* 1 * Cri.Appln. 3380.2010 7.1.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3380 OF 2010 Varun Arvindkumar Agrawal .......Applicant V/S. 1. The State of Maharashtra (Through Senior Inspector of Police Powai Police Station) 2. Saloni Rakesh Gupta .........Respondents * * * * * * Mr. Nitin Pradhan, Senior Counsel i/by. Mr. Amarendra Mishra , Advocate for the applicant. Mr. A.S. Shitole, APP for the State-respondent no.1 and respondent no. 2. Coram : Smt. R.P. SondurBaldota, J. 7 January, 2011. P.C. : 1. The applicant herein is a co-pilot with Jet Airways. Respondent no.2 is an Air-Hostess with the same Airline. At her instance, Powai Police Station has registered FIR No.241 of 2010 dated 27th May, 2010 for the offences punishable under Sections 420, * 2 * Cri.Appln. 3380.2010 7.1.2011 323, 376, 506 Indian Penal Code. The applicant was arrested on 29th May, 2010 and released on bail on 14th June, 2010. He has filed the present application for quashing of the FIR. 2. Respondent no.2 alleges in her complaint that after she got acquainted with the applicant as a fellow employee hailing from the same native place, he started regularly visiting her residence. After some days, he proposed her to marry him. Believing the proposal for marriage, respondent no.2 succumbed to his entreaties to have sexual relations with him. The applicant represented to her mother also that he was going to marry respondent no.2. At times, he would put Kumkum on the head of respondent no.2 as a sign of marriage. After continuing the relationship for more than a year, the applicant refused to marry respondent no.1 as his father was opposed to the marriage and had threatened to disinherit him of the ancestral properties if he married respondent no.2. 3. Mr. Pradhan, the learned Senior Counsel appearing for the applicant, submits that the physical relations between the applicant and respondent no.2 were consensual and hence that by itself does not constitute the offence under Section 376 Indian Penal Code. He * 3 * Cri.Appln. 3380.2010 7.1.2011 also submits that the applicant had made every possible effort to marry respondent no.2 but his father was opposed to the marriage. Mr. Pradhan, relies upon two decisions of the Apex Court in the case of Uday V/s. State of Karnataka reported in 2003 All MR (Cri.) 975 (S.C.) and in the case of Deelip Singh @ Dilip Kumar V/s. State of Bihar reported in 2005 All MR (Cri.) 220 (S.C.) to submit that the consent given by respondent no.2 to sexual intercourse with the applicant with whom she was 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, as explained by Section 90 of Indian Penal Code. 4. The first aspect to be noticed about the above two decisions is that they are of the post-trial stage. There is a note of caution worded at paragraph-21 of the decision in the case of Uday (supra) which must be mentioned here. This note of caution has been approved in the second decision cited of Deelip Singh’s case (supra). Paragraph-21 reads as follows : 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 * 4 * Cri.Appln. 3380.2010 7.1.2011 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 strait jacket 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 conciliation, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 5. In view of the above observations, the prosecution cannot be denied the opportunity of establishing the allegation that the consent given was under misconception of fact by quashing the proceedings at the threshold. Besides there are several other allegations made in the complaint of threatening respondent no.2 and forcing her into sexual intercourse which require separate considerations. In the circumstances, the application is dismissed. [Smt. R.P. SondurBaldota, J]