Quashing of FIR = Sections 376, 417, 504 and 506(2) of the Indian Penal Code3 and Sections 3(1) (u), (w) and 3(2) (vii) of The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by the Amendment Act, 2015) - 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 - No offence was made out and
Mere whatsapp message what ever it may be does not attaract the provisions of St & Sc Act.
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.
19 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 that are relevant for the present purpose.
They are as follows:
(i) The complainant and the appellant knew each other since 1998 and
were intimate since 2004;
(ii) 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
(iii) 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.
The appellant is a Deputy Commandant in the CRPF while the complainant is an
Assistant Commissioner of Sales Tax.
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
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.
21 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 this 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 201513 which came into force on 26 January 2016. Prior to the
Amending Act, the relevant provisions of the statute (as it stood then) were as
follows:
“3. (1) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe. –
13 “Amending Act”
18
…
(x) intentionally insults or intimidates with intent to humiliate a
member of a Schedule Caste or a Scheduled Tribe in any
place within public view;
(xi) assaults or uses force to any woman belonging to a
Schedule Caste or a Scheduled Tribe with intent to dishonour
or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would
not have otherwise agreed; …”
22 Without entering into a detailed analysis of the content of the WhatsApp
messages sent by the appellant and the words alleged to have been spoken, it is
apparent that none of the offences set out above 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.
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1165 of 2019
(@SLP (Crl) No. 2712 of 2019)
Pramod Suryabhan Pawar …Appellant
Versus
The State of Maharashtra & Anr. …Respondents
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1. Leave granted.
2. By its judgement dated 7 February 2019, the High Court of Judicature at
Bombay dismissed an application under Section 482 of the Code of Criminal
Procedure 19731
. The appellant sought the quashing of a First Information
Report2
registered against him on 17 May 2016 with the Panvel City Police
Station for offences punishable under Sections 376, 417, 504 and 506(2) of the
Indian Penal Code3
and Sections 3(1) (u), (w) and 3(2) (vii) of The Scheduled
1
“CrPC”
2
“FIR”
3
“IPC”
2
Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by
the Amendment Act, 2015)4
. The second respondent is the complainant.
3. The allegations in the FIR are summarised thus:
(i) According to the complainant, she and the appellant have known
each other since 1998. She would speak to the appellant on the phone and
met him regularly as early as 2004. In 2008 the appellant proposed
marriage and assured her that their belonging to different castes would not
be a hindrance. The appellant allegedly promised to marry the complainant
after the marriage of his elder sister. On 23 January 2009 the appellant
allegedly re-iterated his promise to marry her at the Patnadevi Temple in
Chalisgaon;
(ii) The complainant completed her B.Sc. in Agriculture in 2002 and
worked as a Junior Research Assistant. In 2007 she was selected as a Naib
Tahsildar at Chalisgaon. In March 2009 she was appointed to the post of
Assistant Sales Tax Commissioner at Mazgaon. The appellant would, it is
alleged, come to meet her and lived with her in November 2009. During his
visit, the complainant alleges that she refused to engage in sexual
intercourse with the appellant, but “on the promise of marriage he forcibly
established corporeal relationships”;
(iii) The complainant alleges that throughout 2010, the appellant visited
her on multiple occasions and they engaged in sexual intercourse. When
4
“SC/ST Act”
3
the appellant was posted in Gadchiroli, the complainant visited the appellant
multiple times over the course of 2011. Each of these visits lasted four to
five days during which the complainant resided with the appellant and they
engaged in sexual intercourse. During these visits the complainant enquired
about marriage and the appellant responded in the affirmative. In
December 2011 the appellant visited her and resided in her house for four
days;
(iv) The appellant’s elder sister was married on 5 February 2012. On 23
December 2012 the appellant visited her and forced her to engage in sexual
intercourse. Afterwards, for the first time the appellant raised concerns
about marrying her on the ground that their belonging to different castes
would hinder the appellant’s younger sister’s marriage. In January 2013 the
complainant visited the appellant in Nagpur, and the appellant also
subsequently visited her. On both occasions they engaged in sexual
intercourse;
(v) During these years she missed her menstrual periods on several
occasions. In 2013-14 the complainant and appellant jointly visited the
hospital multiple times to check whether she was pregnant. In June 2013
the appellant was posted in Navi Mumbai and used to spend his weekends
residing at the complainant’s house. They regularly engaged in sexual
intercourse during this period. Beginning in January 2014 the appellant
raised concerns about marrying the complainant on the ground of her caste.
This led to heated arguments. However, the appellant used to regularly visit
4
her house at Panvel until March 2015, each time engaging in sexual
intercourse with her;
(vi) On 27 and 28 August 2015 and 22 October of 2015 the appellant
sent the complainant certain WhatsApp messages. The complainant
alleges that these messages were insulting and attacked her on the grounds
of her caste. The messages stated:
“You are bad for society. If shoe is kept on head, then head would
get dirty. Reservation did not add any intelligence; You have got Govt.
service with ease”.
(vii) In November 2015 for the first time the complainant threatened to
file a police complaint against the appellant. The appellant promised to
marry her after the marriage of his brother. At this time also they engaged
in sexual intercourse; and
(viii) On 9 March 2016 the appellant engaged in sexual intercourse with
the complainant against her will. Subsequently, the complainant was
apprised of the fact that the appellant was engaged to another woman. The
appellant informed the complainant that the woman he was engaged to was
demanding Rs. two lakhs to break of the engagement. On 28 March 2016
the appellant re-iterated his promise to marry the complainant and arranged
for her to speak to the woman he had been engaged to, to assure the
complainant that the appellant was no longer in a relationship with her.
Subsequently the complainant became aware that the appellant had married
on 1 May 2016. On 17 May 2016 she filed the FIR.
5
4 The appellant applied for anticipatory bail. By an order dated 13 June 2016
he was granted ad-interim anticipatory bail. The order dated 13 June 2016 was
confirmed by the High Court of Bombay on 1 July 2016.
5 In Criminal Application No. 813 of 2016, the appellant moved the High
Court under Section 482 of the CrPC to quash the FIR dated 17 May 2016. By
its order dated 7 February 2019 the High Court rejected the application, noting:
“3. Though the relationship was with consent, it appears
that there was a promise to marry and statement shows that
later on, giving reason of caste of Complainant, promise
was not kept.
4. In view of this prima facie situation, we are not inclined to
intervene in extra ordinary jurisdiction. We make it clear that
our observations are only for the purposes of refusing to
entertain the grievance in extra ordinary jurisdiction and we
have not recorded any finding either way on contentions.”
6 Mr Sushil Karanjkar, learned counsel for the appellant contends that in
refusing to quash the FIR the High Court failed to distinguish between rape and
consensual sex. It is submitted that the allegations on the face of the FIR
indicate that the physical relationship between the appellant and the complainant
existed for over a period of six years with her consent as evidenced by multiple
periods of co-habitation, visits, and lack of resistance or complaint by the
complainant. Against this, Mr Katneshwarkar, learned counsel appearing for the
respondent-State as well as Mr Nilesh Tribhavan, learned counsel for the
complainant relied upon certain decisions of this Court. In her counter affidavit,
the complainant has submitted:
6
“i. It is submitted that the Petitioner has resorted forming
a relationship with me only in order to fulfil his lust.
ii. It is submitted that the Petitioner promised to marry
me and then manipulated me emotionally and mentally to
have physical relations with him, even when he was well
aware that such actions of his have caused me immense
physical and mental suffrage.
iii. It is submitted that the Petitioner promised me
matrimony only so that he could maintain a physical relation
and would not have to face the hassle of having to find
multiple women and establish physical relations with each
one of them as his job was of a transferable nature and
meeting multiple women to fulfil his luscious behaviour was
not possible.
iv. It is submitted that the Petitioner from the start had ill
and misconstrued notions about people belonging from
SC/ST caste which he pretended to be absent of throughout
the relationship and lied about but was unable to hold back
when he was pressurized and put in a corner.”
Learned counsel referred to the submissions which have been set out in the
counter affidavit, during the course of the hearing.
7 Section 482 is an overriding section which saves the inherent powers of
the court to advance the cause of justice. Under Section 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 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. These principles have been consistently followed and re-iterated by
7
this Court. In Inder Mohan Goswami v State of Uttaranchal5
, this Court
observed.
“23. This Court in a number of cases has laid down the
scope and ambit of courts’ powers under Section 482
CrPC. Every High Court has inherent powers to act ex
debito justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent abuse
of the process of the court. Inherent power under Section
482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court,
and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide
have to be exercised sparingly, carefully and with great
caution and only when exercise is justified by the tests
specifically laid down in this section itself. Authority of the
court exists for the advancement of justice. If any abuse of
the process leading to injustice is brought to the notice of
the court, then the court would be justified in preventing
injustice by invoking inherent powers in absence of specific
provisions in the statute.”
8 Given the varied nature of cases that come before the High Courts, any
strict test as to when the court’s extraordinary powers can be exercised is likely to
tie the court’s hands in the face of future injustices. This Court in State of
Haryana v Bhajan Lal6
conducted a detailed study of the situations where the
court may exercise its extraordinary jurisdiction and laid down a list of illustrative
examples of where quashing may be appropriate. It is not necessary to discuss
all the examples, but a few bear relevance to the present case. The court in
Bhajan Lal noted that quashing may be appropriate where,
5
(2007) 12 SCC 1
6
1992 Supp (1) SCC 335
8
“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.”
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. As this Court noted in
Dhruvaram Murlidhar Sonar v State of Maharashtra,
7
(“Dhruvaram Sonar”) :
“13. It is clear that for quashing 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.”
9 The present proceedings concern 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
7
2018 SCC OnLine SC 3100
9
offence of rape which is set out in Section 375. Section 375 prescribes seven
descriptions of how the offence of rape may be committed. For the present
purposes only the second such description, along with Section 90 of the IPC is
relevant and 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 descriptionsFirstly …
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.”
“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…”
10 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
10
does not define the term “consent”, a “consent” based on a “misconception of
fact” is not consent in the eyes of the law.
11 The primary contention advanced by the complainant is that the appellant
engaged in sexual relations with her on the false promise of marrying her, and
therefore her “consent”, being premised on a “misconception of fact” (the promise
to marry), stands vitiated.
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. In Dhruvaram Sonar which was a case involving the invoking of the
jurisdiction under Section 482, this Court observed:
“15. … 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.”
This understanding was also emphasised in the decision of this Court in Kaini
Rajan v State of Kerala8
:
“12. … “Consent”, for the purpose of Section 375, requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance of the
moral quality of the act but after having fully exercised the
choice between resistance and asset. Whether there was
8
(2013) 9 SCC 113
11
consent or not, is to be ascertained only on a careful study of
all relevant circumstances.”
13 This understanding of consent has also been set out in Explanation 2 of
Section 375 (reproduced above). Section 3(1) (w) of the SC/ST Act also
incorporates this concept of consent:
“3(1) (w) -
(i) intentionally touches a woman belonging to a Scheduled
Caste or a Scheduled Tribe, knowing that she belongs to a
Scheduled Caste or a Scheduled Tribe, when such act of
touching is of a sexual nature and is without the recipient’s
consent;
…
Explanation.––For the purposes of sub-clause (i), the
expression “consent” means an unequivocal voluntary
agreement when the person by words, gestures, or any form
of non-verbal communication, communicates willingness to
participate in the specific act:
Provided that a woman belonging to a Scheduled Caste or a
Scheduled Tribe who does not offer physical resistance to
any act of a sexual nature is not by reason only of that fact, is
to be regarded as consenting to the sexual activity:
Provided further that a woman’s sexual history, including with
the offender shall not imply consent or mitigate the offence;”
14 In the present case, the “misconception of fact” alleged by the complainant
is the appellant’s promise to marry her. 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
12
a promise which is made in good faith but subsequently not fulfilled. In Anurag
Soni v State of Chhattisgarh9
, this Court held:
“37. The sum and substance of the aforesaid decisions would
be that if it is established and proved that from the inception
the accused who gave the promise to the prosecutrix to
marry, did not have any intention to marry and the prosecutrix
gave the consent for sexual intercourse on such an
assurance by the accused that he would marry her, such a
consent can be said to be a consent obtained on a
misconception of fact as per Section 90 of the IPC and, in
such a case, such a consent would not excuse the offender
and such an offender can be said to have committed the rape
as defined under Sections 375 of the IPC and can be
convicted for the offence under Section 376 of the IPC.”
Similar observations were made by this Court in Deepak Gulati v State of
Haryana10 (“Deepak Gulati”):
“21. … There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a
false promise of marriage by the accused…”
15 In Yedla Srinivasa Rao v State of Andhra Pradesh11 the accused
forcibly established sexual relations with the complainant. When she asked the
accused why he had spoiled her life, he promised to marry her. On this premise,
the accused repeatedly had sexual intercourse with the complainant. When the
complainant became pregnant, the accused refused to marry her. When the
matter was brought to the panchayat, the accused admitted to having had sexual
intercourse with the complainant but subsequently absconded. Given this factual
background, the court observed:
9
(2019) SCC OnLine SC 509
10 (2013) 7 SCC 675
11 (2006) 11 SCC 615
13
“10. It appears that the intention of the accused as per the
testimony of PW 1 was, right from the beginning, not honest
and he kept on promising that he will marry her, till she
became pregnant. This kind of consent obtained by the
accused cannot be said to be any consent because she was
under a misconception of fact that the accused intends to
marry her, therefore, she had submitted to sexual intercourse
with him. This fact is also admitted by the accused that he
had committed sexual intercourse which is apparent from the
testimony of PWs 1, 2 and 3 and before the panchayat of
elders of the village. It is more than clear that the accused
made a false promise that he would marry her. Therefore, the
intention of the accused right from the beginning was not
bona fide and the poor girl submitted to the lust of the
accused, completely being misled by the accused who held
out the promise for marriage. This kind of consent taken by
the accused with clear intention not to fulfil the promise and
persuading the girl to believe that he is going to marry her
and obtained her consent for the sexual intercourse under
total misconception, cannot be treated to be a consent….”
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. In Deepak Gulati this Court observed:
“21. … There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a
false promise of marriage by the accused; and whether the
consent involved was given after wholly understanding
the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to
have sexual intercourse on account of her love and
passion for the accused, and not solely on account of
14
misrepresentation made to her by the accused, or where
an accused on account of circumstances which he could not
have foreseen, or which were beyond his control, was unable
to marry her, despite having every intention to do so. Such
cases must be treated differently.
…
24. Hence, it is evident that there must be adequate evidence
to show that at the relevant time i.e. at the initial stage itself,
the accused had no intention whatsoever, of keeping his
promise to marry the victim. There may, of course, be
circumstances, when a person having the best of intentions is
unable to marry the victim owing to various unavoidable
circumstances. The “failure to keep a promise made with
respect to a future uncertain date, due to reasons that are not
very clear from the evidence available, does not always
amount to misconception of fact. In order to come within
the meaning of the term “misconception of fact”, the fact
must have an immediate relevance”. Section 90 IPC
cannot be called into aid in such a situation, to pardon the act
of a girl in entirety, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry
her.”
(Emphasis supplied)
17 In Uday v State of Karnataka12 the complainant was a college going
student when the accused promised to marry her. In the complainant’s
statement, she admitted that she was aware that there would be significant
opposition from both the complainant’s and accused’s families to the proposed
marriage. She engaged in sexual intercourse with the accused but nonetheless
kept the relationship secret from her family. The court observed that in these
circumstances the accused’s promise to marry the complainant was not of
immediate relevance to the complainant’s decision to engage in sexual
intercourse with the accused, which was motivated by other factors:
12 (2003) 4 SCC 46
15
“25. There is yet another difficulty which faces the prosecution in this
case. In a case of this nature two conditions must be fulfilled for the
application of Section 90 IPC. Firstly, it must be shown that the
consent was given under a misconception of fact. Secondly, it
must be proved that the person who obtained the consent knew,
or had reason to believe that the consent was given in
consequence of such misconception. We have serious doubts
that the promise to marry induced the prosecutrix to consent to
having sexual intercourse with the appellant. She knew, as we
have observed earlier, that her marriage with the appellant was
difficult on account of caste considerations. The proposal was bound
to meet with stiff opposition from members of both families. There
was therefore a distinct possibility, of which she was clearly
conscious, that the marriage may not take place at all despite the
promise of the appellant. The question still remains whether even
if it were so, the appellant knew, or had reason to believe, that
the prosecutrix had consented to having sexual intercourse with
him only as a consequence of her belief, based on his promise,
that they will get married in due course. There is hardly any
evidence to prove this fact. On the contrary, the circumstances of
the case tend to support the conclusion that the appellant had reason
to believe that the consent given by the prosecutrix was the result of
their deep love for each other. It is not disputed that they were deeply
in love. They met often, and it does appear that the prosecutrix
permitted him liberties which, if at all, are permitted only to a
person with whom one is in deep love. It is also not without
significance that the prosecutrix stealthily went out with the appellant
to a lonely place at 12 o'clock in the night. It usually happens in such
cases, when two young persons are madly in love, that they promise
to each other several times that come what may, they will get
married…”
(Emphasis supplied)
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.
16
19 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 that are relevant for the present purpose.
They are as follows:
(i) The complainant and the appellant knew each other since 1998 and
were intimate since 2004;
(ii) 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
(iii) 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.
The appellant is a Deputy Commandant in the CRPF while the complainant is an
Assistant Commissioner of Sales Tax.
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.
21 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 this 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 201513 which came into force on 26 January 2016. Prior to the
Amending Act, the relevant provisions of the statute (as it stood then) were as
follows:
“3. (1) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe. –
13 “Amending Act”
18
…
(x) intentionally insults or intimidates with intent to humiliate a
member of a Schedule Caste or a Scheduled Tribe in any
place within public view;
(xi) assaults or uses force to any woman belonging to a
Schedule Caste or a Scheduled Tribe with intent to dishonour
or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would
not have otherwise agreed; …”
22 Without entering into a detailed analysis of the content of the WhatsApp
messages sent by the appellant and the words alleged to have been spoken, it is
apparent that none of the offences set out above 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.
19
23 For the above reasons, we allow the appeal and set aside the impugned
judgement and order of the High Court dated 7 February 2019. The FIR dated 17
May 2016 is quashed.
…….……..…...…...….....………........J.
[Dr Dhananjaya Y Chandrachud]
…..…....…..…....…........…….…........J.
[Indira Banerjee]
New Delhi;
August 21, 2019.
Mere whatsapp message what ever it may be does not attaract the provisions of St & Sc Act.
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.
19 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 that are relevant for the present purpose.
They are as follows:
(i) The complainant and the appellant knew each other since 1998 and
were intimate since 2004;
(ii) 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
(iii) 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.
The appellant is a Deputy Commandant in the CRPF while the complainant is an
Assistant Commissioner of Sales Tax.
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
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.
21 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 this 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 201513 which came into force on 26 January 2016. Prior to the
Amending Act, the relevant provisions of the statute (as it stood then) were as
follows:
“3. (1) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe. –
13 “Amending Act”
18
…
(x) intentionally insults or intimidates with intent to humiliate a
member of a Schedule Caste or a Scheduled Tribe in any
place within public view;
(xi) assaults or uses force to any woman belonging to a
Schedule Caste or a Scheduled Tribe with intent to dishonour
or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would
not have otherwise agreed; …”
22 Without entering into a detailed analysis of the content of the WhatsApp
messages sent by the appellant and the words alleged to have been spoken, it is
apparent that none of the offences set out above 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.
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No. 1165 of 2019
(@SLP (Crl) No. 2712 of 2019)
Pramod Suryabhan Pawar …Appellant
Versus
The State of Maharashtra & Anr. …Respondents
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1. Leave granted.
2. By its judgement dated 7 February 2019, the High Court of Judicature at
Bombay dismissed an application under Section 482 of the Code of Criminal
Procedure 19731
. The appellant sought the quashing of a First Information
Report2
registered against him on 17 May 2016 with the Panvel City Police
Station for offences punishable under Sections 376, 417, 504 and 506(2) of the
Indian Penal Code3
and Sections 3(1) (u), (w) and 3(2) (vii) of The Scheduled
1
“CrPC”
2
“FIR”
3
“IPC”
2
Castes and Scheduled Tribes (Prevention of Atrocities Act, 1989 (as amended by
the Amendment Act, 2015)4
. The second respondent is the complainant.
3. The allegations in the FIR are summarised thus:
(i) According to the complainant, she and the appellant have known
each other since 1998. She would speak to the appellant on the phone and
met him regularly as early as 2004. In 2008 the appellant proposed
marriage and assured her that their belonging to different castes would not
be a hindrance. The appellant allegedly promised to marry the complainant
after the marriage of his elder sister. On 23 January 2009 the appellant
allegedly re-iterated his promise to marry her at the Patnadevi Temple in
Chalisgaon;
(ii) The complainant completed her B.Sc. in Agriculture in 2002 and
worked as a Junior Research Assistant. In 2007 she was selected as a Naib
Tahsildar at Chalisgaon. In March 2009 she was appointed to the post of
Assistant Sales Tax Commissioner at Mazgaon. The appellant would, it is
alleged, come to meet her and lived with her in November 2009. During his
visit, the complainant alleges that she refused to engage in sexual
intercourse with the appellant, but “on the promise of marriage he forcibly
established corporeal relationships”;
(iii) The complainant alleges that throughout 2010, the appellant visited
her on multiple occasions and they engaged in sexual intercourse. When
4
“SC/ST Act”
3
the appellant was posted in Gadchiroli, the complainant visited the appellant
multiple times over the course of 2011. Each of these visits lasted four to
five days during which the complainant resided with the appellant and they
engaged in sexual intercourse. During these visits the complainant enquired
about marriage and the appellant responded in the affirmative. In
December 2011 the appellant visited her and resided in her house for four
days;
(iv) The appellant’s elder sister was married on 5 February 2012. On 23
December 2012 the appellant visited her and forced her to engage in sexual
intercourse. Afterwards, for the first time the appellant raised concerns
about marrying her on the ground that their belonging to different castes
would hinder the appellant’s younger sister’s marriage. In January 2013 the
complainant visited the appellant in Nagpur, and the appellant also
subsequently visited her. On both occasions they engaged in sexual
intercourse;
(v) During these years she missed her menstrual periods on several
occasions. In 2013-14 the complainant and appellant jointly visited the
hospital multiple times to check whether she was pregnant. In June 2013
the appellant was posted in Navi Mumbai and used to spend his weekends
residing at the complainant’s house. They regularly engaged in sexual
intercourse during this period. Beginning in January 2014 the appellant
raised concerns about marrying the complainant on the ground of her caste.
This led to heated arguments. However, the appellant used to regularly visit
4
her house at Panvel until March 2015, each time engaging in sexual
intercourse with her;
(vi) On 27 and 28 August 2015 and 22 October of 2015 the appellant
sent the complainant certain WhatsApp messages. The complainant
alleges that these messages were insulting and attacked her on the grounds
of her caste. The messages stated:
“You are bad for society. If shoe is kept on head, then head would
get dirty. Reservation did not add any intelligence; You have got Govt.
service with ease”.
(vii) In November 2015 for the first time the complainant threatened to
file a police complaint against the appellant. The appellant promised to
marry her after the marriage of his brother. At this time also they engaged
in sexual intercourse; and
(viii) On 9 March 2016 the appellant engaged in sexual intercourse with
the complainant against her will. Subsequently, the complainant was
apprised of the fact that the appellant was engaged to another woman. The
appellant informed the complainant that the woman he was engaged to was
demanding Rs. two lakhs to break of the engagement. On 28 March 2016
the appellant re-iterated his promise to marry the complainant and arranged
for her to speak to the woman he had been engaged to, to assure the
complainant that the appellant was no longer in a relationship with her.
Subsequently the complainant became aware that the appellant had married
on 1 May 2016. On 17 May 2016 she filed the FIR.
5
4 The appellant applied for anticipatory bail. By an order dated 13 June 2016
he was granted ad-interim anticipatory bail. The order dated 13 June 2016 was
confirmed by the High Court of Bombay on 1 July 2016.
5 In Criminal Application No. 813 of 2016, the appellant moved the High
Court under Section 482 of the CrPC to quash the FIR dated 17 May 2016. By
its order dated 7 February 2019 the High Court rejected the application, noting:
“3. Though the relationship was with consent, it appears
that there was a promise to marry and statement shows that
later on, giving reason of caste of Complainant, promise
was not kept.
4. In view of this prima facie situation, we are not inclined to
intervene in extra ordinary jurisdiction. We make it clear that
our observations are only for the purposes of refusing to
entertain the grievance in extra ordinary jurisdiction and we
have not recorded any finding either way on contentions.”
6 Mr Sushil Karanjkar, learned counsel for the appellant contends that in
refusing to quash the FIR the High Court failed to distinguish between rape and
consensual sex. It is submitted that the allegations on the face of the FIR
indicate that the physical relationship between the appellant and the complainant
existed for over a period of six years with her consent as evidenced by multiple
periods of co-habitation, visits, and lack of resistance or complaint by the
complainant. Against this, Mr Katneshwarkar, learned counsel appearing for the
respondent-State as well as Mr Nilesh Tribhavan, learned counsel for the
complainant relied upon certain decisions of this Court. In her counter affidavit,
the complainant has submitted:
6
“i. It is submitted that the Petitioner has resorted forming
a relationship with me only in order to fulfil his lust.
ii. It is submitted that the Petitioner promised to marry
me and then manipulated me emotionally and mentally to
have physical relations with him, even when he was well
aware that such actions of his have caused me immense
physical and mental suffrage.
iii. It is submitted that the Petitioner promised me
matrimony only so that he could maintain a physical relation
and would not have to face the hassle of having to find
multiple women and establish physical relations with each
one of them as his job was of a transferable nature and
meeting multiple women to fulfil his luscious behaviour was
not possible.
iv. It is submitted that the Petitioner from the start had ill
and misconstrued notions about people belonging from
SC/ST caste which he pretended to be absent of throughout
the relationship and lied about but was unable to hold back
when he was pressurized and put in a corner.”
Learned counsel referred to the submissions which have been set out in the
counter affidavit, during the course of the hearing.
7 Section 482 is an overriding section which saves the inherent powers of
the court to advance the cause of justice. Under Section 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 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. These principles have been consistently followed and re-iterated by
7
this Court. In Inder Mohan Goswami v State of Uttaranchal5
, this Court
observed.
“23. This Court in a number of cases has laid down the
scope and ambit of courts’ powers under Section 482
CrPC. Every High Court has inherent powers to act ex
debito justitiae to do real and substantial justice, for the
administration of which alone it exists, or to prevent abuse
of the process of the court. Inherent power under Section
482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the court,
and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide
have to be exercised sparingly, carefully and with great
caution and only when exercise is justified by the tests
specifically laid down in this section itself. Authority of the
court exists for the advancement of justice. If any abuse of
the process leading to injustice is brought to the notice of
the court, then the court would be justified in preventing
injustice by invoking inherent powers in absence of specific
provisions in the statute.”
8 Given the varied nature of cases that come before the High Courts, any
strict test as to when the court’s extraordinary powers can be exercised is likely to
tie the court’s hands in the face of future injustices. This Court in State of
Haryana v Bhajan Lal6
conducted a detailed study of the situations where the
court may exercise its extraordinary jurisdiction and laid down a list of illustrative
examples of where quashing may be appropriate. It is not necessary to discuss
all the examples, but a few bear relevance to the present case. The court in
Bhajan Lal noted that quashing may be appropriate where,
5
(2007) 12 SCC 1
6
1992 Supp (1) SCC 335
8
“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.”
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. As this Court noted in
Dhruvaram Murlidhar Sonar v State of Maharashtra,
7
(“Dhruvaram Sonar”) :
“13. It is clear that for quashing 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.”
9 The present proceedings concern 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
7
2018 SCC OnLine SC 3100
9
offence of rape which is set out in Section 375. Section 375 prescribes seven
descriptions of how the offence of rape may be committed. For the present
purposes only the second such description, along with Section 90 of the IPC is
relevant and 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 descriptionsFirstly …
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.”
“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…”
10 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
10
does not define the term “consent”, a “consent” based on a “misconception of
fact” is not consent in the eyes of the law.
11 The primary contention advanced by the complainant is that the appellant
engaged in sexual relations with her on the false promise of marrying her, and
therefore her “consent”, being premised on a “misconception of fact” (the promise
to marry), stands vitiated.
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. In Dhruvaram Sonar which was a case involving the invoking of the
jurisdiction under Section 482, this Court observed:
“15. … 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.”
This understanding was also emphasised in the decision of this Court in Kaini
Rajan v State of Kerala8
:
“12. … “Consent”, for the purpose of Section 375, requires
voluntary participation not only after the exercise of
intelligence based on the knowledge of the significance of the
moral quality of the act but after having fully exercised the
choice between resistance and asset. Whether there was
8
(2013) 9 SCC 113
11
consent or not, is to be ascertained only on a careful study of
all relevant circumstances.”
13 This understanding of consent has also been set out in Explanation 2 of
Section 375 (reproduced above). Section 3(1) (w) of the SC/ST Act also
incorporates this concept of consent:
“3(1) (w) -
(i) intentionally touches a woman belonging to a Scheduled
Caste or a Scheduled Tribe, knowing that she belongs to a
Scheduled Caste or a Scheduled Tribe, when such act of
touching is of a sexual nature and is without the recipient’s
consent;
…
Explanation.––For the purposes of sub-clause (i), the
expression “consent” means an unequivocal voluntary
agreement when the person by words, gestures, or any form
of non-verbal communication, communicates willingness to
participate in the specific act:
Provided that a woman belonging to a Scheduled Caste or a
Scheduled Tribe who does not offer physical resistance to
any act of a sexual nature is not by reason only of that fact, is
to be regarded as consenting to the sexual activity:
Provided further that a woman’s sexual history, including with
the offender shall not imply consent or mitigate the offence;”
14 In the present case, the “misconception of fact” alleged by the complainant
is the appellant’s promise to marry her. 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
12
a promise which is made in good faith but subsequently not fulfilled. In Anurag
Soni v State of Chhattisgarh9
, this Court held:
“37. The sum and substance of the aforesaid decisions would
be that if it is established and proved that from the inception
the accused who gave the promise to the prosecutrix to
marry, did not have any intention to marry and the prosecutrix
gave the consent for sexual intercourse on such an
assurance by the accused that he would marry her, such a
consent can be said to be a consent obtained on a
misconception of fact as per Section 90 of the IPC and, in
such a case, such a consent would not excuse the offender
and such an offender can be said to have committed the rape
as defined under Sections 375 of the IPC and can be
convicted for the offence under Section 376 of the IPC.”
Similar observations were made by this Court in Deepak Gulati v State of
Haryana10 (“Deepak Gulati”):
“21. … There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a
false promise of marriage by the accused…”
15 In Yedla Srinivasa Rao v State of Andhra Pradesh11 the accused
forcibly established sexual relations with the complainant. When she asked the
accused why he had spoiled her life, he promised to marry her. On this premise,
the accused repeatedly had sexual intercourse with the complainant. When the
complainant became pregnant, the accused refused to marry her. When the
matter was brought to the panchayat, the accused admitted to having had sexual
intercourse with the complainant but subsequently absconded. Given this factual
background, the court observed:
9
(2019) SCC OnLine SC 509
10 (2013) 7 SCC 675
11 (2006) 11 SCC 615
13
“10. It appears that the intention of the accused as per the
testimony of PW 1 was, right from the beginning, not honest
and he kept on promising that he will marry her, till she
became pregnant. This kind of consent obtained by the
accused cannot be said to be any consent because she was
under a misconception of fact that the accused intends to
marry her, therefore, she had submitted to sexual intercourse
with him. This fact is also admitted by the accused that he
had committed sexual intercourse which is apparent from the
testimony of PWs 1, 2 and 3 and before the panchayat of
elders of the village. It is more than clear that the accused
made a false promise that he would marry her. Therefore, the
intention of the accused right from the beginning was not
bona fide and the poor girl submitted to the lust of the
accused, completely being misled by the accused who held
out the promise for marriage. This kind of consent taken by
the accused with clear intention not to fulfil the promise and
persuading the girl to believe that he is going to marry her
and obtained her consent for the sexual intercourse under
total misconception, cannot be treated to be a consent….”
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. In Deepak Gulati this Court observed:
“21. … There is a distinction between the mere breach of a
promise, and not fulfilling a false promise. Thus, the court
must examine whether there was made, at an early stage a
false promise of marriage by the accused; and whether the
consent involved was given after wholly understanding
the nature and consequences of sexual indulgence.
There may be a case where the prosecutrix agrees to
have sexual intercourse on account of her love and
passion for the accused, and not solely on account of
14
misrepresentation made to her by the accused, or where
an accused on account of circumstances which he could not
have foreseen, or which were beyond his control, was unable
to marry her, despite having every intention to do so. Such
cases must be treated differently.
…
24. Hence, it is evident that there must be adequate evidence
to show that at the relevant time i.e. at the initial stage itself,
the accused had no intention whatsoever, of keeping his
promise to marry the victim. There may, of course, be
circumstances, when a person having the best of intentions is
unable to marry the victim owing to various unavoidable
circumstances. The “failure to keep a promise made with
respect to a future uncertain date, due to reasons that are not
very clear from the evidence available, does not always
amount to misconception of fact. In order to come within
the meaning of the term “misconception of fact”, the fact
must have an immediate relevance”. Section 90 IPC
cannot be called into aid in such a situation, to pardon the act
of a girl in entirety, and fasten criminal liability on the other,
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry
her.”
(Emphasis supplied)
17 In Uday v State of Karnataka12 the complainant was a college going
student when the accused promised to marry her. In the complainant’s
statement, she admitted that she was aware that there would be significant
opposition from both the complainant’s and accused’s families to the proposed
marriage. She engaged in sexual intercourse with the accused but nonetheless
kept the relationship secret from her family. The court observed that in these
circumstances the accused’s promise to marry the complainant was not of
immediate relevance to the complainant’s decision to engage in sexual
intercourse with the accused, which was motivated by other factors:
12 (2003) 4 SCC 46
15
“25. There is yet another difficulty which faces the prosecution in this
case. In a case of this nature two conditions must be fulfilled for the
application of Section 90 IPC. Firstly, it must be shown that the
consent was given under a misconception of fact. Secondly, it
must be proved that the person who obtained the consent knew,
or had reason to believe that the consent was given in
consequence of such misconception. We have serious doubts
that the promise to marry induced the prosecutrix to consent to
having sexual intercourse with the appellant. She knew, as we
have observed earlier, that her marriage with the appellant was
difficult on account of caste considerations. The proposal was bound
to meet with stiff opposition from members of both families. There
was therefore a distinct possibility, of which she was clearly
conscious, that the marriage may not take place at all despite the
promise of the appellant. The question still remains whether even
if it were so, the appellant knew, or had reason to believe, that
the prosecutrix had consented to having sexual intercourse with
him only as a consequence of her belief, based on his promise,
that they will get married in due course. There is hardly any
evidence to prove this fact. On the contrary, the circumstances of
the case tend to support the conclusion that the appellant had reason
to believe that the consent given by the prosecutrix was the result of
their deep love for each other. It is not disputed that they were deeply
in love. They met often, and it does appear that the prosecutrix
permitted him liberties which, if at all, are permitted only to a
person with whom one is in deep love. It is also not without
significance that the prosecutrix stealthily went out with the appellant
to a lonely place at 12 o'clock in the night. It usually happens in such
cases, when two young persons are madly in love, that they promise
to each other several times that come what may, they will get
married…”
(Emphasis supplied)
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.
16
19 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 that are relevant for the present purpose.
They are as follows:
(i) The complainant and the appellant knew each other since 1998 and
were intimate since 2004;
(ii) 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
(iii) 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.
The appellant is a Deputy Commandant in the CRPF while the complainant is an
Assistant Commissioner of Sales Tax.
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.
21 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 this 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 201513 which came into force on 26 January 2016. Prior to the
Amending Act, the relevant provisions of the statute (as it stood then) were as
follows:
“3. (1) Whoever, not being a member of a Scheduled Caste or
a Scheduled Tribe. –
13 “Amending Act”
18
…
(x) intentionally insults or intimidates with intent to humiliate a
member of a Schedule Caste or a Scheduled Tribe in any
place within public view;
(xi) assaults or uses force to any woman belonging to a
Schedule Caste or a Scheduled Tribe with intent to dishonour
or outrage her modesty;
(xii) being in a position to dominate the will of a woman
belonging to a Scheduled Caste or a Scheduled Tribe and
uses that position to exploit her sexually to which she would
not have otherwise agreed; …”
22 Without entering into a detailed analysis of the content of the WhatsApp
messages sent by the appellant and the words alleged to have been spoken, it is
apparent that none of the offences set out above 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.
19
23 For the above reasons, we allow the appeal and set aside the impugned
judgement and order of the High Court dated 7 February 2019. The FIR dated 17
May 2016 is quashed.
…….……..…...…...….....………........J.
[Dr Dhananjaya Y Chandrachud]
…..…....…..…....…........…….…........J.
[Indira Banerjee]
New Delhi;
August 21, 2019.
