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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURSIDICTON

CRIMINAL APPEAL NO. 1443 OF 2018 (Arising out of S.L.P. (Criminal) No.6532 of 2018)

DR. DHRUVARAM MURLIDHAR SONAR    …APPELLANT  

VERSUS

THE STATE OF MAHARASHTRA & ORS.          …RESPONDENTS

J U D G M E N T

S.ABDUL NAZEER, J.

1. Leave granted.

2. This  appeal  is  directed against  the  judgment  and order  dated

02.07.2018  in  Criminal  Application  No.3590  of  2012,  whereby  the

High Court of Judicature at Bombay (Bench at Aurangabad) dismissed

the application filed by the petitioner under Section 482 of the Code of

Criminal  Procedure,  1973 (for  short 'Cr.P.C')  for  quashing the First

Information Report  No.59 of  2000 registered with Mhasawad Police

Station,  District  Nandurbar,  for  the  offences  punishable  under

Sections 376 (2)(b), 420 read with Section 34 of the Indian Penal Code,

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1860  (for  short  'IPC')  and  under  Section  3(1)(x)  of  the  Scheduled

Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

(for short 'the SC/ST Act') and the chargesheet filed in the court of

judicial magistrate, F.C. Shahada, Nandurbar District.

3. The appellant is the accused No.1 in the aforesaid FIR, registered

at the instance of the complainant/respondent No.4.  At the relevant

point of time, the appellant was serving as a medical officer, Primary

Health  Centre  at  Toranmal,  Dhadgaon  Taluq,  Nandurbar  District,

whereas the complainant was working as an Assistant Nurse at the

same establishment.  The allegations made by the complainant in the

FIR in brief are that her husband died on 05.11.1997, leaving behind

her and her two children.  During this time, the appellant informed

her that there have been differences between him and his wife, and

therefore, he is planning to divorce his wife.  Further, the appellant

informed  the  complainant  that  since  they  belong  to  different

communities, a month is needed for the registration of their marriage.

Therefore,  she  started  living  with  the  appellant  at  his  Government

quarters.  The FIR further states that she had fallen in love with the

appellant  and  that  she  needed  a  companion  as  she  is  a  widow.

Therefore, they started living together, as if they were husband and

wife.   They resided some time at her house and some time at the

house of the appellant.  The appellant acted as if he has married her

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and has maintained a physical relationship with her.  However, he has

failed to marry her as promised.  When things stood thus, his brother,

i.e accused No. 2, claims to have married her.  Thereafter, in the year

2000,  complainant  received  the  information  from  the  co-accused

about  the  marriage  of  the  appellant  with  some  other  woman.

Therefore, she filed the aforesaid complaint and FIR dated 06.12.2000

came to be registered against the appellant and the co-accused.

4. After the completion of the investigation, the investigating agency

filed  a  final  report  on 14.06.2001.  The  appellant  filed the  criminal

application under Section 482 before the High Court for quashing the

FIR  and  the  chargesheet.   As  noticed  above,  the  High  Court  has

dismissed the criminal petition by its order dated 02.07.2018.

5. Learned counsel for the appellant contends that in the instant

case  the  process  of  the  court  is  sought  to  be  abused  by  the

complainant  with  oblique  motive.   The  criminal  proceeding  is

manifestly intended with mala fides and the proceeding is maliciously

instituted  with  an  ulterior  motive.   It  is  submitted  that  the

complainant  was  involved  in  relationship  with  the  brother  of  the

appellant and the appellant was not in relationship with her at any

point of time.  As a matter of fact, marriage was solemnized between

the brother of the appellant and complainant. The complainant was

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constantly blackmailing the appellant for some reason or the other.  It

is submitted that even if the entire allegations made in the complaint

are  taken  at  their  face  value  and  accepted  in  its  entirety,  such

allegations do not constitute any offence.   

6. On the other hand, learned advocate appearing for respondent

Nos.1 to 3 has sought to justify the impugned order.

7. We  have  carefully  considered  the  submissions  of  the  learned

counsel made at the Bar and perused the materials placed on record.   

8. It is well settled that exercise of powers under Section 482 of the

Cr.P.C. is the exception and not the rule. Under this section, the High

Court has inherent powers to make such orders as may be necessary

to give effect to any order under the Code or to prevent the abuse of

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

expressions "abuse of process of law" or "to secure the ends of justice"

do not confer unlimited jurisdiction on the High Court and the alleged

abuse of process of law or the ends of justice could only be secured in

accordance with law, including procedural law and not otherwise.

9. This Court in State of Haryana and Ors. v. Bhajan Lal and Ors.

1992 Supp (1)  SCC 335, has elaborately  considered the scope and

ambit  of  Section 482 Cr.P.C.   Seven categories  of  cases have been

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enumerated  where  power  can  be  exercised  under  Section  482  of

Cr.P.C.  Para 102 thus reads:      

“102. In the backdrop of the interpretation of the various  relevant  provisions  of  the  Code  under Chapter XIV and of the principles of law enunci- ated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and re- produced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of  any court or  otherwise to secure the ends of justice, though it may not be possible to lay  down any precise,  clearly  defined and suffi- ciently  channelised  and  inflexible  guidelines  or rigid  formulae  and to  give  an exhaustive  list  of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first in- formation  report  or  the  complaint,  even  if they  are  taken at  their  face  value  and ac- cepted 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 informa- tion report and other materials,  if  any,  ac- companying the FIR do not disclose a cogniz- able  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) of  the Code. (3)  Where  the  uncontroverted  allegations made in the FIR or complaint and the evi- dence  collected  in  support  of  the  same  do not disclose the commission of  any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute

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only a non-cognizable offence, no investiga- tion is permitted by a police officer without an order of a Magistrate as contemplated un- der Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently im- probable on the basis of which no prudent person can ever reach a just conclusion that there  is  sufficient  ground  for  proceeding against the accused. (6)  Where there is an express legal bar en- grafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding  is  instituted)  to  the  institution and continuance of the proceedings and/or where  there  is  a  specific  provision  in  the Code or the concerned Act, providing effica- cious  redress  for  the  grievance  of  the  ag- grieved party. (7) Where a criminal proceeding is manifestly attended  with  mala  fide  and/or  where  the proceeding is maliciously instituted with an ulterior  motive  for  wreaking  vengeance  on the accused and with a view to spite him due to private and personal grudge.”

10. In Rajesh Bajaj v. State NCT of Delhi & Ors., (1999) 3 SCC 259,

this Court has held that it is not necessary that a complainant should

verbatim reproduce in the body of his complaint all the ingredients of

the offence he is alleging.  If the factual foundation for the offence has

been laid  in  the  complaint,  the  court  should  not  hasten to  quash

criminal  proceedings  during  the  investigation  stage  merely  on  the

premise that one or two ingredients have not been stated with details.

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11. In  State of Karnataka v.  M. Devendrappa and Anr., (2002) 3

SCC 89, it was held that while exercising powers under Section 482

Cr.P.C., the court does not function as a court of appeal or revision.

Inherent  jurisdiction  under  the  Section  though  wide  has  to  be

exercised sparingly, carefully and with caution and only when such

exercise is justified by the tests specifically laid down in the Section

itself.  It was further held as under:-

"It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice.  In exercise of the powers court would be justified to quash any proceeding if  it  finds that initiation/continuance of it amounts to abuse of the process of court or quashing  of  these  proceedings  would  otherwise serve  the  ends  of  justice.   When  no  offence  is disclosed  by  the  complaint,  the  court  may examine the question of fact.  When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto".  

12. Recently, in Vineet Kumar and Ors.  v.  State of Uttar Pradesh

and Anr. (2017) 13 SCC 369, this Court has observed as under:

"Inherent  power  given  to  the  High  Court  under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. Judicial process is a solemn proceeding which cannot be allowed to

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be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously insti- tuted with an ulterior motive, the High Court will not hesitate  in exercise  of  its  jurisdiction under Section 482 CrPC to quash the proceeding. The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."  

It is clear that for quashing the proceedings, meticulous analysis

of factum of taking cognizance of an offence by the Magistrate is not

called for.  Appreciation of evidence is also not permissible in exercise

of inherent powers.  If the allegations set out in the complaint do not

constitute the offence of which cognizance has been taken, it is open

to the High Court to quash the same in exercise of the inherent pow-

ers.

13. In the instant case, FIR was registered against the appellant and

the co-accused under Sections 376(2)(b), 420 read with Section 34 of

the IPC and under Section 3(1)(x) of the SC/ST Act.  Section 376(2)(b)

prescribes punishment for the offence of rape committed by a public

servant taking advantage of  his official position on a woman in his

custody as such public servant or in the custody of a public servant

subordinate to him.  The said provision during the relevant point of

time was as under:-

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"376. Punishment for rape.- (1)  ………….. 2.     Whoever,— (a)  ……………        (b)    being  a  public  servant,  takes  advantage  of his official position and commits rape on a woman in his custody as such public servant  or in the custody of a public servant subordinate to him; or (c)  to (g)  …………….

shall be punished with rigorous imprisonment  for a term which shall not be less than ten years but which may be for life and shall also be liable to fine."

14. Section 375 defines the offence of rape and enumerates six de-

scriptions of the offence.  The first clause operates where the women

is in possession of her senses and, therefore, capable of consenting

but the act is done against her will and the second where it is done

without her consent; the third, fourth and fifth when there is consent

but it is not such a consent as excuses the offender, because it is ob-

tained by putting her, or any person in whom she is interested, in fear

of death or of hurt.  The expression "against her 'will'" means that the

act must have been done in spite of the opposition of the woman.  An

inference as to consent can be drawn if only based on evidence or

probabilities of the case.  "Consent" is also stated to be an act of rea-

son coupled with deliberation.  It denotes an active will in mind of a

person to permit the doing of the act complained of.

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15. Section 90 of the IPC defines "consent" known to be given under

fear or misconception:-  

"Section 90:  Consent known to be given under fear or mis- conception.—A consent is not such a consent as it intended by any section of this Code, if the con- sent 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"   

Thus, Section 90 though does not define "consent", but describes

what is not "consent".  Consent may be express or implied, coerced or

misguided, obtained willingly or through deceit. If the consent is given

by the complainant under misconception of fact, it is vitiated. Con-

sent 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 also after having

fully exercised the choice between resistance and assent.  Whether

there was any consent or not is to be ascertained only on a careful

study of all relevant circumstances.   

16. In Uday v. State of Karnataka (2003) 4 SCC 46, this Court was

considering a case where the prosecutrix, aged about 19 years, had

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given consent to sexual intercourse with the accused with whom she

was deeply in love, on a promise that he would marry her on a later

date.  The prosecutrix continued to meet the accused and often had

sexual intercourse and became pregnant.  A complaint was lodged on

failure of the accused to marry her.  It was held that consent cannot

be said to be given under a misconception of fact.  It was held thus:-

"21. It therefore appears that the consensus of ju- dicial opinion is in favour of the view that the con- sent  given  by  the  prosecutrix  to  sexual  inter- course 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 mis- conception 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 straitjacket formula for determining whether consent given by the prosecutrix to sexual inter- course 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 sur- rounding  circumstances,  before  reaching  a  con- clusion, 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 bur- den is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.

23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying

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in a college. She was deeply in love with the appel- lant.  She  was,  however,  aware  of  the  fact  that since they belonged to different castes, marriage was not  possible.  In any event the  proposal  for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to under- stand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant,  and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the consequences of the act, particu- larly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that  she freely,  voluntarily and consciously consented to having sexual inter- course with the appellant,  and her consent was not in consequence of any misconception of fact."

17. In  Deelip Singh alias Dilip Kumar v.  State of Bihar, (2005) 1

SCC 88, the Court framed the following two questions relating to con-

sent:-

(1) "Is it a case of passive submission in the face of psycho-

logical pressure exerted or allurements made by the accused

or was it a conscious decision on the part of the prosecutrix

knowing fully the nature and consequences of the act she

was asked to indulge in?

(2) Whether the tacit consent given by the prosecutrix was

the result of a misconception created in her mind as to the

intention of the accused to marry her"?  

In this case, the girl lodged a complaint with the police stating

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that she and the accused were neighbours and they fell in love with

each other.  One day in February, 1988, the accused forcibly raped

her and later consoled her by saying that he would marry her.  She

succumbed to the entreaties of the accused to have sexual relations

with him, on account of the promise made by him to marry her, and

therefore continued to have sex on several occasions.  After she be-

came pregnant, she revealed the matter to her parents.  Even there-

after,  the  intimacy  continued to  the  knowledge  of  the  parents  and

other relations who were under the impression that the accused would

marry the girl, but the accused avoided marrying her and his father

took him out of the village to thwart the bid to marry.  The efforts

made  by  the  father  of  the  girl  to  establish  the  marital  tie  failed.

Therefore, she was constrained to file the complaint after waiting for

some time.  With this factual back-ground, the Court held that the girl

had taken a conscious decision, after active application of mind to the

events that had transpired.  It was further held that at best, it is a

case of breach of promise to marry rather than a case of false promise

to marry, for which the accused is prima facie accountable for dam-

ages under civil law.  It was held thus:-

"The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent in- tention  of  inducing  her  to  sexual  intercourse, made a false promise to marry. We have no doubt

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that  the  accused  did  hold  out  the  promise  to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she  said  so specifically.  But  we  find no  evi- dence which gives rise to an inference beyond rea- sonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evi- dence establish this fact. On the other hand, the statement of PW 12 that “later on”, the accused became ready to marry her but his father and oth- ers took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materi- alise  on account  of  the  pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false prom- ise to marry. On this aspect also, the observations of this Court in Uday case  at para 24 come to the aid of the appellant".

18. In  Deepak Gulati v.  State of Haryana, (2013) 7 SCC 675, the

Court has drawn a distinction between rape and consensual sex.  This

is a case of a prosecutrix aged 19 years at the time of the incident.

She had an inclination towards the accused.  The accused had been

giving her assurances of the fact that he would get married to her.

The prosecutrix, therefore, left her home voluntarily and of her own

free will to go with the accused to get married to him.  She called the

accused on a phone number given to her by him, to ask him why he

had not met her at the place that had been pre-decided by them.  She

also waited for him for a long time, and when he finally arrived, she

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went with him to a place called Karna Lake where they indulged in

sexual intercourse.  She did not raise any objection at that stage and

made no complaints to anyone.  Thereafter, she went to Kurukshetra

with the accused, where she lived with his relatives.  Here too, the

prosecutrix voluntarily became intimate with the accused.  She then,

for some reason, went to live in the hostel at Kurukshetra University

illegally, and once again came into contact with the accused at Birla

Mandir there.  Thereafter, she even proceeded with the accused to the

old bus-stand in Kurukshetra, to leave for Ambala so that the two of

them could get married at the court in Ambala.  At the bus station, the

accused was arrested by the police.  The Court held that the physical

relationship between the parties had clearly developed with the con-

sent 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 accused for several days and

had travelled with him from one place to another.  The Court further

held that it is not possible to apprehend the circumstances in which a

charge of deceit/rape can be leveled against the accused.  

19. Recently, this Court, in Shivashankar @ Shiva v. State of Kar-

nataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th

April, 2018, has observed that it is difficult to hold that sexual inter-

course in the course of a relationship which has continued for eight

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years is 'rape', especially in the face of the complainant's own allega-

tion that they lived together as man and wife.  It was held as under:-

"In  the  facts  and  circumstances  of  the  present case, it is difficult to sustain the charges leveled against  the  appellant  who  may  have  possibly, made  a  false  promise  of  marriage  to  the  com- plainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has contin- ued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived together as man and wife".                 

20. Thus, there is a clear distinction between rape and consensual

sex.  The court, in such cases, must very carefully examine whether

the complainant 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 later falls within the ambit of cheating or deception.

There is also a distinction between mere breach of a promise and not

fulfilling a false promise.  If the accused has not made the promise

with the sole intention to seduce the prosecutrix to indulge in sexual

acts, such an act would not amount to rape.  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 the

misconception created by 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. Such cases must be treated differently.   If the complainant had

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any mala fide intention and if he had clandestine motives, it is a clear

case of rape.  The acknowledged consensual physical relationship be-

tween the parties would not constitute an offence under Section 376 of

the IPC.

21. In the instant case, it is an admitted position that the appellant

was serving as a Medical Officer in the Primary Health Centre and the

complainant was working as an Assistant Nurse in the same health

centre and that the is a widow.  It was alleged by her that the appel-

lant informed her that he is a married man and that he has differences

with his wife.  Admittedly, they belong to different communities.  It is

also alleged that the accused/appellant needed a month's time to get

their  marriage registered.   The complainant further states that  she

had fallen in love with the appellant and that she needed a companion

as she was a widow.  She has specifically stated that "as I was also a

widow and I was also in need of a companion, I agreed to his proposal

and since then we were having love affair and accordingly we started

residing together.  We used to reside sometimes at my home whereas

some time at his home."  Thus, they were living together, sometimes at

her house and sometimes at the residence of the appellant. They were

in a relationship with each other for quite some time and enjoyed each

other's company.  It is also clear that they had been living as such for

quite some time together.  When she came to know that the appellant

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had married some other woman, she lodged the complaint.  It is not

her case that the complainant has forcibly raped her.  She had taken a

conscious decision after active application of mind to the things that

had happened.  It is not a case of a passive submission in the face of

any psychological pressure exerted and there was a tacit consent and

the tacit consent given by her was not the result of a misconception

created in her mind.  We are of the view that, even if the allegations

made in the complaint are taken at their face value and accepted in

their entirety, they do not make out a case against the appellant.  We

are also of the view that since complainant has failed to prima facie

show the commission of rape, the complaint registered under Section

376(2)(b) cannot be sustained.  

22. Further, the FIR nowhere spells out any wrong committed by the

appellant under Section 420 of the IPC or under Section 3(1)(x) of the

SC/ST Act. Therefore, the High Court was not justified in rejecting the

petition filed by the appellant under Section 482 of the Cr.P.C.   

23. In the result,  the appeal  succeeds and is  accordingly allowed.

The impugned order of the High Court dated 02.07.2018 in Criminal

Application No.3590 of 2012, is hereby set aside.   The First Informa-

tion Report dated 6.12.2000 filed by the complainant in the Police Sta-

tion at Mhasawad, District Nandurbar, on the basis of which Crime

No.59 of 2000 is registered against the appellant, is hereby quashed.

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The chargesheet dated 14.06.2001 filed by Mhasawad Police Station

against the appellant for the offences under Sections 376 (2)(b), 420

read with Section 34 of the IPC and Section 3(1)(x) of the SC/ST Act  is

also quashed.

        …………………………………J.          (A.K. SIKRI)

        …………………………………J.          (S. ABDUL NAZEER)

New Delhi; November 22, 2018.