There is no allegation to the effect that the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of CrPC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No 233 of 2021
(Arising out of SLP (Crl) No 11218 of 2019)
Sonu @ Subhash Kumar .... Appellant
Versus
State of Uttar Pradesh & Anr ....Respondent(s)
J U D G M E N T
Dr Dhananjaya Y Chandrachud, J
1 Leave granted.
2 This appeal, by way of an SLP, arises from a judgment of a learned Single Judge
of the High Court of Judicature at Allahabad dated 26 September 2019 in
Criminal Miscellaneous Application No 35811 of 2019. The above application
was instituted under Section 482 of the Code of Criminal Procedure 19731
for
quashing the charge sheet dated 25 April 2018 in Case No 1066/IX/19 arising out
of Case Crime No 121 of 2008 under Section 376 of the Indian Penal Code 18602
at PS Kotwali, District Mathura. The High Court dismissed the application with a
direction that the appellant herein may move the trial Court to seek discharge at
the appropriate stage. However, the High Court directed that if the appellant
moves an application for bail before the competent Court, the application should
1 “CrPC”
2 “IPC”
2
be disposed of in accordance with law. In the meantime, the appellant was
protected against coercive action for a period of thirty days and was directed to
appear before the Competent Court within the aforesaid period.
3 In order to consider the grievance of the appellant, it would be necessary to
advert to the contents of the FIR. The FIR was lodged by the second respondent
on 7 February 2018. The FIR, which is registered on the basis of a written
complaint of the second respondent to the SHO, PS Kotwali, Mathura, states that
the second respondent developed friendship with the appellant and that he
assured that he would marry her. It has then stated that she was exploited
physically for one and a half years and that the second respondent had also
spoken to the parents and sister of the appellant. It has been stated that the
father of the appellant had informed the second respondent that he would
arrange the marriage of the appellant with her. After a lapse of about a year and
a half, the appellant is stated to have gone back to his home town which is
Jhansi on 5 January 2018 and made a phone call to the second respondent that,
since he wishes to perform a “court marriage”, the second respondent may
come to Jhansi. This was on the ground that the appellant could not travel to
Mathura where the second respondent lived. The second respondent has
alleged that she proceeded to Jhansi, but on reaching the residence of the
appellant, she was informed by the father of the appellant that the appellant
does not wish to marry her. The appellant’s father also stated that the appellant
did not desire to meet her and further asked her to take some money and leave
from there. The FIR further records that the second respondent was assaulted by
the appellant’s sister and thrown out of the appellant’s house. The statement of
the second respondent was recorded under Section 164 of CrPC. The entirety of
the statement is extracted below:
3
“Statement U/s 164 Cr.P.C.
Name of victim: Geeta D/o Ram Babu, Age 25 years,
stated on oath that -
I had love affair with Sonu S/o Kamlesh, age 27 years, for
the last 1-1/2 years. He used to tell to marry with me. I
got influenced by his talks. I voluntarily developed
relationship of husband-wife with him. Now, he and his
family members are refusing to marry with me. On 5th
January, 2018 Sonu went to Jhansi and from there also he
kept on taking [sic talking] with me on phone. He called
me to Jhansi and then on 21.01.2018 without informing
anybody in my home, I went to Jhansi on the address
given by Sonu. His father met me there and told me that
they are not intending to solemniz’e my marriage with
Sonu and advised me to ran away from there after taking
some money. Sonu’s mother Shobha and sister Neha
assaulted me. On 21.1.2018 I stayed at Jhansi station
and then on the training [sic train] of 12 O' clock in the
night I came back to Mathura. My sole grievance is that
Sonu is refusing to marry with me. I have studied upto
class 6th. I have nothing more to say.
It is certified that the above statement has been given by
the victim with her own voluntary wish and without any
force or pressure.
Recorded by
Sd/- .
6.3.18
Heard and verified
Sd/- _
Victim”
4 Mr Amit Pawan, learned counsel appearing on behalf of the appellant, has relied
upon a decision of this Court in Pramod Suryabhan Pawar v State of
Maharashtra3
. Learned counsel submitted that the relationship between the
appellant and the second respondent was consensual in nature. It has been
urged that a bare reading of the FIR as well as the statement under Section 164
of CrPC would indicate that there was absolutely no intent on the part of the
3 (2019) 9 SCC 608
4
appellant, when he entered upon the relationship, not to marry the second
respondent nor can it be even suggested that the promise to marry was false.
Hence, it has been submitted that no offence has been made out within the
meaning of Section 376 of IPC.
5 On the other hand, Mr Simant Kumar, learned counsel appearing on behalf of the
second respondent, supported the judgment of the High Court stating that the
FIR would indicate that the complaint of the second respondent on the basis of
which the FIR was registered would indicate that the second respondent had
developed a friendship with the appellant who had assured that he would marry
her.
6 Mr Vishnu Shankar Jain, learned counsel appearing on behalf of the State of Uttar
Pradesh, has similarly supported the decision of the High Court, relying on the
observations contained in paragraph 16 of the decision of this Court in Pramod
Suryabhan Pawar (supra).
7 On the basis of the rival submissions and with the assistance of the counsel, we
have perused the FIR. The FIR specifically records that the second respondent
had developed a friendship with the appellant and that he had assured that he
would marry her. The FIR then records that the appellant and the second
respondent developed a physical relationship which spread over a period of one
and a half years, during the course of which the second respondent conversed
with the parents and sister of the appellant. It has been alleged in the FIR that
the parents of the appellant were agreeable to the couple getting married. As a
matter of fact, the appellant returned to his home town at Jhansi on 5 January
2018 when he had made a phone call to her stating that she should come and
visit him so that they can get married. On travelling to Jhansi at the behest of
the appellant, the second respondent was informed by the father of the
5
appellant that the appellant did not wish to marry her. The contents of the
statement under Section 164 of CrPC also indicate that the second respondent
had “voluntarily developed relationship of husband-wife with him”. The second
respondent has then stated that “now, he and his family members are refusing
to marry with me”. The second respondent has further stated that “my sole
grievance is that Sonu is refusing to marry with me”.
8 The contents of the FIR as well as the statement under Section 164 of CrPC
leave no manner of doubt that, on the basis of the allegations as they stand,
three important features emerge:
(i) The relationship between the appellant and the second respondent was of
a consensual nature;
(ii) The parties were in the relationship for about a period of one and a half
years; and
(iii) Subsequently, the appellant had expressed a disinclination to marry the
second respondent which led to the registration of the FIR.
9 In Pramod Suryabhan Pawar (supra), while dealing with a similar situation,
the principles of law which must govern a situation like the present were
enunciated in the following observations:
“Where the promise to marry is false and the intention of the
maker at the time of making the promise itself was not to abide
by it but to deceive the woman to convince her to engage in
sexual relations, there is a “misconception of fact” that vitiates
the woman’s “consent”. On the other hand, a breach of a
promise cannot be said to be a false promise. To establish a
false promise, the maker of the promise should have had no
intention of upholding his word at the time of giving it...”
6
10 Further, the Court has observed:
“To summarise the legal position that emerges from the above
cases, the “consent” of a woman with respect to Section
375 must involve an active and reasoned deliberation towards
the proposed act. To establish whether the “consent” was
vitiated by a “misconception of fact” arising out of a promise to
marry, two propositions must be established. The promise of
marriage must have been a false promise, given in bad faith
and with no intention of being adhered to at the time it was
given. The false promise itself must be of immediate relevance,
or bear a direct nexus to the woman’s decision to engage in the
sexual act.”
11 Bearing in mind the tests which have been enunciated in the above decision, we
are of the view that even assuming that all the allegations in the FIR are correct
for the purposes of considering the application for quashing under Section 482 of
CrPC, no offence has been established. There is no allegation to the effect that
the promise to marry given to the second respondent was false at the inception.
On the contrary, it would appear from the contents of the FIR that there was a
subsequent refusal on the part of the appellant to marry the second respondent
which gave rise to the registration of the FIR. On these facts, we are of the view
that the High Court was in error in declining to entertain the petition under
Section 482 of CrPC on the basis that it was only the evidence at trial which
would lead to a determination as to whether an offence was established.
12 For the above reasons, we allow the appeal and set aside the impugned
judgment and order of the High Court dated 26 September 2019. In view of the
reasons which have been adduced earlier, the charge sheet dated 25 April 2018,
which has been filed in pursuance of the investigation which took place, shall
stand quashed. The order of the trial Court dated 3 October 2018 taking
cognizance shall accordingly stand quashed and set aside.
13 In view of the above order, Mr Amit Pawan, learned counsel appearing on behalf
of the appellant, states that no further step shall be taken in respect of the
7
cross-FIR which was registered against the second respondent at the behest of
the appellant.
14 Pending application, if any, stands disposed of.
…………...…...….......………………........J.
[Dr Dhananjaya Y Chandrachud]
…..…..…....…........……………….…........J.
[M R Shah]
New Delhi;
March 01, 2021
-S-
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ITEM NO.10 Court 6 (Video Conferencing) SECTION II
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (Crl.) No(s).11218/2019
(Arising out of impugned final judgment and order dated 26-09-2019
in A482 No. 35811/2019 passed by the High Court of Judicature at
Allahabad)
SONU @ SUBHASH KUMAR Petitioner(s)
VERSUS
STATE OF UTTAR PRADESH & ANR. Respondent(s)
Date : 01-03-2021 This petition was called on for hearing today.
CORAM :
HON'BLE DR. JUSTICE D.Y. CHANDRACHUD
HON'BLE MR. JUSTICE M.R. SHAH
For Petitioner(s) Mr. Amit Pawan, AOR
Mr. Anand Nandan, Adv.
For Respondent(s) Mr. Vishnu Shankar Jain, AOR
Mr. Chanakya Gupta, Adv.
Mr. Simant Kumar, Adv.
Mr. Ravi Prakash, AOR
Ms. Jaishree Raj Soni, Adv.
Mr. Sandeep Malik, Adv.
Vagisha Nandini, Adv.
Mr. Vikram Singh Arya, Adv.
UPON hearing the counsel the Court made the following
O R D E R
1 Leave granted.
2 The appeal is allowed in terms of the signed reportable judgment.
3 Pending application, if any, stands disposed of.
(SANJAY KUMAR-I) (SAROJ KUMARI GAUR)
AR-CUM-PS COURT MASTER
(Signed reportable judgment is placed on the file)
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