Court quashed the order taking cognizance for rape under Section 376 IPC, holding no evidence of non-consent or coercion existed in a long-term relationship. Petitioner confined prayer to quashing this portion only.
Portion of the order dated 19.01.2021 taking cognizance for offence under Section 376 IPC is quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Cr.M.P. No.974 of 2021
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 974 of 2021
Pareshwar Purty, aged 35 years, S/o Budhram Purty, resident of – Daguapasi, P.O. –Chaibasa, P.S. –Chaibasa, District –West Singhbhum
Singhbhum Opp. Parties
P R E S E N T
HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
For the Petitioner : Mr. Kumar Nilesh, Advocate : Mr. Shamshad Khan, Advocate For the State : Mr. Sunil Kr. Dubey, Addl. P.P. For the O.P. No.2 : Mr. Arun Kr. Pandey, Advocate
By the Court:-
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order in respect of cognizance for the offence punishable under Section 376 of the Indian Penal Code only.
“9. In Pramod Suryabhan Pawar (supra), while dealing with a similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:"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 by it but to deceive the woman to convince her 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..."
10. Further, the Court has observed: "To summarise the legal
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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."
11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of CrPC, no offence has been established. There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.
12. For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 26 September 2019. In view of the reasons which have been adduced earlier, the charge sheet dated 25 April 2018, which has been filed in pursuance of the investigation which took place, shall stand quashed. The order of the trial Court dated 3 October 2018 taking cognizance shall accordingly stand quashed and set aside.” (Emphasis supplied)
The learned counsel for the petitioner next relies upon the Judgment of Hon’ble Supreme Court of India, in the case of
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Maheshwar Tigga vs. State of Jharkhand , reported in (2020) 10 SCC 108 , paragraph nos. 14, 15 & 20 of which reads as under:-
“14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eye of the 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.
15. In Uday [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] , the appellant and the prosecutrix resided in the same neighbourhood. As they belonged to different castes, a matrimonial relationship could not fructify even while physical relations continued between them on the understanding and assurance of marriage. This Court observed as follows : (SCC pp. 56-57, para 21)
“21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before
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reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”
20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberate choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deep-seated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] are considered relevant : (SCC p. 58, para 25)
“25. … It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what was in the mind of the
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prosecutrix when she consented, because there were more reasons than one for her to consent.”
Hence, it is submitted by the learned counsel for the petitioner that no offence punishable under Section 376 of the Indian Penal Code is made out against the petitioner, hence, the portion of the order in respect of cognizance for the offence punishable under Section 376 of the Indian Penal Code be quashed.
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case for the offence punishable under Section 376 of the Indian Penal Code against the petitioner.
High Court of Jharkhand, Ranchi Dated the 10th April, 2023 AFR/Sonu-Gunjan/-
(Anil Kumar Choudhary, J.)
3 issues framed by the court
Whether the cognizance for the offence under Section 376 IPC was legally sustainable in the absence of consent or fear.
Whether a series of physical relationships over four years vitiated by a promise to marry constitutes an offence under Section 376 IPC.
Whether the lower court erred in taking cognizance for an offence where the FIR did not allege lack of consent.
Colour shows how this judgement treated each authority
Sonu alias Subhash Kumar vs. State of Uttar Pradesh and Anr.Relied on¶21
Sonu alias Subhash Kumar vs. State of Uttar Pradesh and Anr., AIR 2021 SC 1405 · Who else cites this
Maheshwar Tigga vs. State of JharkhandRelied on¶32
Maheshwar Tigga vs. State of Jharkhand, (2020) 10 SCC 108 · Who else cites this
Uday v. State of KarnatakaExplained¶34
Uday v. State of Karnataka, (2003) 4 SCC 46 · Who else cites this
Pramod Suryabhan PawarReferred¶21
Pramod Suryabhan Pawar
3 provisions across 2 enactments
Pareshwar Purty
State of Jharkhand
Savitri Bankira
Anil Kumar Choudhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
