Breach of a promise cannot said to be a false promise: Supreme Court of India

IN THE CRIMINAL APPELLATE JURISDICTION Criminal Appeal No 2321 Arising out of SLPNo 112119 Sonu @ Subhash Kumar State of Uttar Pradesh & Anr JUDGMENT Dr Dhananjaya Y Chandrachud J This appeal by way of an SLP arises from a judgment of a learned Single Judge of the High Court of Judicature at Allahabad dated 26 September 2019 in Criminal Miscellaneous Application No 35811 of 2019. The above application was instituted under Section 482 of the Code of Criminal Procedure 1973 1 for quashing the charge sheet dated 25 April 2018 in Case No 1066 IX 19 arising out of Case Crime No 1208 under Section 376 of the Indian Penal Code 1860 2 at PS Kotwali District Mathura. The High Court dismissed the application with a direction that the appellant herein may move the trial Court to seek discharge at the appropriate stage. However the High Court directed that if the appellant moves an application for bail before the competent Court the application should be disposed of in accordance with law. In the meantime the appellant was protected against coercive action for a period of thirty days and was directed to appear before the Competent Court within the aforesaid period In order to consider the grievance of the appellant it would be necessary to advert to the contents of the FIR. The FIR was lodged by the second respondent on 7 February 2018. The FIR which is registered on the basis of a written complaint of the second respondent to the SHO PS Kotwali Mathura states that the second respondent developed friendship with the appellant and that he assured that he would marry her. It has then stated that she was exploited physically for one and a half years and that the second respondent had also spoken to the parents and sister of the appellant. It has been stated that the father of the appellant had informed the second respondent that he would arrange the marriage of the appellant with her. After a lapse of about a year and a half the appellant is stated to have gone back to his home town which is Jhansi on 5 January 2018 and made a phone call to the second respondent that since he wishes to perform a “court marriage” the second respondent may come to Jhansi. This was on the ground that the appellant could not travel to Mathura where the second respondent lived. The second respondent has alleged that she proceeded to Jhansi but on reaching the residence of the appellant she was informed by the father of the appellant that the appellant does not wish to marry her. The appellant’s father also stated that the appellant did not desire to meet her and further asked her to take some money and leave from there. The FIR further records that the second respondent was assaulted by the appellant’s sister and thrown out of the appellant’s house. The statement of the second respondent was recorded under Section 164 of CrPC. The entirety of the statement is extracted below “Statement U s 164 Cr.P.C. Name of victim: Geeta D o Ram Babu Age 25 years stated on oath that I had love affair with Sonu S o Kamlesh age 27 years for the last 1 1 2 years. He used to tell to marry with me. I got influenced by his talks. I voluntarily developed relationship of husband wife with him. Now he and his family members are refusing to marry with me. On 5 th January 2018 Sonu went to Jhansi and from there also he kept on takingwith me on phone. He called me to Jhansi and then on 21.01.2018 without informing anybody in my home I went to Jhansi on the address given by Sonu. His father met me there and told me that they are not intending to solemniz’e my marriage with Sonu and advised me to ran away from there after taking some money. Sonu’s mother Shobha and sister Neha assaulted me. On 21.1.2018 I stayed at Jhansi station and then on the trainingof 12 O clock in the night I came back to Mathura. My sole grievance is that Sonu is refusing to marry with me. I have studied upto class 6th. I have nothing more to say It is certified that the above statement has been given by the victim with her own voluntary wish and without any force or pressure Recorded by Sd . Sd _ Heard and verified Mr Amit Pawan learned counsel appearing on behalf of the appellant has relied upon a decision of this Court in Pramod Suryabhan Pawar v State of Maharashtra3. Learned counsel submitted that the relationship between the appellant and the second respondent was consensual in nature. It has been urged that a bare reading of the FIR as well as the statement under Section 164 of CrPC would indicate that there was absolutely no intent on the part of the 2019) 9 SCC 608 appellant when he entered upon the relationship not to marry the second respondent nor can it be even suggested that the promise to marry was false Hence it has been submitted that no offence has been made out within the meaning of Section 376 of IPC On the other hand Mr Simant Kumar learned counsel appearing on behalf of the second respondent supported the judgment of the High Court stating that the FIR would indicate that the complaint of the second respondent on the basis of which the FIR was registered would indicate that the second respondent had developed a friendship with the appellant who had assured that he would marry her. Mr Vishnu Shankar Jain learned counsel appearing on behalf of the State of Uttar Pradesh has similarly supported the decision of the High Court relying on the observations contained in paragraph 16 of the decision of this Court in Pramod Suryabhan Pawarwhile dealing with a similar situation the principles of law which must govern a situation like the present were enunciated in the following observations “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...” Further the Court has observed “To summarise the legal position that emerges from the above cases the “consent” of a woman with respect to Section 375 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 Bearing in mind the tests which have been enunciated in the above decision we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception On the contrary it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established For the above reasons we allow the appeal and set aside the impugned judgment and order of the High Court dated 26 September 2019. In view of the reasons which have been adduced earlier the charge sheet dated 25 April 2018 which has been filed in pursuance of the investigation which took place shall stand quashed. The order of the trial Court dated 3 October 2018 taking cognizance shall accordingly stand quashed and set aside In view of the above order Mr Amit Pawan learned counsel appearing on behalf of the appellant states that no further step shall be taken in respect of the cross FIR which was registered against the second respondent at the behest of Pending application if any stands disposed of SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS Petition(s) for Special Leave to AppealNo(s).11218 2019 Arising out of impugned final judgment and order dated 26 09 2019 in A482 No. 35811 2019 passed by the High Court of Judicature at SONU @ SUBHASH KUMAR Petitioner(s VERSUS STATE OF UTTAR PRADESH & ANR. Respondent(s Date : 01 03 2021 This petition was called on for hearing today CORAM : HON BLE DR. JUSTICE D.Y. CHANDRACHUD HON BLE MR. JUSTICE M.R. SHAH Mr. Amit Pawan AOR Mr. Anand Nandan Adv Mr. Vishnu Shankar Jain AOR Mr. Chanakya Gupta Adv Mr. Simant Kumar Adv Mr. Ravi Prakash AOR Ms. Jaishree Raj Soni Adv Mr. Sandeep Malik Adv Vagisha Nandini Adv Mr. Vikram Singh Arya Adv UPON hearing the counsel the Court made the following O R D E R The appeal is allowed in terms of the signed reportable judgment Pending application if any stands disposed of (SAROJ KUMARI GAUR AR CUM PS COURT MASTER Signed reportable judgment is placed on the file

Summary: 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.” This was held in the case of Subash Kumar v State of Uttar Pradesh and Anr, [Criminal Appeal No 233 of 2021], by the Hon’ble Justice Dr. Dhananjaya Y Chandrachud in the supreme Court of India. The above application was instituted under Section 482 of the Code of Criminal Procedure 1973 for quashing the charge sheet filed under Section 376 of the Indian Penal Code 1860. The FIR, which is registered on the basis of a written complaint of the second respondent states that the second respondent developed friendship with the appellant and that he assured that he would marry her. It has then stated that she was exploited physically for one and a half years and that the second respondent had also spoken to the parents and sister of the appellant. After a lapse of about a year and a half, the appellant is stated to have gone back to his home town which is Jhansi and made a phone call to the second respondent that, since he wishes to perform a “court marriage”. The respondent on reaching Jhansi, was informed by the father of the appellant that the appellant does not wish to marry her. The appellant’s father also stated that the appellant did not desire to meet her and further asked her to take some money and leave from there. The counsel for the appellant placed reliance on Pramod Suryabhan Pawar v State of Maharashtra, (2019) 9 SCC 608, and submitted that the relationship between the appellant and the second respondent was consensual in nature. He also submitted that there was absolutely no intent on the part of the appellant, when he entered upon the relationship, not to marry the second respondent nor can it be even suggested that the promise to marry was false. Thus no offence has been made out within the meaning of Section 376 of IP The counsel for the respondents submitted on the basis of the statement made by the respondent under Section 164 of CrPC that the relationship between the appellant and the second respondent was of a consensual nature and the parties were in the relationship for about a period of one and a half years. It was because the appellant had expressed a disinclination to marry the second respondent which led to the registration of the FIR.