# Jiyaullah v. State of U.P. & Anr

- **Citation:** (2024) 3 ILRA 974
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Application U/S 482. No. 5419 of 2021
- **Bench:** Anish Kumar Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jiyaullah-v-state-of-u-p-anr-50960
- **Pages:** 11

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 376, 504 & 506 -
Criminal Proceedings - quashing of - In
instant case, from F.I.R. and Statements
u/s 161 and 164 Cr.P.C., undisputed facts
emerge that parties have known each
other for over 15 years, they were in
consensual physical relationship for more
than eight years with approval of victim's
parents, applicant later refused to marry
victim, leading to registration of F.I.R.,
promise to marry by applicant was not
false at inception but due to later
developments, applicant denied to marry
victim - In view of law laid down in cited
judgments, even assuming allegations to
be true, no offence u/s 376 IPC is made
out - Relationship between parties was
consensual with family approval, and
initial promise of marriage was not false
at inception - Subsequent refusal to
marry, after long-standing consensual
relationship with full knowledge of its
consequences by victim and her family
members,
therefore,
any
subsequent
breach of such relationship would not
constitute rape u/s 375 IPC - Thus,
application allowed - Impugned order,
quashed. (Para 19, 20)
Application allowed. (E-13)

List of Cases cited:

## Text

974 INDIAN LAW REPORTS ALLAHABAD SERIES
or 157 of the Indian Evidence Act but it
cannot be used as substative evidence.

17. In view of the above also, it can
be said that the witness had been examined at
length with regard to her statement under section
161 and 164 CrPC, there was no need to recall her
again for re-examination. When the witness had
not corroborated her statement recorded under
Section 164 CrPC and she had been already
contradicted under Section 145 of the Indian
Evidence Act, even then if she was summoned,
certainly it would cause a prejudice to the accused
persons. In view of the testimony of the victim
recorded in the court it can safely be said that
those statements are nothing but a waste paper.
According to this Court, there was no occasion to
pass the impugned order considering the nature of
the evidence of the victim PW-3. The testimony
on oath in the court during the course of trial has
overriding effect.

18. From the perusal of the above, it is very
much clear that the victim PW-3 has not
supported her statement recorded under Sections
161 and 164 CrPC and her statement on oath is
contrary to the prosecution. Hence, the order for
recalling the witness was of no avail. Thus, the
application under Section 482 CrPC deserves to
be allowed to prevent abuse of the process of the
Court and to secure the ends of justice.

19. One more ground has arisen during the
pendency of this petition that in view of the
judgment of Asian Resurfacing of Road Agency
Private Limited Vs. Central Bureau of
Investigation, (2018) 16 SCC 299, the trial court
started the trial treating the stay order passed by
this Court to be vacated and recorded the
statements of rest of the witnesses, the statement
of the accused under Section 313 CrPC and after
hearing the argument, acquitted the accused
persons giving benefit of doubt on 30.09.2022. A
photocopy of the certified copy of the judgment
has been produced by the learned counsel for the
applicant for perusal of this Court.

20. It is noteworthy that the accused persons
had taken shelter of this Court and had obtained
interim stay order and when the interim stay order
passed by this Court was ignored in view of the
judgment in Asian Resurfacing (supra), the State
of UP or the respondent no.2 had not questioned
the proceedings of the trial court, therefore, the
respondents have no ground to claim the benefit of
the same. If the respondents feel themselves to be
aggrieved, the remedy is open for them to seek
remedy available under the law against the order
and judgement of acquittal.

21. On the basis of above, this Court is of
the considered view that the application is liable to
be allowed. (Though it has no importance after
decision of the case)

Order

22. The application under Section 482
CrPC is allowed and the impugned order dated
03.05.2005 regarding summoning PW-3 for reexamination under Section 311 CrPC is hereby
quashed.

23. A copy of this judgment be sent to
the Court of ASJ/FTC-I, Varanasi to keep
on record.
----------
(2024) 3 ILRA 974
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE ANISH KUMAR GUPTA, J.

Application U/S 482. No. 5419 of 2021

Jiyaullah ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties
3 All. Jiyaullah Vs. State of U.P. & Anr.
975
Counsel for the Applicant:
Sri Mirza Ali Zulfiquar

Counsel for the Opposite Parties:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 419, 420, 376, 504 & 506 -
Criminal Proceedings - quashing of - In
instant case, from F.I.R. and Statements
u/s 161 and 164 Cr.P.C., undisputed facts
emerge that parties have known each
other for over 15 years, they were in
consensual physical relationship for more
than eight years with approval of victim's
parents, applicant later refused to marry
victim, leading to registration of F.I.R.,
promise to marry by applicant was not
false at inception but due to later
developments, applicant denied to marry
victim - In view of law laid down in cited
judgments, even assuming allegations to
be true, no offence u/s 376 IPC is made
out - Relationship between parties was
consensual with family approval, and
initial promise of marriage was not false
at inception - Subsequent refusal to
marry, after long-standing consensual
relationship with full knowledge of its
consequences by victim and her family
members,
therefore,
any
subsequent
breach of such relationship would not
constitute rape u/s 375 IPC - Thus,
application allowed - Impugned order,
quashed. (Para 19, 20)
Application allowed. (E-13)

List of Cases cited:

1. Shivashankar @ Shiva Vs St. of Karnataka,
Criminal Appeal No. 504 of 2018

2. Pramod Suryabhan Pawar Vs the St. of
Maharashtra & anr. (Criminal Appeal No. 1165
of 2019)

3. Sonu @ Subhash Kumar Vs St. of U.P.& anr.
reported in AIR 2021 SC 1405, (Paras 9 to 12)

4. Ashutosh Kumar Vs St. of U.P. & anr.,
Criminal Misc. Application under Section 482
Cr.P.C. No. 9700 of 2022
5. Dr. Dhruvaram Murlidhar Sonar Vs St. of
Maharashtra : (2019) 18 SCC 191, (Paras 8, 9
11, 12, 13, 24)

6. Shambhu Kharwar Vs St. of U.P. : 2022 SCC
Online SC 1032, (Paras 8 to 12)

7. St. of HP Vs Mango Ram : (2000) 7 SCC 224

(Delivered by Hon'ble Anish Kumar
Gupta, J.)

1. Heard Sri Mirza Ali Zulfaquar,
learned counsel for the applicant and Sri
Prashant Saxena, the learned AGA for the
State.

2. Vide order dated 03.09.2021, a
notice was issued to opposite party no.2.
However, despite service of notice, none
appeared on behalf of the opposite party
no.2.

3. The instant application under
Section 482 Cr.P.C. has been filed seeking
quashing of the charge sheet dated
16.03.2020
and
cognizance/summoning
order dated 10.12.2020 as well as the entire
proceedings of Case No. 21205 of 2020
(State vs. Ziya Ullah), under Sections 419,
420, 376, 504, 506 IPC, arising out of Case
Crime No. 20/2019, P.S. Mahila Thana,
District Sant Kabir Nagar, pending before
the Court of Civil Judge, Junior Division /
Judicial Magistrate, Sant Kabir Nagar.

4. The brief facts as emerge from the
F.I.R. and the statements under Sections
161 and 164 Cr.P.C., are as under:

i) The date of birth of alleged
victim is stated to be 01.06.1994 and she
has stated that she passed the VIIIth Class
in the year, 2008. Sister of the victim was
married
in
Gorakhpur
and
the
accused/applicant herein met first time to
976 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim in the marriage of her sister and
since then whenever the victim used to visit
her sister's house, at Gorakhpur, she used to
meet the accused/applicant herein. During
these meetings, they fell in love with each
other and the accused/applicant herein
started visiting the house of the victim.

ii) Out of such relationship, the
victim
and
her
parents
sent
the
accused/applicant to Saudi Arabia by
arranging the funds by selling the jewellery
etc. When the applicant herein came back
from Saudi Arabia, the victim and her
family members pressurized the applicant
herein for marriage with the victim. Even
after the marriage of the sister of the
applicant herein when the victim and her
family members pressurized the applicant
herein to marry the victim, the accused
applicant herein denied to marry the victim.
It is further alleged in the F.I.R. that the
applicant herein made physical relations
with the victim, between 2008 to 2018,
under the promise of marriage against her
will.

iii) Ultimately, in the year 2018,
the applicant herein denied to marry the
victim. Therefore, in her 161 Cr.P.C.
statement, the victim categorically states
that the applicant used to have physical
relations with the victim at her house in the
presence of her parents in the house. She
further stated that at the time of physical
relationship established between them she
was 17 years of age. She further states that
in the month of June, 2011, first time
relationship was established between them,
which continued for about 8 years. In her
161 Cr.P.C. statement, the victim has stated
that in the year 2013, the applicant had
made physical relationship with her 8 years
back under the promise of marriage. My
parents had no objection on the visits of the
applicant at her house and in the year,
2013, when the parents asked the applicant
herein to marry the victim, he promised to
marry the victim after the marriage of his
sister and when he is able to built his own
house.

iv) This relationship continued
upto February, 2019, when a complaint was
filed by the victim, which was settled at the
police station with the assurance by the
applicant that he would marry the victim
within next 10 months and after one month
of such promise he again refused to marry
and threaten the victim to do whatever she
can.

v) During investigation, medical
examination of the victim was conducted
on 22.06.2019, wherein she stated her age
to be 25 years. After medically examining
the victim, the doctors opined the age of the
victim to be 20 years on 26.06.2019. After
completion
of
the
investigation
the
chargesheet was filed on 16.03.2020 u/S
419, 420, 376, 504, 506 I.P.C.

5. The learned counsel for the
applicant
submits
that
the
instant
prosecution by the opposite party no.2
herein amounts to misuse of process of law.
As from the allegations made in the F.I.R.
as well as in the Statements under 161 and
164 Cr.P.C., it is apparent that there was a
longstanding
consensual
relationship
between the parties, for more than eight
years, which was duly approved by the
parents of the opposite party no.2.
Therefore, from the cumulative reading of
the F.I.R. as well as 161 and 164 statements
of the victim no offence as alleged against
the applicant herein can be said to have
been made out.

6. To substantiate his arguments,
learned counsel for the applicant has relied
upon the judgment of the Apex Court in the
case of Shivashankar @ Shiva vs. State of
Karnataka (Criminal Appeal No. 504 of
3 All. Jiyaullah Vs. State of U.P. & Anr.
977
2018), wherein the Hon'ble Apex Court has
held that "it is, however, difficult to hold
sexual intercourse, which has continued for
eight years, as 'rape' especially in the face
of the complainant's own allegation that
they lived together as man and wife."

7. Learned counsel for the applicant
has further placed reliance upon the
judgment of the Apex Court in the case of
Pramod Suryabhan Pawar vs. the State of
Maharashtra
and
another
(Criminal
Appeal No. 1165 of 2019). He has placed
reliance upon paragraphs '18' and '20' of the
said judgment, which are as follows:

"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.

20 The allegations in the FIR do
not on their face indicate that the promise
by the appellant was false, or that the
complainant engaged in sexual relations on
the basis of this promise. There is no
allegation in the FIR that when the 17
appellant
promised
to
marry
the
complainant, it was done in bad faith or
with the intention to deceive her. The
appellant's failure in 2016 to fulfil his
promise made in 2008 cannot be construed
to mean the promise itself was false. The
allegations in the FIR indicate that the
complainant was aware that there existed
obstacles to marrying the appellant since
2008, and that she and the appellant
continued to engage in sexual relations
long after their getting married had
become a disputed matter. Even thereafter,
the complainant travelled to visit and
reside with the appellant at his postings
and allowed him to spend his weekends at
her residence. The allegations in the FIR
belie the case that she was deceived by the
appellant's promise of marriage. Therefore,
even if the facts set out in the complainant's
statements are accepted in totality, no
offence under Section 375 of the IPC has
occurred."

8. Learned counsel for the applicant
has further placed reliance upon the
judgment of the Apex Court in the case of
Sonu alias Subhash Kumar vs. State of
Uttar Pradesh and another reported in
AIR 2021 SC 1405. He has relied upon
paragraphs '9', '10', '11' and '12' of the said
judgment, which are as follows:

"9 In Pramod Suryabhan Pawar
(supra), while dealing with a similar
situation, the principles of law which must
govern a situation like the present were
enunciated in the following observations:

"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..."

10. Further, the Court has
observed:
978 INDIAN LAW REPORTS ALLAHABAD SERIES

"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."

11. Bearing in mind the tests
which have been enunciated in the above
decision, we are of the view that even
assuming that all the allegations in the FIR
are correct for the purposes of considering
the application for quashing under Section
482 of CrPC, no offence has been
established. There is no allegation to the
effect that the promise to marry given to the
second respondent was false at the
inception. On the contrary, it would appear
from the contents of the FIR that there was
a subsequent refusal on the part of the
appellant to marry the second respondent
which gave rise to the registration of the
FIR. On these facts, we are of the view that
the High Court was in error in declining to
entertain the petition under Section 482 of
CrPC on the basis that it was only the
evidence at trial which would lead to a
determination as to whether an offence was
established.

12. For the above reasons, we
allow the appeal and set aside the
impugned judgment and order of the High
Court dated 26 September 2019. In view of
the reasons which have been adduced
earlier, the charge sheet dated 25 April
2018, which has been filed in pursuance of
the investigation which took place, shall
stand quashed. The order of the trial Court
dated 3 October 2018 taking cognizance
shall accordingly stand quashed and set
aside."

9. Learned counsel for the applicant
has further relied upon the judgment and
order dated 12.10.2022 passed by this
Court in Criminal Misc. Application under
Section 482 Cr.P.C. No. 9700 of 2022
(Ashutosh Kumar vs. State of U.p. and
another), relying upon the judgements of
Apex Court in Shivashankar (supra),
Pramod Suryabhan Pawar (supra), Sonu
alias Subhash Kumar (supra).

10. Learned counsel for the State
submits that as per the allegations made in
the FIR, the date of birth of the opposite
party no.2 is stated to be 01.06.1994 and
the allegation is that since 2008 till June
2018, the applicant and opposite party no.2
were
continued
to
have
physical
relationship under the promise to marry the
opposite party no.2. As per the medical
report as well as the supplementary
examination report, which is filed an
annexure '7' to the application, the age of
the victim as on 06.06.2019 is stated to be
20 years. Therefore, on the first date of cohabitation between the parties, which is
stated to be in the FIR as June, 2008, and
June, 2011, which is stated as the first date
of co-habitation in the statement of the
victim under Section 161 Cr.P.C., on both
the dates, the opposite party no.2, the
victim was a minor, therefore, there was no
question of consent by the minor and the
act committed by the applicant is treated as
a rape within Section 375 IPC.

11. Having heard the arguments made
by learned counsels for the parties, this
Court has carefully perused the records of
the case.
3 All. Jiyaullah Vs. State of U.P. & Anr.
979

12. In Dr. Dhruvaram Murlidhar
Sonar v. State of Maharashtra : (2019) 18
SCC 191, the Apex Court has held as
under:

"8. It is well settled that exercise
of powers under Section 482 CrPC 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
v. Bhajan Lal [State of Haryana v. Bhajan
Lal, 1992 Supp (1) SCC 335 : 1992 SCC
(Cri) 426] , has elaborately considered the
scope and ambit of Section 482 CrPC.
Seven categories of cases have been
enumerated where power can be exercised
under Section 482 CrPC. Para 102 thus
reads : (SCC pp. 378-79)

"102. In the backdrop of the
interpretation of the various relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated 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 reproduced 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 sufficiently 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
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) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence 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 only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made in
the FIR or complaint are so absurd and
inherently improbable 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 engrafted in any of the provisions
of the Code or the Act concerned (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 Act
980 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned, providing efficacious redress
for the grievance of the aggrieved 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."

11. In State of Karnataka v. M.
Devendrappa [State of Karnataka v. M.
Devendrappa, (2002) 3 SCC 89 : 2002
SCC (Cri) 539] , it was held that while
exercising powers under Section 482
CrPC, 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 : (SCC p. 94, para 6)

"6. ... 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 v.
State of U.P. [Vineet Kumar v. State of
U.P., (2017) 13 SCC 369 : (2017) 4 SCC
(Cri) 633] , this Court has observed as
under : (SCC p. 387, para 41)

"41. 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 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 instituted 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."

13. 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 powers.
24. 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 she is a widow. It was
alleged by her that the appellant 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
3 All. Jiyaullah Vs. State of U.P. & Anr.
981
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 sometimes
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 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 the complainant has failed to prima
facie show the commission of rape, the
complaint
registered
under
Section
376(2)(b) cannot be sustained."

13. Similarly, in Shambhu Kharwar
vs. State of U.P.: 2022 SCC Online SC
1032, the Apex Court has held as under:

"8. In Bhajan Lal (supra) this
Court formulated the parameters in terms
of which the powers in Section 482 of
CrPC may be exercised. While it is not
necessary to revisit all these parameters
again, a few that are relevant to the present
case may be set out. The Court held that
quashing may be appropriate:

"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).

[...](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."

9.
In
Dhruvaram
Murlidhar
Sonar v. State of Maharashtra,6 a two
Judge Bench of this Court while dealing
with similar facts as the present case
reiterated the parameters laid down in
Bhajan Lal (supra) held that:

"13. 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 its inherent powers."

(emphasis supplied)
982 INDIAN LAW REPORTS ALLAHABAD SERIES

10. An offence is punishable
under Section 376 of the IPC if the offence
of rape is established in terms of Section
375 which sets out the ingredients of the
offence. In the present case, the second
description of Section 375 along with
Section 90 of the IPC is relevant which is
set out below.

"375. Rape - A man is said to
commit "rape" if he - [...] under the
circumstances falling under any of the
following
seven
descriptions
Firstly
...Secondly. - Without her consent.
[...]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.
xxx

90. Consent known to be given
under fear or misconception - A consent is
not such a consent as is 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..."

11. In Pramod Suryabhan Pawar
v. State of Maharashtra,7 a two Judge
Bench of this Court of which one of us was
a part (D.Y. Chandrachud J.), held in Sonu
@ Subhash Kumar v. State of Uttar
Pradesh,8 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
3 All. Jiyaullah Vs. State of U.P. & Anr.
983
of immediate relevance, or bear a direct
nexus to the woman's decision to engage
in the sexual act.

(emphasis supplied)

12. In the present case, the issue
which had to be addressed by the High
Court was whether, assuming all the
allegations in the charge-sheet are correct
as they stand, an offence punishable under
Section 376 IPC was made out. Admittedly,
the appellant and the second respondent
were in a consensual relationship from
2013 until December 2017. They are both
educated adults. The second respondent,
during the course of this period, got
married on 12 June 2014 to someone else.
The marriage ended in a decree of divorce
by mutual consent on 17 September 2017.
The allegations of the second respondent
indicate that her relationship with the
appellant continued prior to her marriage,
during the subsistence of the marriage and
after the grant of divorce by mutual
consent."

14. From the aforequoted judgments,
it is apparent that the powers u/S 482
Cr.P.C. vested in the High Court is with the
purpose and objective of advancement of
justice. In case, the High Court is of an
opinion that the process of the Court is
being abused by persons with some oblique
motive, the Court has to thwart such an
attempt at the very threshold and the
judicial process cannot be allowed to be
converted into an instrument of oppression
and harassment. It is also a settled position
of law that if there are materials to indicate
that the criminal proceedings is initiated
with mala fide intentions and with an
ulterior motive, it is the duty of the High
Court to quash such proceedings in
exercise of powers u/S 482 Cr.P.C.

15. In Section 375 I.P.C., where the
offence of rape is constituted when the
sexual intercourse is committed against the
will of women and without her consent. A
women is said to consent only when she
freely agrees to submit herself while in free
and unconstrained possession of physical
and moral power to act in a manner she
wanted. Consent implies the exercise of
free and untrammelled right to forbid or
withhold what is being consented to.

16. In State of HP vs. Mango Ram :
(2000) 7 SCC 224, a three Judge Bench of
the Apex Court held that consent for the
purpose of Section 375 I.P.C. requires
voluntary participation not only after the
exercise of intelligence based on the
knowledge of 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 careful perusal of
relevant circumstances.

17. Thus, from the cumulative reading
of the judgments passed by the Apex Court
in
Shivashankar
(supra),
Pramod
Suryabhan Pawar (Supra), Sonu alias
Subhash Kumar (supra), Dr. Dhruvaram
Murlidhar Sonar (supra) and Mango Ram
(supra), it is apparent that when there is a
longstanding
relationship
between
the
parties under the promise of marriage. It is
to be seen that whether such promise of
marriage was false at the inception or it is a
subsequent breakdown of relationship and
refusal to marry amounts to breach of such
promise, which was genuinely made at the
inception of such relationship.

18. The expression "against her will"
would ordinarily mean that the intercourse
was done by man with a women despite her
resistance and opposition. On the other
hand, the expression "without her consent"
would comprehend an act of reason
accompanied by deliberation.
984 INDIAN LAW REPORTS ALLAHABAD SERIES

19. In the instant case, from the F.I.R.
as well as from the Statements u/S 161 and
164 Cr.P.C., the following undisputed facts
emerged that the relationship between the
applicant herein and the opposite party no.2
was of a consensual nature:

(i) Parties were known to each
other for more than 15 years;

(ii) They were in active physical
relationship with the approval of parents of
opposite party no.2, since more than 8
years. Therefore, there was an active and
considered consent by the victim, with the
approval of her parents and the physical
relationship with her was not against her
will;

(iii) Subsequently, the applicant
herein has broken his promise to marry and
refused to marry the opposite party no.2
which resulted in the registration of the
F.I.R. against the applicant herein;

(iv) From the allegations made, it
is apparent that the promise to marry by the
applicant herein was not false from its
inception. Due to later developments, the
applicant has denied to marry the victim.

20. Thus, from the proposition of law
as enunciated in the above cited judgments,
this Court is of the view that even assuming
that all the allegations made against the
applicant herein are true for the purposes of
considering the application for quashing
u/S 482 Cr.P.C., no offence u/S 376 is
established as the relationship between the
parties was of consensual nature and which
has an approval of the family as well and
the initial promise by the applicant herein
was not false. It is only after subsequent
developments between the parties, the
applicant herein has refused to marry the
applicant herein. Since, the relationship
between the parties was longstanding and
the victim as well as her family members
knew the consequences of the relationship,
therefore, any subsequent breach of such
relationship would not amount to the
offence of rape u/S 375 I.P.C.

21. For the reasons stated above, the
instant application u/S 482 Cr.P.C. is
allowed
and
the
chargesheet
dated
16.03.2020
as
well
as
the
cognizance/summoning
order
dated
10.12.2020 and the entire proceedings of
Case No. 21205 of 2020 (State vs. Ziya
Ullah), under Sections 419, 420, 376, 504,
506 IPC, arising out of Case Crime No.
20/2019, P.S. Mahila Thana, District Sant
Kabir Nagar, pending before the Court of
Civil Judge, Junior Division / Judicial
Magistrate, Sant Kabir Nagar, are hereby
quashed.
----------
(2024) 3 ILRA 984
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.10.2023

BEFORE

THE HON'BLE GAJENDRA KUMAR, J.

Application U/S 482. No. 8020 of 2022

Aruni Mittal & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Saurabh Chaturvedi, Sri Ayush Kaushik,
Sr. Advocate

Counsel for the Opposite Parties:
G.A., Sri Dileep Kumar Pandey. Sri Gaurav
Pundir, Sri Nitin Sharma

Criminal Law - Criminal Procedure Code,
1973 - Sections 156(3), 161, 164 & 482 -
Indian Penal Code, 1860 - Sections 120-B,
323, 376, 420, 452, 504 & 506 - Application
under Section 482 Cr.P.C. - assailing the