SHAMBHU KHARWAR versus STATE OF UTTAR PRADESH & ANR.

[2022] 7 S.C.R. 156

[2022] 7 S.C.R.

SHAMBHU KHARWAR

STATE OF UTTAR PRADESH & ANR.

(Criminal Appeal No. 1231 of 2022)

BAUGUST 12, 2022

[DR DHANANJAYA Y CHANDRACHUD ANDA S BOPANNA, JJ.]

Penal Code 1860: ss. 376, 375 – Punishment for rape –Necessary ingredients of s. 375 – On facts, accusation of rape byCthe second respondent-women against the appellant-man on thepretext of marriage – Application by appellant seeking quashing ofcriminal case registered for an offence punishable u/s. 376 –Dismissed by the High Court – On appeal, held: Relationshipbetween the parties-appellant and the second respondent purelyDconsensual in nature – They are both educated adults – Relationshipof the second respondent with the appellant was in existence priorto the marriage of the second respondent and continued to subsistduring the term of the marriage and after the second respondentwas granted divorce by mutual consent – Thus, the essentialingredients of an offence u/s. 376 not made out – Order passed byEthe High Court set aside and the application u/s. 482 CrPC allowed.

Allowing the appeal, the Court

HELD: 1.1 In the instant case, admittedly, the appellantand the second respondent were in consensual relationship fromF2013 until December 2017. They are both educated adults. Thesecond respondent, during the course of this period, got marriedon 12 June 2014 to someone else. The marriage ended in decreeof divorce by mutual consent on 17 September 2017. In thisbackdrop and taking the allegations in the complaint as they stand,it is impossible to find in the FIR or in the charge-sheet, theGessential ingredients of an offence under Section 376 IPC. Asregards, the issue whether the allegations indicate that theappellant had given promise to the second respondent to marrywhich at the inception was false and on the basis of which thesecond respondent was induced into sexual relationship. TakingH

the allegations in the FIR and the charge-sheet as they stand,the crucial ingredients of the offence under Section 375 IPC areabsent. The relationship between the parties was purely of aconsensual nature. The relationship, was in existence prior tothe marriage of the second respondent and continued to subsistduring the term of the marriage and after the second respondentwas granted divorce by mutual consent. [Paras 12, 13][163-C-D, F-G]

1.2 The High Court merely observed that the dispute raisesa question of fact which cannot be considered in an applicationunder Section 482 CrPC. The facts would indicate that theingredients of the offence under Section 376 IPC were notestablished. Thus, the High Court proceeded to dismiss theapplication under Section 482 CrPC on completelymisconceived basis. The impugned judgment and order of theHigh Court in application u/s 482 is set aside. The applicationunder Section 482 CrPC shall accordingly stand allowed. [Paras14, 15][163-G-H; 164-A-C]

Neeharika Infrastructure v. State of Maharashtra (2021)SCC OnLine SC 315; R.P. Kapur v. State of PunjabAIR 1960 SC 866 : [1960] SCR 388; State of Haryanav. Bhajan Lal (1992) 1 Suppl. SCC 335 : [1990] 3 Suppl.SCR 259; Dhruvaram Murlidhar Sonar v. State ofMaharashtra (2019) 18 SCC 191; Pramod SuryabhanPawar v. State of Maharashtra (2019) 9 SCC 608 :[2019] 11 SCR 423; Sonu @ Subhash Kumar v. Stateof Uttar Pradesh (2021) SCC OnLine SC 181 –referred to.

Case Law Reference

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1231 of 2022.

AFrom the Judgment and Orders dated 05.10.2018 of the HighCourt of Judicature at Allahabad in Application u/s 482 No. 33999 of2018.

Ramjee Pandey, Uday Prakash, Raghvendra Shukla, Advs. forthe Appellant.B

Mohit D. Ram, Ms. Monisha Handa, Rajul Shrivastav, AnubhavSharma, Ms. Srishti Singh, Advs. for the Respondents.

The Judgment of the Court was delivered by

DR DHANANJAYA Y CHANDRACHUD, J.C1. Delay condoned.

2. Leave granted.

3. The appeal arises from judgment dated 5 October 2018 of aSingle Judge of the High Court of Judicature at Allahabad. The HighCourt dismissed an application instituted by the appellant under SectionD482 of the Code of Criminal Procedure 1973[1] for quashing CriminalCase No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate(First), Ballia arising out of Case Crime No 11 of 2018 registered atPolice Station Rasra, District Ballia for an offence punishable underSection 376 of the Indian Penal Code 1860[2]. The appellant had alsoEsought the quashing of charge-sheet bearing charge-sheet No 94 of2018 dated 23 April 2018 submitted under Section 173 of CrPC and theorder taking cognizance dated 24 May 2018.

4. Case Crime No 11 of 2018 was registered on 18 January 2018at Police Station Rasra, District Ballia on the basis of information furnishedFby the second respondent. In her complaint, the second respondent statedas follows:

“I was having affair with Shambhu Kharwar as his wife, who isalso the resident of Village- Sarai Bharti, Post- Rasada, District-Ballia. I hereby give my statement that there was love affairGbetween us since period of about 3 years and Shambhu Kharwargave an assurance to me regarding solemnization of marriageand as result of the same started living with me under the sameroof and also used to have sexual relationship with me and also

1 “CrPC”H2 “IPC”

used to make demand of certain amount time to time. But Ialways followed him and till date I am unmarried and whenever Iasked him regarding the solemnization of marriage, he used tomake false and frivolous averments and at last without informingme solemnized marriage with someone else on 10.12.2017 andafter the same, returned to me and told nothing regarding thesolemnization of marriage, but on being pressurized by me againand again he had admitted that he has entered into ring ceremonywith someone else, this information has been received by me fromhim only. I am very sad and whenever I asked him to solemnizemarriage with me, he kept on making lame excuses and gavefalse assurances by saying that he will leave her by sexuallyassaulting her and thereafter, will solemnize marriage with me.After hearing the same, I have decided to initiate criminalproceedings against him. Therefore, it is prayed that suitable actionmay kindly be taken against him. Shambhu Kharwar son of LallanKharwar, resident of Sarai Bharti Rasada, Ballia Date 18.01.2018.”5. The statement of the second respondent was recorded underSection 161 of CrPC during investigation. Her statement was recordedunder Section 164. In the statement under Section 164, the secondrespondent stated that during the course of training at Teachers’Training College, she came in contact with the appellant in 2013 andthey got into relationship. On 12 June 2014, the marriage of the secondrespondent was solemnized with someone else in spite of which therelationship with the appellant continued. The second respondent statedthat the appellant had compelled her to break away from the marriageand her matrimonial relationship had come to an end since March 2015,barely three months after she stayed in the matrimonial home. The secondrespondent states that she thereafter returned to the parental home andthen started living with the appellant. After the completion of her trainingin 2016, the second respondent continued to live with the appellant untilDecember 2017. The grievance of the second respondent was that theappellant got engaged to someone else on 10 December 2017. Thoughthe appellant is alleged to have agreed to break off his engagement, hefailed to abide by his assurance.

6. Apart from the above narration, it is of significance to note thatthe second respondent was granted divorce by mutual consent by anorder dated 17 September 2017 of the Principal Judge of the FamilyCourt at Ballia.

A7. The parameters governing the exercise of the jurisdiction ofSection 482 of CrPC are well-settled and have been reiterated in aconsistent line of decisions of this Court. In Neeharika Infrastructurev. State of Maharashtra,[3] three Judge Bench of this Court which oneof us was part of (D.Y. Chandrachud J.), reiterated the parameterslaid down in R.P. Kapur v. State of Punjab[4] and State of Haryana v.BBhajan Lal[5]and held that while the Courts ought to be cautious inexercising powers under Section 482, they do have the power to quash.The test is whether or not the allegations in the FIR disclose thecommission of cognizable offence. The Court does not enter into themerits of the allegations or trench upon the power of the investigatingCagency to investigate into allegations involving the commission of acognizable offence.

8. In Bhajan Lal (supra) this Court formulated the parameters interms of which the powers in Section 482 of CrPC may be exercised.While it is not necessary to revisit all these parameters again, few thatDare relevant to the present case may be set out. The Court held thatquashing may be appropriate :

“102. (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 any offenceor make out case against the accused. (2) Where the allegations

in the first information report and other materials, if any,accompanying the FIR do not disclose cognizable offence,justifying an investigation by police officers under Section 156(1)of the Code except under an order of Magistrate within thepurview 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 witha view to spite him due to private and personal grudge.”

G9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra,[6]a two Judge Bench of this Court while dealing with similar facts as the

3 2021 SCC OnLine SC 3154 AIR 1960 SC 8665 1992 Supp (1) SCC 335H6 2019 (18) SCC 191

present case reiterated the parameters laid down in Bhajan Lal (supra)held that:

“13. It is clear that for quashing the proceedings, meticulousanalysis of factum of taking cognizance of an offence by theMagistrate is not called for. Appreciation of evidence is also notpermissible in exercise of inherent powers. If the allegationsset out in the complaint do not constitute the offence ofwhich cognizance has been taken, it is open to the HighCourt to quash the same in exercise of its inherent powers.”

(emphasis supplied)

10. An offence is punishable under Section 376 of the IPC if theoffence of rape is established in terms of Section 375 which sets out theingredients of the offence. In the present case, the second description ofSection 375 along with Section 90 of the IPC is relevant which is set outbelow.

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

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.

xxx

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 act

Aknows, or has reason to believe, that the consent was given inconsequence of such fear or misconception; or…”

11. In Pramod Suryabhan Pawar v. State of Maharashtra,[7] atwo Judge Bench of this Court of which one of us was part (D.Y.Chandrachud J.), held in Sonu @ Subhash Kumar v. State of UttarBPradesh,[8] observed that :

“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.An individual who makes reasoned choice to act after evaluatingvarious alternative actions (or inaction) as well as the variouspossible consequences flowing from such action or inaction,consents to such action…

14. […] Specifically in the context of promise to marry, thisCourt has observed that there is distinction between falsepromise given on the understanding by the maker that it will bebroken, and the breach of promise which is made in good faithbut subsequently not fulfilled…

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 byit but to deceive the woman to convince her to engage in sexualrelations, there is “misconception of fact” that vitiates thewoman’s “consent”. On the other hand, breach of promiseFcannot be said to be false promise. To establish false promise,the maker of the promise should have had no intention of upholdinghis word at the time of giving it. The “consent” of womanunder Section 375 is vitiated on the ground of a“misconception of fact” where such misconception was thebasis for her choosing to engage in the said act…

18. To summarise the legal position that emerges from the abovecases, the “consent” of woman with respect to Section 375

7 2019 (9) SCC 608H8 2021 SCC OnLine SC 181

must involve an active and reasoned deliberation towards theproposed act. To establish whether the “consent” was vitiated bya “misconception of fact” arising out of promise to marry, twopropositions must be established. The promise of marriage musthave been false promise, given in bad faith and with no intentionof being adhered to at the time it was given. The false promiseitself must be of immediate relevance, or bear direct nexusto the woman’s decision to engage in the sexual act.

(emphasis supplied)

12. In the present case, the issue which had to be addressed bythe High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section376 IPC was made out. Admittedly, the appellant and the secondrespondent were in consensual relationship from 2013 until December2017. They are both educated adults. The second respondent, during thecourse of this period, got married on 12 June 2014 to someone else. Themarriage ended in decree of divorce by mutual consent on 17 September2017. The allegations of the second respondent indicate that herrelationship with the appellant continued prior to her marriage, duringthe subsistence of the marriage and after the grant of divorce by mutualconsent.

13. In this backdrop and taking the allegations in the complaint asthey stand, it is impossible to find in the FIR or in the charge-sheet, theessential ingredients of an offence under Section 376 IPC. The crucialissue which is to be considered is whether the allegations indicate thatthe appellant had given promise to the second respondent to marrywhich at the inception was false and on the basis of which the secondrespondent was induced into sexual relationship. Taking the allegationsin the FIR and the charge-sheet as they stand, the crucial ingredients ofthe offence under Section 375 IPC are absent. The relationship betweenthe parties was purely of consensual nature. The relationship, as notedabove, was in existence prior to the marriage of the second respondentand continued to subsist during the term of the marriage and after thesecond respondent was granted divorce by mutual consent.

14. The High Court, in the course of its judgment, has merelyobserved that the dispute raises question of fact which cannot beconsidered in an application under Section 482 of CrPC. As demonstrated

Ain the above analysis, the facts as they stand, which are not in dispute,would indicate that the ingredients of the offence under Section 376 IPCwere not established. The High Court has, therefore, proceeded to dismissthe application under Section 482 of CrPC on completely misconceivedbasis.

B15. We, accordingly allow the appeal and set aside the impugnedjudgment and order of the High Court dated 5 October 2018 in applicationu/s 482 No 33999 of 2018. The application under Section 482 of CrPCshall accordingly stand allowed. The Case Crime No 11 of 2018 registeredat Police Station Rasra, District Ballia, charge-sheet dated 23 April 2018in the aforementioned case and the order dated 24 May 2018 in CriminalCCase No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate(First), Ballia taking cognizance of the charge-sheet shall accordinglystand quashed.

16. Pending application, if any, stands disposed of.

Nidhi Jain

Appeal allowed.