PUSHPENDRA SINGH BHATI,J. - (1.) This criminal misc. petition under Section 482 Cr.P.C. has been preferred for quashing the registration and investigation in the matter of FIR No. 383/2016 registered at Ratanada Police Station, District Jodhpur for the offences under Sections 376, 420, 315 and 120B I.P.C.
(2.) Brief facts of the case, as noticed by this Court, are that respondent No.2 submitted a complaint before the SHO, Police Station, Ratanada, Jodhpur against the petitioner with the allegation that the marriage of the complainant had been solemnized with one Shiva Ram. While she was having a dispute with her husband, the present petitioner assured her of all possible help and also intended to solemnize marriage with the complainant, as disclosed to the family members. The petitioner and respondent No. 2/complainant lived together, and during such period, it is alleged that twice abortion was carried upon the respondent No. 2. However, they continued to stay together, firstly, in a hotel, and thereby, in a rented premises. The petitioner thereafter, went back from his promise to marry the complainant and left the complainant, and thus, allegedly, he committed sexual intercourse by inducing the complainant to solemnize marriage with her. Respondent No. 2 admittedly, was married to Shiva Ram, but when she fell out of the marriage, she consensually stayed with the present petitioner.
(3.) The facts of this case are akin to the precedent law laid down by a coordinate Bench of this Court in Anup K. Paul v. State of Rajasthan and Ors., reported in 2016 Cri.LJ 509 , relevant paras of which read as under:- "The Hon'ble Supreme Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the High Courts under Section 482 Cr.P.C. In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335 , the Hon'ble Supreme Court has listed the categories of cases when the power under Section 482 Cr.P.C. can be exercised by the High Courts. The law laid down by the Hon'ble Supreme Court in State of Haryana v. Bhajan Lal (supra) has later on followed in various decisions. To mention a few - Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 ; State of Haryana v. Bhajan Lal,1992 Supp (1) SCC 335 ; Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995) 6 SCC 194 ; Central Bureau of Investigation v. Duncans Agro Industries Ltd (1996) 5 SCC 591 ; State of Bihar v. Rajendra Agrawalla (1996) 8 SCC 164 , Rajesh Bajaj v. State NCT of Delhi,(1999) 3 SCC 259 ; Medchl Chemicals and Pharma (P) Ltd. v. Biological E. Ltd(2000) 3 SCC 269 , Hridaya Ranjan Prasad Verma v. State of Bihar (2000) 4 SCC 168 , M. Krishnan v. Vijay Singh (2001) 8 SCC 645 and Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque( 2005) 1 SCC 122. The principles relevant are as under: "(i) A complaint can be quashed where the allegations made in 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 the case alleged against the accused. For this purpose, the complaint has to be examined as a whole, but without examining the merits of the allegations. Neither a detailed inquiry nor a meticulous analysis of the material nor an assessment of the reliability or genuineness of the allegations in the complaint, is warranted while examining prayer for quashing of a complaint. (ii) A complaint may also be quashed where it is a clear abuse of the process of the court, as when the criminal proceeding is found to have been initiated with mala fides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable. (iii) The power to quash shall not, however, be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution. (iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence. (v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of a civil proceeding are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not." Recently the Hon'ble Supreme Court in Rishipal Singh v. State of U.P. and Anr., AIR 2014 SC 2567 has held as under: "12. This Court in plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the Courts under Section 482, Cr.P.C. In State of Haryana v. Bhajan Lal 1992 Supp(1) SCC 335 , this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in Central Bureau of Investigation v. Duncans Agro Industries Ltd. 1996 (5) SCC 591 ; Rajesh Bajaj v. State NCT of Delhi 1999 (3) SCC 259 and Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque and Anr (2005) 1 SCC 122. This Court in Zandu Pharmaceuticals Ltd., observed that: "The power under Section 482 of the Code should be used sparingly and with to prevent abuse of process of Court, but not to stifle legitimate prosecution. There can be no two opinions on this, but if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of Court, the power under Section 482 of the Code must be exercised and proceedings must be quashed". Also see Om Prakash and Ors. v. State of Jharkhand 2012 (12) SCC 72. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the tests to be applied by the Court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The Courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the Court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the Court can exercise the power under Section 482, Cr.P.C. While exercising the power under the provision, the Courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial Court and dwell into the disputed questions of fact." As per law laid down by the Hon'ble Supreme Court in the above referred cases, the High Court should be very careful while exercising power under Section 482 Cr.P.C., however, at the same time, it should not allow a litigant to file vexatious complaints to otherwise settle his or her scores by setting the criminal law into motion, which is a pure abuse of process of law and it has to be interdicted at the threshold. In view of the above legal position well settled by the Hon'ble Supreme Court, I would like to deal with the facts of the present case, which lead to file the impugned FIR against the petitioner for the offences punishable under Sections 376 and 313 I.P.C. Initially, the respondent No. 2 has filed a written complaint before the SHO, Police Station, Bajaj Nagar, Jaipur on 29.09.2014 with a prayer to stop the petitioner from marrying another girl on 29.09.2014 at Kerala. In the said complaint, it is stated that the respondent No. 2 was doing job in Jodhpur in 2011, where she met with the petitioner and gradually they became friends, thereafter, by giving a false promise of marriage, he developed physical relations with her and she became pregnant in 2012 and the petitioner got her pregnancy terminated by giving her contraceptive pills while stating that at present he has no money for marriage but later on, with the consent of the parents, they would marry with each other. It is further stated that thereafter with the consent of their parents, the marriage was fixed in May, 2013, however, the petitioner did not inform to anybody about her pregnancy. In April, 2013, the parents of the petitioner refused to marry but he used to talk to her and assured that he would marry her only and not marry to anyone else but now he is going to marry some another girl at Kerala on 29.09.2014. In the bottom of the said written complaint, one line is also written that he has sexually exploited her. At this stage, it will be useful to make a reference of the definition of rape as defined in Section 375 I.P.C. as it stood prior to coming into force of Criminal Law (Amendmend) Act, 2013 and thereafter Section 375 I.P.C. as it stood prior to coming into force of Act of 2013. "375. Rape.- A man is said to commit "rape" who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:- First.- Against her will. Secondly.- Without her consent. Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt. Fourthly.- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.- With or without her consent, when she is under sixteen years of age. Explanation.- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape. Exception.- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape." Section 375 I.P.C. as it exists after coming into force of Criminal Law (Amendment) Act, 2013 reads as under: "[375. Rape.-A man is said to commit "rape" if he - (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:- First.-Against her will. Secondly.-Without her consent. Thirdly.-With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.-With or without her consent, when she is under eighteen years of age. Seventhly.-When she is unable to communicate consent. Explanation I.-For the purposes of this section, "vagina" shall also include labia majora. Explanation 2.-Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception I.-A medical procedure or intervention shall not constitute rape. Exception 2.-Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.] As per Section 375 I.P.C. as it stood prior to Criminal Law (Amendment) Act, 2013 and as it exists thereafter, consent of a woman is the prime consideration in the cases involving allegations of rape. Now the question, which comes for consideration, is whether the petitioner has obtained the consent of the respondent No. 2 with the sole intention to seduce her to indulge in sexual act by making false promise to marry her without intention to do so since beginning or whether he has obtained her consent fraudulently. The Hon'ble Supreme Court has considered this aspect of the matter extensively in various judgments. In Uday v. State of Karnataka (supra), the Hon'ble Supreme Court while deciding a case having almost similar facts as of instant case has held as under: "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 strait jacket 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 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." Later on, the Hon'ble Supreme Court in case of Pradeep Kumar Verma v. State of Bihar and Anr. (supra) while taking into consideration the decision passed by it in Uday v. State of Karnataka (supra) has held as under: "9. The crucial expression in Section 375 which defines rape as against her will. It seems to connote that the offending act was despite resistance and opposition of the woman. IPC does not define consent in positive terms. But what cannot be regarded as consent is explained by Section 90 which reads as follows: "consent given firstly under fear of injury and secondly under a misconception of fact is not consent at all." That is what is explained in first part of Section 90. There are two grounds specified in Section 90 which are analogous to coercion and mistake of fact which are the familiar grounds that can vitiate a transaction under the jurisprudence of our country as well as other countries. The factors set out in first part of Section 90 are from the point of view of the victim and second part of Section 90 enacts the corresponding provision from the point of view of the accused. It envisages that the accused 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 has given it under fear 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. As observed by this Court in Deelip Singh @ Dilip Kumar v. State of Bihar (2005 (1) SCC 88) , Section 90 cannot be considered as an exhaustive definition of consent for the purposes of IPC. The normal connotation and concept of consent is not intended to be excluded. 10. In most of the decisions in which the meaning of the expression consent under the IPC was discussed, reference was made to the passages occurring in Strouds Judicial Dictionary, Jowitts Dictionary on English Law, Words and Phrases, Permanent Edn. and other legal dictionaries. Stroud defines consent "as an act of reason, accompanied with deliberation, the mind weighing, as in a balance, the good and evil on each side" Jowitt, while employing the same language added the following: "Consent supposes three things a physical power, a mental power and a free and serious use of them. Hence it is that if consent be obtained by intimidation, force, meditated imposition, circumvention, surprise, or undue influence, it is to be treated as a delusion, and not as a deliberate and free act of the mind." 11. In Words and Phrases, Permanent Edn., Vol. 8-A, the following passages culled out from certain old decisions of the American courts are found: "...adult females understanding of nature and consequences of sexual act must be intelligent understanding to constitute consent." Consent within penal law, defining rape, requires exercise of intelligence based on knowledge of its significance and moral quality and there must be a choice between resistance and assent..." 12. It was observed in Uday v. State of Karnataka (2003 (4) SCC 46) as under: "12. The courts in India have by and large adopted these tests to discover whether the consent was voluntary or whether it was vitiated so as not to be legal consent." 13. There is a good analysis of the expression consent in the context of Section 375 I.P.C. in Rao Harnarain Singh Sheoji Singh v. State (AIR 1958 Punj 123). The learned Judge had evidently drawn inspiration from the above passages in the law dictionaries. The observation of the learned Judge is as follows: "there is a difference between consent and submission and every consent involves a submission but the converse does not follow and a mere act of submission does not involve consent". 14. The said proposition is virtually a repetition of what was said by Coleridge, J. in R. v. Day (173 E.R. 1026) in 1841 as quoted in Words and Phrases (Permanent Edn.) at p. 205. The following remarks in Harnarains case (supra) are also pertinent: "Consent is an act of reason accompanied by deliberation, a mere act of helpless resignation in the face of inevitable compulsion, non-resistance and passive giving in cannot be deemed to be consent." 15. The passages occurring in the above decision were either verbatim quoted with approval or in condensed form in the subsequent decisions: vide Anthony, In Re (AIR 1960 Madras 308) , Gopi Shanker v. State of Rajasthan (AIR 1967 Rajasthan 159) , Bhimrao v. State of Maharashtra (1975 Mah.LJ 660) and Vijayan Pillai v. State of Kerala (1989 (2) KLJ 234). All these decisions have been considered in Uday's case (supra). The enunciation of law on the meaning and content of the expression consent in the context of penal law as elucidated by Tekchand, J. in Harnarains case (supra) (which in turn was based on the above extracts from law dictionaries) has found its echo in the three-Judge Bench decision of this Court in State of H.P. v. Mango Ram (2000 (7) SCC 224). It was observed as follows: "Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." 16. On the facts, it was held that there was resistance by the prosecutrix and there was no voluntary participation in the sexual act. That case would, therefore, fall more appropriately within clause first of Section 375. 17. It would be appropriate to deal with the specific phraseology of Section 90 I.P.C. We have an illuminating decision of the Madras High Court rendered in 1913 in N. Jaladu, Re (ILR (1913) 36 Madras 453) in which a Division Bench of that Court considered the scope and amplitude of the expression misconception of fact occurring in Section 90 in the context of the offence of kidnapping under Section 361 I.P.C. The 2nd accused in that case obtained the consent of the girls guardian by falsely representing that the object of taking her was for participating in a festival. However, after the festival was over, the 2nd accused took her to a temple in another village and married her to the 1st accused against her will. The question arose whether the guardian gave consent under a misconception of fact. While holding that there was no consent, Sundara Ayyar, J. speaking for the Bench observed thus: "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) 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. In considering a similar statute, it was held in England in R. V. Hopkins (1842) Car and M 254 that a consent obtained by fraud would not be sufficient to justify the taking of a minor. See also Halsburys Laws of England, Vol. 9, p. 623. In Stephens Digest of the Criminal Law of England (6th Edn., p. 217) the learned author says with reference to the law relating to abduction of girls under sixteen 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 I.P.C. is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence." 18. This decision is an authority for the proposition that a misrepresentation as regards the intention of the person seeking consent i.e. the accused, could give rise to the misconception of fact. This view of the Madras High Court was accepted by a Division Bench of the Bombay High Court in Parshottam Mahadev v. State (AIR 1963 Bombay 74). Applying that principle to a case arising under Section 375, consent given pursuant to a false representation that the accused intends to marry, could be regarded as consent given under misconception of fact. 19. On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375 I.P.C., was dealt with by a Division Bench of the Calcutta High Court in Jayanti Rani Panda v. State of WB (1984 Cr.L.J. 1535). The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday's case (supra) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at para 7: "Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one thing that strikes us is ... why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged." The discussion that follows the above passage is important and is extracted hereunder: "The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by misconception of fact. Section 90 I.P.C. cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her." The learned Judges referred to the decision of the Chancery Court in Edgington v. Fitzmaurice (1885 (29) Ch.D. 459) and observed : "This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect: There must be a misstatement of an existing fact. Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Section 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact." After referring to the case-law on the subject, it was observed in Uday's case (supra): "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 strait-jacket 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 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. The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to misconception of fact within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause second. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Rani Panda's case (supra) which was approvingly referred to in Uday's case (supra). The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end - unless the court can be assured that from the very inception the accused never really intended to marry her. (emphasis supplied). In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that a false promise is not a fact within the meaning of the Code, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday's case as a whole, we do not understand the Court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out." Recently, the Hon'ble Supreme Court in Deepak Gulati v. State of Haryana (supra), while considering the question whether the action of developing physical relation while making promise to marry and later on not fulfilling the said promise would amount to rape or not, has held as under: "13. Admittedly, the prosecutrix has never raised any grievance before 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. 14. The undisputed facts of the case are as under: I. The prosecutrix was 19 years of age at the time of the said incident. II. She had inclination towards the appellant, and had willingly gone with him to Kurukshetra to get married. III. The appellant had been giving her assurance of the fact that he would get married to her. IV. 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. V. 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. 15. Section 114-A of the Indian Evidence Act, 1872 (hereinafter referred to as the 'Act 1872') 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 Act 1872 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, I.P.C. have to be taken into consideration, along with the provisions of Section 90 of the Act 1872. Section 90 of the Act, 1872 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, I.P.C. are concerned, and thus, such a physical relationship would tantamount to committing rape. 16. This Court considered the issue involved herein at length in the case of Uday v. State of Karnataka, AIR 2003 SC 1639 ; Deelip Singh alias Dilip Kumar v. State of Bihar, AIR 2005 SC 203 ; Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC 615 ; and Pradeep Kumar Verma v. State of Bihar and Anr., AIR 2007 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. 17.............. 18. 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. 19. In Deelip Singh (supra), it has been observed as under: "20. 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." 20. This Court, while deciding Pradeep Kumar Verma (Supra), placed reliance upon the judgment of the Madras High Court delivered in N. Jaladu, Re ILR (1913) 36 Mad 453 , wherein it has been observed: "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, I.P.C. is that such consent cannot, under the criminal law, be availed of to justify what would otherwise be an offence." 21. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at 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, I.P.C. 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." From the above mentioned authoritative pronouncements of the Hon'ble Supreme Court, the position of law emerges 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 would not amount to rape. In the impugned FIR, the respondent No. 2 has not alleged that the petitioner has no intention to marry her since beginning. I am convinced that from bare reading of initial written complaint and the contents of the impugned FIR, no offences under Sections 376 and 313 I.P.C. are made out. However, since the police has carried out thorough investigation and the learned Public Prosecutor as well as the counsel for the respondent No. 2 have argued that from the investigation carried out by the police, the offences punishable under Sections 376(2)(n), 313 and 420 I.P.C. are made out against the petitioner, I have decided to go through the case diary, which is made available by the learned Public Prosecutor, to ascertain whether any case is made out against the petitioner for the aforesaid offences on the basis of evidence and material collected by the police. During the course of investigation, the police has got recorded the statement of respondent No.2 under Section 164 Cr.P.C. on 09.10.2014. The extract of the said statement is as under: ...[VERNACULAR TEXT OMITTED]... "From the above statement also, it is clear that respondent No. 2 has nowhere alleged that the petitioner has no intention to marry her since beginning. On the other hand, it is clearly stated that the petitioner had proposed her and parents of both of them had agreed to the marriage of them and the same was fixed in May, 2014, however, later on, the petitioner and his parents refused for it. In her statement recorded under Section 164 Cr.P.C., the respondent No. 2 has even stated that she had stayed at the house of the petitioner for seven days for Christmas's preparation. During the course of investigation, the police has recorded the statements of brother, father, mother and other relatives of respondent No. 2 and all of them have stated that the mother and father of the petitioner had visited Jaipur in October, 2012 to fix the marriage of the petitioner and respondent No. 2 and the date of the marriage was fixed as 13.05.2014. The police has also interrogated the petitioner, his mother and father and all of them have stated that they had visited the house of respondent No. 2 at Jaipur to fix her marriage with the petitioner and the date of marriage was fixed as 13.05.2014. In the interrogation note, the petitioner, his mother and father have specifically stated that on account of some dispute with the respondent No. 2, proposal of marriage could not be materialized and they have informed the parents of the respondent No. 2, who also agreed to it and in June, 2014, mother of respondent No. 2 had asked them that they should marry their son to somewhere else, so that they also marry their daughter in Indore, wherefrom a proposal came. From all the above material available on record, it is clear that there is no iota of evidence available on record to suggest that the petitioner had no intention to marry respondent No. 2 since beginning and made a false promise of marrying her only with the intention to satisfy his lust. If the petitioner had no intention to marry with the respondent No. 2 since beginning, there was no occasion for him to bring her to his house for Christmas's preparation and to ask his parents to visit residents of parents of respondent No. 2 at Jaipur to fix his marriage with respondent No. 2. As stated earlier, respondent No. 2, her brother, parents and other relatives have stated in their statements before the police that the petitioner and his parents did visit their house to fix the marriage of the petitioner and the respondent No. 2 and date for their marriage was also fixed. Admittedly, the respondent No. 2 had never raised any grievance before any person at any stage and for the first time filed the complaint against the petitioner in September, 2014 i.e. after 17 months when the petitioner had refused the marry her in April, 2013. It is also to be noticed that the respondent No.2 has not informed her parents and brother about her pregnancy, which was terminated in the month of October, 2012. In their statements recorded under Section 161 Cr.P.C., the parents and brother of the respondent No. 2 have not mentioned that respondent no. 2 has ever informed them about her pregnancy in October, 2012. In the light of the above facts and circumstances of the present case, it cannot be said that the petitioner had no intention to marry the respondent No. 2 from beginning or the petitioner had any intention to deceive her from very beginning. The respondent No. 2 was 26 years of age at the time of incident. She was in love with the petitioner and both of them promised to marry each other. Even the respondent No. 2 has informed her brother and parents that she is in love with the petitioner and wants to marry him. Looking from all these angles, it cannot be said that the petitioner had no intention to marry the respondent No. 2 since beginning and developed physical relation with her while making a false promise of marriage only with intention to satisfy his lust. It appears that the petitioner and the respondent No. 2 were in deep love, and their love translated into physical relation. Their parents agreed to the marriage of them but later on, due to some disputes between the petitioner, his mother and respondent No. 2, the marriage could not be materialized and then the petitioner decided to marry with some another girl in September, 2014. When the respondent No. 2 came to know about the same, she filed the criminal complaint against the petitioner out of vengeance. Looking to overall facts and circumstances as noted above, I have no hesitation in holding that no offence under Section 376 I.P.C. is made out against the petitioner. So far as offence punishable under Section 420 I.P.C. is concerned, when this Court has already come to the conclusion that the petitioner did not make any false promise to marry the respondent No. 2, no case of cheating is made out against the petitioner. So far as offence punishable under Section 313 I.P.C. is concerned, it is important to note that the respondent No. 2 in the impugned FIR has alleged that in the year 2012, when she became pregnant, the petitioner got her child aborted by giving her contraceptive pills. It is noticed that in her statement recorded under Section 164 Cr.P.C. the respondent No. 2 has stated that in October, 2012, she got aborted her child through Dr. Rekha Jakhar at Jodhpur. The police, during the course of investigation, has recorded the statement of Dr. Rekha Jakhar and also collected the prescription slip prepared by her on 01.10.2012. In her statement recorded under Section 161 Cr.P.C., Dr. Rekha Jakhar has stated that on 01.10.2012 one lady Mrs. Divya visited her residence for the purpose of checking. She checked Mrs. Divya and found her pregnancy test positive, then that woman asked Dr.Rekha Jakhar that she does not want this child. Despite making her understand by the Doctor, she insisted to get her child aborted while saying that her job and studies would be disturbed. Dr. Rekha Jakhar further stated that when the lady was not convinced, then she asked her to come with her husband and she again visited with her husband. Dr.Rekha Jakhar informed them about ill effects of abortion but both of them told that they want to abort this child. Then Doctor asked them to give this in writing, on which both of them gave in writing that they have been told about ill effects of abortion even though, they want to get the child aborted and they will only be held responsible for any mishappenings. The prescription slip dated 01.10.2012 with the endorsement of petitioner and respondent No.2 is the part of the case diary. From the statement of Dr. Rekha Jakhar, it is clear that it was the respondent No.2, who voluntarily caused miscarriage of her child and there is no iota of evidence that the petitioner had caused miscarriage of child of the respondent No.2 without her consent and as such no offence under Section 313 I.P.C. is made out against the petitioner. Looking to the above facts and circumstances of the case, this Court is convinced that even if the FIR and the evidence/material collected by the police is taken as it is, then too the same is not sufficient to hold the petitioner guilty of the offences punishable under Sections 376, 313 and 420 I.P.C. Hence, the continuance of the impugned FIR against the petitioner and other proceedings of the impugned FIR will result in abuse of process of the Court and the same is liable to be quashed. Resultantly, this criminal misc. petition under Section 482 Cr.P.C. is allowed. The impugned FIR No. 229 dated 01.10.2014 of Police Station, Shashtri Nagar, Jodhpur and ongoing investigations are quashed and set aside.";