Case BriefsHigh Courts

Bombay High Court: Sandeep K. Shinde, J., addressed a matter wherein the appellant challenged the conviction and sentence passed by Additional Sessions Judge for his conviction under Section 417 of Penal Code, 1860.

In the present matter, it has been stated that the appellant was convicted under Section 417 of the Penal Code, 1860.

Prosecutrix while working on the construction site be-friended with the accused and in a short span, they engaged in sexual relations, more than one time.

Further, she alleged that the appellant did not disclose his marital status but presuming, he would marry her, she submitted to his sexual desires on more than one occasion, by the time she learnt that the appellant was married, she was pregnant.

In 1990, prosecutrix lodged a complaint about the offence punishable under Section 376 IPC, pending investigation, prosecutrix delivered a baby girl.

Trial Court upon appreciating the evidence of the prosecutrix, recorded the finding, that it was a consensual act and, thus, acquitted the accused of the offence punishable under Section 376 of the IPC. Trial Judge, however, convicted the accused of the offence punishable under Section 417 of the IPC and sentenced to suffer rigorous imprisonment for six months.

Analysis and Decision

Bench while analysing the facts and circumstances of the case noted that prosecutrix submitted in her testimony that she was living on construction site and be-friended with the accused, whereafter they fell in love with each other.

Further, Court observed that the evidence of the prosecutrix did not suggest that the appellant made a false promise to marry her. Hence, it cannot be said that the appellant lured the prosecutrix to engage in sexual relations with him on the false promise of marrying her.

Question for consideration:

Whether conviction of the accused under Section 417 of the IPC is sustainable?

“…here was no ‘promise to marry’ nor intentional deception by misrepresentation or deceitfulness practised before establishing physical relationship with prosecutrix.”

In fact prosecutrix’s evidence suggested that she presumed that the appellant was not married and further assumed that he would marry her.

Therefore, the absence of ‘dishonest concealment of fact’, which is an essential ingredient of offence, within the meaning of explanation, appended to Section 415 of IPC, a conviction under Section 417 of IPC is not sustainable.

Lastly, Court concluded by stating that the impugned conviction and sentence by the Additional Sessions Judge be quashed and set aside. [Jagdish Raghunath Mankar v. State of Maharashtra, 2021 SCC OnLine Bom 269, decided on 24-02-2021]


Advocates who appeared before the Court:

Advait M. Sethna appointed advocate with Pravan A. Gohil with Eshaan Saroop for the appellant.

Sharmila Kaushik, APP for the Respondent- State.


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[Section 417 IPC] Punishment for cheating.—Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

[Section 415 IPC] Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.

Case BriefsForeign Courts

Supreme Court of the Democratic Socialist Republic of Sri Lanka: A Full Bench of L.T.B. Dehideniya, S. Thurairaja and E.A.G.R. Amarasekara, JJ. contemplated a matter of an Application under Article 17 and 126 of the Constitution of Sri Lanka, where the petitioner argued for his Fundamental Rights which were violated by the State.

Minimal facts relevant for the proper appreciation are that the petitioner felt discriminated for the appointment of Assistant Superintendent of Police on the basis of his marital status under Article 12(1). He applied for the post of A.S.P. and succeeded in the written exam as well as the interview. Subsequently, before the final interview, he solemnized his marriage. Before the final appointment was given, the Petitioner had contracted his marriage. When he submitted his marriage certificate, authorities had disqualified for selection.

The petitioner had submitted two important matters to be adjudicated, first that whether such rejection on the basis of marital status is unconstitutional and in violation of inter-alia the equality which is guaranteed, second that In any event, whether there was a prohibition at all, for married persons to be denied the appointment. He relied on the International Covenant for Civil and Political Rights (ICCPR), Constitution and General Marriages Ordinance which protects such right to get married. Reference to U.S.A and Nigeria was placed upon by the petitioner to which the Supreme Court stated that, “Here, we basically followed the discipline in the military services from British with more specialization in domestic values. Hence, the order of discipline in uniformed services cannot be easily compared with other jurisdictions”.

The Attorney General for Sri Lanka stated that the classification was based on rational and disciplinary matters of uniformed services, it was for the better training of the officers. The Respondents submitted that, the Petitioner had applied on an advertisement published in Gazette according to the said Gazette; the Open Competitive Examination for the Selections of Assistant Superintendent of Police was called under several categories. Among many, one of the requirements was to be unmarried. Except for the Ordinary Police Service Category at other positions are more technical and specialized in a certain field of work. Further, it was observed that, those are open to female candidates too. The reason quoted for such condition was, ‘Ordinary Police Service category’ was in charge of the law and order, which obviously needed strenuous physical and weapon training, hence the appointing authorities had specified that, these candidates should be unmarried with less or no family commitment for the purpose of training. Further they relied on Air India v. Nergesh Meerza, (1981) 4 SCC 335, where the Supreme Court of India held that, “Based on reasonable classification that requiring air hostesses to be unmarried for period of four years after getting employment was not a violation of the equality provision, however, that requiring them to leave employment after having children was against the equality provision.”

The petitioner bought an argument that the word “candidate” was not to be applied to Petitioner, because he was already selected, hence his status of marriage should not be questioned. The requirement of unmarried was for the purpose of training after the appointment. Therefore requirement was applicable until the conclusion of selection, training and the probation period or until the period specified by the appointing authority.

In view of the above, the Court found that there was no discrimination by the State and such condition was well drafted for the specified post. Hence it was held that no violation of the Fundamental Right of the petitioner.[Rubasin Gamage Indika Athula v. Inspector General of Police, 2019 SCC OnLine SL SC 4, decided on 07-06-2019]