2024 INSC 897 Page 1 of 21

R E P O R T A B L E

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(@ SPECIAL LEAVE PETITION (CRL.) NO. 4326 OF 2018)

MAHESH DAMU KHARE …APPELLANT

VERSUS

THE STATE OF MAHARASHTRA & ANR. …RESPONDENTS

J U D G M E N T

NONGMEIKAPAM KOTISWAR SINGH, J.

Leave granted.

2. The present appeal has been filed challenging the order dated

12.02.2018 passed by the Bombay High Court in Criminal Writ

Petition (CRWP) No. 5190 of 2017 by which the High Court

dismissed the petition filed under Section 482 of the Code of

Criminal Procedure, 1973 (in short “CrPC”) by the present appellant

seeking quashing of the FIR being CR No. 302 of 2017 dated

15.08.2017 filed by the complainant (Respondent no. 2 herein)

registered with Kharghar Police Station, Navi Mumbai for offences

punishable under Sections 376, 420, 504 and 506 of the Indian Penal

Code, 1860 (in short “IPC”) holding, inter alia, that the offence

under Section 376 of IPC is an offence against the society which

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would require further investigation into the matter and does not

warrant interference.

3. The brief facts leading to the filing of the said Writ Petition as culled

from the records may be stated as follows:

3.1 The appellant claims to be a social worker since 1985 and

is engaged in various socio-political activities, who provides

help and assistance to the needy whenever sought. It was

contended that in 2012 the appellant was approached by the

complainant (Respondent no. 2) seeking help in resolving the

issue of kidnapping of her elder daughter which he successfully

accomplished. Thereafter, the complainant started visiting the

office of the appellant and was regularly assisting in the socio-

political works of the appellant. The appellant also on her

request used to extend financial help for support and education

of the children of the complainant. The complainant, however,

continued to seek more financial assistance from the appellant

which he could not afford any longer and accordingly, helped

her to find employment.

3.2 It is the case of the appellant that the complainant

continued to seek more attention and financial help from the

appellant, because of which the appellant tried to ignore her, to

which she became aggressive and started issuing threats not

only to the appellant but also to his family members to extort

more money from the appellant which led to filing of several

complaints against the complainant (Respondent no. 2) by the

wife of the appellant. In all, five complaints were lodged with

Nerul Police Station by the appellant, his wife and his office

staff against the harassment tactics of the complainant for

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extorting money from the appellant. However, the complainant

continued her aggressive, abusive behaviour towards the

appellant and family members.

4. The appellant, to his shock, learnt later that a complaint was filed by

Respondent no. 2 as a counter blast which was registered as FIR No.

302 of 2017 dated 15.08.2017 under Sections 376, 420, 504 and 506

of the IPC stating, inter alia, as follows:-

(i) The complainant was married in 1994 by performing Christian

rituals out of which two daughters were born. Her husband died

in the year 2003. Thereafter, she came to reside at Sarsole in

Navi Mumbai and was looking for a job as she had no means of

livelihood. While looking for a job she was introduced to the

appellant who was also in need of a helper to look after his ailing

wife.

(ii) Accordingly, she met the appellant in 2008. The appellant told

the complainant that his wife had skin disease, thyroid problem

and paralytic stroke and the complainant has to look after his

wife at his own residence at Kharghar Sector 12, behind HDFC

ATM.

(iii) Accordingly, on the next day in the morning she went to the

house of the appellant along with her daughter. It was alleged

that the appellant was with his second wife Kalpana at home

and the wife asked her daughter to sit with her and sent the

complainant to the bedroom to massage the feet of the appellant

and while massaging the appellant citing reasons of illness of

both his wives, told her that he would marry her and thereafter,

had sexual intercourse with her forcibly without her consent.

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Thereafter, the appellant continued to exploit her sexually many

times again and again by giving false promises of marriage.

(iv) According to the complainant, she worked in the house of the

appellant for two months and thereafter, left the job since she

got a private job at Belapur and as the wife of the appellant

suspected a relationship between the appellant and the

complainant. It was alleged that since the appellant did not want

to lose her, the appellant arranged a rented room for the

complainant at Sector 2, LIG Colony, Nerul and the appellant

used to come every day to her house. After staying for about a

year, the appellant arranged another rented room for the

complainant at Shrivane, Nerul Sector 1, Navi Mumbai in

December 2010, where the complainant was residing with her

daughters. It was alleged that the appellant used to come to the

complainant's house every day and had sexual intercourse with

the complainant forcibly and without her consent by giving

false promise of marriage.

(v) It was also alleged that whenever the complainant asked him to

marry her, he avoided the same on one pretext or other.

Thereafter, the appellant avoided visiting her since March 2017

and he used to abuse and beat her when she asked for money for

her daily needs. According to the complainant, he ended the

relationship with her by informing her to do whatever she

wanted and to forget the promise of marriage. Thereafter, she

made several calls to the appellant as to why he was not coming,

but the appellant did not receive her calls.

(vi) It was also alleged that on 05.07.2017, the first wife of the

appellant named Kavita abused and bullied the complainant by

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making calls over her mobile phone and told her to earn her

livelihood by making her daughter do business as her elder

daughter did who had love marriage and ran away.

(vii) Accordingly, the complainant (Respondent no. 2) filed the said

complaint alleging that the appellant had cheated on her by

forcibly engaging in sexual intercourse without her consent in

his house at Kharghar Sector-12 and also in the rented rooms at

Nerul Sector-2 and at Shirvane, Nerul from year 2008 to 2017

by giving false promises of marriage, depositing fixed amount

in her bank account and also promising to purchase a house for

her at Navi Mumbai.

5. Consequently, an FIR case was registered against the appellant who

then moved the Session Court seeking anticipatory bail in CR No.

302 of 2017 in which he was granted an interim protection vide order

dated 16.08.2017 and was ultimately granted anticipatory bail vide

order dated 12.09.2017 by observing, inter alia, that the very fact

that the complainant had indulged in sexual relations for a long

period of 10 years goes to show that the sexual relation was not

forcible but was consensual.

6. According to the appellant, the complainant being aggrieved by the

grant of anticipatory bail to the appellant, lodged another FIR by

making false allegations being FIR No. 319/2017 dated 05.10.2017

with Nerul Police Station against the appellant under Sections 354,

506 of the IPC and Section 8 of Protection of Children from Sexual

Offences Act, 2012 alleging that the appellant had molested her

daughter at her home on 30.12.2016 and on 25.01.2017 at 8 pm.

Page 6 of 21

7. As against the aforesaid second FIR, the appellant again approached

the Sessions Court, Thane to secure anticipatory bail in CR No. 319 of

2017 which was granted vide order dated 23.10.2017, in which the

Sessions Court Judge observed that the complainant did not raise any

complaint against the appellant immediately after the first or second

incident and after 10 to 11 years she lodged the FIR and the second

FIR was in respect of outraging the modesty of the complainant’s

daughter which occurred in December 2016 or January 2017 which

could have been mentioned in the first FIR dated 15.08.2017.

8. After the appellant was granted anticipatory bail in both the FIRs by

the competent courts primarily on the ground that these allegations

have been made belatedly, thus throwing doubt on the credibility of

these allegations as it appears to be a case of consensual relationship,

the appellant approached the Bombay High Court seeking quashing of

the FIR being CR No. 302 of 2017 registered with Kharghar Police

Station by filing Writ Petition No. 5190 of 2017 which, however, was

dismissed by the High Court against which the present appeal has been

preferred.

9. While dismissing the petition seeking quashing of the FIR, the High

Court noted that:

“The petitioner herein denies having any relationship with

the Respondent No.2 and it is the case of the petitioner that

he has been roped in a false case by the Respondent No.2. In

our view, those would be the aspects in respect of the

investigation that would be carried out and the offence being

one under Section 376 of the Indian Penal Code which is

considered to be an offence against the society, we do not

deem it appropriate to interfere in our writ jurisdiction. The

reliance placed on the order passed by a Division Bench of

this Court sitting at Nagpur does not further the case of the

petitioner as the facts involved in the said case stand apart

from the facts involved in the present case, as in the said case

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it appears that the accused had approached the Court on the

ground that the relationship between the parties was

consensual, such are not the facts in the instant case. The

above Writ Petition is accordingly dismissed.”

10. Ms. Mrunal Dattatraya Buva, learned counsel for the appellant

submits that the High Court made an error in declining to quash the

FIR by ignoring the aspect of consensual sex between the parties

which is clearly evident from the factual matrix of the case which

would take out the sting of criminal culpability attached to the offence

of rape. It was submitted that if the above allegations made in the FIR

were examined in the proper context, it would clearly indicate that the

sexual relationship between the appellant and the complainant was on

the basis of consent, and would not amount to forcible sexual act

perpetrated by the appellant as alleged.

According to the appellant, the complainant herself admits that

she was in a relationship with the appellant since they met for the first

time in 2008 which continued till 2017. Though it was alleged that the

appellant had sexual relationship with her against her consent, it would

be inconceivable that the appellant would force himself upon her for

so many years without there being any protest or complaint from the

side of complainant (Respondent no. 2). This behaviour of the

complainant clearly shows that it was a consensual relationship and

the allegation of rape was concocted only after the appellant refused

to provide any further financial assistance to her or succumb to her

demand of marrying her.

11. Though notice was served on complainant (Respondent no. 2), no one

appeared on her behalf and only the State-respondent appeared and

contested without filing any counter affidavit.

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12. It was contended on behalf of the State-respondent that whether the

said relationship was consensual or not is a matter of fact which will

come out during the course of investigation and trial and it is not a fit

case where this Court should intervene with the criminal process

initiated against the appellant and consequently, the decision of the

Bombay High Court in refusing to quash the FIR does not warrant

interference.

13. In order to appreciate the rival contentions of the parties, it would be

necessary to revisit the relevant laws.

As far as the scope of Section 482 of CrPC which has been

invoked by the appellant for quashing the FIR is concerned, it is a

saving clause which deals with the inherent powers of the High Court

to pass any order as may be necessary to give effect to any order under

the CrPC, or to prevent abuse of the process of any court or otherwise

to secure the ends of justice.

14. Law relating to quashing of FIRs has already been well-settled as

reiterated by this Court in the State of Haryana and Ors. vs. Bhajan

Lal and Ors.

1

in which this Court held as below:

“102. (1) Where the allegations made in the first information

report or 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 a case against the accused.

(2) Where the allegations in the first information report and

other materials, if any, accompanying the FIR do not disclose

a cognizable offence, justifying an investigation by police

officers under Section 156(1) of the Code except under an

order of a Magistrate within the purview of Section 155(2).

xxxxxxxxxx

(7) Where a criminal proceeding is manifestly attended with

mala fide and/or where the proceeding is maliciously

1

1992 Supp (1) SCC 335

Page 9 of 21

Instituted with an ulterior motive for wreaking vengeance on

the accused and with a view to spite him due to private and

personal grudge.

15. It is to be noted that while considering these aspects, the Court does

not have to go in detail by way of minute examination about the

correctness or otherwise of the facts alleged and the Court has to

examine the same by taking a prima facie view of the matter based on

the materials on record and if on consideration of the factual matrix of

the allegations, no prima facie case is made out of commission of any

offence of which cognizance can be taken, the High Court would be

within its power to intervene and quash any such complaint or FIR in

exercise of the inherent power under Section 482 CrPC.

In this regard, one may also refer to the decision of this Court

in R.P. Kapur v. State of Punjab

2

, wherein this Court while dealing

with Section 561-A, the counterpart provision of Section 482 in the

erstwhile Code, observed that the High Courts should be cautious in

interfering with a criminal proceeding at the stage of investigation.

However, there are certain cases where the court, to prevent the abuse

of the process of any court or otherwise to secure the ends of justice

can quash the criminal proceedings. The said cases of exceptions have

been reiterated in the case of Neeharika Infrastructure Private

Limited v. State of Maharashtra & Ors.

3

, by stating as below:

“(i) Where it manifestly appears that there is a legal bar

against the institution or continuance of the criminal

proceeding in respect of the offence alleged. Absence of the

requisite sanction may, for instance, furnish cases under this

category.

(ii) Where the allegations in the first information report or

the complaint, even if they are taken at their face value and

accepted in their entirety, do not constitute the offence alleged;

2

AIR 1960 SC 866

3

(2021) 19 SCC 401

Page 10 of 21

in such cases no question of appreciating evidence arises; it is

a matter merely of looking at the complaint or the first

information report to decide whether the offence alleged is

disclosed or not.

(iii) Where the allegations made against the accused

person do constitute an offence alleged but there is either no

legal evidence adduced in support of the case or the evidence

adduced clearly or manifestly fails to prove the charge. In

dealing with this class of cases it is important to bear in mind

the distinction between a case where there is no legal evidence

or where there is evidence which is manifestly and clearly

inconsistent with the accusation made and cases where there

is legal evidence which on its appreciation may or may not

support the accusation in question. In exercising its

jurisdiction under Section 561-A the High Court would not

embark upon an enquiry as to whether the evidence in question

is reliable or not. That is the function of the trial Magistrate,

and ordinarily it would not be open to any party to invoke the

High Court's inherent jurisdiction and contend that on a

reasonable appreciation of the evidence the accusation made

against the accused would not be sustained.”

(emphasis supplied)

16. Having underscored the power of the High Court to exercise inherent

power under Section 482 CrPC for quashing of FIR, we need to

understand the scope of the offence under Section 375 IPC which deals

with rape, punishable under Section 376 IPC. While the said Section

375 deals with various aspects of rape, in the present case, the

allegation against the appellant is that the appellant had forced himself

on Respondent No. 2 without her consent and engaged in sexual

intercourse. What amounts to rape without a consent has been

mentioned under Section 375 as follows: -

“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

Page 11 of 21

(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.”

17. In this regard, one may also refer to Section 90 of the IPC which deals

with consent given either under fear or misconception. Section 90

provides that a consent is not a consent under the IPC if such a consent

is given by a person under fear of injury, or under a misconception of

fact, and if the person doing the act knows, or has reason to believe, that

the consent was given in consequences of such fear or misconception.

Section 90 IPC reads as follows:

“90. Consent known to be given under fear or

misconception.—

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A consent is not such a consent as it intended by any

section of this Code, if the consent is given by a person

under fear of injury, or under a misconception of fact, and

if the person doing the act knows, or has reason to believe,

that the consent was given in consequence of such fear or

misconception; or...”

18. It is the case of the complainant that the appellant had engaged in sexual

intercourse without her consent. She mentioned that there was a

promise made by the appellant that he would be marrying her. Thus, the

contention of the complainant was that she consented to have physical

relationship with the appellant on the misconception of fact that he

would marry her because of the promise made by the appellant that he

would ultimately marry her.

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 Pradesh and Anr.

4

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

4

2022 SCC OnLine SC 1032

Page 13 of 21

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 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. 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

Page 14 of 21

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 had given her consent for

sexual relationship 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.

5

2023 SCC OnLine SC 89

Page 15 of 21

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.

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

6

(2013) 7 SCC 675

Page 16 of 21

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 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

Page 17 of 21

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 in physical relationship since then till 2017

without 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.

Page 18 of 21

(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 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

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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.

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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.

33. We, however, make it clear that our decision in this case and

observations made are to be understood in the factual matrix before this

Court. Every case must be decided on its own facts and circumstances,

for we are dealing with human relationships and psychology which are

dynamic and permeated with an array of unpredictable human

emotions and sensitivities and hence, every decision relating to human

relationships must be based on the peculiar facts and circumstances

obtaining in the particular case.

34. In light of the aforesaid facts and circumstances and for the reasons

discussed above, we are of the opinion that in the present case no prima

facie case has been made out about commission of an offence of rape

punishable under Section 376 IPC. Further, on perusal of the FIR it is

also noted that no allegations of cheating have been made against the

appellant to fall within the scope of Section 420 IPC nor of any of the

offences under Sections 504 and 506 of the IPC.

35. In our opinion, allowing the criminal proceeding against the appellant

in the facts and circumstances to continue, where no criminal liability

can be attached, would amount to abuse of the process of court.

Therefore, under the circumstances, we are satisfied that the appellant

is entitled to the relief claimed for quashing the complaint/ FIR.

36. Consequently, the appeal is allowed and the impugned judgement and

order dated 12.02.2018 passed by the Bombay High Court in Criminal

Writ Petition (CRWP) No. 5190 of 2017 is set aside. Resultantly, the

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FIR being CR No. 302 of 2017 dated 15.08.2017 registered against the

appellant with the Kharghar Police Station, Navi Mumbai under

Sections 376, 420, 504 and 506 of the Indian Penal Code is quashed.

37. We also make it clear that quashing the FIR against the appellant will

not be a bar to respondent no. 2 to seek any other remedy available

under the law.

……………………………J.

(B.V. NAGARATHNA)

……………….…………………………J.

(NONGMEIKAPAM KOTISWAR SINGH)

NEW DELHI;

NOVEMBER 26, 2024.