SHAMBHU KHARWAR versus STATE OF UTTAR PRADESH & ANR.
[2022] 7 S.C.R. 156, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Facts
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
SHAMBHU KHARWAR
v.
STATE OF UTTAR PRADESH & ANR.
(Criminal Appeal No. 1231 of 2022)
AUGUST 12, 2022
[DR DHANANJAYA Y CHANDRACHUD AND
A S BOPANNA, JJ.]
Penal Code 1860: ss. 376, 375 – Punishment for rape –
Necessary ingredients of s. 375 – On facts, accusation of rape by
the second respondent-women against the appellant-man on the
pretext of marriage – Application by appellant seeking quashing of
criminal case registered for an offence punishable u/s. 376 –
Dismissed by the High Court – On appeal, held: Relationship
between the parties-appellant and the second respondent purely
consensual in nature – They are both educated adults – Relationship
of the second respondent with the appellant was in existence prior
to the marriage of the second respondent and continued to subsist
during the term of the marriage and after the second respondent
was granted a divorce by mutual consent – Thus, the essential
ingredients of an offence u/s. 376 not made out – Order passed by
the High Court set aside and the application u/s. 482 CrPC allowed.
Allowing the appeal, the Court
HELD: 1.1 In the instant case, admittedly, the appellant
and the second respondent were in a consensual relationship from
2013 until December 2017. They are both educated adults. The
second respondent, during the course of this period, got married
on 12 June 2014 to someone else. The marriage ended in a decree
of divorce by mutual consent on 17 September 2017. In
this
backdrop and taking the allegations in the complaint as they stand,
it is impossible to find in the FIR or in the charge-sheet, the
essential ingredients of an offence under Section 376 IPC. As
regards, the issue whether the allegations indicate that the
appellant had given a promise to the second respondent to marry
which at the inception was false and on the basis of which the
second respondent was induced into a sexual relationship. Taking
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the allegations in the FIR and the charge-sheet as they stand,
the crucial ingredients of the offence under Section 375 IPC are
absent. The relationship between the parties was purely of a
consensual nature. The relationship, was in existence prior to
the marriage of the second respondent and continued to subsist
during the term of the marriage and after the second respondent
was granted a divorce by mutual consent. [Paras 12, 13][163-C-
D, F-G]
1.2 The High Court merely observed that the dispute raises
a question of fact which cannot be considered in an application
under Section 482 CrPC. The facts would indicate that the
ingredients of the offence under Section 376 IPC were not
established. Thus, the High Court proceeded to dismiss the
application under Section 482 CrPC on a completely
misconceived basis. The impugned judgment and order of the
High Court in application u/s 482 is set aside. The application
under Section 482 CrPC shall accordingly stand allowed. [Paras
14, 15][163-G-H; 164-A-C]
Neeharika Infrastructure v. State of Maharashtra (2021)
SCC OnLine SC 315; R.P. Kapur v. State of Punjab
AIR 1960 SC 866 : [1960] SCR 388; State of Haryana
v. Bhajan Lal (1992) 1 Suppl. SCC 335 : [1990] 3 Suppl.
SCR 259; Dhruvaram Murlidhar Sonar v. State of
Maharashtra (2019) 18 SCC 191; Pramod Suryabhan
Pawar v. State of Maharashtra (2019) 9 SCC 608 :
[2019] 11 SCR 423; Sonu @ Subhash Kumar v. State
of Uttar Pradesh (2021) SCC OnLine SC 181 –
referred to.
Case
Law Reference
[1960] SCR 388
referred to
Para 7
[1990] 3 Suppl. SCR 259
referred to
Para 7
(2019) 18 SCC 191
referred to
Para 9
[2019] 11 SCR 423
referred to
Para 11
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1231 of 2022.
SHAMBHU KHARWAR v. STATE OF UTTAR PRADESH &
ANR.
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SUPREME COURT REPORTS
[2022] 7 S.C.R.
From the Judgment and Orders dated 05.10.2018 of the High
Court of Judicature at Allahabad in Application u/s 482 No. 33999 of
2018.
Ramjee Pandey, Uday Prakash, Raghvendra Shukla, Advs. for
the Appellant.
Mohit D. Ram, Ms. Monisha Handa, Rajul Shrivastav, Anubhav
Sharma, Ms. Srishti Singh, Advs. for the Respondents.
The Judgment of the Court was delivered by
DR DHANANJAYA Y CHANDRACHUD, J.
1. Delay condoned.
2. Leave granted.
3. The appeal arises from a judgment dated 5 October 2018 of a
Single Judge of the High Court of Judicature at Allahabad. The High
Court dismissed an application instituted by the appellant under Section
482 of the Code of Criminal Procedure 19731 for quashing Criminal
Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate
(First), Ballia arising out of Case Crime No 11 of 2018 registered at
Police Station Rasra, District Ballia for an offence punishable under
Section 376 of the Indian Penal Code 18602. The appellant had also
sought the quashing of a charge-sheet bearing charge-sheet No 94 of
2018 dated 23 April 2018 submitted under Section 173 of CrPC and the
order taking cognizance dated 24 May 2018.
4. Case Crime No 11 of 2018 was registered on 18 January 2018
at Police Station Rasra, District Ballia on the basis of information furnished
by the second respondent. In her complaint, the second respondent stated
as follows:
“I was having affair with Shambhu Kharwar as his wife,
who is
also the resident of Village- Sarai Bharti, Post- Rasada, District-
Ballia. I hereby give my statement that there was love affair
between us since a period of about 3 years and Shambhu Kharwar
gave an assurance to me regarding solemnization of marriage
and as a result of the same started living with me under the same
roof and also used to have sexual relationship with me and also
1 “CrPC”
2 “IPC”
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used to make a demand of certain amount time to time. But I
always followed him and till date I am unmarried and whenever I
asked him regarding the solemnization of marriage, he used to
make false and frivolous averments and at last without informing
me solemnized marriage with someone else on 10.12.2017 and
after the same, returned to me and told nothing regarding the
solemnization of marriage, but on being pressurized by me again
and again he had admitted that he has entered into a ring ceremony
with someone else, this information has been received by me from
him only. I am very sad and whenever I asked him to solemnize
marriage with me, he kept on making lame excuses and gave
false assurances by saying that he will leave her by sexually
assaulting her and thereafter, will solemnize marriage with me.
After hearing the same, I have decided to initiate criminal
proceedings against him. Therefore, it is prayed that suitable action
may kindly be taken against him. Shambhu Kharwar son of Lallan
Kharwar, resident of Sarai Bharti Rasada, Ballia Date 18.01.2018.”
5. The statement of the second respondent was recorded under
Section 161 of CrPC during investigation. Her statement was recorded
under Section 164. In the statement under Section 164, the second
respondent stated that during the course of training at a Teachers’
Training College, she came in contact with the appellant in 2013 and
they got into a relationship. On 12 June 2014, the marriage of the
second
respondent was solemnized with someone else in spite of which the
relationship with the appellant continued. The second respondent stated
that the appellant had compelled her to break away from the marriage
and her matrimonial relationship had come to an end since March 2015,
barely three months after she stayed in the matrimonial home. The second
respondent states that she thereafter returned to the parental home and
then started living with the appellant. After the completion of her training
in 2016, the second respondent continued to live with the appellant until
December 2017. The grievance of the second respondent was that the
appellant got engaged to someone else on 10 December 2017. Though
the appellant is alleged to have agreed to break off his engagement, he
failed to abide by his assurance.
6. Apart from the above narration, it is of significance to note that
the second respondent was granted a divorce by mutual consent by an
order dated 17 September 2017 of the Principal Judge of the Family
Court at Ballia.
SHAMBHU KHARWAR v. STATE OF UTTAR PRADESH &
ANR. [DR DHANANJAYA Y CHANDRACHUD, J.]
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7. The parameters governing the exercise of the jurisdiction of
Section 482 of CrPC are well-settled and have been reiterated in a
consistent line of decisions of this Court. In Neeharika Infrastructure
v. State of Maharashtra,3 a three Judge Bench of this Court which one
of us was a part of (D.Y. Chandrachud J.), reiterated the parameters
laid down in R.P. Kapur v. State of Punjab4 and State of Haryana v.
Bhajan Lal5 and held that while the Courts ought to be cautious in
exercising powers under Section 482, they do have the power to quash.
The test is whether or not the allegations in the FIR disclose the
commission of a cognizable offence. The Court does not enter into the
merits of the allegations or trench upon the power of the investigating
agency to investigate into allegations involving the commission of a
cognizable offence.
8. In Bhajan Lal (supra) this Court formulated the parameters in
terms of which the powers in Section 482 of CrPC may be exercised.
While it is not necessary to revisit all these parameters again, a few that
are relevant to the present case may be set out. The Court held that
quashing may be appropriate :
“102. (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 under Section 156(1)
of the Code except under an order of a Magistrate within the
purview of Section 155(2).
[…]
(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.”
9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra,6
a two Judge Bench of this Court while dealing with similar facts as the
3 2021 SCC OnLine SC 315
4 AIR 1960 SC 866
5 1992 Supp (1) SCC 335
6 2019 (18) SCC 191
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present case reiterated the parameters laid down in Bhajan Lal (supra)
held that:
“13. It is clear that for quashing the proceedings, meticulous
analysis of factum of taking cognizance of an offence by the
Magistrate is not called for. Appreciation of evidence is also not
permissible in exercise of inherent powers. If the allegations
set out in the complaint do not constitute the offence of
which cognizance has been taken, it is open to the High
Court to quash the same in exercise of its inherent powers.”
(emphasis supplied)
10. An offence is punishable under Section 376 of the IPC if the
offence of rape is established in terms of Section 375 which sets out the
ingredients of the offence. In the present case, the second description of
Section 375 along with Section 90 of the IPC is relevant which is set out
below.
“375. Rape – A man is said to commit “rape” if he –
[…]
under the circumstances falling under any of the following seven
descriptions
Firstly …
Secondly. – Without her consent.
[…]
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.
xxx
90. 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
SHAMBHU KHARWAR v. STATE OF UTTAR PRADESH &
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knows, or has reason to believe, that the consent was given in
consequence of such fear or misconception; or…”
11. In Pramod Suryabhan Pawar v. State of Maharashtra,7 a
two Judge Bench of this Court of which one of us was a part (D.Y.
Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar
Pradesh,8 observed that :
“12. This Court has repeatedly held that consent with respect to
Section 375 of the IPC involves an active understanding of the
circumstances, actions and consequences of the proposed act.
An individual who makes a reasoned choice to act after evaluating
various alternative actions (or inaction) as well as the various
possible consequences flowing from such action or inaction,
consents to such action…
[…]
14. […] Specifically in the context of a promise to marry, this
Court has observed that there is a distinction between a false
promise given on the understanding by the maker that it will be
broken, and the breach of a promise which is made in good faith
but subsequently not fulfilled…
[…]
16. Where the promise to marry is false and the intention of the
maker at the time of making the promise itself was not to abide by
it but to deceive the woman to convince her to engage in sexual
relations, there is a “misconception of fact” that vitiates the
woman’s “consent”. On the other hand, a breach of a promise
cannot be said to be a false promise. To establish a false promise,
the maker of the promise
should have had no intention of upholding
his word at the time of giving it. The “consent” of a woman
under Section 375 is vitiated on the ground of a
“misconception of fact” where such misconception was the
basis for her choosing to engage in the said act…
[…]
18. To summarise the legal position that emerges from the above
cases, the “consent” of a woman with respect to Section 375
7 2019 (9) SCC 608
8 2021 SCC OnLine SC 181
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must involve an active and reasoned deliberation towards the
proposed act. To establish whether the “consent” was vitiated by
a “misconception of fact” arising out of a promise to marry, two
propositions must be established. The promise of marriage must
have been a false promise, given in bad faith and with no intention
of being adhered to at the time it was given. The false promise
itself must be of immediate relevance, or bear a direct nexus
to the woman’s decision to engage in the sexual act.
(emphasis supplied)
12. In the present case, the issue which had to be addressed by
the High Court was whether, assuming all the allegations in the charge-
sheet are correct as they stand, an offence punishable under Section
376 IPC was made out. Admittedly, the appellant and the second
respondent were in a consensual relationship from 2013 until December
2017. They are both educated adults. The second respondent, during the
course of this period, got married on 12 June 2014 to someone else. The
marriage ended in a decree of divorce by mutual consent on 17 September
2017. The allegations of the second respondent indicate that her
relationship with the appellant continued prior to her marriage, during
the subsistence of the marriage and after the grant of divorce by mutual
consent.
13. In this backdrop and taking the allegations in the complaint as
they stand, it is impossible to find in the FIR or in the charge-sheet, the
essential ingredients of an offence under
Section 376 IPC. The crucial
issue which is to be considered is whether the allegations indicate that
the appellant had given a promise to the second respondent to marry
which at the inception was false and on the basis of which the second
respondent was induced into a sexual relationship. Taking the allegations
in the FIR and the charge-sheet as they stand, the crucial ingredients of
the offence under Section 375 IPC are absent. The relationship between
the parties was purely of a consensual nature. The relationship, as noted
above, was in existence prior to the marriage of the second respondent
and continued to subsist during the term of the marriage and after the
second respondent was granted a divorce by mutual consent.
14. The High Court, in the course of its judgment, has merely
observed that the dispute raises a question of fact which cannot be
considered in an application under Section 482 of CrPC. As demonstrated
SHAMBHU KHARWAR v. STATE OF UTTAR PRADESH &
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in the above analysis, the facts as they stand, which are not in dispute,
would indicate that the ingredients of the offence under Section 376 IPC
were not established. The High Court has, therefore, proceeded to dismiss
the application under Section 482 of CrPC on a completely misconceived
basis.
15. We, accordingly allow the appeal and set aside the impugned
judgment and order of the High Court dated 5 October 2018 in application
u/s 482 No 33999 of 2018. The application under Section 482 of CrPC
shall accordingly stand allowed. The Case Crime No 11 of 2018 registered
at Police Station Rasra, District Ballia, charge-sheet dated 23 April 2018
in the aforementioned case and the order dated 24 May 2018 in Criminal
Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate
(First), Ballia taking cognizance of the charge-sheet shall accordingly
stand quashed.
16. Pending application, if any, stands disposed of.
Nidhi Jain
Appeal allowed.