DR. DHRUVARAM MURLIDHAR SONAR versus THE STATE OF MAHARASHTRA & ORS.

[2018] 13 S.C.R.

ADR. DHRUVARAM MURLIDHAR SONAR

THE STATE OF MAHARASHTRA & ORS.

(Criminal Appeal No. 1443 of 2018)

BNOVEMBER 22, 2018

[A. K. SIKRI AND S. ABDUL NAZEER, JJ.]

Code of Criminal Procedure, 1973: s.482 – Exercise of power,scope – Discussed.

Code of Criminal Procedure, 1973: s.482 – Quashing ofCproceedings – FIR was registered against the appellant and the co-accused under ss.376(2)(b), 420 r/w s.34, IPC and under s.3(1)(x)of the SC/ST Act – Appellant-acussed no.1 was government doctorwhile complainant was nurse in the same establishment – Case ofcomplainant was that she had fallen in love with the appellant andthat she needed companion as she was widow – They wereDliving together, sometimes at her house and sometimes at the residenceof the appellant – They were in relationship with each other forquite some time and enjoyed each other’s company and appellanthad promised that he would marry her – However, when she cameto know that the appellant had married another woman, she lodgedEan FIR – Appellant filed petition for quashing the FIR – High Courtdismissed the petition – On appeal, held: It was not the case ofcomplainant that the appellant had forcibly raped her – Theacknowledged consensual physical relationship between the partieswould not constitute an offence under s.376, IPC – There was atacit consent on part of complainant and the tacit consent given byFher was not the result of misconception created in her mind –Even if the allegations made in the complaint were taken at theirface value and accepted in their entirety, they would not make out acase against the appellant – Further, the FIR nowhere spelt out anywrong committed by the appellant under s.420, IPC or underGs.3(1)(x) of the SC/ST Act – Therefore, the High Court was notjustified in rejecting the petition filed by the appellant under s.482of the Cr.P.C. – FIR quashed – Penal Code, 1860 – ss. 376(2)(b),420 r/w s.34 – Scheduled Castes and Scheduled Tribes (Preventionof Atrocities) Act, 1989 – s.3(1)(x).

Allowing the appeal, the Court

HELD: 1. It is well settled that exercise of powers underSection 482 of the Cr.P.C. is the exception and not the rule. Underthis section, the High Court has inherent powers to make suchorders as may be necessary to give effect to any order under theCode or to prevent the abuse of process of any court or otherwiseto secure the ends of justice. But the expressions “abuse ofprocess of law” or “to secure the ends of justice” do not conferunlimited jurisdiction on the High Court and the alleged abuse ofprocess of law or the ends of justice could only be secured inaccordance with law, including procedural law and not otherwise.[Para 8][926-B-C]

State of Haryana and Ors. v. Bhajan Lal and Ors. 1992Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259 ; RajeshBajaj v. State NCT of Delhi & Ors. (1999) 3 SCC 259 :[1999] 1 SCR 1012 ;State of Karnataka v.M. Devendrappa and Anr. (2002) 3 SCC 89 : [2002] 1SCR 275 ; Vineet Kumar and Ors. v. State of UttarPradesh and Anr. (2017) 13 SCC 369 : [2017] 6SCR 922 – relied on.

2. For quashing the proceedings, meticulous analysis offactum of taking cognizance of an offence by the Magistrate isnot called for. Appreciation of evidence is also not permissiblein exercise of inherent powers. If the allegations set out in thecomplaint do not constitute the offence of which cognizance hasbeen taken, it is open to the High Court to quash the same inexercise of the inherent powers. [Para 12][928-G

3. Section 376(2)(b) prescribes punishment for the offenceof rape committed by public servant taking advantage of hisofficial position on woman in his custody as such public servantor in the custody of public servant subordinate to him. Section375 defines the offence of rape and enumerates six descriptionsof the offence. The first clause operates where the women is inpossession of her senses and, therefore, capable of consentingbut the act is done against her will and the second where it isdone without her consent; the third, fourth and fifth when thereis consent but it is not such consent as excuses the offender,because it is obtained by putting her, or any person in whom she

Ais interested, in fear of death or of hurt. The expression ‘againsther will’ means that the act must have been done in spite of theopposition of the woman. An inference as to consent can be drawnif only based on evidence or probabilities of the case. “Consent”is also stated to be an act of reason coupled with deliberation. Itdenotes an active will in mind of person to permit the doing ofBthe act complained of. Section 90 of the IPC though does notdefine “consent”, but describes what is not “consent”. Consentmay be express or implied, coerced or misguided, obtainedwillingly or through deceit. If the consent is given by thecomplainant under misconception of fact, it is vitiated. ConsentCfor the purpose of Section 375 requires voluntary participationnot only after the exercise of intelligence based on the knowledgeof the significance and moral quality of the act, but also afterhaving fully exercised the choice between resistance andassent. Whether there was any consent or not is to beascertained only on careful study of all relevant circumstances.D[Paras 13, 14, 15][928-H; 929-A, D-E; 930-A-B]

Uday v. State of Karnataka (2003) 4 SCC 46 : [2003]2 SCR 231 ; Deelip Singh alias Dilip Kumar v. State ofBihar (2005) 1 SCC 88 : [2004] 5 Suppl. SCR 909 ;Deepak Gulati v. State of Haryana (2013) 7 SCC 675 :E[2013] 6 SCR 544 – relied on

4. There is clear distinction between rape and consensualsex. The court, in such cases, must very carefully examinewhether the complainant had actually wanted to marry the victimor had mala fide motives and had made false promise to thisFeffect only to satisfy his lust, as the latter falls within the ambit ofcheating or deception. There is also distinction between merebreach of promise and not fulfilling false promise. If the accusedhas not made the promise with the sole intention to seduce theprosecutrix to indulge in sexual acts, such an act would not amountto rape. There may be case where the prosecutrix agrees toGhave sexual intercourse on account of her love and passion forthe accused and not solely on account of the misconceptioncreated by accused, or where an accused, on account ofcircumstances which he could not have foreseen or which werebeyond his control, was unable to marry her despite having everyH

intention to do. Such cases must be treated differently. If theaccused had any mala fide intention and if he had clandestinemotives, it is clear case of rape. The acknowledged consensualphysical relationship between the parties would not constitutean offence under Section 376 of the IPC. [Para 20][933-G-H;934-A-C]

5. In the instant case, the appellant was serving as MedicalOfficer in the Primary Health Centre and the complainant wasworking as an Assistant Nurse in the same health centre and thatshe is widow. It was alleged by her that the appellant informedher that he is married man and that he has differences with hiswife. Admittedly, they belong to different communities. It is alsoalleged that the accused/appellant needed month’s time to gettheir marriage registered. The complainant further states thatshe had fallen in love with the appellant and that she needed acompanion as she was widow. They were living together,sometimes at her house and sometimes at the residence of theappellant. They were in relationship with each other for quitesome time and enjoyed each other’s company. It is also clearthat they had been living as such for quite some time together.When she came to know that the appellant had married someother woman, she lodged the complaint. It is not her case thatthe complainant has forcibly raped her. She had taken consciousdecision after active application of mind to the things that hadhappened. It is not case of passive submission in the face ofany psychological pressure exerted and there was tacit consentand the tacit consent given by her was not the result of amisconception created in her mind. Even if the allegations madein the complaint are taken at their face value and accepted intheir entirety, they do not make out case against the appellant.Also, since complainant has failed to prima facie show thecommission of rape, the complaint registered under Section376(2)(b) cannot be sustained. Further, the FIR nowhere spellsout any wrong committed by the appellant under Section 420 ofthe IPC or under Section 3(1)(x) of the SC/ST Act. Therefore,the High Court was not justified in rejecting the petition filed bythe appellant under Section 482 of the Cr.P.C. [Paras 21, 22][934-D-H; 935-A-B]

DEFG

Case Law Reference

From the Judgment and Order dated 02.07.2018 of the High Courtof Judicature at Bombay, Bench at Aurangabad in Criminal ApplicationNo. 3590 of 2012.

Jayant Sud, Sr. Adv., Sandeep S. Deshmukh, Vasim Siddiqui,DSandeep Sudhakar Deshmukh, Advs. for the Appellant.

Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar, Advs. forthe Respondents.

The Judgment of the Court was delivered by

S. ABDUL NAZEER, J. 1. Leave granted.

2. This appeal is directed against the judgment and order dated02.07.2018 in Criminal Application No.3590 of 2012, whereby the HighCourt of Judicature at Bombay (Bench at Aurangabad) dismissed theapplication filed by the petitioner under Section 482 of the Code of CriminalFProcedure, 1973 (for short ‘Cr.P.C’) for quashing the First InformationReport No.59 of 2000 registered with Mhasawad Police Station, DistrictNandurbar, for the offences punishable under Sections 376 (2)(b), 420read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’)and under Section 3(1)(x) of the Scheduled Castes and the ScheduledTribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC/ST Act’)Gand the chargesheet filed in the court of judicial magistrate, F.C. Shahada,Nandurbar District.

3. The appellant is the accused No.1 in the aforesaid FIR, registeredat the instance of the complainant/respondent No.4. At the relevantpoint of time, the appellant was serving as medical officer, PrimaryHHealth Centre at Toranmal, Dhadgaon Taluq, Nandurbar District,

whereas the complainant was working as an Assistant Nurse at thesame establishment. The allegations made by the complainant in theFIR in brief are that her husband died on 05.11.1997, leaving behind herand her two children. During this time, the appellant informed her thatthere have been differences between him and his wife, and therefore,he is planning to divorce his wife. Further, the appellant informed thecomplainant that since they belong to different communities, month isneeded for the registration of their marriage. Therefore, she startedliving with the appellant at his Government quarters. The FIR furtherstates that she had fallen in love with the appellant and that she neededa companion as she is widow. Therefore, they started living together,as if they were husband and wife. They resided some time at her houseand some time at the house of the appellant. The appellant acted as ifhe has married her and has maintained physical relationship with her.However, he has failed to marry her as promised. When things stoodthus, his brother, i.e accused No. 2, claims to have married her.Thereafter, in the year 2000, complainant received the information fromthe co-accused about the marriage of the appellant with some otherwoman. Therefore, she filed the aforesaid complaint and FIR dated06.12.2000 came to be registered against the appellant and the co-accused.

4. After the completion of the investigation, the investigating agencyfiled final report on 14.06.2001. The appellant filed the criminalapplication under Section 482 before the High Court for quashing theFIR and the chargesheet. As noticed above, the High Court has dismissedthe criminal petition by its order dated 02.07.2018.

5. Learned counsel for the appellant contends that in the instantcase the process of the court is sought to be abused by the complainantwith oblique motive. The criminal proceeding is manifestly intendedwith mala fides and the proceeding is maliciously instituted with an ulteriormotive. It is submitted that the complainant was involved in relationshipwith the brother of the appellant and the appellant was not in relationshipwith her at any point of time. As matter of fact, marriage wassolemnized between the brother of the appellant and complainant. Thecomplainant was constantly blackmailing the appellant for some reasonor the other. It is submitted that even if the entire allegations made in thecomplaint are taken at their face value and accepted in its entirety, suchallegations do not constitute any offence.

A6. On the other hand, learned advocate appearing for respondentNos.1 to 3 has sought to justify the impugned order.

7. We have carefully considered the submissions of the learnedcounsel made at the Bar and perused the materials placed on record.

8. It is well settled that exercise of powers under Section 482 ofBthe Cr.P.C. is the exception and not the rule. Under this section, theHigh Court has inherent powers to make such orders as may be necessaryto give effect to any order under the Code or to prevent the abuse ofprocess of any court or otherwise to secure the ends of justice. But theexpressions “abuse of process of law” or “to secure the ends of justice”do not confer unlimited jurisdiction on the High Court and the allegedCabuse of process of law or the ends of justice could only be secured inaccordance with law, including procedural law and not otherwise.

9. This Court in State of Haryana and Ors. v. Bhajan Lal andOrs. 1992 Supp (1) SCC 335, has elaborately considered the scope andambit of Section 482 Cr.P.C. Seven categories of cases have beenDenumerated where power can be exercised under Section 482 of Cr.P.C.Para 102 thus reads:

“102. In the backdrop of the interpretation of the various relevantprovisions of the Code under Chapter XIV and of the principlesof law enunciated by this Court in series of decisions relating toEthe exercise of the extraordinary power under Article 226 or theinherent powers under Section 482 of the Code which we haveextracted and reproduced above, we give the following categoriesof cases by way of illustration wherein such power could beexercised either to prevent abuse of the process of any court orFotherwise to secure the ends of justice, though it may not be possibleto lay down any precise, clearly defined and sufficientlychannelised and inflexible guidelines or rigid formulae and to givean exhaustive list of myriad kinds of cases wherein such powershould be exercised.

(1) Where the allegations made in the first information reportor the complaint, even if they are taken at their face value andaccepted in their entirety do not prima facie constitute anyoffence or make out case against the accused.

(2) Where the allegations in the first information report andother materials, if any, accompanying the FIR do not discloseHa cognizable offence, justifying an investigation by police

officers under Section 156(1) of the Code except under anorder of Magistrate within the purview of Section 155(2) ofthe Code.

(3) Where the uncontroverted allegations made in the FIR orcomplaint and the evidence collected in support of the samedo not disclose the commission of any offence and make out acase against the accused.

(4) Where, the allegations in the FIR do not constitute acognizable offence but constitute only non-cognizable offence,no investigation is permitted by police officer without an orderof Magistrate as contemplated under Section 155(2) of theCode.

(5) Where the allegations made in the FIR or complaint are soabsurd and inherently improbable on the basis of which noprudent person can ever reach just conclusion that there issufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of theprovisions of the Code or the concerned Act (under which acriminal proceeding is instituted) to the institution andcontinuance of the proceedings and/or where there is specificprovision in the Code or the concerned Act, providing efficaciousredress for the grievance of the aggrieved party.

(7) Where criminal proceeding is manifestly attended withmala fide and/or where the proceeding is maliciously institutedwith an ulterior motive for wreaking vengeance on the accusedand with view to spite him due to private and personal grudge.”

10. In Rajesh Bajaj v. State NCT of Delhi & Ors., (1999) 3SCC 259, this Court has held that it is not necessary that complainantshould verbatim reproduce in the body of his complaint all the ingredientsof the offence he is alleging. If the factual foundation for the offencehas been laid in the complaint, the court should not hasten to quashcriminal proceedings during the investigation stage merely on the premisethat one or two ingredients have not been stated with details.

11. In State of Karnataka v. M. Devendrappa and Anr., (2002)3 SCC 89, it was held that while exercising powers under Section 482Cr.P.C., the court does not function as court of appeal or revision.Inherent jurisdiction under the Section though wide has to be exercisedsparingly, carefully and with caution and only when such exercise is

Ajustified by the tests specifically laid down in the Section itself. It wasfurther held as under:-

“It would be an abuse of process of the court to allow any actionwhich would result in injustice and prevent promotion of justice.In exercise of the powers court would be justified to quash anyBproceeding if it finds that initiation/continuance of it amounts toabuse of the process of court or quashing of these proceedingswould otherwise serve the ends of justice. When no offence isdisclosed by the complaint, the court may examine the question offact. When complaint is sought to be quashed, it is permissibleto look into the materials to assess what the complainant hasCalleged and whether any offence is made out even if the allegationsare accepted in toto”.

12. Recently, in Vineet Kumar and Ors. v. State of UttarPradesh and Anr. (2017) 13 SCC 369, this Court has observed as under:

“Inherent power given to the High Court under Section 482 CrPCDis with the purpose and object of advancement of justice. In casesolemn process of Court is sought to be abused by person withsome oblique motive, the Court has to thwart the attempt at thevery threshold. Judicial process is solemn proceeding whichcannot be allowed to be converted into an instrument of oppressionEor harassment. When there are materials to indicate that criminalproceeding is manifestly attended with mala fide and proceedingis maliciously instituted with an ulterior motive, the High Courtwill not hesitate in exercise of its jurisdiction under Section 482CrPC to quash the proceeding. The present is fit case wherethe High Court ought to have exercised its jurisdiction under SectionF482 CrPC and quashed the criminal proceedings.”

It is clear that for quashing the proceedings, meticulous analysisof factum of taking cognizance of an offence by the Magistrate is notcalled for. Appreciation of evidence is also not permissible in exerciseof inherent powers. If the allegations set out in the complaint do notGconstitute the offence of which cognizance has been taken, it is open tothe High Court to quash the same in exercise of the inherent powers.

13. In the instant case, FIR was registered against the appellantand the co-accused under Sections 376(2)(b), 420 read with Section 34of the IPC and under Section 3(1)(x) of the SC/ST Act. Section 376(2)(b)Hprescribes punishment for the offence of rape committed by public

servant taking advantage of his official position on woman in his custodyas such public servant or in the custody of public servant subordinateto him. The said provision during the relevant point of time was asunder:-

“376. Punishment for rape.-

(1) …………..

2. Whoever,—

(a) ……………

(b) being public servant, takes advantage of his official positionand commits rape on woman in his custody as such public servantor in the custody of public servant subordinate to him; or

(c) to (g) …………….

shall be punished with rigorous imprisonment for term whichshall not be less than ten years but which may be for life and shallalso be liable to fine.”

14. Section 375 defines the offence of rape and enumerates sixdescriptions of the offence. The first clause operates where the womenis in possession of her senses and, therefore, capable of consenting butthe act is done against her will and the second where it is done withouther consent; the third, fourth and fifth when there is consent but it is notsuch consent as excuses the offender, because it is obtained by puttingher, or any person in whom she is interested, in fear of death or of hurt.The expression “against her ‘will’” means that the act must have beendone in spite of the opposition of the woman. An inference as to consentcan be drawn if only based on evidence or probabilities of the case.“Consent” is also stated to be an act of reason coupled with deliberation.It denotes an active will in mind of person to permit the doing of the actcomplained of.

15. Section 90 of the IPC defines “consent” known to be givenunder fear or misconception:-

“Section 90:

Consent known to be given under fear or misconception.—A consent is not such consent as it intended by any section ofthis Code, if the consent is given by person under fear of injury,or under misconception of fact, and if the person doing the actknows, or has reason to believe, that the consent was given inconsequence of such fear or misconception”

AThus, Section 90 though does not define “consent”, but describeswhat is not “consent”. Consent may be express or implied, coerced ormisguided, obtained willingly or through deceit. If the consent is given bythe complainant under misconception of fact, it is vitiated. Consent forthe purpose of Section 375 requires voluntary participation not only afterthe exercise of intelligence based on the knowledge of the significanceBand moral quality of the act, but also after having fully exercised thechoice between resistance and assent. Whether there was any consentor not is to be ascertained only on careful study of all relevantcircumstances.

16. In Uday v. State of Karnataka (2003) 4 SCC 46, this CourtCwas considering case where the prosecutrix, aged about 19 years, hadgiven consent to sexual intercourse with the accused with whom shewas deeply in love, on promise that he would marry her on later date.The prosecutrix continued to meet the accused and often had sexualintercourse and became pregnant. complaint was lodged on failure ofDthe accused to marry her. It was held that consent cannot be said to begiven under misconception of fact. It was held thus:-“21. It therefore appears that the consensus of judicial opinion isin favour of the view that the consent given by the prosecutrix tosexual intercourse with person with whom she is deeply in loveon promise that he would marry her on later date, cannot beEsaid to be given under misconception of fact. false promise isnot fact within the meaning of the Code. We are inclined toagree with this view, but we must add that there is no straitjacketformula for determining whether consent given by the prosecutrixto sexual intercourse is voluntary, or whether it is given under aFmisconception of fact. In the ultimate analysis, the tests laid downby the courts provide at best guidance to the judicial mind whileconsidering question of consent, but the court must, in eachcase, consider the evidence before it and the surroundingcircumstances, before reaching conclusion, because each casehas its own peculiar facts which may have bearing on the questionGwhether the consent was voluntary, or was given under amisconception of fact. It must also weigh the evidence keeping inview the fact that the burden is on the prosecution to prove eachand every ingredient of the offence, absence of consent beingone of them.

23. Keeping in view the approach that the court must adopt insuch cases, we shall now proceed to consider the evidence onrecord. In the instant case, the prosecutrix was grown-up girlstudying in college. She was deeply in love with the appellant.She was, however, aware of the fact that since they belonged todifferent castes, marriage was not possible. In any event theproposal for their marriage was bound to be seriously opposed bytheir family members. She admits having told so to the appellantwhen he proposed to her the first time. She had sufficientintelligence to understand the significance and moral quality ofthe act she was consenting to. That is why she kept it secret aslong as she could. Despite this, she did not resist the overtures ofthe appellant, and in fact succumbed to them. She thus freelyexercised choice between resistance and assent. She must haveknown the consequences of the act, particularly when she wasconscious of the fact that their marriage may not take place at allon account of caste considerations. All these circumstances leadus to the conclusion that she freely, voluntarily and consciouslyconsented to having sexual intercourse with the appellant, andher consent was not in consequence of any misconception of fact.”

17. In Deelip Singh alias Dilip Kumar v. State of Bihar, (2005)1 SCC 88, the Court framed the following two questions relating toconsent:-

(1) “Is it case of passive submission in the face of psychologicalpressure exerted or allurements made by the accused or was it aconscious decision on the part of the prosecutrix knowing fullythe nature and consequences of the act she was asked to indulgein?

(2) Whether the tacit consent given by the prosecutrix was theresult of misconception created in her mind as to the intention ofthe accused to marry her”?

In this case, the girl lodged complaint with the police stating thatshe and the accused were neighbours and they fell in love with eachother. One day in February, 1988, the accused forcibly raped her andlater consoled her by saying that he would marry her. She succumbedto the entreaties of the accused to have sexual relations with him, onaccount of the promise made by him to marry her, and thereforecontinued to have sex on several occasions. After she became pregnant,

ABCD

Ashe revealed the matter to her parents. Even thereafter, the intimacycontinued to the knowledge of the parents and other relations who wereunder the impression that the accused would marry the girl, but theaccused avoided marrying her and his father took him out of the villageto thwart the bid to marry. The efforts made by the father of the girl toestablish the marital tie failed. Therefore, she was constrained to fileBthe complaint after waiting for some time. With this factual back-ground,the Court held that the girl had taken conscious decision, after activeapplication of mind to the events that had transpired. It was further heldthat at best, it is case of breach of promise to marry rather than caseof false promise to marry, for which the accused is prima facieCaccountable for damages under civil law. It was held thus:-

“The remaining question is whether on the basis of the evidenceon record, it is reasonably possible to hold that the accused withthe fraudulent intention of inducing her to sexual intercourse, madea false promise to marry. We have no doubt that the accused didDhold out the promise to marry her and that was the predominantreason for the victim girl to agree to the sexual intimacy with him.PW 12 was also too keen to marry him as she said so specifically.But we find no evidence which gives rise to an inference beyondreasonable doubt that the accused had no intention to marry herat all from the inception and that the promise he made was falseEto his knowledge. No circumstances emerging from theprosecution evidence establish this fact. On the other hand, thestatement of PW 12 that “later on”, the accused became ready tomarry her but his father and others took him away from the villagewould indicate that the accused might have been prompted by aFgenuine intention to marry which did not materialise on accountof the pressure exerted by his family elders. It seems to be caseof breach of promise to marry rather than case of false promiseto marry. On this aspect also, the observations of this Courtin Uday case at para 24 come to the aid of the appellant”.

18. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675,Gthe Court has drawn distinction between rape and consensual sex.This is case of prosecutrix aged 19 years at the time of the incident.She had an inclination towards the accused. The accused had beengiving her assurances of the fact that he would get married to her. Theprosecutrix, therefore, left her home voluntarily and of her own free willHto go with the accused to get married to him. She called the accused on

phone number given to her by him, to ask him why he had not met herat the place that had been pre-decided by them. She also waited for himfor long time, and when he finally arrived, she went with him to placecalled Karna Lake where they indulged in sexual intercourse. She didnot raise any objection at that stage and made no complaints to anyone.Thereafter, she went to Kurukshetra with the accused, where she livedwith his relatives. Here too, the prosecutrix voluntarily became intimatewith the accused. She then, for some reason, went to live in the hostelat Kurukshetra University illegally, and once again came into contactwith the accused at Birla Mandir there. Thereafter, she even proceededwith the accused to the old bus-stand in Kurukshetra, to leave for Ambalaso that the two of them could get married at the court in Ambala. At thebus station, the accused was arrested by the police. The Court held thatthe physical relationship between the parties had clearly developed withthe consent of the prosecutrix as there was neither case of any resistancenor had she raised any complaint anywhere at any time, despite the factthat she had been living with the accused for several days and hadtravelled with him from one place to another. The Court further heldthat it is not possible to apprehend the circumstances in which chargeof deceit/rape can be leveled against the accused.

19. Recently, this Court, in Shivashankar @ Shiva v. State ofKarnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on6[th] April, 2018, has observed that it is difficult to hold that sexualintercourse in the course of relationship which has continued for eightyears is ‘rape’, especially in the face of the complainant’s own allegationthat they lived together as man and wife. It was held as under:-

“In the facts and circumstances of the present case, it is difficultto sustain the charges leveled against the appellant who may havepossibly, made false promise of marriage to the complainant.

It is, however, difficult to hold sexual intercourse in the course ofa relationship which has continued for eight years, as ‘rape’especially in the face of the complainant’s own allegation thatthey lived together as man and wife”.

20. Thus, there is clear distinction between rape and consensualsex. The court, in such cases, must very carefully examine whether thecomplainant had actually wanted to marry the victim or had mala fidemotives and had made false promise to this effect only to satisfy hislust, as the later falls within the ambit of cheating or deception. There is

Aalso distinction between mere breach of promise and not fulfilling afalse promise. If the accused has not made the promise with the soleintention to seduce the prosecutrix to indulge in sexual acts, such an actwould not amount to rape. There may be case where the prosecutrixagrees to have sexual intercourse on account of her love and passion forthe accused and not solely on account of the misconception created byBaccused, or where an accused, on account of circumstances which hecould not have foreseen or which were beyond his control, was unableto marry her despite having every intention to do. Such cases must betreated differently. If the complainant had any mala fide intention and ifhe had clandestine motives, it is clear case of rape. The acknowledgedCconsensual physical relationship between the parties would not constitutean offence under Section 376 of the IPC.21. In the instant case, it is an admitted position that the appellantwas serving as Medical Officer in the Primary Health Centre and thecomplainant was working as an Assistant Nurse in the same health centreDand that the is widow. It was alleged by her that the appellant informedher that he is married man and that he has differences with his wife.Admittedly, they belong to different communities. It is also alleged thatthe accused/appellant needed month’s time to get their marriageregistered. The complainant further states that she had fallen in lovewith the appellant and that she needed companion as she was widow.EShe has specifically stated that “as I was also widow and I was also inneed of companion, I agreed to his proposal and since then we werehaving love affair and accordingly we started residing together. Weused to reside sometimes at my home whereas some time at his home.”Thus, they were living together, sometimes at her house and sometimesFat the residence of the appellant. They were in relationship with eachother for quite some time and enjoyed each other’s company. It is alsoclear that they had been living as such for quite some time together.When she came to know that the appellant had married some otherwoman, she lodged the complaint. It is not her case that the complainanthas forcibly raped her. She had taken conscious decision after activeGapplication of mind to the things that had happened. It is not case of apassive submission in the face of any psychological pressure exertedand there was tacit consent and the tacit consent given by her was notthe result of misconception created in her mind. We are of the viewthat, even if the allegations made in the complaint are taken at their faceHvalue and accepted in their entirety, they do not make out case against

the appellant. We are also of the view that since complainant has failedto prima facie show the commission of rape, the complaint registeredunder Section 376(2)(b) cannot be sustained.

22. Further, the FIR nowhere spells out any wrong committed bythe appellant under Section 420 of the IPC or under Section 3(1)(x) ofthe SC/ST Act. Therefore, the High Court was not justified in rejectingthe petition filed by the appellant under Section 482 of the Cr.P.C.

23. In the result, the appeal succeeds and is accordingly allowed.The impugned order of the High Court dated 02.07.2018 in CriminalApplication No.3590 of 2012, is hereby set aside. The First InformationReport dated 6.12.2000 filed by the complainant in the Police Station atMhasawad, District Nandurbar, on the basis of which Crime No.59 of2000 is registered against the appellant, is hereby quashed. Thechargesheet dated 14.06.2001 filed by Mhasawad Police Station againstthe appellant for the offences under Sections 376 (2)(b), 420 read withSection 34 of the IPC and Section 3(1)(x) of the SC/ST Act is alsoquashed.

Devika Gujral

Appeal allowed.