# DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF MAHARASHTRA & ORS

- **Citation:** [2018] 13 S.C.R. 920
- **Court:** Supreme Court of India
- **Decided:** 2018-11-22
- **Case number:** Criminal Appeal No. 1443 of 2018
- **Bench:** A. K. Sikri, S. Abdul Nazeer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dr-dhruvaram-murlidhar-sonar-v-the-state-of-maharashtra-ors-32549
- **Pages:** 16

## Headnote

Code of Criminal Procedure, 1973: s.482 - Exercise of power,
scope - Discussed.
Code of Criminal Procedure, 1973: s.482 - Quashing of
proceedings - FIR was registered against the appellant and the coaccused under ss.376(2)(b), 420 r/w s.34, IPC and under s.3(1)(x)
of the SC/ST Act - Appellant-acussed no.1 was a government doctor
while complainant was nurse in the same establishment - Case of
complainant was that she had fallen in love with the appellant and
that she needed a companion as she was a widow - 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 and appellant
had promised that he would marry her - However, when she came
to know that the appellant had married another woman, she lodged
an FIR - Appellant filed petition for quashing the FIR - High Court
dismissed the petition - On appeal, held: It was not the case of
complainant that the appellant had forcibly raped her - The
acknowledged consensual physical relationship between the parties
would not constitute an offence under s.376, IPC - There was a
tacit consent on part of complainant and the tacit consent given by
her was not the result of a misconception created in her mind -
Even if the allegations made in the complaint were taken at their
face value and accepted in their entirety, they would not make out a
case against the appellant - Further, the FIR nowhere spelt out any
wrong committed by the appellant under s.420, IPC or under
s.3(1)(x) of the SC/ST Act - Therefore, the High Court was not
justified in rejecting the petition filed by the appellant under s.482
of the Cr.P.C. - FIR quashed - Penal Code, 1860 - ss. 376(2)(b),
420 r/w s.34 - Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - s.3(1)(x).
[2018] 13 S.C.R. 920
920
A
B
C
D
E
F
G
H
921
Allowing the appeal, the Court
HELD: 1. 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.
[Para 8][926-B-C]
State of Haryana and Ors. v. Bhajan Lal and Ors. 1992
Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259 ; Rajesh
Bajaj v. State NCT of Delhi & Ors. (1999) 3 SCC 259 :
[1999] 1 SCR 1012 ;
State of Karnataka v.
M. Devendrappa and Anr. (2002) 3 SCC 89 : [2002] 1
SCR 275 ; Vineet Kumar and Ors. v. State of Uttar
Pradesh and Anr. (2017) 13 SCC 369 : [2017] 6
SCR 922 - relied on.
2. 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. [Para 12][928-G
3. 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. Section
375 defines the offence of rape and enumerates six descriptions
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

## Text

A
B
C
D
E
F
G
H
920
SUPREME COURT REPORTS
[2018] 13 S.C.R.
DR. DHRUVARAM MURLIDHAR SONAR
v.
THE STATE OF MAHARASHTRA & ORS.
(Criminal Appeal No. 1443 of 2018)
NOVEMBER 22, 2018
[A. K. SIKRI AND S. ABDUL NAZEER, JJ.]
Code of Criminal Procedure, 1973: s.482 - Exercise of power,
scope - Discussed.
Code of Criminal Procedure, 1973: s.482 - Quashing of
proceedings - FIR was registered against the appellant and the coaccused under ss.376(2)(b), 420 r/w s.34, IPC and under s.3(1)(x)
of the SC/ST Act - Appellant-acussed no.1 was a government doctor
while complainant was nurse in the same establishment - Case of
complainant was that she had fallen in love with the appellant and
that she needed a companion as she was a widow - 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 and appellant
had promised that he would marry her - However, when she came
to know that the appellant had married another woman, she lodged
an FIR - Appellant filed petition for quashing the FIR - High Court
dismissed the petition - On appeal, held: It was not the case of
complainant that the appellant had forcibly raped her - The
acknowledged consensual physical relationship between the parties
would not constitute an offence under s.376, IPC - There was a
tacit consent on part of complainant and the tacit consent given by
her was not the result of a misconception created in her mind -
Even if the allegations made in the complaint were taken at their
face value and accepted in their entirety, they would not make out a
case against the appellant - Further, the FIR nowhere spelt out any
wrong committed by the appellant under s.420, IPC or under
s.3(1)(x) of the SC/ST Act - Therefore, the High Court was not
justified in rejecting the petition filed by the appellant under s.482
of the Cr.P.C. - FIR quashed - Penal Code, 1860 - ss. 376(2)(b),
420 r/w s.34 - Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act, 1989 - s.3(1)(x).
[2018] 13 S.C.R. 920
920
A
B
C
D
E
F
G
H
921
Allowing the appeal, the Court
HELD: 1. 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.
[Para 8][926-B-C]
State of Haryana and Ors. v. Bhajan Lal and Ors. 1992
Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259 ; Rajesh
Bajaj v. State NCT of Delhi & Ors. (1999) 3 SCC 259 :
[1999] 1 SCR 1012 ;
State of Karnataka v.
M. Devendrappa and Anr. (2002) 3 SCC 89 : [2002] 1
SCR 275 ; Vineet Kumar and Ors. v. State of Uttar
Pradesh and Anr. (2017) 13 SCC 369 : [2017] 6
SCR 922 - relied on.
2. 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. [Para 12][928-G
3. 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. Section
375 defines the offence of rape and enumerates six descriptions
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 obtained by putting her, or any person in whom she
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA
A
B
C
D
E
F
G
H
922
SUPREME COURT REPORTS
[2018] 13 S.C.R.
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 reason coupled with deliberation. It
denotes an active will in mind of a person to permit the doing of
the act complained of. Section 90 of the IPC 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. Consent
for the purpose of Section 375 requires voluntary participation
not only after the exercise of intelligence based on the knowledge
of the significance and moral quality of the act, but 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.
[Paras 13, 14, 15][928-H; 929-A, D-E; 930-A-B]
Uday v. State of Karnataka (2003) 4 SCC 46 : [2003]
2 SCR 231 ; Deelip Singh alias Dilip Kumar v. State of
Bihar (2005) 1 SCC 88 : [2004] 5 Suppl. SCR 909 ;
Deepak Gulati v. State of Haryana (2013) 7 SCC 675 :
[2013] 6 SCR 544 - relied on
4. 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 latter 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
A
B
C
D
E
F
G
H
923
intention to do. Such cases must be treated differently. If the
accused had any mala fide intention and if he had clandestine
motives, it is a clear case of rape. The acknowledged consensual
physical relationship between the parties would not constitute
an offence under Section 376 of the IPC. [Para 20][933-G-H;
934-A-C]
5. In the instant case, 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 that
she had fallen in love with the appellant and that she needed a
companion as she was a widow. 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. 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.
Also, since complainant has failed to prima facie show the
commission of rape, the complaint registered under Section
376(2)(b) cannot be sustained. 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. [Paras 21, 22]
[934-D-H; 935-A-B]
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA
A
B
C
D
E
F
G
H
924
SUPREME COURT REPORTS
[2018] 13 S.C.R.
Case Law Reference
[1990] 3 Suppl. SCR 259
relied on
Para 9
[1999] 1 SCR 1012
relied on
Para 10
[2002] 1 SCR 275
relied on
Para 11
[2017] 6 SCR 922
relied on
Para 12
[2003] 2 SCR 231
relied on
Para 16
[2004] 5 Suppl. SCR 909
relied on
Para 17
[2013] 6 SCR 544
relied on
Para 18
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 1443 of 2018.
From the Judgment and Order dated 02.07.2018 of the High Court
of Judicature at Bombay, Bench at Aurangabad in Criminal Application
No. 3590 of 2012.
Jayant Sud, Sr. Adv., Sandeep S. Deshmukh, Vasim Siddiqui,
Sandeep Sudhakar Deshmukh, Advs. for the Appellant.
Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar, Advs. for
the Respondents.
The Judgment of the Court was delivered by
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, 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,
A
B
C
D
E
F
G
H
925
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 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 coaccused.
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 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.
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
926
SUPREME COURT REPORTS
[2018] 13 S.C.R.
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
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 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
A
B
C
D
E
F
G
H
927
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 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 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."
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.
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
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
928
SUPREME COURT REPORTS
[2018] 13 S.C.R.
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 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."
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.
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
A
B
C
D
E
F
G
H
929
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:-
"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
descriptions 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 obtained 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 reason coupled with deliberation.
It denotes an active will in mind of a person to permit the doing of the act
complained of.
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 misconception.-
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"
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
930
SUPREME COURT REPORTS
[2018] 13 S.C.R.
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. Consent for
the purpose of Section 375 requires voluntary participation not only after
the exercise of intelligence based on the knowledge of the significance
and moral quality of the act, but 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
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 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 straitjacket
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.
A
B
C
D
E
F
G
H
931
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 in a college. She was deeply in love with the appellant.
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 understand 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, particularly 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 intercourse 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
consent:-
(1) "Is it a case of passive submission in the face of psychological
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 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 became pregnant,
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
932
SUPREME COURT REPORTS
[2018] 13 S.C.R.
she revealed the matter to her parents. Even thereafter, 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 damages 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 intention of inducing her to sexual intercourse, made
a false promise to marry. We have no doubt 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 evidence which gives rise to an inference beyond
reasonable 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 evidence 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 others took him away from the village
would indicate that the accused might have been prompted by a
genuine intention to marry which did not materialise 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 promise
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
B
C
D
E
F
G
H
933
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 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 consent of the prosecutrix as there was neither a case of any resistance
nor had she raised any complaint anywhere at any time, despite the fact
that she had been living with the 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
Karnataka & Anr., in Criminal Appeal No.504 of 2018, disposed of on
6th April, 2018, has observed that it is difficult to hold that sexual
intercourse in the course of a relationship which has continued for eight
years is 'rape', especially in the face of the complainant's own allegation
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 complainant.
It is, however, difficult to hold sexual intercourse in the course of
a relationship 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".
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
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA [S. ABDUL NAZEER, J.]
A
B
C
D
E
F
G
H
934
SUPREME COURT REPORTS
[2018] 13 S.C.R.
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 any mala fide intention and if
he had clandestine motives, it is a clear case of rape. The acknowledged
consensual physical relationship between 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 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 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 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
A
B
C
D
E
F
G
H
935
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 Information
Report dated 6.12.2000 filed by the complainant in the Police Station at
Mhasawad, District Nandurbar, on the basis of which Crime No.59 of
2000 is registered against the appellant, is hereby quashed. 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.
Devika Gujral
Appeal allowed.
DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF
MAHARASHTRA [S. ABDUL NAZEER, J.]