Patna High Court
Kumar Rishiraj vs The State Of Bihar on 20 January, 2025
Author: Sandeep Kumar
Bench: Sandeep Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.61025 of 2023
Arising Out of PS. Case No.-186 Year-2023 Thana- BHABHUA District- Kaimur (Bhabua)
======================================================
Kumar Rishiraj S/O- Late Lalan Prasad R/O- Village- Dhai Bigha, P.S.-
Narhat, Dist.- Nawada.
... ... Petitioner/s
Versus
1. The State Of Bihar Patna.
2. Sunita Kumari D/O- Late Brijnandan Prasad R/O- Village- Ghostama, P.S.-
Kadirganj, Dist.- Nawada. At Present Circle Inspector Officer Ghainpur,
P.S.- Ghainpur, P.O- Ghainpur, Dist.- Kaimur (Bhabhua)
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Hansraj, Advocate
Mr. Davendra Kumar Pandey, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
For the Informant : Mr. Manoj Kumar Ambastha, Advocate
Mr. Uday Pratap Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
ORAL JUDGMENT
Date : 20-01-2025
1. This application has been filed for quashing of the
First Information Report vide Bhabhua P.S. Case No. 186/2023
dated 06.03.2023, arising out of Complaint Case No. 1443/2022,
registered for the offences under Sections 376, 420, 406, 120-B, 34
of the Indian Penal Code.
2. The prosecution case, in brief, is that in the year 2015,
informant was appointed as Constable in Bihar Police and on
08.11.2015
, she has joined her duty at Rohtas District Police Line,
Dehari and from there, she was deputed to Sasaram Court. The
petitioner was also deputed at Model Police Station, Sasaram.
Informant was residing at Dehri and used to do her duty at
Sasaram, and she met with the petitioner. The informant alleged
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that the petitioner established physical relationship with her on the
pretext of marriage and thereafter the petitioner denied marrying
her.
3. It has been submitted by the learned counsel for the
petitioner that on the basis of the complaint filed by the
complainant/informant, police instituted a case vide Bhabhua P.S.
Case No. 186/2023 dated 06.03.2023. He further submits that the
petitioner is innocent and has not committed any offences as
alleged in the FIR. On perusal of the FIR, it appears that the police
have registered the FIR under the same sections as mentioned in
the complaint which is false and fabricated. He further submits
that the informant was in a relationship with the petitioner since
2015 and petitioner had broken up with her in 2018 after being
selected on the post of Sub-Inspector, but she has brought the case
in the year 2023.
4. Learned counsel for the petitioner further submits that
the informant is a married lady and the name of her husband is
Ajay Kumar and they have one child namely Hritik Raj. The
informant has not stated anywhere in her complaint that she is a
married woman. He further submits that petitioner never
established physical relationship with her on the pretext of
marriage. There was only formal acquaintance between the
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petitioner and the informant as they both belong to the same
hometown.
5. The learned counsel for the petitioner has further
submitted that the Hon’ble Supreme Court in the case of Pramod
Surybhan Pawar vs. State of Maharasthra, (2019) 9 SCC 608 has
held that mere breach of “Promise to Marry” does not constitute
any offence of rape under Section 376 of the Indian Penal Code. It
is held that promise of marriage must have been given in bad faith
and it must have immediate relevance to the decision to engage in
the sexual act.
6. Learned APP for the State has vehemently opposed
the prayer for quashing of the FIR and has submitted that the
petitioner has established physical relationship with the
complainant/informant on the pretext of marriage and, therefore,
the present case is not a fit case for quashing of the FIR.
7. Learned counsel for the informant has appeared but
no counter affidavit has been filed to deny the specific pleading
made in paragraph no. 08 of the writ petition i.e. the
complainant/informant is married to one Ajay Kumar and is
having one child namely Hritik Raj aged about 7 years.
8. I have considered the submissions of the parties.
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9. From reading of the complaint/FIR, it appears that the
complaint was filed in the year December 2022 and the date of
occurrence was mentioned as 2015 to 18.12.2022. Thereafter, the
case was referred to the police station for registration of an FIR
under Sections 156(3) of the Cr.P.C., in which charge-sheet was
submitted and cognizance was taken.
10. From reading of the complaint/FIR, it appears that
while being posted together, the complainant may have been in a
relationship with the petitioner and has filed this case making
allegation of rape i.e. having physical relationship with the
complainant on the pretext of marriage but there is no mention in
the complaint by the complainant/informant that she is a married
lady and in the present proceedings also, she has also not denied
the statement made in the paragraph no. 08 of the petition.
11. From reading of the allegation levelled in the FIR, in
my opinion, the present dispute appears to be a dispute between
two grown up persons who might have been in a relationship and
for that a criminal prosecution cannot be launched that too for
committing a rape etc.
12. The Hon’ble Supreme Court in the case of Mahesh
Damu Khare vs State of Maharashtra & Anr, 2024 SCC OnLine
SC 3471, while considering such a case has held as follows:-
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19. Section 375 of the IPC clearly postulates that a
person is said to have committed rape if he performs any of
the sexual acts mentioned under sub-clauses (a), (b), (c) and
(d) without the consent of the woman. As mentioned above, in
terms of Section 90 of the IPC, if the consent is given under a
misconception of fact, such a consent is no consent in the eyes
of law and cannot be considered to be wilful and voluntary
consent.
20. Keeping this aspect in mind as to what
amounts to consent with reference to Section 375 of the IPC,
this Court has examined and considered in a number of cases
that if the person acts with an active understanding of the
circumstances, actions and consequences of the act, it would
indicate the presence of consent. It was observed in the case of
Shambhu Kharwar v. State of Uttar Pradesh4 as follows:–
“11. In Pramod Suryabhan Pawar v. State
of Maharashtra (2019) 9 SCC 608, a two Judge Bench
of this Court of which one of us was a part (D.Y.
Chandrachud J.), held in Sonu @ Subhash Kumar v.
State of Uttar Pradesh (2021) 18 SCC 517, observed
that:
“12. This Court has repeatedly held
that consent with respect to Section 375 of the
IPC involves an active understanding of the
circumstances, actions and consequences of the
proposed act. An individual who makes a
reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the
various possible consequences flowing from
such action or inaction, consents to such
action…
[…]
14. […] Specifically in the context
of a promise to marry, this Court has observed
that there is a distinction between a false
promise given on the understanding by the
maker that it will be broken, and the breach of
a promise which is made in good faith but
subsequently not fulfilled…
[…]
16. Where the promise to marry is
false and the intention of the maker at the time
of making the promise itself was not to abide
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to engage in sexual relations, there is a
“misconception of fact” that vitiates the
woman’s “consent”. On the other hand, a
breach of a promise cannot be said to be a
false promise. To establish a false promise, the
maker of the promise should have had no
intention of upholding his word at the time of
giving it. The “consent” of a woman under
Section 375 is vitiated on the ground of a
“misconception of fact” where such
misconception was the basis for her choosing
to engage in the said act…
[…]
18. To summarise the legal position
that emerges from the above cases, the
“consent” of a woman with respect to Section
375 must involve an active and reasoned
deliberation towards the proposed act. To
establish whether the “consent” was vitiated
by a “misconception of fact” arising out of a
promise to marry, two propositions must be
established. The promise of marriage must
have been a false promise, given in bad faith
and with no intention of being adhered to at the
time it was given. The false promise itself
must be of immediate relevance, or bear a
direct nexus to the woman’s decision to
engage in the sexual act.
(emphasis supplied)
21. The complainant had taken the plea that the
appellant had physical relationship with her against her
consent by making a false promise that he would marry her. In
this regard, it has to be considered whether making a false
promise to marry amounts to an offence. If a false promise of
marriage is made to a woman by a man, thus deceiving the
woman leading her to engage in sexual relations, it may
amount to misconception of fact, in which case the consent
given by the woman may be vitiated. In this regard one may
refer to the decision of this Court in Niam Ahmed v. State
(NCT of Delhi)5,
“20. The bone of contention raised on
behalf of the respondents is that the prosecutrix
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under the misconception of fact, as the accused
had given a false promise to marry her and
subsequently he did not marry, and therefore
such consent was no consent in the eye of law
and the case fell under the Clause – Secondly
of Section 375 IPC. In this regard, it is
pertinent to note that there is a difference
between giving a false promise and committing
breach of promise by the accused. In case of
false promise, the accused right from the
beginning would not have any intention to
marry the prosecutrix and would have cheated
or deceited the prosecutrix by giving a false
promise to marry her only with a view to
satisfy his lust, whereas in case of breach of
promise, one cannot deny a possibility that the
accused might have given a promise with all
seriousness to marry her, and subsequently
might have encountered certain circumstances
unforeseen by him or the circumstances beyond
his control, which prevented him to fulfill his
promise. So, it would be a folly to treat each
breach of promise to marry as a false promise
and to prosecute a person for the offence under
Section 376.”
22. In our view, if a man is accused of having
sexual relationship by making a false promise of marriage and
if he is to be held criminally liable, any such physical
relationship must be traceable directly to the false promise
made and not qualified by other circumstances or
consideration. A woman may have reasons to have physical
relationship other than the promise of marriage made by the
man, such as personal liking for the male partner without
insisting upon formal marital ties. Thus, in a situation where
physical relationship is maintained for a prolonged period
knowingly by the woman, it cannot be said with certainty that
the said physical relationship was purely because of the
alleged promise made by the appellant to marry her. Thus,
unless it can be shown that the physical relationship was
purely because of the promise of marriage, thereby having a
direct nexus with the physical relationship without being
influenced by any other consideration, it cannot be said that
there was vitiation of consent under misconception of fact.
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23. It must also be clear that for a promise to be a
false promise to amount to misconception of fact within the
meaning of Section 90 of IPC, it must have been made from
the very beginning with an intention to deceive the woman to
persuade her to have a physical relationship. Therefore, if it is
established that such consent was given under a misconception
of fact, the said consent is vitiated and not a valid consent. In
this regard we may refer to the case of “Deepak Gulati v. State
of Haryana“6, in which it was held as follows:
“21. Consent may be express or implied,
coerced or misguided, obtained willingly or through
deceit. Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance, the
good and evil on each side. There is a clear distinction
between rape and consensual sex and in a case like
this, the court must very carefully examine whether the
accused had actually wanted to marry the victim, or
had mala fide motives, and had made a false promise
to this effect only to satisfy his lust, as the latter falls
within the ambit of cheating or deception. There is a
distinction between the mere breach of a promise, and
not fulfilling a false promise. Thus, the court must
examine whether there was made, at an early stage a
false promise of marriage by the accused; and whether
the consent involved was given after wholly
understanding the nature and consequences of sexual
indulgence. There may be a case where the prosecutrix
agrees to have sexual intercourse on account of her
love and passion for the accused, and not solely on
account of misrepresentation made to her by the
accused, or where an accused on account of
circumstances which he could not have foreseen, or
which were beyond his control, was unable to marry
her, despite having every intention to do so. Such cases
must be treated differently. An accused can be
convicted for rape only if the court reaches a
conclusion that the intention of the accused was mala
fide, and that he had clandestine motives.”
“24. Hence, it is evident that there must be
adequate evidence to show that at the relevant time i.e.
at the initial stage itself, the accused had no intention
whatsoever, of keeping his promise to marry the victim.
There may, of course, be circumstances, when a person
having the best of intentions is unable to marry the
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victim owing to various unavoidable circumstances.
The “failure to keep a promise made with respect to a
future uncertain date, due to reasons that are not very
clear from the evidence available, does not always
amount to misconception of fact. In order to come
within the meaning of the term “misconception of
fact”, the fact must have an immediate relevance”.
Section 90 IPC cannot be called into aid in such a
situation, to pardon the act of a girl in entirety, and
fasten criminal liability on the other, unless the court
is assured of the fact that from the very beginning, the
accused had never really intended to marry her.”
(emphasis supplied)
24. It may be also noted that there may be
occasions where a promise to marry was made initially but for
various reasons, a person may not be able to keep the promise
to marry. If such promise is not made from the very beginning
with the ulterior motive to deceive her, it cannot be said to be
a false promise to attract the penal provisions of Section 375
IPC, punishable under Section 376 IPC.
25. In the present case, even assuming that the
appellant had made the promise since 2008 when they met for
the first time, the fact that they remained unmarried for a long
period till 2017 without there being any protest or objection by
the complainant, does not indicate the intention at the initial
stage itself to make the promise falsely to marry the
complainant. Making an allegation of non-fulfilment of
promise to marry without undue delay by the promissee
would, on the other hand, be an indicator of a false promise
being made from the initial stage. In the present case, what is
not in dispute is that the physical relationship between the
appellant and the complainant continued for a long period of
about a decade and as such it is difficult to infer that the
appellant had made a false promise since the initial stage and
continued to make false promises to marry her on the basis of
which she also continued to have physical relationship with
him.
26. In the present case, the nature of relationship
between the appellant and the complainant can be
characterised by the following attributes:
(i) The appellant and the complainant were
acquainted with each other since 2008. The
complainant herself admits that the appellant has been
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protest in spite of alleging that the appellant had done
so without her consent.
(ii) The physical relationship was going on
routinely. But the complainant in her complaint states
that after she got a rented room in Shirvane, Nerul
Sector 1, Navi Mumbai, in December, 2010, the
appellant used to come every day and had sexual
intercourse everyday, though without her consent and
by giving false promise of marriage.
(iii) The complainant does not appear to be a
naive and gullible woman who was susceptible to
deceit while maintaining physical relationship with the
appellant and the allegation of false promise surfaced
only when the appellant refused to provide further
financial and other assistance.
(iv) The conduct of the complainant clearly
shows that she is a mature person clearly capable of
understanding the consequences of her acts and she
was fully aware of the kind of illicit relationship she
was maintaining with a married person.
(v) The complainant was fully aware that the
appellant was already married and had two wives,
though one of them was not keeping well.
27. Thus, from the above it appears that it is more
of an extra-marital affair during the aforesaid period without
any insistence by the complainant for getting married to the
appellant. The fact that the complainant continued to have a
physical relationship for a long time without any insistence on
marriage would indicate the unlikelihood of any such promise
made by the appellant for marrying her and it rather indicates
that the relationship was a consensual one.
In our opinion, the longer the duration of the
physical relationship between the partners without protest and
insistence by the female partner for marriage would be
indicative of a consensual relationship rather than a
relationship based on false promise of marriage by the male
partner and thus, based on misconception of fact.
28. Moreover, even if it is assumed that a false
promise of marriage was made to the complainant initially by
the appellant, even though no such cogent evidence has been
brought on record before us to that effect, the fact that the
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relationship continued for nine long years, would render the
plea of the complainant that her consent for all these years was
under misconception of fact that the Appellant would marry
her implausible. Consequently, the criminal liability attached
to such false promise would be diluted after such a long
passage of time and in light of the fact that no protest was
registered by the complainant during all those years. Such a
prolonged continuation of physical relationship without
demurral or remonstration by the female partner, in effect
takes out the sting of criminal culpability and neutralises it.
29. It will be very difficult to assume that the
complainant who is otherwise a mature person with two
grown up children, was unable to discover the deceitful
behaviour of the appellant who continued to have sexual
relationship with her for such a long period on the promise of
marriage. Any such mendacious act of the appellant would
have been exposed sooner without having to wait for nine
years. The inference one can draw under the circumstances is
that there was no such false promise made to the complainant
by the appellant of marriage by continuing to have physical
relationship so as to bring this act within the province of
Section 376 IPC and therefore, there was no vitiation of
consent under misconception of fact.
30. Further, it appears that discontinuance of
financial support to the complainant, rather than the alleged
resiling from the promise to marry by the appellant appears to
be the triggering point for making the allegation by the
complainant after a long consensual relationship for about
nine years.
31. In our view if criminality is to be attached to
such prolonged physical relationship at a very belated stage, it
can lead to serious consequences. It will open the scope for
imputing criminality to such long term relationships after
turning sour, as such an allegation can be made even at a
belated stage to drag a person in the juggernaut of stringent
criminal process. There is always a danger of attributing
criminal intent to an otherwise disturbed civil relationship of
which the Court must also be mindful.
32. It is evident from the large number of cases
decided by this Court dealing with similar matters as
discussed above that there is a worrying trend that consensual
relationships going on for prolonged period, upon turning
sour, have been sought to be criminalised by invoking
criminal jurisprudence.
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13. In view of the law laid down by the Hon’ble
Supreme Court, in the present case, it is important to consider that
whether any offence is made out against the petitioner or not. The
petitioner and the complainant/informant while being posted at the
same place became acquainted with each other in the year 2015
because both the petitioner and complainant/ informant belong to
the same district and they have started having physical
relationship.
14. It is an admission by the complainant/ informant that
they were in physical relationship since 2015 without any protest
by the complainant/informant. The physical relationship was
continued for a long time and during the subsistence of that
relationship, the complainant/ informant has given a certain
amount of money for financing the motorcycle of the petitioner.
15. The only allegation made by the
complainant/informant is that the petitioner established physical
relationship with her only with a promise to marry. The
complainant/ informant is a literate person, a Constable in the
Bihar Police and she is not naive and gullible woman who was
susceptible to deceit while maintaining physical relationship with
the petitioner and it appears that the allegation of false promise has
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been made only after the petitioner was transferred to a different
district and he discontinued the relationship.
16. Though there is no positive denial by the
complainant/ informant that she is a married lady having one child
but considering the fact that she has not filed any counter affidavit,
the statement of the petitioner that the complainant/informant is a
married lady with a child appears to be true and the
complainant/informant has knowingly not filed any counter
affidavit which would have further weakened her case.
17. From the discussions above, the allegations made in
the complaint/FIR and the material collected during investigation,
it appears that the petitioner and the complainant/informant were
in a relationship for a long time i.e. almost seven years and there
was no insistence of marriage which indicates that no promise was
made by the petitioner to marry the complainant/ informant and
the relationship was a consensual relationship. The relationship
between the two was not a relationship based on false promise but
it is a consensual relationship and there is no false promise of
marriage by the petitioner.
18. As the complainant/ informant is a married lady with
a child and is working as a Constable in Bihar Police, the promise
of false marriage initially by the petitioner for entering into a
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relationship with the complainant/ informant does not arise. It is
important to see that both the parties were in a relationship for a
long time i.e. almost for seven years and there was no protest by
the complainant/ informant and in such a situation, no offence of
rape is made out against the petitioner.
19. So far as the other offences are concerned, I am of
the view that since no offence of rape is made out against the
petitioner and in my opinion, this is a mala-fide prosecution only
to harass the petitioner. The other allegations are also without any
basis and the same cannot be sustained.
20. In that view of the matter, this application is allowed.
Accordingly, the entire prosecution and the First Information
Report vide Bhabhua P.S. Case No. 186/2023 dated 06.03.2023,
arising out of Complaint Case No. 1443/2022, registered for the
offences under Sections 376, 420, 406, 120B, 34 of the Indian
Penal Code is hereby quashed.
(Sandeep Kumar, J)
Shishir/-
AFR/NAFR NAFR CAV DATE N/A Uploading Date 22.01.2025 Transmission Date 22.01.2025
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