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Not all Failure of “Promise to marry” is rape – SC

PRAMOD SURYABHAN PAWAR.VS.THE STATE OF MAHARASHTRA & ANR., Criminal Appeal No. 1165 of 2019 ARISING FROM SLP (Crl) No. 2712 of 2019). – 21 August 2019.

The bench encompassing Justice Dr Dhananjaya Y Chandrachud and Justice Indira Banerjee pronounced the judgment on the inherent powers of the High Court under section 482 Code of Criminal Procedure 1973 in quashing of First Information Report (FIR). The appellant sought the quashing of a FIR registered against him on 17 May 2016 for offences punishable under Sections 376, 417, 504 and 506(2) of the Indian Penal Code and Sections 3(1) (u),

and 3(2) (vii) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989(as amended by the Amendment Act, 2015). The allegations made in the FIR were that the appellant and the complainant were engaged in frequent sexual intercourse on the pursuance of appellant marrying her and that he degraded the complainant by means of speaking ill about her caste.  In Criminal Application No. 813 of 2016, the appellant moved the High Court under Section 482 of the CrPC to quash the FIR dated 17 May 2016. By its order dated 7 February 2019 the High Court rejected the application.

Thereby, the appellant approached this Hon’ble Court for appeal. Mr Sushil Karanjkar, learned counsel for the appellant contended that the High Court failed to distinguish between rape and consensual sex. He further submitted that the allegations on the face of the FIR indicate that the physical relationship between the appellant and the complainant existed for over a period of six years with her consent. In response, Mr Katneshwarkar, learned counsel appearing for the respondent-State as well as Mr Nilesh Tribhavan, learned counsel for the complainant relied upon certain decisions of this Court.

This Court noted the scope of section 482 of CrPC and stated that the said section is an overriding section which saves the inherent powers of the court to advance the cause of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. These principles have been consistently followed and re-iterated by this court in Inder Mohan Goswami v State of Uttaranchal; State of Haryana v Bhajan Lal; and Dhruvaram Murlidhar Sonar v State of Maharashtra.

In the instant case, the appellant is accused of the offence of rape under section 375. And to see whether there was really an offence of rape, one has to look into the factor of ‘consent’. Section 90 of  IPC is also taken into consideration since it defines Consent known to be given under fear or misconception.  This Court interpreted the word ‘consent’ to the depth that it renders the appropriate meaning in this case. For that purpose it relied on the following cases: Kaini Rajan v State of Kerala; Anurag Soni v State of Chhattisgarh; Dhruvaram Murlidhar Sonar v State of Maharashtra; State of Haryana v Bhajan Lal; and Inder Mohan Goswami v State of Uttaranchal. It further distinguished mere breach of a promise from not fulfilling a false promise. For this it relied on the decisions in Deepak Gulati v State of Haryana; Anurag Soni v State of Chhattisgarh; Yedla Srinivasa Rao v State of Andhra Pradesh; and Uday v State of Karnataka.

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

The Court summarized the legal position of the word “consent”  as “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. We must take a note that the parties in the present case are a Deputy Commandant in the CRPF and Assistant Commissioner of Sales Tax. It was observed by the court that there was no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. Now, considering the offences under the SC/ST Act, the messages were not in public view, no assault occurred, nor was the appellant in such a position so as to dominate the will of the complainant. Therefore it declared that no offence in this regard was constituted. Accordingly, the judgment:

“For the above reasons, we allow the appeal and set aside the impugned judgment and order of the High Court dated 7 February 2019. The FIR dated 17 May 2016 is quashed.”

Jumanah Kader

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