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IN THE HIGH COURT OF MADHYA PRADESH

AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 13 th OF JULY, 2023
MISC. CRIMINAL CASE No. 46602 of 2022

BETWEEN:-
AMAR SINGH RAJPUT S/O SHRI GOTERAM RAJPUT,
AGED ABOUT 56 YEARS, MARSENI KHURD DATIA
DISTT DATIA (MADHYA PRADESH)

.....APPLICANT
(BY SHRI SAMEER KUMAR SHRIVASTAVA - ADVOCATE)

AND
1. THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THROUGH P S SEONDHA DISTT
DATIA (MADHYA PRADESH)

2. PR OS ECUTR IX THROUGH POLICE STATION

SEONDHA DISTRICT DATIA (MADHYA PRADESH)

.....RESPONDENTS
(BY SHRI NIRMAL SHARMA - PUBLIC PROSECUTOR)
(BY SHRI HARISH SHARMA - LEARNED COUNSEL FOR THE
RESPONDENT NO.2]

This application coming on for hearing this day, the court passed the

following:
ORDER
The present petition under Section 482 of CrPC has been filed by the
petitioner for quashing the FIR crime No.164/2021 registered at Police Station
Seondha, Distt. Datia for the offence punishable under Sections 376(2)(N), 506
and 34 of IPC and its subsequent criminal proceedings in the form of charge-
sheet.
I n brief the case of the prosecution is that on 28.07.2021 prosecutrix
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lodged the report alleging that in the year 2017, she was in contact to the
present petitioner and in the year 2020, the present petitioner made a marriage
proposal consequently thereto she came to the Seondha on 29.06.2020 and
stayed in Seondha in a house where the petitioner made physical relationship
with her and by making false pretext of marriage. When the prosecutrix told the
petitioner to solemnized marriage, the petitioner use to ignore the prosecutrix.
Thereafter prosecutrix came back to her house, where proseuctrix regularly
speak from the phone to the petitioner. It is further submitted that on
10.07.2021, the prosecutrix again came back to Seondha and thereafter, the
petitioner took the prosecutrix in a car and assaulted her, consequently, thereto

the FIR has been lodged on 28.07.2021 against the petitioner for the offence
punishable under Section 376(2)(N), 506 and 34 of IPC.
It is submitted by learned counsel for the petitioner that the FIR has been
lodged by the complainant with mala fide intention just to take undue benefit.
FIR is highly belated. The complainant- prosecutrix is a mature lady having
three children and she knew the petitioner from the last more than one year. She
has made physical relations with the petitioner on her own consent and free will.
The prosecutrix was in relationship with petitioner over a significant period of
time, therefore, consent of the prosecutrix is not obtained by
misrepresentation. Just to take undue benefit she has lodged a false FIR. In
the FIR itself prosecutrix has stated that she remained in relationship with
petitioner from 2020 and if any woman continues to remain in physical
relationship for a long period during which she was free to visit at every place,
then it cannot be said that her consent was obtained by misconception of fact.
To buttress his contentions, the counsel for the petitioner has relied upon the
judgments passed by the Supreme Court in the case of Deepak Gulati vs.
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State of Haryana AIR 2013 SC 2071, Tilak Raj vs. State of Himachal
Pradesh AIR 2016 SC 406, Uday vs. State of Karnataka (2003) 4 SCC
46, Pramod Suryabhan Pawar Vs. State of Maharashtra and Anr. (2019)
3 SCC (Cri.) 903, Sonu @ Subhash Kumar Vs. State of Uttar Pradesh &
Anr. AIR 2021 SC 1405 as well as the judgments passed by this Court in the
case of Senjeet Singh Vs. State of M.P. and another 2020 (1) MPLJ
(Cri.) 260, Abid Ali Vs. State of MP & Anr. passed on 18/5/2017 in
M.Cr.C. No.11363/2016 and a judgment passed by a coordinate Bench of
this Court in the case of Umesh Lilani Vs. The State of M.P. & Anr. passed
on 18/7/2019 in M.Cr.C. No.16158/2019 (Indore Bench) as well as the order
dated 28th March, 2022 passed by a Coordinate Bench of this Court in the case
o f Satendra Rathore vs. State of MP and Another passed in MCRC
45389 of 2021.
On the other hand, the petition is vehemently opposed by the counsel for
the State as well as counsel for the complainant by submitting that if a girl has
believed the promise made by the offender for a long period and continued with
the physical relationship, then it cannot be said that her consent was not
obtained by misconception of fact.
Heard learned counsel for the parties.
From the plain reading of the allegations made by the prosecutrix in her

FIR as well as 164 Cr.P.C. statement, it is clear that she was in relationship with
the petitioner since 2020. FIR has been lodged on 28.07.2021. Before lodging
the report, prosecutrix has not made any complaint to anybody in this regard.
The Hon'ble Apex Court in the case of Deepak Gulati (supra) has held
as under:-

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''​1 8. Consent may be express or implied, coerced or misguided,
obtained willingly or through deceit. Consent is an act of reason,
accompanied by deliberation, the mind weighing, as in a balance, the good
and evil on each side. There is a clear distinction between rape and
consensual sex and in a case like this, the court must very carefully
examine whether the accused had actually wanted to marry the victim, or
had mala fide motives, and had made a false promise to this effect only to
satisfy his lust, as the latter falls within the ambit of cheating or deception.
There is 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 mis-
representation 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. An accused can
be convicted for rape only if the court reaches a conclusion that the
intention of the accused was mala fide, and that he had clandestine
motives. ''
In the case of Tilak Raj (supra), the Hon'ble Supreme Court has held
as under:-
''19. We have carefully heard both the parties at length and have

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also given our conscious thought to the material on record and relevant
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provisions of The Indian Penal Code (in short "the IPC"). In the instant
case, the prosecutrix was an adult and mature lady of around 40 years at
the time of incident. It is admitted by the prosecutrix in her testimony
before the trial court that she was in relationship with the appellant for the
last two years prior to the incident and the appellant used to stay overnight
at her residence. After a perusal of copy of FIR and evidence on record
the case set up by the prosecutrix seems to be highly unrealistic and
unbelievable.''
The Hon'ble Supreme Court further in the case of Uday (supra) has held
as under:-

''21. It therefore appears that the consensus of judicial opinion

is in favour of the view that the consent given by the
prosecutrix to sexual intercourse with a person with whom she
is deeply in love on a promise that he would marry her on a
later date, cannot be said to be given under a misconception of
fact. A false promise is not a fact within the meaning of the
Code. We are inclined to agree with this view, but we must
add that there is no straitjacket formula for determining
whether consent given by the prosecutrix to sexual intercourse
is voluntary, or whether it is given under a misconception of
fact. In the ultimate analysis, the tests laid down by the courts
provide at best guidance to the judicial mind while considering
a question of consent, but the court must, in each case, consider
the evidence before it and the surrounding circumstances,
before reaching a conclusion, because each case has its own
peculiar facts which may have a bearing on the question
whether the consent was voluntary, or was given under a
misconception of fact. It must also weigh the evidence keeping
in view the fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence of consent
being one of them.
23. Keeping in view the approach that the court must adopt in
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such cases, we shall now proceed to consider the evidence on
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record. In the instant case, the prosecutrix was a grown-up girl
studying in a college. She was deeply in love with the
appellant. She was, however, aware of the fact that since they
belonged to different castes, marriage was not possible. In any
event the proposal for their marriage was bound to be
seriously opposed by their family members. She admits having
told so to the appellant when he proposed to her the first time.
She had sufficient intelligence to understand the significance
and moral quality of the act she was consenting to. That is why
she kept it a secret as long as she could. Despite this, she did
not resist the overtures of the appellant, and in fact succumbed
to them. She thus freely exercised a choice between resistance
and assent. She must have known the consequences of the act,
particularly when she was conscious of the fact that their
marriage may not take place at all on account of caste
considerations. All these circumstances lead us to the
conclusion that she freely, voluntarily and consciously
consented to having sexual intercourse with the appellant, and
her consent was not in consequence of any misconception of
fact.
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
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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.
As stated by the prosecutrix the appellant also made such a
promise on more than one occasion. In such circumstances the
promise loses all significance, particularly when they are
overcome with emotions and passion and find themselves in
situations and circumstances where they, in a weak moment,
succumb to the temptation of having sexual relationship. This is
what appears to have happened in this case as well, and the
prosecutrix willingly consented to having sexual intercourse
with the appellant with whom she was deeply in love, not
because he promised to marry her, but because she also
desired it. In these circumstances it would be very difficult to
impute to the appellant knowledge that the prosecutrix had
consented in consequence of a misconception of fact arising
from his promise. In any event, it was not possible for the
appellant to know what was in the mind of the prosecutrix
when she consented, because there were more reasons than one
for her to consent.''
The Hon'ble Apex Court in the case of Sonu @ Subhash Kumar
(supra) has held as under:-

''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
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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.''
The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar
(supra) has held as under:-

''14. In the present case, the "misconception of fact" alleged by

t h e 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 a promise which is made in good faith but
subsequently not fulfilled. In Anurag Soni v. State of
Chhattisgarh, this Court held: (SCC para 12)
"12. 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 Indian Penal Code 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 Indian Penal Code and can be convicted for the offence
Under Section 376 IPC." Similar observations were made by
this Court in Deepak Gulati v. State of Haryana ("Deepak
Gulati"): (SCC p.682, para 21)
"21. ... There is a distinction between the mere breach of a
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promise, and not fulfilling a false promise. Thus, the court must
examine whether that was made, at an early stage a false
promise of marriage by the Accused....

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: (SCC pp.682-84, paras 21
& 24)
2 1 . ... 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 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
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uncertain date, due to reasons that are not very clear from the
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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 Indian Penal Code 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.
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 thewoman's decision to
engage in the sexual act."
T he Hon'ble Apex Court in the case of Dr. Dhruvaram Murlidhar
Sonar Vs. Naval Singh Rajput and others reported in 2019 (3) MPLJ
(Cri.) SC 52 has held as under:-

''20. Thus, there is a clear distinction between rape and

consensual sex. The Court, in such cases, must very carefully
examine whether the complainant had actually wanted to marry
the victim or had mala fide motives and had made a false
promise to this effect only to satisfy his lust, as the later falls
within the ambit of cheating or deception. There is also a
distinction between mere breach of a promise and not fulfilling
a false promise. If the accused has not made the promise with
the sole intention to seduce the prosecutrix to indulge in sexual
acts, such an act would not amount to rape. There may be a
case where the prosecutrix agrees to have sexual intercourse
on account of her love and passion for the accused and not
solely on account of the misconception created by accused, or
where an accused, on account of circumstances which he could
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not have foreseen or which were beyond his control, was
unable to marry her despite having every intention to do. Such
cases must be treated differently. If the complainant had any
mala fide intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual physical
relationship between the parties would not constitute an
offence under section 376 of the Indian Penal Code.
21.In the instant case, it is an admitted position that the
appellant was serving as a Medical Officer in the Primary
Health Centre and the complainant was working as an
Assistant Nurse in the same health centre and that the is a
widow. It was alleged by her that the appellant informed her
that he is a married man and that he has differences with his
wife. Admittedly, they belong to different communities. It is
also alleged that the accused/appellant needed a month's time
to get their marriage registered. The complainant further states
that she had fallen in love with the appellant and that she
needed a companion as she was a widow. She has specifically
stated that as I was also a widow and I was also in need of a
companion, I agreed to his proposal and since then we were
having love affair and accordingly we started residing
together. We used to reside sometimes at my home whereas
some time at his home. Thus, they were living together,
sometimes at her house and sometimes at the residence of the
appellant. They were in a relationship with each other for quite
some time and enjoyed each others company. It is also clear
that they had been living as such for quite some time together.
When she came to know that the appellant had married some
other woman, she lodged the complaint. It is not her case that
t h e complainant has forcibly raped her. She had taken a
conscious decision after active application of mind to the
things that had happened. It is not a case of a passive
submission in the face of any psychological pressure exerted
and there was a tacit consent and the tacit consent given by her
was not the result of a misconception created in her mind. We
are of the view that, even if the allegations made in the
complaint are taken at their face value and accepted in their
entirety, they do not make out a case against the appellant. We
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are also of the view that since complainant has failed to prima
facie show the commission of rape, the complaint registered
under section 376(2)(b) cannot be sustained. ''
O n going through the law laid down by the Hon'ble Apex Court it is
evident that there is a distinction between "mere breach of promise'' and

''giving a false promise to marry''. Only a false promise to marry made with an
intention to deceive a woman would vitiate the woman's consent being obtained
under misconception of fact, but mere breach of promise cannot be said to be a
false promise. In the present case at hand, the complainant- prosecutrix was in
physical relationship with petitioner for a long period. She herself went with the
petitioner to a house in Seondha. Thus, it cannot be said that her consent was
obtained by misconception of fact. At the most, it can be said to be a breach of
promise to marry. Near about more than one year time is sufficient time for a
prudent woman to realize as to whether the promise of marriage made by the
petitioner is false from its very inception or there is a possibility of breach of
promise. When the petitioner was not acceding to her request for marriage, then
why she continued with relationship with him till lodging of the FIR. Thus, it is
clear that at the most, it can be said that it is a case of breach of promise and,
therefore, it cannot be said that the promise made by the petitioner was obtained
under fear or misconception of fact.
Under these circumstances, the prosecution of the petitioner for offence
under Sections 376(2)(N), 506 and 34 of IPC would be nothing but abuse of
process of law and, therefore, FIR crime No.164/2021 registered at police
Station Seondha, Distt. Datia for the offence punishable under Sections 376(2)
(N), 506 and 34 of IPC and its subsequent criminal proceedings in the form of
charge-sheet are quashed against the petitioner

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Petition stands allowed.
Let a copy of this order be sent to the concerned Court below as well as
police station concerned for information and compliance.

(DEEPAK KUMAR AGARWAL)

JUDGE
Vijay

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