- (1.) The petition seeks issuance of a writ in the nature of Certiorari quashing First Information Report dated 03-08-2016 bearing Case Crime No. 244 of 2016, under sections 313, 366 & 376 Indian Penal Code, Police Station-Jalalpur, District-Ambedkar Nagar.
(2.) Order dated 9th January, 2017, notices gist of the issue raised by the petitioner. The order reads as under :- "1. The petition seeks issuance of a writ in the nature of certiorari quashing First Information Report bearing Case Crime No.244 of 2016, under Sections 313,366,376 Indian Penal Code, Police Station Jalalpur, District Ambedkar Nagar. 2. The impugned First Information Report and the statement of the prosecutrix recorded under Section 164 Criminal Procedure Code (Annexure-4) has been read in extenso. Perusal of the statement of the prosecutrix recorded under Section 164 Criminal Procedure Code makes it evident that the petitioner and the complainant were in the same institution and became friends. Admittedly, the complainant had physical relations with the petitioner. Subsequently, it is alleged that the petitioner also proposed marriage. It has further been narrated that thereafter the complainant had physical relations with the petitioner on his saying that he would get married. The complainant became pregnant twice. The fetus was aborted. 3. It has been pleaded that the statement itself absolves the petitioner of criminal charges in so much as the relationship of complainant with the petitioner was consensual. 4. Learned counsel has relied on Deepak Gulati Vs. State of Haryana, 2013 7 SCC 675. 5. We have considered the contention of learned counsel. Relevant portion from Deepak Gulati's case reads as under:- 4. Learned counsel has drawn particular attention of the court towards the following from Deepak Gulati's case :- "15. The FIR in the present case has been registered under Sections 365 and 366 IPC, by Baldev Raj Soni (PW.8), father of the prosecutrix, naming several persons, including the appellant, accusing them of enticing his daughter and wrongfully confining her at an unknown place. Thus, he has expressed his apprehension with respect to danger to the life of his daughter. 16. Admittedly, the prosecutrix has never raised any grievancebefore any person at any stage. In fact, she seems to have submitted to the will of the appellant, possibly in lieu of his promise to marry her. Thus, a question arises with respect to whether, in light of the facts and circumstances of the present case, the appellant had an intention to deceive her from the very beginning when he had asked the prosecutrix to leave for Kurukshetra with him from Karnal. 17. The undisputed facts of the case are as under: 17.1. The prosecutrix was 19 years of age at the time of the said incident. 17.2. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married. 17.3. The appellant had been giving her assurance of the fact that he would get married to her. 17.4. The physical relationship between the parties had clearly developed with the consent of the prosecutrix, as there was neither a case of any resistance, nor had she raised any complaint anywhere at any time despite the fact that she had been living with the appellant for several days, and had travelled with him from one place to another. 17.5. Even after leaving the hostel of Kurukshetra University, she agreed and proceeded to go with the appellant to Ambala, to get married to him there. 18. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as "the 1872 Act" ) provides, that if the prosecutrix deposes that she did not give her consent, then the Court shall presume that she did not in fact, give such consent. The facts of the instant case do not warrant that the provisions of Section 114-A of the 1872 Act be pressed into service. Hence, the sole question involved herein is whether her consent had been obtained on the false promise of marriage. Thus, the provisions of Sections 417, 375 and 376 IPC have to be taken into consideration, alongwith the provisions of Section 90 IPC. Section 90 IPC provides that any consent given under a misconception of fact, would not be considered as valid consent, so far as the provisions of Section 375 IPC are concerned, and thus, such a physical relationship would tantamount to committing rape. 19. This Court considered the issue involved herein at length in Uday v. State of Karnataka, 2003 AIR(SC) 1639; Deelip Singh @ Dilip Kumar v. State of Bihar, 2005 AIR(SC) 203; Yedla Srinivasa Rao v. State of A.P., 2006 11 SCC 615; and Pradeep Kumar Verma v. State of Bihar & Anr., 2007 AIR(SC) 3059, and came to the conclusion that in the event that the accused's promise is not false and has not been made with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would not amount to rape. Thus, the same would only hold that where the prosecutrix, under a misconception of fact to the extent that the accused is likely to marry her, submits to the lust of the accused, such a fraudulent act cannot be said to be consensual, so far as the offence of the accused is concerned. 20. Rape is the most morally and physically reprehensible crime in a society, as it is an assault on the body, mind and privacy of the victim. While a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim, and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman, and offends both, her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. 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 mis-representation 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. 22. In Deelip Singh , it has been observed as under: "19. The factors set out in the first part of Section 90 are from the point of view of the victim. The second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused too has knowledge or has reason to believe that the consent was given by the victim in consequence of fear of injury or misconception of fact. Thus, the second part lays emphasis on the knowledge or reasonable belief of the person who obtains the tainted consent. The requirements of both the parts should be cumulatively satisfied. In other words, the court has to see whether the person giving the consent had given it under fear of injury or misconception of fact and the court should also be satisfied that the person doing the act i.e. the alleged offender, is conscious of the fact or should have reason to think that but for the fear or misconception, the consent would not have been given. This is the scheme of Section 90 which is couched in negative terminology." 23. This Court, while deciding Pradeep Kumar , placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, In re, wherein it has been observed : ( Pradeep Kumar case, SCC pp 418-19, para 11) "11. ''26........We are of opinion that the expression ''under a misconception of fact' is broad enough to include all cases where the consent is obtained by misrepresentation; the misrepresentation should be regarded as leading to a misconception of the facts with reference to which the consent is given. In Section 3 of the Evidence Act Illustration (d) states that a person has a certain intention is treated as a fact. So, here the fact about which the second and third prosecution witnesses were made to entertain a misconception was the fact that the second accused intended to get the girl married........'thus ... if the consent of the person from whose possession the girl is taken is obtained by fraud, the taking is deemed to be against the will of such a person'....... Although in cases of contracts a consent obtained by coercion or fraud is only voidable by the party affected by it, the effect of Section 90 IPC is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence." ( N.Jaladu, In Re Case, ILR pp. 456-57)' (Deelip Singh Case, SCC pp. 101-02, para 26)." 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 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. 25. The instant case is factually very similar to Uday( Uday Vs. State of Karnataka, 2003 4 SCC 46), wherein the following facts were found to exist : 25.1. The prosecutrix was 19 years of age and had adequate intelligence and maturity to understand the significance and morality associated with the act she was consenting to. 25.2. She was conscious of the fact that her marriage may not take place owing to various considerations, including the caste factor. 25.3. It was difficult to impute to the accused, knowledge of the fact that the prosecutrix had consented as a consequence of a misconception of fact, that had arisen from his promise to marry her. 25.4. There was no evidence to prove conclusively, that the appellant had never intended to marry the prosecutrix. 26. To conclude, the prosecutrix had left her home voluntarily, of her own free will to get married to the appellant. She was 19 years of age at the relevant time and was, hence, capable of understanding the complications and issues surrounding her marriage to the appellant. According to the version of events provided by her, the prosecutrix had called the appellant on a number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived she went with him to the Karna lake where they indulged in sexual intercourse. She did not raise any objection at this stage and made no complaints to any one. Thereafter, she also went to Kurukshetra with the appellant, where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate with the appellant. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the appellant at the Birla Mandir. Thereafter, she even proceeded with the appellant to the old bus- stand in Kurukshetra, to leave for Ambala so that the two of them could get married in the court at Ambala. However, here they were apprehended by the police. 27. If the prosecutrix was in fact going to Ambala to marry the appellant, as stands fully established from the evidence on record, we fail to understand on what basis the allegation of "false promise of marriage" has been raised by the prosecutrix. We also fail to comprehend the circumstances in which a charge of deceit/rape can be levelled against the appellant, in light of the aforementioned fact situation." 6. Issue notice to serve respondent no.3 returnable on 22.2.2017. 7. The petitioner shall not be taken in custody till the next date of listing. The petitioner is directed to join investigation. 8. The investigating officer is directed to conduct investigation, also in context of the law laid down in judgement rendered by Hon'ble Supreme Court of India, portion of which has been extracted above and file his affidavit as to under what circumstances it is alleged that the offence has been committed. 9. List on 22.2.2017."
(3.) Short Counter Affidavit filed on behalf of the Investigating Agency in court is taken on record.;