Case BriefsHigh Courts

Delhi High Court: Noting that the Trial Court failed to perform its duty and rendered a mechanical order, Subramonium Prasad, J., set aside the trial Court’s order in a matter wherein, a woman had alleged that she was subjected to physical relationship with a boy on a false promise of marriage.

A petition was filed under Sections 397/401 CrPC read with Section 482 CrPC for setting aside the decision of Additional Sessions, Tis Hazari Courts arising out of an FIR registered for offences under Section 376(2)(n) of the Penal Code, 1860.

Factual Background

Petitioner had extended a false promise of marriage to the prosecutrix on the basis of which he had sustained a physical relationship with her.

It was stated that the prosecutrix and the petitioner were engaged, but the wedding was postponed due to some issues on the family of the prosecutrix. Prosecutrix had requested the petitioner to marry her by way of court marriage or in Arya Samaj Temple and the said request was rejected by the petitioner.

Prosecutrix alleged that the petitioner’s family raised the issue that the prosecutrix was not financially well-off and that the petitioner wanted to marry a girl whose father would have the wherewithal to invest money in his marriage. Hence the FIR was registered under Section 376(2)(n) IPC.

In January, 2020 the Court had granted anticipatory bail to the petitioner, after which a charge sheet was filed and Trial framed charges against the petitioner. On being aggrieved with the same, the instant revision petition was filed.

Analysis, Law and Decision

As per Section 376(2)(n) IPC, whoever commits rape repeatedly on the same woman shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life and shall also be liable to fine.

The primary allegation in the instant matter was that under the garb of marriage, the petitioner repeatedly raped the prosecutrix.

High Court examined the difference between a false promise of marriage and breach of promise to marry.

Breach of Promise to Marry: In this, sexual relations are initiated on the premise that two individuals will marry at a later point in time.

False Promise of Marriage: Sexual relations take place without any intention of marrying at all and the consent that is obtained for the said relations to take place is vitiated by way of misconception of fact. The said aspect was elaborate by the Supreme Court in various decisions, one of such judgments was:  Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608.

In the decision of Deepak Gulati v. State of Haryana, (2013) 7 SCC 675, Supreme Court had categorically distinguished between rape and consensual sex, as well as the distinction between mere breach of a promise and not fulfilling a false promise.

Hence, in order to arrive at the conclusion that the sexual relations were coerced, it is necessary to examine whether at the stage of rendering a promise to marry, it was done with the intention of not keeping the promise and, therefore, was false at the inception of itself. (Sonu v. State of U.P., 2021 SCC OnLine SC 181)

As per the FIR, the prosecutrix and petitioner were in a long term relationship and were engaged.

On perusal of Section 90 IPC, it is clear that consent given under fear or misconception cannot be said to be consent. In the instant matter, Bench stated that the petitioner and prosecutrix were in a long-term relationship and furthermore, an engagement ceremony had taken place between the two.

The above-said indicated that the petitioner intended to marry the prosecutrix, but just because the relationship ended on hostile terms, it could not be concluded that the petitioner had no intent to marry the prosecutrix in the first place.

From the above, the High Court opined that consent so accorded by the prosecutrix for the establishment of a physical relationship was not predicated upon misconception or fear.

Bench concluded that the impugned order failed to accord the reasons to substantiate how there was sufficient material to proceed against the petitioner under Section 376(2)(n) of the IPC.

Trial Court is not a mere post office and must apply its mind to the facts of the case to arrive at the conclusion as to whether a prima facie case is made out against the accused that would warrant charges to be framed against them.

In view of the above petition was allowed. [Shailendra Kumar Yadav v. State, 2022 SCC OnLine Del 976, decided on 5-4-2022]


Advocates before the Court:

For the Petitioner:

Badar Mahmood, Advocate

For the Respondent:

Neelam Sharma, APP for the State with SI Ajay Singh, Police Station Paharganj. Complainant – in person

Case BriefsHigh Courts

Karnataka High Court: Sreenivas Harish Kumar J. allowed the appeal for bail and set aside the order passed by the LXX Additional City Civil l and Sessions Judge and Special Judge, Bengaluru (on the application of the appellant under Section 439 Cr.P.C.

The instant appeal was filed under Section 14-A of the Scheduled Caste and the Scheduled Tribes (Prevention of Atrocities) Act 1989 (‘SC/ST Act’ for short). The accused has preferred this appeal challenging the order passed by the LXX Additional City Civil and Sessions Judge and Special Judge, Bengaluru rejecting his application for bail under Section 439 Cr.P.C.

Counsel for appellants Mr. Hasmath Pasha and Mr. Nasir Ali submitted that no doubt, the contents of the report and the charge sheet indicate that they spent intimate moments, but it also shows that the second respondent might have had consensual intercourse with the appellant. Even when they went to the hospital for the purpose of terminating the pregnancy, it was disclosed to the Doctors that the second respondent was the wife of the appellant, and she gave consent for termination of the pregnancy. The age of the second respondent is 27 years and in this view, the relationship between the appellant and the second respondent could be consensual. She knew the consequences of what she was doing. These being the facts and circumstances, at this stage, the appellant has been able to make out a prima facie case for grant of bail.

Cousnel for respondent Mr. K S Abhijith and Ms. Dhanlakshmi submitted that the second respondent has given statement under Section 164 Cr.P.C which discloses that she was subjected to forcible intercourse by the appellant. Her pregnancy was also terminated forcibly. There are ample materials indicating the involvement of the appellant. He refused to marry the second respondent the moment he came to know that she belonged to the scheduled caste. Therefore, there is no case for granting bail. it prima facie appears that the relationship between the appellant and the second respondent since the year 2018 is consensual.

The Court observed that the age of the second respondent is 27 years. She knew the consequences of having intercourse with the appellant. The appellant has produced a document which shows that both the appellant and the second respondent went to hospital for the purpose of terminating the pregnancy and at that time, they introduced themselves to be husband and wife. So, if all these aspects are taken into consideration, it is difficult to arrive at a conclusion at this stage that the appellant used to have sexual intercourse with the second respondent forcibly.

The Court thus held in the light of all these facts and circumstances, it is not diff icult to arrive at a conclusion that the appellant has been able to make out a case for grant of bail.

[Manoj Kumar M R v. State of Karnataka, Criminal Appeal No. 1933 of 2021, decided on 13-01-2022]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., examines whether on mere refusal to marry the offence of cheating be constituted under Section 417 of the Penal Code, 1860.

Additional Sessions Judge had decided that the appellant (referred to as ‘accused’) was guilty of offences punishable under Section 417 of the Penal Code, 1860.

Instant appeal was filed against the above-stated decision.

Prosecutrix had lodged an FIR alleging that the accused had sexual relationship with her with the promise of marriage and he subsequently declined to marry her. Crime against the accused was registered under Sections 376 and 417 of the IPC.

Analysis, Law and Decision

High Court noted that the prosecutrix was known to the accused and had a sexual relationship for over about 3 years.

Evidence on record revealed that the sexual relationship between the prosecutrix and the accused was consensual.

The accused had been held guilty of the offence under Section 417 IPC solely for the reason that he refused to marry the prosecutrix, hence the question that arose was whether in such circumstances refusal to marry would constitute the offence of cheating?

In the Supreme Court decision of Maheshwar Tigga v. State of Jharkhand, (2020) 10 SCC 108, it was examined whether the prosecutrix had consented to the physical relationship under any misconception of fact with regard to promise of marriage or whether her consent was based on fraudulent misrepresentation of marriage. The Supreme Court has held that under Section 90 of IPC a consent given under a misconception of fact is no consent in the eye of the law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years.

High Court stated that the evidence of the prosecutrix did not indicate that she had sexual relationship with the accused under the misconception of fact, with regard to the promise of marriage or that her consent was based on fraudulent misrepresentation of marriage.

Elaborating further, the Bench also noted that there was no evidence to prove that the prosecutrix had consented for physical relationship on a misconception of fact, as stipulated under Section 90 IPC, there mere refusal to marry would not constitute offence under Section 417 IPC.

Therefore, the impugned judgment could not be sustained in view of the above discussion and the appeal was allowed. [Kashinath Narayan Gharat v. State of Maharashtra, 2021 SCC OnLine Bom 5910, decided on 9-12-2021]


Advocates before the Court:

Ms Vrishali Raje for the Appellant.

Mr. S.V. Gavand, APP for Respondent -State

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banarjee and Kausik Chanda, JJ., granted bail to a rape accused taking note of the submission that the accused and the victim intend to get married in immediate future.

The accused claimed that though the alleged victim was a minor when the accused may have had sexual relationship with her, the victim has now attained majority. It was submitted that the accused and the victim intend to get marry in the immediate future.

Considering this submission, the High Court granted bail to the accused, subject to the Investigating Officer satisfying himself upon conversing with the victim as to her understanding of the situation.

It was further directed that in the event the marriage does not take place within the next 3 months or there is any further complaint from the victim against the accused within 6 months of the marriage, the bail may be annulled.

Subject to the above, the accused was directed to be released on bail upon furnishing a security bond of Rs 10,000 and producing a personal release bond of equivalent value. [Sopikul, In Re, 2020 SCC OnLine Cal 838 , decided on 16-4-2020]

Case BriefsHigh Courts

Bombay High Court: A Division Bench of Sunil B. Shukre and Madhav J. Jamdar, JJ., dismissed the criminal application filed with regard to quashing of an FIR registered for an offence punishable under Section 376(2) (n) [Punishment for Rape] of Penal Code, 1860.

Background

Applicant had exclusively expressed his love for respondent 2 seduced her into having a sexual relationship with him and did have sexual intercourse on many occasions. The affair that was going clandestinely between applicant and respondent 2 got exposed when one Sheikh Biram who as described by respondent 2 is her servant saw what was going on between applicant and respondent 2. He later threatened to disclose the same to the mother of respondent 2, and when the same happened applicant gave an express promise of marriage to respondent 2 but did not fulfil the same.

Applicant’s counsel M. Badar, submitted that in such matters Court should take the allegations at their face value and without adding anything thereto or subtracting anything therefrom, should consider if the allegations disclose the commission of any offence by the accused. Further, he relied on the Supreme Court’s decision in Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100.

Further, the Counsel adds that, there was no promise of marriage given by the applicant to the respondent at any point of time and hence no question of any breach of promise. He states that whatever happened was consensual in nature.

If allegations made by respondent 2 against the applicant are considered at their face value, a prima facie impression is created that respondent 2 agreed to have sexual relation with the applicant only upon her believing as love expressed by the applicant for respondent 2 to be genuine.

It is a case wherein the temptation to enter into such relationship was given by applicant to respondent 2 and respondent 2 was initially unwilling to fall prey to the advances made towards hereby the applicant. Misconception had been created not because of giving a false promise of marriage but because of giving false assurance to respondent 2 that applicant had his genuine and exclusive love and whenever time would come, would support her wholeheartedly.

In Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100, the distinction between rape and consensual sex was talked about,

“… Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception.”

“…to have sexual intercourse on account of her love and passion for the accused and not solely on

account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently.”

“If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape.”

Thus, in the present case, prima facie, malafide intention and clandestine motive of the applicant could be seen by his attempt to seduce respondent 2 into having a sexual relationship with him when he, in spite of her reluctance expressed initially, gave such an assurance as was sufficient to misconceive it as genuine.

Supreme Court’s decision of Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2018 SCC OnLine SC 3100 assists respondent 2 rightly in the present case.

Therefore, in view of the above Court found no merit in the application and dismissed the same. [Mohammed Aamir Ansari v. State of Maharashtra, 2020 SCC OnLine Bom 320, decided on 12-02-2020]

Case BriefsHigh Courts

Bombay High Court: The Bench of Mridula Bhatkar, J. quashed and set aside the order passed by Additional Sessions Judge,  refusing to discharge the petitioner/accused from offence punishable under Section 377 of Penal Code, 1860.

The present petition was filed in respect of challenging the order passed by the Metropolitan Magistrate, Girgaon, Mumbai rejecting the discharge of petitioner under Section 377 IPC.

Petitioner in the present case is a co-accused prosecuted under Sections 498-A, 377, 323, 504  r/w Section 34 of IPC. The facts of the case are that the complainant is married with a son of 6 to 7 years old. Complainant states that after 4-5 years of marriage she realised that her husband was gay, and on realising that she refused the parallel relationship of her husband. She also stated that she was ill-treated by her husband due to which she had left for her father’s house but later agreed to come back to her husband’s place when she again witnessed no change and continuation of the gay relationship of her husband with different males.

On realising the fact that her husband was not ready to stop his relationship with the petitioner/accused and being ill-treated a number of times, she finally lodged an FIR. Later, the Additional Sessions Judge partly allowed the revision application but maintained the charge under Section 377 IPC against the accused. Aggrieved by the same, the present petition was filed.

High Court while placing reliance on the Apex Court’s judgment in Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, held that though the ground for divorce could be the extramarital consensual sexual relationship as cruelty to the complainant, but it does not constitute an offence under Section 377 IPC, because both are adults and had a consensual sexual relationship.

Thus, in the present case, no victim exists and the order of the Additional Sessions Judge is quashed. [Daniel Crasto v. State of Maharashtra, 2019 SCC OnLine Bom 188, dated 30-01-2019]


Note: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and R.F. Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. in their landmark judgment held Section 377 IPC unconstitutional insofar it criminalised gay sex between consenting adults. [2018 SCC OnLine SC 1350]