PRAMOD SURYABHAN PAWAR versus THE STATE OF MAHARASHTRA & ANR.

[2019] 11 S.C.R. 423

PRAMOD SURYABHAN PAWAR

THE STATE OF MAHARASHTRA & ANR.

(Criminal Appeal No. 1165 of 2019)

AUGUST 21, 2019

[DR. DHANANJAYA Y. CHANDRACHUD AND

INDIRA BANERJEE, JJ.]

Code of Criminal Procedure, 1973: s.482 – Inherent powersof court – Scope of exercise – Held: Under s.482, the inherentjurisdiction of the court can be exercised (i) to give effect to anorder under the CrPC; (ii) to prevent the abuse of the process of thecourt; and (iii) to otherwise secure the ends of justice – The courtshould be guarded in the use of its extraordinary jurisdiction toquash an FIR or criminal proceeding as it denies the prosecutionthe opportunity to establish its case through investigation andevidence – In deciding whether to exercise its jurisdiction unders.482, the Court does not adjudicate upon the veracity of the factsalleged or enter into an appreciation of competing evidencepresented – The limited question is whether on the face of the FIR,the allegations constitute cognizable offence.

Code of Criminal Procedure, 1973: s.482 – Petition forquashing FIR filed under ss.376, 417, 504, and 506(2) IPC againstthe appellant that he engaged in sexual relations with the complainantagainst her will on the false promise of marrying her – Plea ofcomplainant that her “consent” premised on “misconception offact” (the promise to marry) stood vitiated – High Court rejectedthe plea and dismissed the petition – Held: The “misconception offact” alleged by the complainant is the appellant’s promise to marryher – There is distinction between false promise given on theunderstanding by the maker that it will be broken, and the breachof promise which is made in good faith but subsequently notfulfilled – Where the promise to marry is false and the intention ofthe maker at the time of making the promise itself was not to abideby it but to deceive the woman to convince her to engage in sexualrelations, there is “misconception of fact” that vitiates the woman’s

A“consent” – The “consent” of woman under s.375 is vitiated onthe ground of “misconception of fact” where such misconceptionwas the basis for her choosing to engage in the said act – In theinstant case, the allegations in the FIR did not on their face indicatethat the promise by the appellant was false, or that the complainantengaged in sexual relations on the basis of this promise – ThereBwas no allegation in the FIR that when the appellant promised tomarry the complainant, it was done in bad faith or with the intentionto deceive her – The appellant’s failure in 2016 to fulfil his promisemade in 2008 cannot be construed to mean the promise itself wasfalse – The allegations in the FIR indicated that the complainantCwas aware that there existed obstacles to marrying the appellantsince 2008, and that she and the appellant continued to engage insexual relations long after their getting married had become adisputed matter – Even thereafter, the complainant travelled to visitand reside with the appellant at his postings and allowed him to

spend his weekends at her residence – Therefore, offence underDs.375 IPC against the appellant was not made out – FIR is quashed– Penal Code, 1860 – ss.375, 376, 417, 504, and 506(2).

Code of Criminal Procedure, 1973: s.482 – Petition forquashing FIR filed under ss.3(1) (u), (w) and 3(2) (vii) of the SC/STAct against the appellant that he sent her certain Whatsapp messagesEwhich were insulting and attacked her on the grounds of her caste– High Court dismissed the petition – On appeal, held: TheWhatsApp messages were alleged to have been sent by the appellantto the complainant on 27 and 28 August 2015 and 22 October 2015– At that time, ss.3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as itFstood today had not been enacted into the statute – These provisionswere inserted by the (Prevention of Atrocities) Amendment Act 2015which came into force on 26 January 2016 – None of the offencesas stood then were made out – The messages were not in publicview, no assault occurred, nor was the appellant in such positionso as to dominate the will of the complainant. Therefore, even if theGallegations set out by the complainant with respect to the WhatsAppmessages and words uttered were accepted on their face, no offencewas made out under SC/ST Act (as it then stood) – FIR is quashed –Scheduled Castes and Scheduled Tribes (Prevention of Atrocities

Act, 1989 (as amended by the Amendment Act, 2018) – ss.3(1) (u),(w) and 3(2) (vii).

Penal Code, 1860: s.375 – Consent – The consent with respectto s.375 involves an active understanding of the circumstances,actions and consequences of the proposed act – An individual whomakes reasoned choice to act after evaluating various alternativeactions (or inaction) as well as the various possible consequencesflowing from such action or inaction, consents to such action –Where woman does not “consent” to the sexual acts described inthe main body of s.375, the offence of rape has occurred – Whiles.90 does not define the term “consent”, “consent” based on a“misconception of fact” is not consent in the eyes of the law.

Allowing the appeal, the Court

HELD : 1.1 The powers of the court under Section 482 arewide and the court is vested with significant amount of discretionto decide whether or not to exercise them. The court should beguarded in the use of its extraordinary jurisdiction to quash anFIR or criminal proceeding as it denies the prosecution theopportunity to establish its case through investigation andevidence. In deciding whether to exercise its jurisdiction underSection 482, the Court does not adjudicate upon the veracity ofthe facts alleged or enter into an appreciation of competingevidence presented. The limited question is whether on the faceof the FIR, the allegations constitute cognizable offence.[Paras 7, 8] [432-G-H; 433-A; 434-C-D]

Inder Mohan Goswami v. State of Uttaranchal (2007)12 SCC 1 : [2007] 10 SCR 847 ; State of Haryana v.Bhajan Lal 1992 Supp (1) SCC 335 : [1990] 3 Suppl.SCR 259 ; Dhruvaram Murlidhar Sonar v. State ofMaharashtra 2018 SCC OnLine SC 3100 ; Kaini Rajanv. State of Kerala (2013) 9 SCC 113 : [2013]10 SCR 196 – relied on.

2. The instant proceedings concerned an FIR registeredagainst the appellant under Sections 376, 417, 504, and 506(2) ofthe IPC and Sections 3(1) (u), (w) and 3(2) (vii) of SC/ST Act.

ASection 376 of the IPC prescribes the punishment for the offenceof rape which is set out in Section 375. Section 375 prescribesseven descriptions of how the offence of rape may be committed.Where woman does not “consent” to the sexual acts describedin the main body of Section 375, the offence of rape has occurred.While Section 90 does not define the term “consent”, “consent”Bbased on “misconception of fact” is not consent in the eyes ofthe law. The consent with respect to Section 375 of the IPCinvolves an active understanding of the circumstances, actionsand consequences of the proposed act. An individual who makesa reasoned choice to act after evaluating various alternativeCactions (or inaction) as well as the various possible consequencesflowing from such action or inaction, consents to such action. Thisunderstanding of consent has also been set out in Explanation 2of Section 375. In the instant case, the “misconception of fact”alleged by the complainant is the appellant’s promise to marryher. There is distinction between false promise given on theDunderstanding by the maker that it will be broken, and the breachof promise which is made in good faith but subsequently notfulfilled. Where the promise to marry is false and the intention ofthe maker at the time of making the promise itself was not toabide by it but to deceive the woman to convince her to engageEin sexual relations, there is “misconception of fact” that vitiatesthe woman’s “consent”. On the other hand, breach of promisecannot be said to be false promise. To establish false promise,the maker of the promise should have had no intention ofupholding his word at the time of giving it. The “consent” of awoman under Section 375 is vitiated on the ground of aF“misconception of fact” where such misconception was thebasis for her choosing to engage in the said act. [Paras 9, 10,

12-14, 16] [434-F-G; 435-E, G; 436-D; 437-A-B; 438-E, F]

3.1 The false promise itself must be of immediate relevance,or bear direct nexus to the woman’s decision to engage in theGsexual act. The allegations in the FIR indicate that in November2009, the complainant initially refused to engage in sexualrelations with the accused, but on the promise of marriage, heestablished sexual relations. However, the FIR includes

reference to several other allegations such as, the complainantand the appellant knew each other since 1998 and were intimatesince 2004; the complainant and the appellant met regularly,travelled great distances to meet each other, resided in eachother’s houses on multiple occasions, engaged in sexualintercourse regularly over course of five years and on multipleoccasions visited the hospital jointly to check whether thecomplainant was pregnant; and the appellant expressed hisreservations about marrying the complainant on 31 January 2014.This led to arguments between them. Despite this, the appellantand the complainant continued to engage in sexual intercourseuntil March 2015. [Paras 18, 19] [441-A-E]3.2 The allegations in the FIR did not on their face indicatethat the promise by the appellant was false, or that the complainantengaged in sexual relations on the basis of this promise. Thereis no allegation in the FIR that when the appellant promised tomarry the complainant, it was done in bad faith or with theintention to deceive her. The appellant’s failure in 2016 to fulfilhis promise made in 2008 cannot be construed to mean thepromise itself was false. The allegations in the FIR indicate thatthe complainant was aware that there existed obstacles tomarrying the appellant since 2008, and that she and the appellantcontinued to engage in sexual relations long after their gettingmarried had become disputed matter. Even thereafter, thecomplainant travelled to visit and reside with the appellant at hispostings and allowed him to spend his weekends at her residence.The allegations in the FIR belie the case that she was deceivedby the appellant’s promise of marriage. Therefore, even if thefacts set out in the complainant’s statements are accepted intotality, no offence under Section 375 of the IPC has occurred.[Para 20] [441-F-H; 442-A]

4. With respect to the offences under the SC/ST Act, theWhatsApp messages were alleged to have been sent by theappellant to the complainant on 27 and 28 August 2015 and 22October 2015. At that time, Sections 3(1) (u), (w) and 3(2) (vii) ofthe SC/ST Act as it stands today had not been enacted into thestatute. These provisions were inserted by the (Prevention of

AAtrocities) Amendment Act 2015 which came into force on 26January 2016. None of the offences as stood then are made out.The messages were not in public view, no assault occurred, norwas the appellant in such position so as to dominate the will ofthe complainant. Therefore, even if the allegations set out bythe complainant with respect to the WhatsApp messages andBwords uttered are accepted on their face, no offence is made outunder SC/ST Act (as it then stood). The allegations on the faceof the FIR do not hence establish the commission of the offencesalleged. [Paras 21, 22] [442-B, C, F-G; 443-A]

Anurag Soni v. State of Chhattisgarh (2019) SCCCOnLine SC 509 ; Deepak Gulati v. State of Haryana(2013) 7 SCC 675 : [2013] 6 SCR 544 ; Yedla SrinivasaRao v. State of Andhra Pradesh (2006) 11 SCC615 : [2006] 6 Suppl. SCR 760 ; Uday v. Stateof Karnataka (2003) 4 SCC 46 : [2003] 2 SCR 231D– relied on.

From the Judgment and Order dated 07.02.2019 of the High Courtof Judicature at Bombay in Criminal Application No. 813 of 2016.

GSushil Karanjkar, K. N. Rai Advs. for the Appellant.

Nishant Ramakantrao Katneshwarkar, Anoop Kandari, NileshTribhavan, Anand Dilip Landge, Ms. Nidhi Chhada, Advs. for theRespondents.

The Judgment of the Court was delivered by

DR. DHANANJAYA Y CHANDRACHUD, J.

1. Leave granted.

2. By its judgement dated 7 February 2019, the High Court ofJudicature at Bombay dismissed an application under Section 482 of theCode of Criminal Procedure 1973[1]. The appellant sought the quashingof First Information Report[2] registered against him on 17 May 2016with the Panvel City Police Station for offences punishable under Sections376, 417, 504 and 506(2) of the Indian Penal Code[3] and Sections 3(1)(u), (w) and 3(2) (vii) of The Scheduled Castes and Scheduled Tribes(Prevention of Atrocities Act, 1989 (as amended by the AmendmentAct, 2015)[4]. The second respondent is the complainant.

3. The allegations in the FIR are summarised thus:

(i) According to the complainant, she and the appellant have knowneach other since 1998. She would speak to the appellant on thephone and met him regularly as early as 2004. In 2008 the appellantproposed marriage and assured her that their belonging to differentcastes would not be hindrance. The appellant allegedly promisedto marry the complainant after the marriage of his elder sister.On 23 January 2009 the appellant allegedly re-iterated his promiseto marry her at the Patnadevi Temple in Chalisgaon;(ii) The complainant completed her B.Sc. in Agriculture in 2002and worked as Junior Research Assistant. In 2007 she wasselected as Naib Tahsildar at Chalisgaon. In March 2009 shewas appointed to the post of Assistant Sales Tax Commissionerat Mazgaon. The appellant would, it is alleged, come to meet herand lived with her in November 2009. During his visit, thecomplainant alleges that she refused to engage in sexual intercoursewith the appellant, but “on the promise of marriage he forciblyestablished corporeal relationships”;

(iii) The complainant alleges that throughout 2010, the appellantvisited her on multiple occasions and they engaged in sexual

1 “CrPC”

2 “FIR”

3 “IPC”

4 “SC/ST Act”

intercourse. When the appellant was posted in Gadchiroli, thecomplainant visited the appellant multiple times over the courseof 2011. Each of these visits lasted four to five days during whichthe complainant resided with the appellant and they engaged insexual intercourse. During these visits the complainant enquiredabout marriage and the appellant responded in the affirmative. InDecember 2011 the appellant visited her and resided in her housefor four days;

(iv) The appellant’s elder sister was married on 5 February 2012.On 23 December 2012 the appellant visited her and forced her toengage in sexual intercourse. Afterwards, for the first time theappellant raised concerns about marrying her on the ground thattheir belonging to different castes would hinder the appellant’syounger sister’s marriage. In January 2013 the complainant visitedthe appellant in Nagpur, and the appellant also subsequently visitedher. On both occasions they engaged in sexual intercourse;

(v) During these years she missed her menstrual periods on severaloccasions. In 2013-14 the complainant and appellant jointly visitedthe hospital multiple times to check whether she was pregnant.In June 2013 the appellant was posted in Navi Mumbai and usedto spend his weekends residing at the complainant’s house. Theyregularly engaged in sexual intercourse during this period.Beginning in January 2014 the appellant raised concerns aboutmarrying the complainant on the ground of her caste. This led toheated arguments. However, the appellant used to regularly visither house at Panvel until March 2015, each time engaging in sexualintercourse with her;

(vi) On 27 and 28 August 2015 and 22 October of 2015 theappellant sent the complainant certain WhatsApp messages. Thecomplainant alleges that these messages were insulting andattacked her on the grounds of her caste. The messages stated:

“You are bad for society. If shoe is kept on head, then head wouldget dirty. Reservation did not add any intelligence; You have gotGovt. service with ease”.

(vii) In November 2015 for the first time the complainantthreatened to file police complaint against the appellant. The

appellant promised to marry her after the marriage of his brother.At this time also they engaged in sexual intercourse; and

(viii) On 9 March 2016 the appellant engaged in sexual intercoursewith the complainant against her will. Subsequently, thecomplainant was apprised of the fact that the appellant wasengaged to another woman. The appellant informed thecomplainant that the woman he was engaged to was demandingRs. two lakhs to break of the engagement. On 28 March 2016the appellant re-iterated his promise to marry the complainantand arranged for her to speak to the woman he had been engagedto, to assure the complainant that the appellant was no longer in arelationship with her. Subsequently the complainant becameaware that the appellant had married on 1 May 2016. On 17 May2016 she filed the FIR.

4. The appellant applied for anticipatory bail. By an order dated13 June 2016 he was granted ad-interim anticipatory bail. The orderdated 13 June 2016 was confirmed by the High Court of Bombay on 1July 2016.

5. In Criminal Application No. 813 of 2016, the appellant movedthe High Court under Section 482 of the CrPC to quash the FIR dated17 May 2016. By its order dated 7 February 2019 the High Court rejectedthe application, noting:

“3. Though the relationship was with consent, it appears that therewas promise to marry and statement shows that later on, givingreason of caste of Complainant, promise was not kept.

4. In view of this prima facie situation, we are not inclined tointervene in extra ordinary jurisdiction. We make it clear that ourobservations are only for the purposes of refusing to entertain thegrievance in extra ordinary jurisdiction and we have not recordedany finding either way on contentions.”

6. Mr Sushil Karanjkar, learned counsel for the appellant contendsthat in refusing to quash the FIR the High Court failed to distinguishbetween rape and consensual sex. It is submitted that the allegations onthe face of the FIR indicate that the physical relationship between theappellant and the complainant existed for over period of six years with

Aher consent as evidenced by multiple periods of co-habitation, visits,and lack of resistance or complaint by the complainant. Against this, MrKatneshwarkar, learned counsel appearing for the respondent-State aswell as Mr Nilesh Tribhavan, learned counsel for the complainant reliedupon certain decisions of this Court. In her counter affidavit, thecomplainant has submitted:B

“i. It is submitted that the Petitioner has resorted forming arelationship with me only in order to fulfil his lust.

ii.It is submitted that the Petitioner promised to marry me andthen manipulated me emotionally and mentally to have physicalCrelations with him, even when he was well aware that such actionsof his have caused me immense physical and mental suffrage.

iii. It is submitted that the Petitioner promised me matrimony onlyso that he could maintain physical relation and would not haveto face the hassle of having to find multiple women and establishDphysical relations with each one of them as his job was of atransferable nature and meeting multiple women to fulfil his lusciousbehaviour was not possible.

iv. It is submitted that the Petitioner from the start had ill andmisconstrued notions about people belonging from SC/ST casteEwhich he pretended to be absent of throughout the relationshipand lied about but was unable to hold back when he waspressurized and put in corner.”

Learned counsel referred to the submissions which have been setout in the counter affidavit, during the course of the hearing.

F7. Section 482 is an overriding section which saves the inherentpowers of the court to advance the cause of justice. Under Section 482the inherent jurisdiction of the court can be exercised (i) to give effect toan order under the CrPC; (ii) to prevent the abuse of the process of thecourt; and (iii) to otherwise secure the ends of justice. The powers ofthe court under Section 482 are wide and the court is vested with aGsignificant amount of discretion to decide whether or not to exercisethem. The court should be guarded in the use of its extraordinaryjurisdiction to quash an FIR or criminal proceeding as it denies theprosecution the opportunity to establish its case through investigation

and evidence. These principles have been consistently followed and re-iterated by this Court. In Inder Mohan Goswami v State ofUttaranchal[5], this Court observed.

“23. This Court in number of cases has laid down the scope andambit of courts’ powers under Section 482 CrPC. Every HighCourt has inherent powers to act ex debito justitiae to do realand substantial justice, for the administration of which alone itexists, or to prevent abuse of the process of the court. Inherentpower under Section 482 CrPC can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of the court, and

(iii) to otherwise secure the ends of justice.

24. Inherent powers under Section 482 CrPC though wide haveto be exercised sparingly, carefully and with great caution andonly when exercise is justified by the tests specifically laid downin this section itself. Authority of the court exists for theadvancement of justice. If any abuse of the process leading toinjustice is brought to the notice of the court, then the court wouldbe justified in preventing injustice by invoking inherent powers inabsence of specific provisions in the statute.”

8. Given the varied nature of cases that come before the HighCourts, any strict test as to when the court’s extraordinary powers canbe exercised is likely to tie the court’s hands in the face of futureinjustices. This Court in State of Haryana v Bhajan Lal[6]conducted adetailed study of the situations where the court may exercise itsextraordinary jurisdiction and laid down list of illustrative examples ofwhere quashing may be appropriate. It is not necessary to discuss allthe examples, but few bear relevance to the present case. The court inBhajan Lal noted that quashing may be appropriate where,

“102. (1) Where the allegations made in the first informationreport or the complaint, even if they are taken at their face valueand accepted in their entirety do not prima facie constitute anyoffence or make out case against the accused.

5 (2007) 12 SCC 1

6 1992 Supp (1) SCC 335

(2) Where the allegations in the first information report and othermaterials, if any, accompanying the FIR do not disclose cognizableoffence, justifying an investigation by police officers under Section156(1) of the Code except under an order of Magistrate withinthe purview of Section 155(2).

(7) Where criminal proceeding is manifestly attended with malafide and/or where the proceeding is maliciously instituted with anulterior motive for wreaking vengeance on the accused and with

view to spite him due to private and personal grudge.”

In deciding whether to exercise its jurisdiction under Section 482,the Court does not adjudicate upon the veracity of the facts alleged orenter into an appreciation of competing evidence presented. The limitedquestion is whether on the face of the FIR, the allegations constitute acognizable offence. As this Court noted in Dhruvaram MurlidharDSonar v State of Maharashtra,[7] (“Dhruvaram Sonar”) :

“13. It is clear that for quashing proceedings, meticulous analysisof factum of taking cognizance of an offence by the Magistrate isnot called for. Appreciation of evidence is also not permissible inexercise of inherent powers. If the allegations set out in theEcomplaint do not constitute the offence of which cognizance hasbeen taken, it is open to the High Court to quash the same inexercise of its inherent powers.”

9. The present proceedings concern an FIR registered againstthe appellant under Sections 376, 417, 504, and 506(2) of the IPC andSections 3(1) (u), (w) and 3(2) (vii) of SC/ST Act. Section 376 of theFIPC prescribes the punishment for the offence of rape which is set outin Section 375. Section 375 prescribes seven descriptions of how theoffence of rape may be committed. For the present purposes only thesecond such description, along with Section 90 of the IPC is relevantand is set out below.G“

“375. Rape – man is said to commit “rape” if he –

7 2018 SCC OnLine SC 3100H

under the circumstances falling under any of the following sevendescriptions-

Firstly …

Secondly. – Without her consent.

Explanation 2. – Consent means an unequivocal voluntaryagreement when the woman by words, gestures or any form ofverbal or non-verbal communication, communicates willingnessto participate in the specific sexual act:

Provided that woman who does not physically resist to the actof penetration shall not by the reason only of that fact, be regardedas consenting to the sexual activity.”

“90. Consent known to be given under fear or misconception- consent is not such consent as is 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; or…”

10. Where woman does not “consent” to the sexual actsdescribed in the main body of Section 375, the offence of rape hasoccurred. While Section 90 does not define the term “consent”, a“consent” based on “misconception of fact” is not consent in the eyesof the law.

11. The primary contention advanced by the complainant is thatthe appellant engaged in sexual relations with her on the false promiseof marrying her, and therefore her “consent”, being premised on a“misconception of fact” (the promise to marry), stands vitiated.

12. This Court has repeatedly held that consent with respect toSection 375 of the IPC involves an active understanding of thecircumstances, actions and consequences of the proposed act. Anindividual who makes reasoned choice to act after evaluating variousalternative actions (or inaction) as well as the various possibleconsequences flowing from such action or inaction, consents to suchaction. In Dhruvaram Sonar which was case involving the invokingof the jurisdiction under Section 482, this Court observed:

“15. … An inference as to consent can be drawn if only based onevidence or probabilities of the case. “Consent” is also stated tobe an act of reason coupled with deliberation. It denotes an activewill in mind of person to permit the doing of the act complainedof.”

BThis understanding was also emphasised in the decision of thisCourt in Kaini Rajan v State of Kerala[8]:

“12. … “Consent”, for the purpose of Section 375, requiresvoluntary participation not only after the exercise of intelligencebased on the knowledge of the significance of the moral quality ofCthe act but after having fully exercised the choice betweenresistance and asset. Whether there was consent or not, is to beascertained only on careful study of all relevant circumstances.”

13. This understanding of consent has also been set out inExplanation 2 of Section 375 (reproduced above). Section 3(1) (w) ofDthe SC/ST Act also incorporates this concept of consent:

“3(1) (w) -

(i) intentionally touches woman belonging to Scheduled Casteor Scheduled Tribe, knowing that she belongs to ScheduledCaste or Scheduled Tribe, when such act of touching is of aEsexual nature and is without the recipient’s consent;

Explanation.––For the purposes of sub-clause (i), the expression“consent” means an unequivocal voluntary agreement when theperson by words, gestures, or any form of non-verbalFcommunication, communicates willingness to participate in thespecific act:

Provided that woman belonging to Scheduled Caste or aScheduled Tribe who does not offer physical resistance to anyact of sexual nature is not by reason only of that fact, is to beGregarded as consenting to the sexual activity:

Provided further that woman’s sexual history, including with theoffender shall not imply consent or mitigate the offence;”

14. In the present case, the “misconception of fact” alleged bythe complainant is the appellant’s promise to marry her. Specifically inthe context of promise to marry, this Court has observed that there isa distinction between false promise given on the understanding by themaker that it will be broken, and the breach of promise which is madein good faith but subsequently not fulfilled. In Anurag Soni v State ofChhattisgarh[9], this Court held:

“37. The sum and substance of the aforesaid decisions would bethat if it is established and proved that from the inception theaccused who gave the promise to the prosecutrix to marry, didnot have any intention to marry and the prosecutrix gave theconsent for sexual intercourse on such an assurance by the accusedthat he would marry her, such consent can be said to be consentobtained on misconception of fact as per Section 90 of the IPCand, in such case, such consent would not excuse the offenderand such an offender can be said to have committed the rape asdefined under Sections 375 of the IPC and can be convicted forthe offence under Section 376 of the IPC.”

Similar observations were made by this Court in Deepak Gulativ State of Haryana[10](“Deepak Gulati”):

“21. … There is distinction between the mere breach of apromise, and not fulfilling false promise. Thus, the court mustexamine whether there was made, at an early stage false promiseof marriage by the accused…”

15. In Yedla Srinivasa Rao v State of Andhra Pradesh[11]theaccused forcibly established sexual relations with the complainant. Whenshe asked the accused why he had spoiled her life, he promised to marryher. On this premise, the accused repeatedly had sexual intercoursewith the complainant. When the complainant became pregnant, theaccused refused to marry her. When the matter was brought to thepanchayat, the accused admitted to having had sexual intercourse withthe complainant but subsequently absconded. Given this factualbackground, the court observed:

9 (2019) SCC OnLine SC 509

10 (2013) 7 SCC 675

11 (2006) 11 SCC 615

A“10. It appears that the intention of the accused as per thetestimony of PW 1 was, right from the beginning, not honest andhe kept on promising that he will marry her, till she becamepregnant. This kind of consent obtained by the accused cannot besaid to be any consent because she was under misconception offact that the accused intends to marry her, therefore, she hadBsubmitted to sexual intercourse with him. This fact is also admittedby the accused that he had committed sexual intercourse which isapparent from the testimony of PWs 1, 2 and 3 and before thepanchayat of elders of the village. It is more than clear that theaccused made false promise that he would marry her. Therefore,Cthe intention of the accused right from the beginning was not bonafide and the poor girl submitted to the lust of the accused,completely being misled by the accused who held out the promisefor marriage. This kind of consent taken by the accused withclear intention not to fulfil the promise and persuading the girl tobelieve that he is going to marry her and obtained her consent forDthe sexual intercourse under total misconception, cannot be treatedto be consent….”

16. Where the promise to marry is false and the intention of themaker at the time of making the promise itself was not to abide by it butto deceive the woman to convince her to engage in sexual relations,Ethere is “misconception of fact” that vitiates the woman’s “consent”.On the other hand, breach of promise cannot be said to be falsepromise. To establish false promise, the maker of the promise shouldhave had no intention of upholding his word at the time of giving it. The“consent” of woman under Section 375 is vitiated on the ground of aF“misconception of fact” where such misconception was the basis forher choosing to engage in the said act. In Deepak Gulati this Courtobserved:

“21. … There is distinction between the mere breach of apromise, and not fulfilling false promise. Thus, the court mustGexamine whether there was made, at an early stage false promiseof marriage by the accused; and whether the consent involvedwas given after wholly understanding the nature andconsequences of sexual indulgence. There may be casewhere the prosecutrix agrees to have sexual intercourseon account of her love and passion for the accused, and not

solely on account of misrepresentation made to her by theaccused, or where an accused on account of circumstances whichhe could not have foreseen, or which were beyond his control,was unable to marry her, despite having every intention to do so.Such cases must be treated differently.

24. Hence, it is evident that there must be adequate evidence toshow that at the relevant time i.e. at the initial stage itself, theaccused had no intention whatsoever, of keeping his promise tomarry the victim. There may, of course, be circumstances, whena person having the best of intentions is unable to marry the victimowing to various unavoidable circumstances. The “failure to keepa promise made with respect to future uncertain date, due toreasons that are not very clear from the evidence available, doesnot always amount to misconception of fact. In order to comewithin the meaning of the term “misconception of fact”,the fact must have an immediate relevance”. Section 90 IPCcannot be called into aid in such situation, to pardon the act of agirl in entirety, and fasten criminal liability on the other, unless thecourt is assured of the fact that from the very beginning, the accusedhad never really intended to marry her.”

(Emphasis supplied)

17. In Uday v State of Karnataka[12] the complainant was collegegoing student when the accused promised to marry her. In thecomplainant’s statement, she admitted that she was aware that therewould be significant opposition from both the complainant’s and accused’sfamilies to the proposed marriage. She engaged in sexual intercoursewith the accused but nonetheless kept the relationship secret from herfamily. The court observed that in these circumstances the accused’spromise to marry the complainant was not of immediate relevance tothe complainant’s decision to engage in sexual intercourse with theaccused, which was motivated by other factors:

“25. There is yet another difficulty which faces the prosecution inthis case. In case of this nature two conditions must be fulfilledfor the application of Section 90 IPC. Firstly, it must be shown

that the consent was given under misconception of fact.Secondly, it must be proved that the person who obtainedthe consent knew, or had reason to believe that the consentwas given in consequence of such misconception. We haveserious doubts that the promise to marry induced theprosecutrix to consent to having sexual intercourse withthe appellant. She knew, as we have observed earlier, that hermarriage with the appellant was difficult on account of casteconsiderations. The proposal was bound to meet with stiffopposition from members of both families. There was therefore adistinct possibility, of which she was clearly conscious, that themarriage may not take place at all despite the promise of theappellant. The question still remains whether even if it wereso, the appellant knew, or had reason to believe, that theprosecutrix had consented to having sexual intercourse withhim only as consequence of her belief, based on hispromise, that they will get married in due course. There ishardly any evidence to prove this fact. On the contrary, thecircumstances of the case tend to support the conclusion that theappellant had reason to believe that the consent given by theprosecutrix was the result of their deep love for each other. It isnot disputed that they were deeply in love. They met often, andit does appear that the prosecutrix permitted him libertieswhich, if at all, are permitted only to person with whomone is in deep love. It is also not without significance that theprosecutrix stealthily went out with the appellant to lonely placeat 12 o’clock in the night. It usually happens in such cases, whentwo young persons are madly in love, that they promise to eachother several times that come what may, they will get married…”

(Emphasis supplied)

18. To summarise the legal position that emerges from the abovecases, the “consent” of woman with respect to Section 375 mustGinvolve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by “misconception offact” arising out of promise to marry, two propositions must beestablished. The promise of marriage must have been false promise,

given in bad faith and with no intention of being adhered to at the time itwas given. The false promise itself must be of immediate relevance, orbear direct nexus to the woman’s decision to engage in the sexual act.

19. The allegations in the FIR indicate that in November 2009 thecomplainant initially refused to engage in sexual relations with theaccused, but on the promise of marriage, he established sexual relations.However, the FIR includes reference to several other allegations thatare relevant for the present purpose. They are as follows:

(i)The complainant and the appellant knew each other since1998 and were intimate since 2004;

(ii) The complainant and the appellant met regularly, travelledgreat distances to meet each other, resided in each other’shouses on multiple occasions, engaged in sexual intercourseregularly over course of five years and on multipleoccasions visited the hospital jointly to check whether thecomplainant was pregnant; and

(iii)The appellant expressed his reservations about marrying thecomplainant on 31 January 2014. This led to argumentsbetween them. Despite this, the appellant and thecomplainant continued to engage in sexual intercourse untilMarch 2015.

The appellant is Deputy Commandant in the CRPF while thecomplainant is an Assistant Commissioner of Sales Tax.

20. The allegations in the FIR do not on their face indicate thatthe promise by the appellant was false, or that the complainant engagedin sexual relations on the basis of this promise. There is no allegation inFthe FIR that when the appellant promised to marry the complainant, itwas done in bad faith or with the intention to deceive her. The appellant’sfailure in 2016 to fulfil his promise made in 2008 cannot be construed tomean the promise itself was false. The allegations in the FIR indicatethat the complainant was aware that there existed obstacles to marryingGthe appellant since 2008, and that she and the appellant continued toengage in sexual relations long after their getting married had become adisputed matter. Even thereafter, the complainant travelled to visit andreside with the appellant at his postings and allowed him to spend his

Aweekends at her residence. The allegations in the FIR belie the casethat she was deceived by the appellant’s promise of marriage. Therefore,even if the facts set out in the complainant’s statements are accepted intotality, no offence under Section 375 of the IPC has occurred.

21. With respect to the offences under the SC/ST Act, theBWhatsApp messages were alleged to have been sent by the appellant tothe complainant on 27 and 28 August 2015 and 22 October 2015. At thistime, Sections 3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as it standstoday had not been enacted into the statute. These provisions wereinserted by the (Prevention of Atrocities) Amendment Act 2015[13] whichcame into force on 26 January 2016. Prior to the Amending Act, theCrelevant provisions of the statute (as it stood then) were as follows:

“3. (1) Whoever, not being member of Scheduled Caste or aScheduled Tribe. –

…D(x) intentionally insults or intimidates with intent to humiliate amember of Schedule Caste or Scheduled Tribe in any placewithin public view;

(xi) assaults or uses force to any woman belonging to ScheduleCaste or Scheduled Tribe with intent to dishonour or outrageEher modesty;

(xii) being in position to dominate the will of woman belongingto Scheduled Caste or Scheduled Tribe and uses that positionto exploit her sexually to which she would not have otherwiseagreed; …”F

22. Without entering into detailed analysis of the content of theWhatsApp messages sent by the appellant and the words alleged tohave been spoken, it is apparent that none of the offences set out aboveare made out. The messages were not in public view, no assault occurred,nor was the appellant in such position so as to dominate the will of theGcomplainant. Therefore, even if the allegations set out by the complainantwith respect to the WhatsApp messages and words uttered are acceptedon their face, no offence is made out under SC/ST Act (as it then stood).

13 “Amending Act”

The allegations on the face of the FIR do not hence establish thecommission of the offences alleged.

23. For the above reasons, we allow the appeal and set aside theimpugned judgement and order of the High Court dated 7 February 2019.The FIR dated 17 May 2016 is quashed.

Devika Gujral

Appeal allowed.