “there does not necessarily have to be complete willingness to constitute consent. A woman's consent to intercourse may be hesitant, reluctant or grudging, but if she consciously permits it there is consent”. Similar was the observation in R. v. Olugboja (1981) 3 WLR 585 wherein it was observed that “consent in rape covers states of mind ranging widely from actual desire to reluctant acquiescence, and the issue of consent should not be left to the jury without some further direction”. Stephen J. in R. v. Clarence (1888) 22 QBD 23 observed: (All ER p.144 C-D) Crl.M.C. No.5023/2005 Page No.10 of 20 “It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualification. It is too short to be true, as a mathematical formula is true.” Wills, J. observed: (All ER p.135 I) “That consent obtained by fraud is no consent at all is not true as a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent.” 11. Some of the decisions referred to in Words and Phrases, Permanent Edition, Vol.8A at p.205 have held: “that adult female's understanding of nature and consequences of sexual act must be intelligent understanding to constitute 'consent'. Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent. Legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed, its immoral character, and the probable or natural consequences which may attend it”. 12. The courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent. In Rao Harnarain Singh Sheoji Singh v. State AIR 1958 Punj. 123 it was observed: (AIR p.126, para 7) “7. A mere act of helpless resignation in the face of inevitable compulsion, quiescence, non-resistance, or passive giving in, when volitional faculty is either clouded by fear or vitiated by duress, cannot be deemed to be 'consent' as understood in law. Consent, on the part of a woman as a defence to an allegation of rape, requires voluntary participation, not only after the exercise of intelligence, based on the knowledge, of the significance and moral quality of the act, but Crl.M.C. No.5023/2005 Page No.11 of 20 after having freely exercised a choice between resistance and assent. Submission of her body under the influence of fear or terror is no consent. There is a difference between consent and submission. Every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent. Consent of the girl in order to relieve an act, of a criminal character, like rape, must be an act of reason, accompanied with deliberation, after the mind has weighed as in a balance, the good and evil on each side, with the existing capacity and power to withdraw the assent according to one's will or pleasure.” 13. The same view was expressed by the High Court of Kerala in Vijayan Pillai v. State of Kerala (1989) 2 Ker. LJ 234. Balakrishnan, J., as he then was, observed: (Ker.L.J. pp.238-39, para 10) “10. The vital question to be decided is whether the above circumstances are sufficient to spell out consent on the part of PW 1. In order to prove that there was a consent on the part of the prosecutrix it must be established that she freely submitted herself while in free and unconstrained possession of her physical and mental power to act in a manner she wanted. Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be 'consent'. Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done, or of the nature of the act that is being done is essential to a consent to an act. Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers. Every consent to act involves submission, but it by no means follows that a mere submission involves consent. In Jowitt's Dictionary of English Law, IInd Edn., Vol.I explains 'consent' as follows:- 'An act of reason accompanied with deliberation, the mind weighing, as in a balance, the good or evil on either side. Consent supposes three things – a physical power, a mental power and a free and serious use of them. Hence it is that if Crl.M.C. No.5023/2005 Page No.12 of 20 consent be obtained by intimidation, force, mediated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind.'” 14. In Anthony, In re AIR 1960 Mad. 308, Ramaswami, J. in his concurring opinion fully agreed with the principle laid down in Rao Harnarain Singh case AIR 1958 Punj. 123 and went on to observe: (AIR pp.311-12, para 21) “A woman is said to consent only when she agrees to submit herself while in free and unconstrained possession of her physical and moral power to act in a manner she wanted. Consent implies the exercise of a free and untrammelled right to forbid or withhold what is being consented to; it always is a voluntary and conscious acceptance of what is proposed to be done by another and concurred in by the former.” 15. The same view has been reiterated by the Punjab High Court in Arjan Ram Naurata Ram v. State AIR 1960 Punj. 303, by the Rajasthan High Court in Gopi Shanker v. State of Rajasthan AIR 1967 Raj. 159 and by the Bombay High Court in Bhimrao Harnooji Wanjari v. State of Maharashtra 1975 Mah. L.J. 660. 16. The High Court of Calcutta has also consistently taken the view that the failure to keep the promise on a future uncertain date does not always amount to misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. In Jayanti Rani Panda v. State of W.B. 1984 Cri.L.J. 1535 the facts were somewhat similar. The accused was a teacher of the local village school and used to visit the residence of the prosecutrix. One day during the absence of the parents of the prosecutrix he expressed his love for her and his desire to marry her. The prosecutrix was also willing and the accused promised to marry her once he obtained the consent of his parents. Acting on such assurance the prosecutrix started cohabiting with the accused and this continued for several months during which period the accused spent several nights with her. Eventually when she conceived and insisted that the marriage should be performed as quickly as possible, the accused suggested an abortion and agreed to marry her later. Since the proposal Crl.M.C. No.5023/2005 Page No.13 of 20 was not acceptable to the prosecutrix, the accused disowned the promise and stopped visiting her house. A Division Bench of the Calcutta High Court noticed the provisions of Section 90 of the Indian Penal Code and concluded: (Cri.L.J. p.1538, para 7) “The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her. 17. In para 21 of the report in Uday's case (supra) it was held as under:- “21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may Crl.M.C. No.5023/2005 Page No.14 of 20 have a bearing on the question whether the consent was voluntary, or was given under