Case BriefsHigh Courts

Bombay High Court: The Division Bench of A.S. Chandurkar and G.A. Sanap, JJ.,  refused to exercise jurisdiction under Section 482 CrPC for quashing an FIR in offences of cheating and rape in the matter wherein the applicant/accused committed sexual intercourse with the girl against her will in the pretext of the false promise of marriage.

Instant application was made under Section 482 of the Code of Criminal Procedure to quash and set aside the FIR for the offences punishable under Sections 376 and 417 of the Penal Code, 1860.

Factual Matrix

The crime had been registered on the basis of the report lodged by the non-applicant 2 against the applicant/accused. It was stated that the applicant and the non-applicant 2 got engaged. Due to the second wave of COVID-19 and the lockdown declared by the government, the marriage of fixed between the non-applicant 2 and accused was postponed. Marriage was again fixed for 3-5-2021, however, the non-applicant 2 was detected COVID positive and therefore, the marriage could not be performed.

Later in June, applicant arranged a party wherein non-applicant 2 and her family also enjoyed the party and later went to their respective rooms. Non-applicant 2 went to the room of the applicant with the luggage and saw that applicant was in drunken condition and complained of headache. In view of the said, non-applicant 2 gave a head massage to the applicant.

It was stated that the applicant had sexual intercourse with non-applicant 2 against her consent and under the pretext that non-applicant 2 would be her wife after a few days. Again, the next morning, applicant had sexual intercourse with non-applicant 2 and thereafter, everyone went to their respective destination.

Applicant after the above incident started avoiding non-applicant 2 and after a few days came to her house and stated that non-applicant 2 was addicted to liquor and her mental condition was such that she could not be shown pity.

In view of the above, the applicant refused to perform the marriage with non-applicant 2.

Further, it was stated that, the applicant/accused under the false promise to marry established sexual relations with non-applicant 2 and cheated her.

On the basis of the above, crime was registered.

Investigating Officer stated that the facts presented by non-applicant 2 have been reiterated and even the medical officer submitted that the sexual intercourse cannot be ruled out. Hence prima facie there was material to establish the involvement of the applicant in crime.

Analysis, Law and Decision

Settled Position

Powers under Section 482 of the CrPC 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 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.

In the Supreme Court decision of Vineet Kumar v. State of U.P., (2017) 13 SCC 369, it was 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 v. Bhajanlal, 1992 Supp (1) SCC 335.

It is a settled legal position that where there is material to indicate that the criminal proceeding is manifestly actuated with malafide and the proceedings are maliciously instituted with an ulterior motive, the High Court will not hesitate in the exercise of its jurisdiction and discretion under Section 482 of the CrPC to quash the proceedings in the process of exercise of powers under Section 482 of the CrPC. Prima facie evaluation of the facts stated in the FIR and other material is only permissible.

In Court’s opinion, on a prima facie analysis it was found that the conduct of the applicant/accused coupled with the facts stated in the FIR indicated that the applicant under the guise of the false promise to marry in future with the non-applicant 2 established sexual intercourse with the non-applicant 2.

Further, the Bench added that the intention and the motive of the applicant appeared to be sinister. Applicant/accused established the sexual relations against the will of the non-applicant 2 by obtaining her consent under the promise to marry.

Hence, the above-said consent cannot be said to be free consent.

The accused under the pretext of hosting the party on the eve of her birthday took the non-applicant 2 to the Resort and committed sexual intercourse with the non-applicant 2.

It was also the Court’s prima facie opinion that the instant matter not just involved the offence of cheating, infact it will be coupled with the offence of rape.

“…applicant/accused had hidden intention not to marry with the applicant once his sexual lust is satisfied.”

Concluding the matter, the Court denied exercising jurisdiction under Section 482 of the Code of Criminal Procedure. [Navneet v. State of Maharashtra, Criminal Application (APL) No. 853 of 2021, decided on 22-12-2021]


Advocates before the Court:

Shri J. B. Gandhi, Advocate for the applicant.

Mrs S. S. Jachak, Additional Public Prosecutor for non-applicant No.1.

Shri S. V. Deshmukh, Advocate for non-applicant No.2.

Case BriefsForeign Courts

United Kingdom Supreme Court: While expressing that, the fact that the other person must have the ability to consent to the sexual activity and must in fact consent before and throughout the sexual activity applies to everyone in society, Bench of Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens and Lady Rose, JJ., laid down a very detailed decision on ‘consent’ with respect to sexual relations and the catch in the present matter was the diagnosis of autistic disorder of the appellant.

Issue

Present appeal raised issues of profound significance under the Mental Capacity Act 2005 for the appellant and others like him with impairment of, or a disturbance in the functioning of mind or brain which potentially renders them unable to make a decision for themselves in relation to having sexual relations.

Whether the information relevant to JB’s (appellant) decision to have sexual relations includes the fact that the other person must be able to consent and give and maintain consent throughout?

Factual Background

Appellant who was diagnosed with autistic spectrum disorder combined with impaired cognition expressed a strong desire to have a girlfriend and engage in sexual relations. His previous behaviour towards women-led the respondent local authority to conclude that he cannot safely have unsupervised contact with them.

Questions to be considered:

  • Does a person need to understand that their sexual partner must have the capacity to consent to sex?
  • Does the person also need to understand that their sexual partner must consent before the sexual activity starts and that their consent must continue throughout the sexual activity?

Analysis

The function of Section 27 of the Mental Capacity Act 2005 is to identify certain decisions which are so personal to the individual concerned that no one may take them on his behalf if he is unable to take them for himself.

Court added that,

Section 27 only makes clear that “where a court finds that a person lacks the capacity to consent to sexual relations, then the court does not have any jurisdiction to give consent on that person’s behalf to any specific sexual encounter”.

Mr McKendrick sought to describe JB’s wish to initiate sexual relations as a desire rather than being a decision within Section 2(1) MCA.

To the above-stated, Bench expressed that a wish to initiate sexual relations can be described as a desire to do, but clearly a desire gives rise to a decision as to whether to fulfil that desire.

It may be helpful to observe that the terminology of a capacity to decide to “engage in” sexual relations embraces both (i) P’s capacity to consent to sexual relations initiated by the other party and (ii) P’s capacity to understand that, in relation to sexual relations initiated by P, the other party must be able to consent to sexual relations and must in fact be consenting, and consenting throughout, to the sexual relations.

 Decision

Evaluation of JB’s capacity to make a decision for himself is in relation to “the matter” of his “engaging in” sexual relations. Information relevant to that decision includes the fact that the other person must have the ability to consent to sexual activity and must in fact consent before and throughout the sexual activity.

Supreme Court opined that under Section 3(1)(a) MCA, JB should be able to understand that information and should be able to use or weigh it as part of the decision-making process.

In the present matter, JB was unable to make a decision for himself in relation to the stated matter because of an autistic impairment of his mind. Though, Court declined to make a final declaration that JB does not have the capacity to make a decision to engage in sexual relations.

Hence, the matter be remitted to the judge for reconsideration and the appeal was dismissed. [A Local Authority v. JB, [2021] 3 WLR 1381, decided on 24-11-2021]


Advocates before the Court:

 Appellant

John McKendrick QC Ian P Brownhill Helen Law (Instructed by Enable Law)

Respondent

Vikram Sachdeva QC

Richard Whittam QC Alexander Ruck Keene
Fiona Paterson (Instructed by Wolferstans Solicitors)

1st Intervener (Respond) (written submissions only) Aswini Weereratne QC Sophy Miles Mary-Rachel McCabe Caragh Nimmo (Instructed by Irwin Mitchell)

2nd Intervener (Centre for Women’s Justice) (written submissions only)
Victoria Butler-Cole QC
Tim James-Matthews (Instructed by Centre for Women’s Justice)

Case BriefsHigh Courts

Delhi High Court: Brijesh Sethi, J., while stating that,

“Rape not only causes serious injury to a woman’s body, her honour and dignity and even if such an offence is settled by the offender and victim, this offence being not private in nature but has a serious impact on the society and, therefore, cannot be quashed.”;

dismissed the petition filed with respect to the quashing of FIR and the proceedings emanating therefrom.

The present petition was filed for quashing of FIR under Sections 376 and 380 of the Penal Code, 1860 and the consequential proceedings emanating therefrom.

Background of facts

Petition pleaded that respondent 2 had met the petitioner on account of a professional assignment and thereafter they kept meeting each other regularly and got romantically involved. Respondent 2 entered into a live-in relationship with the petitioner. 

An altercation took place between the petitioner and respondent 2 and the petitioner left respondent 2. Respondent 2 filed a complaint thereafter against the petitioner which culminated into the aforesaid FIR. 

The fact to be noted is that, during the course of the trial, the marriage of the petitioner and respondent 2 was solemnized. However, on account of some differences and misunderstandings, the trial proceedings continued. Upon the intervention of friends the dispute between both resolved by way of the settlement deed. 

Further, respondent 2 gave her ‘No Objection’ affidavit for quashing of the aforesaid FIR and all proceedings emanating therefrom. 

Conclusion

High Court on perusal of the facts and circumstances noted that the FIR under Sections 376 and 380 IPC was registered on the basis of the statement made by complainant/respondent 2 wherein she mentioned about her emotional, physical, mental and sexual abuses at the hands of the petitioner.

Further, the question that arose for consideration was whether the fact that the parties got married and had settled the dispute should be a reason good enough to quash the FIR registered under Section 376 and 380 IPC and consequential proceedings emanating therefrom.

In the Supreme Court decision of Parbathhai Aahir v. State of Gujarat, 2017 SCC Online SC 1189, it was held that scope of power of the High Court under Section 482 CrPC to quash the criminal proceedings on the basis of settlement in a heinous or serious offence is limited.

In Narinder Singh v. State of Punjab, Criminal Appeal No. 686/2014, the Supreme Court held that in respect of offences against society, it is the duty of the state to punish the offender. In consequence, deterrence provides a rationale for punishing the offender. Hence, even when there is a settlement, the view of the offender and victim will not prevail since it is in the interest of the society that the offender should be punished to deter others from committing a similar crime.

Even in the Supreme Court decision of Gian Singh v. State of Punjab, (2012) 10 SCC 303 Court held that the settlement in cases where nature of offence is heinous /serious like murder, rape and dacoity, the criminal proceedings cannot be quashed even if they are settled by the accused and the victim, by invoking the jurisdiction of High Court under Section 482 CrPC.

In the present case, it is the case of the respondent 2 that she was deceived by petitioner and sexual relations were established on the pretext of false promise of marriage and she was, thus, subjected to emotional, physical, mental and sexual abuse and therefore applying the ratio laid down in the above-cited cases, offence committed by petitioner clearly falls under the category of heinous and serious one.

Thus, in Court’s opinion, the FIR and proceedings emanating therefrom cannot be quashed. [Ananda D.V. v. State, 2019 SCC OnLine Del 11163, decided on 14-11-2019]