Court: Jammu & Kashmir High Court
Bench: JUSTICE Janak Raj Kotwal
Tanveer Iqbal vs State & Ors. on 6 March, 2018
Law Point:
JUDGEMENT
approved for reporting in Press/Media : Yes/No ii. Whether to be reported in Digest/Journal : Yes
1. Petitioner invokes inherent jurisdiction of this Court under Section 561-A Cr. P. C. to seek quashing of FIR No. 01 of 2018 of Police Station, Manjakote (Distt. Rajouri) under Section 376 RPC registered against him on a complaint filed by respondent No.3 (hereinafter to be referred as the prosecutrix).
2. The prosecutrix filed complaint in the court of the Chief Judicial Magistrate, Rajouri. She alleged that the petitioner, who hails from her village, was well acquainted with her. He developed relation with her 4/5 years back in the year 2013 and said that he will marry her. He remained in constant telephonic touch with her and had been committing sexual intercourse with her under the pretext that he will marry her. He used to make her reject all other offers of marriage received by her. The petitioner, however, has now refused to marry her and has thereby spoiled her life. She thus alleges that the petitioner has committed heinous offence on her continuously for 4/5 years under the pretext of marrying her. Learned Chief Judicial Magistrate, as is evident from the impugned FIR, forwarded the complaint to SHO, Police Station, Manjakote for “action under law” and pursuant thereto the impugned FIR was registered.
3. In order to seek the quashing of the impugned FIR, the petitioner contends that he is serving in the Central Reserve Police Force (CRPF) since June, 2012 and has generally remained posted at different stations. He used to visit his house during holidays. The prosecutrix, aged 27 years, who is his next door neighbour, is infatuated with him and wants to marry with him by all possible means. She had been sending proposal for marriage to him ever since he was absorbed in the CRPF but the proposal has been rejected by him. Consequent upon the refusal of marriage by him, the prosecutrix in order to wreck vengeance upon him filed false and fabricated complaint and has got him implicated in a false case under Section 376 RPC.
4. Learned counsel for the petitioner, Mr. Rohit Verma, argued vehemently that the complaint filed by the prosecutrix, which is similarly reflected in the impugned FIR, on its plain reading fails to make out a prima facie case of commission of offence of rape on her by the petitioner. In this context, it is contended in para 8 of the petition that even if allegations are believed to be true, the beaten law is that “if parties develop physical intimacy during their courtship and the boy later on resiles from promise to marry, the same cannot be brought within the scope of Section 376 RPC and the same would, rather be an act of promiscuity on the part of prosecutrix.” Learned counsel argued further that registration of the FIR by the police on a false, concocted and motivated complaint under the garb of direction of the learned Chief Judicial Magistrate to take action under law is sheer abuse of process of court and the case is fit for invoking inherent jurisdiction of this court to prevent the abuse of the process of the court and in the interest of justice. Learned counsel cited the Supreme Court Judgment in Uday v. State of Karnataka, (2003) 4 SCC 46.
5. State has resisted this petition by filing statement of facts and learned Government Advocate, appearing on behalf of the State, produced a copy of the statement of the prosecutrix recorded under Section 164-A Cr.P.C. It is contended that prosecutrix in her statement has stated that the petitioner committed rape on her on 20.12.2017 also and that the investigation of the case has established commission of offence under Section 376 RPC by the petitioner.
6. In Uday’s case (supra), the Supreme Court 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.”
7. In another case, Deepal Gulhati v Stae, (2013) 7 SCC 675 Supreme Court has held:
“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.”
8. Clearly, the allegation in the complaint filed by the prosecutrix is not that of forcible commission of sexual intercourse with the presecutrix by the petitioner. Going by the statement in the complaint, there was rather a long duration consensual physical relation between the two. The allegation, however, is that the petitioner committed repeated sexual intercourse with the prosecutrix for 4 to 5 years under the pretext or promise that he will marry her but has now backed out. It has not been alleged by the presecutrix even that the false promise of marriage was made by the petitioner only with the purpose of establishing physical relation with her.
9. It is not denied that the prosecutrix is a grown up person, aged 27 as on today. It is evident from her own say that she remained in courtship with the petitioner for 4 to 5 years and during this period there were repeated acts of sexual intercourse among them inasmuch as one such act took place on 20. 12. 2017, that is, only few days prior to the filing of the complaint by her. The complaint filed by her does not indicate that false promise to marry her was made by the petitioner only with the purpose of committing sexual intercourse with her. The complaint rather indicates that since they had agreed to marry each other so they had been indulging in physical relation also. It is, thus, simply a case of courtship and consensual physical relation between two grown up persons, which did not end up in tying the nuptial knot and not a case of commission of rape. A false promise of marriage made only with the purpose of obtaining consent of a woman for sexual favour may, having regard to other facts and circumstances of the case, amount to misrepresentation and consent so obtained may not exonerate a person from liability for commission of rape but the same principle does not apply where a grown up women consents for repeated sexual intercourse with a person with whom she is in love.
10. Filing of the complaint and registration of FIR against the petitioner, therefore, is sheer abuse of process of the court and therefore, a fit case for showing indulgence by this Court under Section 561-ACr.P.C. is made out.
11. Viewed this, this petition has merit and is allowed. In the result, the impugned FIR as also the entire proceedings, whatsoever, are quashed.
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