Code of Criminal Procedure, 1973: s.482 – Inherent powers of court – Scope of exercise – Held: Under s.482, the inherent jurisdiction of the court can be exercised (i) to give effect to an order under the CrPC; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice – The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence – In deciding whether to exercise its jurisdiction under s.482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented – The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. Code of Criminal Procedure, 1973: s.482 – Petition for quashing FIR filed under ss.376, 417, 504, and 506(2) IPC against the appellant that he engaged in sexual relations with the complainant against her will on the false promise of marrying her – Plea of complainant that her “consent” premised on a “misconception of fact” (the promise to marry) stood vitiated – High Court rejected the plea and dismissed the petition – Held: The “misconception of fact” alleged by the complainant is the appellant’s promise to marry her – 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 – 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” – The “consent” of a woman under s.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 – In the instant case, the allegations in the FIR did 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 was no allegation in the FIR that when the 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 indicated 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 – Therefore, offence under s.375 IPC against the appellant was not made out – FIR is quashed – Penal Code, 1860 – ss.375, 376, 417, 504, and 506(2). Code of Criminal Procedure, 1973: s.482 – Petition for quashing FIR filed under ss.3(1) (u), (w) and 3(2) (vii) of the SC/ST Act against the appellant that he sent her certain Whatsapp messages which were insulting and attacked her on the grounds of her caste – High Court dismissed the petition – On appeal, held: The WhatsApp messages were alleged to have been sent by the appellant to the complainant on 27 and 28 August 2015 and 22 October 2015 – At that time, ss.3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as it stood today had not been enacted into the statute – These provisions were inserted by the (Prevention of Atrocities) Amendment Act 2015 which came into force on 26 January 2016 – None of the offences as stood then were made out – The messages were not in public view, no assault occurred, nor was the appellant in such a position so as to dominate the will of the complainant. Therefore, even if the allegations set out by the complainant with respect to the WhatsApp messages and words uttered were accepted on their face, no offence was made out under SC/ST Act (as it then stood) – FIR is quashed – Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by the Amendment Act, 2018) – ss.3(1) (u),
(w) and 3(2) (vii).
Penal Code, 1860: s.375 – Consent – The consent with respect to s.375 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 – Where a woman does not “consent” to the sexual acts described in the main body of s.375, the offence of rape has occurred – While s.90 does not define the term “consent”, a “consent” based on a “misconception of fact” is not consent in the eyes of the law.
Allowing the appeal, the Court
HELD : 1.1 The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. [Paras 7, 8] [432-G-H; 433-A; 434-C-D]
Inder Mohan Goswami v. State of Uttaranchal (2007)
12 SCC 1 : [2007] 10 SCR 847 ; State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259 ; Dhruvaram Murlidhar Sonar v. State of Maharashtra 2018 SCC OnLine SC 3100 ; Kaini Rajan v. State of Kerala (2013) 9 SCC 113 : [2013]
10 SCR 196 – relied on.
2. The instant proceedings concerned an FIR registered against the appellant under Sections 376, 417, 504, and 506(2) of the IPC and Sections 3(1) (u), (w) and 3(2) (vii) of SC/ST Act. Section 376 of the IPC prescribes the punishment for the offence of rape which is set out in Section 375. Section 375 prescribes seven descriptions of how the offence of rape may be committed. Where a woman does not “consent” to the sexual acts described in the main body of Section 375, the offence of rape has occurred. While Section 90 does not define the term “consent”, a “consent” based on a “misconception of fact” is not consent in the eyes of the law. The 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. This understanding of consent has also been set out in Explanation 2 of Section 375. In the instant case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. 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. 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. [Paras 9, 10, 12-14, 16] [434-F-G; 435-E, G; 436-D; 437-A-B; 438-E, F]
3.1 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. The allegations in the FIR indicate that in November 2009, the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations such as, the complainant and the appellant knew each other since 1998 and were intimate since 2004; the complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other’s houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant; and the appellant expressed his reservations about marrying the complainant on 31 January 2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015. [Paras 18, 19] [441-A-E]
3.2 The allegations in the FIR did 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 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. [Para 20] [441-F-H; 442-A]
4. With respect to the offences under the SC/ST Act, the WhatsApp messages were alleged to have been sent by the appellant to the complainant on 27 and 28 August 2015 and 22 October 2015. At that time, Sections 3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as it stands today had not been enacted into the statute. These provisions were inserted by the (Prevention of Atrocities) Amendment Act 2015 which came into force on 26 January 2016. None of the offences as stood then are made out. The messages were not in public view, no assault occurred, nor was the appellant in such a position so as to dominate the will of the complainant. Therefore, even if the allegations set out by the complainant with respect to the WhatsApp messages and words uttered are accepted on their face, no offence is made out under SC/ST Act (as it then stood). The allegations on the face of the FIR do not hence establish the commission of the offences alleged. [Paras 21, 22] [442-B, C, F-G; 443-A] Anurag Soni v. State of Chhattisgarh (2019) SCC OnLine SC 509 ; Deepak Gulati v. State of Haryana (2013) 7 SCC 675 : [2013] 6 SCR 544 ; Yedla Srinivasa Rao v. State of Andhra Pradesh (2006) 11 SCC
615 : [2006] 6 Suppl. SCR 760 ; Uday v. State
of Karnataka (2003) 4 SCC 46 : [2003] 2 SCR 231 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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