Consent under misconception of facts is not a free consent in the eyes on law in cases of sexual offences: Bombay High Court

30 J APL 853 21.odt viIN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH NAGPUR CRIMINAL APPLICATIONNO. 853 OF 2021 APPLICANT Navneet S o Ashok Bangalkar Aged 29 years Occ. Business R o at Post Asgaon Tq. Pauni Dist. Bhandara V E R S U S 1. State of Maharashtra Through P.S.O. P.S. Umred Tq. Umred Dist. Nagpur 2. Ku. Ankita Purushottam Morghade Aged 27 Years Occ. Service R o Plot No. 126 Siddheshwar Wadi Near Navmaharashtra School Kharbi Road Nagpur Tq. and Dist. Nagpur ... NON APPLICANTS Shri J. B. Gandhi Advocate for applicant Mrs. S. S. Jachak Additional Public Prosecutor for non applicant No.1 Shri S. V. Deshmukh Advocate for non applicant No.2 CORAM : A.S. CHANDURKAR AND G. A. SANAP JJ DATED : 22 12 2021 JUDGMENT :and prayed to quash and set aside the First Information Report No.0573 2021 dated 01 08 2021 registered at Umred Police Station Nagpur for the offencecs punishable under Sections 376 and 417 of the Indian Penal 30 J APL 853 21.odt Codefor calling off the marriage. The applicant and his family members did not succumb to the illegal demand. It is stated that the false report has been lodged. No case has been made out on the basis of the report to sustain the prosecution against the applicant. No offence is made out under Sections 376 or Section 417 of the I.P.C. The applicant therefore prayed for quashing the First Information Report The Investigating Officer has filed reply and opposed the application. In his reply the facts stated by the non applicant No.2 in the First Information Report have been reiterated. Besides it is contended that the investigation conducted so far reveals the complicity of the applicant accused in the commission of crime. The Medical Officer has stated that the sexual intercourse cannot be ruled out. There is prima facie material to establish the involvement of the applicant in crime 30 J APL 853 21.odt The non applicant No.2 has filed reply and opposed the application. In the reply the non applicant No.2 has reiterated the facts stated in the First Information Report. She has stated that after having sexual intercourse on the false promise to marry in near future on 01 06 2021 the applicant had sexual intercourse with her. Her consent was obtained under false promise. It is further contended that the detailed complaint was later on made to A.P.I. Umred Police Station Rural) on 24 09 2021. The friend of applicant accused by name Nitin Yenurkar made phone calls to the non applicant No.2. She recorded the conversation. The transcript of the conversation is annexed to the reply We have heard the learned Advocate for the applicant accused the learned Additional Public Prosecutor for the non applicant No.1 State and the learned Advocate for the non applicant No.2. We have perused the record and 30 J APL 853 21.odt The learned Advocate for the applicant accused submitted that the allegations made in the First Information Report do not on their face indicate that the promise of the applicant was false or that the complainant engaged in sexual relations on the basis of such promise. The learned Advocate submitted that since the intercourse was with the consent of the non applicant No.2 the offnece under Section 376 of the IPC would not at all get attracted. In the submission of the learned Advocate the material on record is not sufficient to establish that the applicant engaged in sexual relations with the non applicant No.2 on false promise to marry and she gave consent under misconception of fact. In order to substantiate his submission the learned Advocate has placed heavy reliance on the decisions in the cases of Pramod Suryabhan Pawar 1 and unreported decision in Criminal Application 9 SCC 608 2 AIR 2021 SC 1405 30 J APL 853 21.odt that there is no iota of evidence to establish the complicity of the applicant accused in the crime. The prosecution cannot be sustained on the basis of the facts stated in the First The learned Additional Public Prosecutor submitted that prima facie offence has been made out on the basis of the facts stated in the reply as well as on the basis of material collected during the course of investigation. The learned Additional Public Prosecutor submitted that in this case it is apparent on the face of record that the applicant accused established sexual relations with the non applicant No.2 on false promise to marry and as such the consent based on misconception of fact amounts to absence of consent. The learned Additional Public Prosecutor submitted that even prima facie analysis of the material placed on record does not support the case of the applicant accused. The learned Additional Public Prosecutor submitted that the previous and subsequent conduct of the applicant accused after the incident on 01 06 2021 would assume significance while deciding his 30 J APL 853 21.odt The learned Advocate for the non applicant No.2 relying upon the decisions in the cases of i] Anurag Soni Vrs State of Chhattisgarh reported in AIR1857 ii XYZ Vrs. State of Gujarat and another reported in10 SCC 337 iii] Vishal Ramnayan Singh Vrs. XYZ and another reported in 2019 ALL M.R. 3010 and iv] Criminal Application No.143 of 2021 (unreported submitted that the facts of this case are squarely covered by the law laid down in these decisions and as such the prayer made by the applicant accused cannot be granted. The learned Advocate submitted that the facts stated in the First Information Report and the conduct of the applicant accused proves that from the inception he gave false promise to the non applicant No.2 to marry when he did not have intention to marry her and the non applicant No.2 fell prey to the false 30 J APL 853 21.odt promise. It is held in these decisions that the consent given for sexual intercourse on false promise or assurance to marry could be said to be a consent obtained on misconception of fact and in such a case such consent would not excuse the offender and the offender is said to have committed a rape as defined under Section 375 of the IPC. The learned Advocate submitted that there was no due diligence on the part of the Investigating Officer. The learned Advocate pointed out that the non applicant No.2 repeatedly went to the Investigating Officer to hand over the relevant material including the recorded conversation with transcript. However there was no co operation from the Investigating Officer. The learned Advocate submitted that no case has been made out by the applicant to grant his prayer In the case of Pramod Pawarrelied upon by the learned Advocate for the applicant accused it is held that the consent based on misconception of fact is not a consent in the eye of law. The woman engaged in sexual relations on false 30 J APL 853 21.odt promise to marry clearly indicate that the consent is based on misconception of fact and such sexual act would amount to rape. It is held that the allegations made in the First Information Report on their face must indicate that the promise by the accused was false or that the prosecutrix engaged in sexual relations on the basis of such promise. If the First Information Report does not indicate that the accused did not make a promise to marry the prosecutrix in bad faith or with intention to deceive her then the accused can be saved from the prosecution by invoking the provisions of Section 482 of the Cr.P.C. This ratio has been followed in remaining Judgments relied upon by the learned Advocate for the applicant accused in support of his contention It is settled legal position that the powers under Section 482 of the Cr.P.C. can be exercised where the allegations made in the First Information Report even if they are taken on their face value and accepted in their entirety do not prima facie constitute any offence or make out a case 30 J APL 853 21.odt against the accused. If the uncontroverted allegations made in the First Information Report or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused then the accused cannot be made to undergo the rigmarole of the criminal trial. The inherent powers given under Section 482 of the Cr.P.C. is with the purpose and object of advancement of justice. If it is found that the solemn process of Court is sought to be abused by a person with some oblique motive the Court has to thwart the attempt at the very threshold. In the case of Vineet Kumar and others Vrs. State of Uttar Pradesh and another reported in13 SCC 369 it is held that the Court cannot permit prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in the case of State of Haryana and others Vrs Bhajanlal and others reported in 1992 Supp.(1) SCC 335. It is settled legal position that where there are materials to indicate that the criminal proceeding is manifestly actuated with malafide and the proceeding is maliciously instituted with 30 J APL 853 21.odt an ulterior motive the High Court will not hesitate in exercise of its jurisdiction and discretion under Section 482 of the Cr.P.C. to quash the proceeding in the process of exercise of powers under Section 482 of the Cr.P.C. Prima facie evaluation of the facts stated in the First Information Report and other material is only permissible In order to consider the applicability of the law laid down to the facts of the case the relevant facts having bearing on the question involved in this proceeding need to be stated The marriage between the applicant and the non applicant No.2 was arranged marriage. It was settled in January 2021 The engagement ceremony took place on 22 02 2021. The non applicant No.2 has not attributed any allegation to the applicant accused about the sexual intercourse prior to the incident dated 01 06 2021. The date of marriage was fixed However to the utter misfortune of the non applicant No.2 the Covid 19 Pandemic constrained them to postpone the said marriage date twice. The facts stated in the First 30 J APL 853 21.odt Information Report as well as in the application of the applicant accused would show that till 02 06 2021 there was no dispute between the parties. The so called change of mind of the applicant accused occurred after establishing the sexual intercourse with the non applicant No.2 in the night of 01 06 2021. Therefore the conduct of the applicant accused before the incident dated 01 06 2021 and after 01 06 2021 would be required to be borne in mind The discretion is vested with this Court under Section 482 of the Cr.P.C. to pass an appropriate order in the given case to meet the ends of justice and to avoid the abuse of process of law. It is settled legal position that while deciding the application by exercising power under Section 482 of the Cr.P.C. for quashing the First Information Report the Court cannot venture into the arena of appreciation of the evidence It is pertinent to mention that while considering the application made by the accused for quashing the First Information Report if the Court finds that the exercise of 30 J APL 853 21.odt venturing into appreciation of the evidence would be warranted to decide the application one way or the other in our view the same would be indicator to conclude that the question falls outside the scope of exercise of discretion by the Court. The applicant accused has stated that the non applicant No.2 was not very much interested in him. She used to quarrel with him on small issues. He has stated that there was compatibility issue between the applicant and the non applicant No.2. The applicant therefore found it difficult to spend his entire life with the non applicant No.2. In our opinion this defence of the accused cannot be considered at this stage. This defence of the accused even if considered prima facie would indicate that this change of mind by the accused not to marry with the non applicant No.2 occurred after having established sexual relations with the non applicant No.2 on 01 06 2021. If really there was issue of compatibility then in that event the applicant accused would not have consciously decided to marry with the non applicant No.2. In our opinion this conduct of the applicant accused coupled 30 J APL 853 21.odt with the relevant facts narrated in the First Information Report would indicate that the applicant under the guise of false promise to marry in future with the non applicant No.2 established sexual intercourse with the non applicant No.2 Immediately after establishing the sexual relations in the night of 01 06 2021 and 02 06 2021 he changed his mind and started avoiding the non applicant No.2. In our view all these facts would not weigh in favour in the case of applicant accused. In this case the facts stated in the First Information Report and the conduct of the applicant would clearly show that the intention and the motive of the applicant was sinister. He established the sexual intercourse against the will of the non applicant No.2 by obtaining her consent under the promise to marry. In our view such a consent could not be said to be free consent. The consent given under the misconception of fact could not be said to be free consent. The prima facie analysis of the material placed on record clearly indicate that no case has been made out to quash and set aside the First Information Report 30 J APL 853 21.odt The non applicant No.2 as can be seen from the record annexed to the reply indicate that she believed the applicant and his family. She treated his parents as family members even before the marriage. This fact would show that she completely trusted applicant accused. The accused under the pretext of hosting the party on the eve of her birthday took the non applicant No.2 to the Resort and committed sexual intercourse with the non applicant No.2. In our view this is not a simple case of cheating. The cheating is coupled with the serious offence of rape. It can be gathered on the basis of the material that the applicant accused had hidden intention not to marry with the applicant once his sexual lust is satisfied. The intention of the accused to commit the offence in such cases has to be gathered from the totality of the facts conduct of the accused and other material on record. In our view looking at the facts of the case from any angle it would show that the case in question is not a fit case to quash the First Information 30 J APL 853 21.odt In this case the investigation is in progress. The learned Advocate for the non applicant No.2 submitted that on number of occasions the non applicant No.2 approached the Investigating Officer with the relevant material and particularly the recorded conversation with transcript which is placed on record but the Investigating Officer did not give positive response. The learned Additional Public Prosecutor submitted that the investigation is still going on. The Investigating Officer would conduct further investigation and go to the root of the matter. It is pertinent to mention that the electronic evidence needs to be collected and converted into legally admissible evidence by the Investigating Officer. The Investigating Officer cannot deny his obligation to collect the available evidence. In view of the submission made by the learned Additional Public Prosecutor we believe that the Investigating Officer would discharge his duty according to law. In view of the facts and circumstances and the law laid down in the Judgments relied upon by the learned Advocate for the applicant accused is of no help and assistance to the 30 J APL 853 21.odt case of the applicant. The law laid down in the Judgments cited by the learned Advocate for the non applicant No.2 fully supports the contention of the prosecution and the non applicant No.2. In view of this position we conclude that this is not a fit case to grant indulgence of the nature sought for by the applicant accused. In view of the facts and serious nature of offence we are not inclined to exercise jurisdiction under Section 482 of the Code of Criminal Procedure. The application therefore deserves to be dismissed. Hence the following order : The application is rejected ii] The interim order granted on 27 08 2021 shall continue to operate for a period of four weeks and cease to operate thereafter automatically (A.S. CHANDURKAR J 

Summary: FIR and proceedings cannot be quashed against the applicant under section 482 of CrPC challenging the validity of the FIR in cases where it has been lodged by him where the offence of rape has been committed just before the weeding if he calls it off later, the decision on this subject matter was given by Justice AS Chandurkar and Justice GA Sanap in the case of NAVNEET ASHOK BANGALKAR V. STATE OF MAHARASHTRA AND ANR [CRIMINAL APPLICATION(APL) NO. 853 OF 2021] In this case the parties were supposed to get married in February 2021 but they could not because of covid cases were high at that time as a result of which it got postponed after even the complainant tested positive. During June 2021 a party was organized by the applicant for the complainant in which both of them had sexual intercourse in which the complainant claimed to have consented to it only because they were getting married in a few days after which the applicant allegedly started avoiding the complainant and sought 8 day’s time to get a date for marriage fixed.  The family of the applicant refused for the marriage and gave the reason that the complainant “is addicted to liquor” based on this the complainant-initiated proceedings against the applicant under section 376 and section 417 of IPC. The applicant on the other hand also alleged that the complainant used to not talk to the applicant properly, quarrel over small issues as a result of which the applicant found out that the complainant is not interested and they are not compatible. On 15.06.2021 the applicant even received threats from an unknown number from a caller threatening them to all off the marriage against which an FIR was also lodged in Pauni Police Station and it turned out the person behind those calls was a close friend of complainant. After various meetings held between both families, the family of complainant family demanded Rs. 50,00,000 for calling off the marriage to which the applicant’s family did not succumb. In the present case the Bombay High Court rejected the defence of the applicant stating that he the facts that the complainant started avoiding the applicant, they used to quarrel over small issues and the non-compatibility issues between the applicant and respondent at the stage the marriage was called off could not be considered as a defence at that stage and in the view of this the High Court rejected the plea of the applicant calling his intention “sinister”. Perhaps in the present case the court should have taken a wider view, even though many Supreme Court Judgements show that the sexual intercourse on false pretext of marriage is rape what is important to take into account is that it is considered as the offence of “rape” because there is a misconception in the mind of the victim at the time of the offence. In the present case taking into account the marriage had also been finalized earlier there surely is some inclination towards believing the intent of the accused to marry the complainant. Further the decisions taken such as calling off the wedding are not only taken by the applicant but his family as well, added to that the court did not reiterate upon the fact that the family of complainant Demanded Rs. 50,00,000 as a cost for calling off the wedding and after the admission of evidence that it was a friend of complainant that threatened the applicant over call there is no reason the same is not a case of extortion. The High Court should hence while adjudicating the claim reiterated upon the conduct of applicant’s family and friends and take into account how the decisions of family influence the decisions of accused and if it was not for the conduct of everyone except the accused and he would still want to marry because at the time of sexual intercourse that what his intention was, then is that really “misconception”?