Madhya Pradesh High Court
Jackson Kumar vs The State Of Madhya Pradesh on 1 March, 2025
Author: Maninder S. Bhatti
Bench: Maninder S. Bhatti
NEUTRAL CITATION NO. 2025:MPHC-JBP:9816
1 MCRC-44439-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE MANINDER S. BHATTI
ON THE 1 st OF MARCH, 2025
MISC. CRIMINAL CASE No. 44439 of 2024
JACKSON KUMAR
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Prakash Upadhyay - Senior Advocate appeared for the applicant
assisted by Shri Hitendra Kumar Golhani, learned counsel for the applicant.
Shri Navneet Shukla, learned counsel for the respondent [R-2].
Shri Pramod Choubey G.A. appeared for respondent.
ORDER
This petition under Section 528 of BNSS has been filed seeking
quashment of FIR bearing Crime No.324/2024 for the offence registered
under Section 376(2)(n) and 506 of IPC and ensued proceedings registered
vide ST No.65/2024 pending before the Court of Fourth Additional Sessions
Judge, Chhindwara (M.P.).
2. Learned senior counsel for the applicant contends that
respondent No.2 lodged the FIR contained in Annexure A/2 while alleging
that her marriage was solemnized on 18/05/2000. Thereafter they were
blessed with two children i.e. a son and a daughter who are now aged about
23 years and 22 years respectively. The husband of respondent No.2 expired
on 12/09/2009. In the year 2010, respondent No.2 went to Danielson School,
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Chhindwara to get her son Ankush David admitted who was aged about 10
years. Then she went to get his son admitted in Mission Boys Hostel which
was being operated by the same educational institution where Respondent
No.2 met present applicant who worked as Superintendent of the Hostel.
Respondent No.2 used to inquire about well being of her son by talking to
the present applicant on phone and thereafter respondent No.2 developed
relations with applicant as he was acting as guardian of her son. Then
applicant and respondent No.2 started meeting on various occasion.
3. In the year 2013 respondent No.2 went to the hostel to meet her
son, where she met the present applicant. The present applicant pressurized
respondent No.2 to go to his house, and expressed that he wanted to settle
down as he was in estrange relation with his wife and then forcibly
developed physical relation with respondent No.2. Respondent No.2 was also
threatened by the applicant. Then respondent No.2 made an attempt to go
police station, however, she was followed by the present applicant who
abused her then assured her that he would enter into wedlock with
respondent No.2 and also look after her children. Again the applicant forcibly
took respondent No.2 to his house and then she was left to her home. The
subsequent part of the FIR shows that respondent No.2 approached the
present applicant for the purpose of marriage but the present applicant
declined to enter into wedlock and also threatened respondent No.2. On
18/11/2023 again present applicant took respondent No.2 to his house at
Mission Compound and again developed physical relation with her under the
garb of false promise of marriage. Then she lodged the impugned FIR. Thus,
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seeking quashment of FIR and ensured proceedings, this petition has been
filed.
4. Counsel contends that in the present case in order to bring the
offence within the ambit of Section 376(2)(n) of IPC, there has to be
“misconception of fact” and if a consent is given under the fear or
“misconception”, then only the said consent would not be treated as willful
consent. It is contended by the counsel that as per the provisions of Section
90 of IPC, a consent if given by a person under fear of injury or under
“misconception of fact”, would not be treated as a consent. In the present
case, according to respondent No.2 she came in touch with the present
applicant in the year 2010. According to respondent No.2 in the year 2013,
the present applicant forcibly developed physical relation with respondent
No.2. According to respondent No.2 if there was no consent then it was
required to be prima facie established that the alleged consent by respondent
No.2 could not have been treated to be a valid consent as the same was under
the fear or “under misconception of fact”.
5. It is contended by the counsel that respondent No.2 was a mature
woman and there was no question of any misconception of fact. Respondent
No.2 was also well aware that the present applicant was already married and
there could not have been any false promise of marriage to enter into sexual
intercourse. It is contended by the counsel that a woman who is mother of
two children, cannot be expected to be oblivion of the fact that the present
applicant was already married and it is the respondent No.2 who herself cameto present applicant. Thus, counsel while placing reliance on the decision of
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the Apex Court in the cases of Maheshwar Tigga Vs. State of Jharkhand
reported in (2020) 10 SCC 108, Sheikh Arif vs. The State of Maharashtra
reported in (2024) 4 SCC 463, and Mehmood Ali and Ors. Vs. Sate of Uttar
Pradesh and Ors. reported in 2023 SCC Online SC 950, this Court while
dealing with the petition under Section 482 of Cr.P.C. is required to take into
consideration all the circumstances which are not even part of the charge-
sheet and the Court is also required to read between the lines in order to
unearth the truth.
6. Per contra, counsel for the State has opposed the prayer and
submitted that there are direct allegation against the applicant, therefore, FIR
and ensued proceedings may not be quashed.
7. Counsel for respondent No.2 submits that the present petition
deserves to be dismissed as there are direct allegation against the applicant
as an offence under the provisions of Section 376(2)(n) of IPC has been
committed by the present applicant while misusing his position of hostel
Superintendent finding that the respondent No.2 was widow and had liability
to maintain two children. The applicant not only made a false promise of
marriage but also kept respondent No.2 under fear, as a result of which
respondent No.2 was compelled to enter into physical relations. To support
his contention, counsel has placed reliance in the decision of Apex Court in
the case of Pramod Suryabhan Pawar vs. The State of Maharashtra reported
in (2019) 9 SCC 608 .
8. It is further contended by the counsel that if a women engages
herself in a sexual relation on false promise of marriage, her consent would
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be treated to be a consent given under “misconception of fact” and such act
would amount to rape. Counsel also contends that applicant was previously
prosecuted for the offence based on similar allegation. Though later on
acquitted vide judgement dated 25/02/2022 but the fact remain that there
have been allegations of debauchery against the present applicant in past as
well. Hence, the petition for quashing of FIR and ensued proceedings
deserves to be dismissed.
9. No other point is pressed or argued by the parties.
10. Heard rival submissions of the parties and perused the record.
11. A perusal of FIR alleged against the present applicant reveals
that respondent No.2 approached the present applicant to get her son
admitted in Hostel. If the FIR is perused carefully and if an attempt is made
to read between the lines also, it will reflect that respondent No.2 has not
mentioned her occupation in the FIR, however, it is mentioned in the FIR
that when in the year 2010 she went to Danielson School, Chhindwara to ger
her son admitted, then she mentioned that she had taken her son to Mission
Boys Hostel which was being operated by “her institution”. The relevant
extract of the FIR is reproduced herein:
“इस दौरान वष 2010 म, म अपने बेटे अंकुश डे वड जसक उस समय
आयु 10 वष थी, को लेकर डे िनयलसन कूल िछ दवाड़ा म भत कराने
िछ दवाड़ा आई थी तथा हमार सं था क ओर से संचािलत िमशन
बालाक छा ावास जो क ईएलसी चौक नागपुर रोड िछ दवाड़ा म थत
है , म एडिमशन कराने गई, तो वहां पर मेर मुलाकात छा ावास अधी क
जे शन कुमार पता उ म कुमार से हुई जो क जे शन कुमार से मेर
पहली मुलाकात थी। ”
12. A perusal of the aforesaid extract of the FIR reveal that
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respondent No.2 mentioned that Mission Boys Hostel was being running
under “her Institution”. It is also important to take note of the fact that
according to respondent No.2 she had taken her elder son to Mission Boys
Hostel and at that time as per FIR, age of her elder son was 10 years.
According to respondent No.2, the present applicant started threatening her
in the year 2022-23 and than also had sexual intercourse on 18/11/2023 while
assuring her that he would enter into wedlock with her after obtaining
divorce from his wife. As per FIR, the elder son of respondent No.2 was 10
years in the year 2010, then by the year 2022-23 he had already attained
majority and perhaps was aged about 22-23 years only and therefore,
respondent No.2 was required to explain in the FIR that as to whether
between 2013 when the present applicant entered into physical relation till
18/11/2023, was there any attempt by the present applicant to enter into
physical relation under the garb of false promise of marriage. The FIR is
conspicuously silent as regards this prolong period of 10 years commencing
from 2013 to 2023. Undisputedly, the son of respondent No.2 himself must
have attained majority in the year 2018 as in the FIR, it is mentioned that age
of her son, in the year 2010 was 10 years. If the son of respondent No.2 had
attained majority in the year 2018, and perhaps had passed his school
examination, and was no more student of the school, then what fettered
respondent No.2 in approaching the police station to lodge the report, is not
clarified.
13. In the present case, the aforesaid lacuna in the FIR is required to
be taken note of in order to decipher the advances which were made by the
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applicant in the year 2013 when after initial meeting with the present
applicant on various occasions, respondent No.2 went to his house. A perusal
of the aforesaid contents of the FIR, clearly reveal that respondent No.2 was
taken by the present applicant to his house where after getting herself at ease,
respondent No.2 had tea with the applicant then the applicant started
narrating her marital life to respondent No.2 and told that his wife had left for
gulf country to work and his married life was over. Then applicant stated that
he wanted to settle down with a homely woman life respondent No.2 and
then he said that they can start their life again afresh. Thereafter, present
applicant forcibly developed physical relation with respondent No.2. In the
first part of FIR there is no factum of any promise to marry.
14. The issue as regards free consent has been taken note of by the
Apex Court. The Apex Court in the case of Maheshwar Tigga held in
paragraph 13 as under:
“13 The question for our consideration is whether the
prosecutrix consented to the physical relationship under any
misconception of fact with regard to the promise of marriage by
the appellant or was her consent based on a fraudulent
misrepresentation of marriage which the appellant never intended
to keep since the very inception of the relationship. If we reach the
conclusion that he intentionally made a fraudulent
misrepresentation from the very inception and the prosecutrix gave
her consent on a misconception of fact, the offence of rape
under Section 375 IPC is clearly made out. It is not possible to
hold in the nature of evidence on record that the appellant obtained
her consent at the inception by putting her under any fear.
Under Section 90 IPC a consent given under fear of injury is not a
consent in the eyes of law. In the facts of the present case 10 we
are not persuaded to accept the solitary statement of the
prosecutrix that at the time of the first alleged offence her consent
was obtained under fear of injury.”
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15. A perusal of aforesaid reflects that if there is fraudulent
misrepresentation from the “very inception” and the prosecutrix had given
her consent on a “misconception of fact” then the offence of rape is made
out. In the present case, it reflects that at the “very inception” apparently
there was no false promise of marriage and, FIR after first incident of
physical relation, is silent regarding a prolong period of 10 years and as per
respondent No.2 on 18/11/2023 there was false promise of marriage again.
This Court also finds force in the submission advanced by the senior counsel
for the applicant that proximity of time for ascertaining the “misconception
of fact” is a vital issue and required to be dwell upon. The Apex Court in the
case of Maheshwar Tigga (Supra) has held in paragraph 14 as under:
“14. Under Section 90 IPC, a consent given under a
misconception of fact is no consent in the eyes of law. But the
misconception of fact has to be in proximity of time to the
occurrence and cannot be spread over a period of four years. It
hardly needs any elaboration that the consent by the appellant was
a conscious and informed choice made by her after due
deliberation, it being spread over a long period of time coupled
with a conscious positive action not to protest. The prosecutrix in
her letters to the appellant also mentions that there would often be
quarrels at her home with her family members with regard to the
relationship, and beatings given to her.”
16. Here in the present case, as per allegation there was forcible
physical relation in the year 2013 and it is nowhere mentioned in the first
part of the FIR that there was promise by the present applicant to enter into
wedlock with respondent No.2. The Apex Court in the case of Sheikh Arif
(Supra) also has taken into consideration the fact of prolong relationship in
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similar circumstances and the Apex Court held in paragraph 9,10,11 as
under:
“9. Now, the question is whether a case for quashing the
criminal proceeding is made out. For that purpose, we
are referring to the material which forms a part of the
charge-sheet. In view of the provisions of Section
375IPC, if the victim of the alleged offence of rape is
not under 18 years of age, maintaining a sexual
relationship with her consent, is not an offence. As held
by this Court in Anurag Soni [Anurag Soni v. State of
Chhattisgarh, (2019) 13 SCC 1 : (2019) 4 SCC (Cri)
499] , if the consent of the victim is based on
misconception, such consent is immaterial as it is not a
voluntary consent. If it is established that from the
inception, the consent by the victim is a result of a false
promise to marry, there will be no consent, and in such
a case, the offence of rape will be made out.
10. The second respondent was admittedly more than 18
years old when the relationship commenced. We have
carefully gone through the complaint dated 23-2-2018
made by the second respondent based on which the
impugned FIR was registered. Acquaintance between
the appellant and the second respondent started in the
year 2011. In June 2011, the appellant proposed to her,
and she accepted the said proposal. In fact, according to
the version of the second respondent, their physical
relationship commenced in 2012 and continued till
2017. In February 2013, the second respondent
underwent an abortion. In July 2017, according to the
case of the second respondent, there was an engagement
ceremony. In December 2017, the second respondent
was pregnant. According to her, as the appellant had
assured to marry, she did not agree for abortion. The
complaint was filed by the second respondent on 23-2-
2018 as she allegedly learned that on 22-2-2018, the
appellant was married to another woman.
11. When the complaint was filed, the age of the second
respondent was 24 years. Her year of birth is recorded
as 1994. The averments made in her complaint go to
show that their physical relationship started in 2012.
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she did not make any grievance about it till February
2018. In February 2013 and in December 2017, the
second respondent was pregnant. It is not the case of the
second respondent that from February 2013 to
December 2017, the appellant forced the second
respondent to maintain the physical relationship. In
2013, the relationship resulted in pregnancy. Still, it
continued till 2017. In fact, according to the second
respondent, in July 2017, there was an engagement
ceremony between the appellant and the second
respondent. Therefore, in the facts of the case, it is
impossible to accept that the second respondent allowed
the physical relationship to be maintained with her from
2013 to 2017 on the basis of a false promise to marry.”
17. A perusal of the aforesaid decisions clearly reveal that when
there exists a relationship for a prolong period of time, the inaction on the
part of the complainant to not to lodge the report as regards wrong doing on
the part of the accused, creates a reasonable suspicion regarding entire case
of the prosecution. Here in this case also there is unexplained silence of
respondent No.2 for a prolong period of 10 years commencing from 2013 to
2023 as the aforesaid period does not refer to any references of instances
including any allegations pertaining to commission of rape during the
aforesaid period of 10 years.
18. It is further evident from the perusal of the FIR that between
2022-23 the applicant started threatening respondent No.2 and again had
taken respondent No.2 to his house on 18/11/2023 and under the garb of
false promise of marriage once again constrained respondent No.2 to indulge
into sexual intercourse. This allegation in the second part of the FIR clearly
reveal that respondent No.2 prior to the alleged incident dated 18/11/2023
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did not lodge any report against the applicant as discussed hereinabove. Her
son also attained majority somewhere in the year 2018, therefore, respondent
No.2 had a prolong period of 5 years, to take action against the applicant.
Apparently, prima facie instead of taking any action against the applicant,
respondent No.2 was sitting on the fence and approached the police with FIR
dated 09/05/2024 and in the said FIR the period pertaining to occurrence of
offence was shown to be commencing from 01/01/2023 to 18/11/2023. There
are no allegation of commission of rape during the said period of 10 years. In
view of the aforesaid this Court is of the view that the prosecution of the
applicant is unsustainable.
19. T he Apex Court in the case of R.P. Kapur vs. State of Punjab
(AIR) 1960 SC 866 has held as under:
“6. Before dealing with the merits of the appeal it is necessary to
consider the nature and scope of the inherent power of the High
Court under Section 561-A of the Code. The said section saves the
inherent power of the High Court to make such orders as may be
necessary to give effect to any order under this Code or to prevent
abuse of the process of any court or otherwise to secure the ends
of justice. There is no doubt that this inherent power cannot be
exercised in regard to matters specifically covered by the other
provisions of the Code. In the present case the Magistrate before
whom the police report has been filed under Section 173 of the
Code has yet not applied his mind to the merits of the said report
and it may be assumed in favour of the appellant that his request
for the quashing of the proceedings is not at the present stage
covered by any specific provision of the Code. It is well-
established that the inherent jurisdiction of the High Court can be
exercised to quash proceedings in a proper case either to prevent
the abuse of the process of any court or otherwise to secure the
ends of justice. Ordinarily criminal proceedings instituted against
an accused person must be tried under the provisions of the Code,
and the High Court would be reluctant to interfere with the said
proceedings at an interlocutory stage. It is not possible, desirableSignature Not Verified
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or expedient to lay down any inflexible rule which would govern
the exercise of this inherent jurisdiction. However, we may
indicate some categories of cases where the inherent jurisdiction
can and should be exercised for quashing the proceedings. There
may be cases where it may be possible for the High Court to take
the view that the institution or continuance of criminal
proceedings against an accused person may amount to the abuse
of the process of the Court or that the quashing of the impugned
proceedings would secure the ends of justice. If the criminal
proceeding in question is in respect of an offence alleged to have
been committed by an accused person and it manifestly appears
that there is a legal bar against the institution or continuance of the
said proceeding the High Court would be justified in quashing the
proceeding on that ground. Absence of the requisite sanction may,
for instance, furnish cases under this category. Cases may also
arise where the allegations in the first information report or the
complaint, even if they are taken at their face value and accepted
in their entirety, do not constitute the offence alleged; in such
cases no question of appreciating evidence arises; it is a matter
merely of looking at the complaint or the first information report
to decide whether the offence alleged is disclosed or not. In such
cases it would be legitimate for the High Court to hold that it
would be manifestly unjust to allow the process of the criminal
court to be issued against the accused person. A third category of
cases in which the inherent jurisdiction of the High Court can be
successfully invoked may also arise. In cases falling under this
category the allegations made against the accused person do
constitute offence alleged but there is either no legal evidence
adduced in support of the case or evidence adduced clearly or
manifestly fails to prove the charge. In dealing with this class of
cases it is important to bear in mind the distinction between a case
where there is no legal evidence or where there is evidence which
is manifestly and clearly inconsistent with the accusation made
and cases where there is legal evidence which on its appreciation
may or may not support the accusation in question. In exercising
its jurisdiction under Section 561-A the High Court would not
embark upon an enquiry as to whether the evidence in question is
reliable or not. That is the function of the trial Magistrate, and
ordinarily it would not be open to any party to invoke the High
Court’s inherent jurisdiction and contend that on a reasonable
appreciation of the evidence the accusation made against the
accused would not be sustained. Broadly stated that is the nature
and scope of the inherent jurisdiction of the High Court under
Section 561-A in the matter of quashing criminal proceedings, andSignature Not Verified
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that is the effect of the judicial decisions on the point (Vide : In
Re : Shripad G. Chandavarkar [AIR 1928 Bom 184] , Jagat
Chandra Mozumdar v. Queen Empress [(1899) ILR 26 Cal 786]
, Shanker Singh (Dr) v. State of Punjab [(1954) 56 Punjab LR 54]
, Nripendra Bhusan Ray v. Gobind Bandhu Majumdar [AIR 1924
Cal 1018] and Ramanathan Chettiyar v. K. Sivarama
Subrahmanya Ayyar [ILR 47 Mad 722] .”
20. The Apex Court in the case of State of Haryana and others v.
Bhajanlal and others [(1992) Supp 1 SCC 335 ]. has held as under:
102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and
of the principles of law enunciated by this Court in a
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first information
report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima
facie constitute any offence or make out a case against
the accused.
(2) Where the allegations in the first information report
and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an
investigation by police officers under Section 156(1) of
the Code except under an order of a Magistrate within
the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the
FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any
offence and make out a case against the accused.
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(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint
are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just
conclusion that there is sufficient ground for proceeding
against the accused.
21. In view of the aforesaid law laid down by the Apex Court in the
cases of R.P. Kapur (Supra) and Bhajanlal (Supra), this Court has no
hesitation to hold that the FIR amounts to abuse of the process of law,
therefore, the FIR bearing Crime No.324/2024 and ensued proceedings
registered vide ST No.65/2024 pending before the Court of Fourth
Additional Sessions Judge, Chhindwara (M.P.) stand quahsed.
22. The present applicant is discharged of the charges framed
against him. Bail bond if executed by the applicant also stand discharged.
23. Accordingly, the petition stands allowed.
(MANINDER S. BHATTI)
JUDGE
Astha
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