SONU @ SUBHASH KUMAR versus STATE OF UTTAR PRADESH & ANR. on 1 March 2021

1. Leave granted.

2. This appeal, by way of an SLP, arises from a judgment of alearned Single Judge of the High Court of Judicature at Allahabad dated26 September 2019 in Criminal Miscellaneous Application No 35811 of2019. The above application was instituted under Section 482 of theCode of Criminal Procedure 1973[1] for quashing the charge sheet dated25 April 2018 in Case No 1066/IX/19 arising out of Case Crime No 121of 2008 under Section 376 of the Indian Penal Code 1860[2] at PS Kotwali,District Mathura. The High Court dismissed the application with adirection that the appellant herein may move the trial Court to seekdischarge at the appropriate stage. However, the High Court directedthat if the appellant moves an application for bail before the competentCourt, the application should be disposed of in accordance with law. Inthe meantime, the appellant was protected against coercive action for a 1 “CrPC”

2 “IPC”

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Aperiod of thirty days and was directed to appear before the CompetentCourt within the aforesaid period.

3. In order to consider the grievance of the appellant, it would benecessary to advert to the contents of the FIR. The FIR was lodged bythe second respondent on 7 February 2018. The FIR, which is registeredBon the basis of a written complaint of the second respondent to theSHO, PS Kotwali, Mathura, states that the second respondent developedfriendship with the appellant and that he assured that he would marryher. It has then stated that she was exploited physically for one and ahalf years and that the second respondent had also spoken to the parentsand sister of the appellant. It has been stated that the father of theCappellant had informed the second respondent that he would arrange themarriage of the appellant with her. After a lapse of about a year and ahalf, the appellant is stated to have gone back to his home town which isJhansi on 5 January 2018 and made a phone call to the second respondentthat, since he wishes to perform a “court marriage”, the secondDrespondent may come to Jhansi. This was on the ground that the appellantcould not travel to Mathura where the second respondent lived. Thesecond respondent has alleged that she proceeded to Jhansi, but onreaching the residence of the appellant, she was informed by the fatherof the appellant that the appellant does not wish to marry her. Theappellant’s father also stated that the appellant did not desire to meet herEand further asked her to take some money and leave from there. TheFIR further records that the second respondent was assaulted by theappellant’s sister and thrown out of the appellant’s house. The statementof the second respondent was recorded under Section 164 of CrPC.The entirety of the statement is extracted below:F“Statement U/s 164 Cr.P.C.

Name of victim: Geeta D/o Ram Babu, Age 25 years, stated onoath that - I had love affair with Sonu S/o Kamlesh, age 27 years, for the lastG1-1/2 years. He used to tell to marry with me. I got influenced byhis talks. I voluntarily developed relationship of husband-wife withhim. Now, he and his family members are refusing to marry withme. On 5th January, 2018 Sonu went to Jhansi and from therealso he kept on taking [sic talking] with me on phone. He calledme to Jhansi and then on 21.01.2018 without informing anybodyHin my home, I went to Jhansi on the address given by Sonu. His SONU @ SUBHASH KUMAR v. STATE OF UTTAR PRADESH& ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

father met me there and told me that they are not intending tosolemniz’e my marriage with Sonu and advised me to ran awayfrom there after taking some money. Sonu’s mother Shobha andsister Neha assaulted me. On 21.1.2018 I stayed at Jhansi stationand then on the training [sic train] of 12 O’ clock in the night Icame back to Mathura. My sole grievance is that Sonu is refusingto marry with me. I have studied upto class 6th. I have nothingmore to say.

It is certified that the above statement has been given by thevictim with her own voluntary wish and without any force orpressure.

Recorded by

Sd/- .

6.3.18

Heard and verified

Sd/- _

Victim”

4. Mr Amit Pawan, learned counsel appearing on behalf of theappellant, has relied upon a decision of this Court in Pramod SuryabhanPawar v State of Maharashtra[3]. Learned counsel submitted that therelationship between the appellant and the second respondent wasconsensual in nature. It has been urged that a bare reading of the FIR aswell as the statement under Section 164 of CrPC would indicate thatthere was absolutely no intent on the part of the appellant, when heentered upon the relationship, not to marry the second respondent norcan it be even suggested that the promise to marry was false. Hence, ithas been submitted that no offence has been made out within the meaningof Section 376 of IPC.

5. On the other hand, Mr Simant Kumar, learned counsel appearingon behalf of the second respondent, supported the judgment of the HighCourt stating that the FIR would indicate that the complaint of the secondrespondent on the basis of which the FIR was registered would indicatethat the second respondent had developed a friendship with the appellantwho had assured that he would marry her.

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A6. Mr Vishnu Shankar Jain, learned counsel appearing on behalfof the State of Uttar Pradesh, has similarly supported the decision of theHigh Court, relying on the observations contained in paragraph 16 of thedecision of this Court in Pramod Suryabhan Pawar (supra).

7. On the basis of the rival submissions and with the assistance ofBthe counsel, we have perused the FIR. The FIR specifically records thatthe second respondent had developed a friendship with the appellantand that he had assured that he would marry her. The FIR then recordsthat the appellant and the second respondent developed a physicalrelationship which spread over a period of one and a half years, duringthe course of which the second respondent conversed with the parentsCand sister of the appellant. It has been alleged in the FIR that the parentsof the appellant were agreeable to the couple getting married. As amatter of fact, the appellant returned to his home town at Jhansi on 5January 2018 when he had made a phone call to her stating that sheshould come and visit him so that they can get married. On travelling toDJhansi at the behest of the appellant, the second respondent was informedby the father of the appellant that the appellant did not wish to marryher. The contents of the statement under Section 164 of CrPC alsoindicate that the second respondent had “voluntarily developed relationshipof husband-wife with him”. The second respondent has then stated that“now, he and his family members are refusing to marry with me”. TheEsecond respondent has further stated that “my sole grievance is thatSonu is refusing to marry with me”.

8. The contents of the FIR as well as the statement under Section164 of CrPC leave no manner of doubt that, on the basis of the allegationsas they stand, three important features emerge:F

(i) The relationship between the appellant and the secondrespondent was of a consensual nature;

(ii) The parties were in the relationship for about a period ofone and a half years; and G(iii)Subsequently, the appellant had expressed a disinclinationto marry the second respondent which led to the registrationof the FIR.

9. In Pramod Suryabhan Pawar (supra), while dealing with asimilar situation, the principles of law which must govern a situation likeHthe present were enunciated in the following observations:

“Where the promise to marry is false and the intention of themaker at the time of making the promise itself was not to abide by it butto 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 falsepromise. To establish a false promise, the maker of the promise shouldhave had no intention of upholding his word at the time of giving it...”

10. Further, the Court has observed:

“To summarise the legal position that emerges from the abovecases, the “consent” of a woman with respect to Section 375mustinvolve an active and reasoned deliberation towards the proposedact. To establish whether the “consent” was vitiated by a“misconception of fact” arising out of a promise to marry, twopropositions must be established. The promise of marriage musthave been a false promise, given in bad faith and with no intentionof being adhered to at the time it was given. The false promiseitself must be of immediate relevance, or bear a direct nexus tothe woman’s decision to engage in the sexual act.”

11. Bearing in mind the tests which have been enunciated in theabove decision, we are of the view that even assuming that all theallegations in the FIR are correct for the purposes of considering theapplication for quashing under Section 482 of CrPC, no offence hasbeen established. There is no allegation to the effect that the promise tomarry given to the second respondent was false at the inception. On thecontrary, it would appear from the contents of the FIR that there was asubsequent refusal on the part of the appellant to marry the secondrespondent which gave rise to the registration of the FIR. On thesefacts, we are of the view that the High Court was in error in declining toentertain the petition under Section 482 of CrPC on the basis that it wasonly the evidence at trial which would lead to a determination as towhether an offence was established.

12. For the above reasons, we allow the appeal and set aside theimpugned judgment and order of the High Court dated 26 September2019. In view of the reasons which have been adduced earlier, the chargesheet dated 25 April 2018, which has been filed in pursuance of theinvestigation which took place, shall stand quashed. The order of thetrial Court dated 3 October 2018 taking cognizance shall accordinglystand quashed and set aside.

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[2021] 2 S.C.R.

A13. In view of the above order, Mr Amit Pawan, learned counselappearing on behalf of the appellant, states that no further step shall betaken in respect of the cross-FIR which was registered against the secondrespondent at the behest of the appellant.

14. Pending application, if any, stands disposed of.

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Devika Gujral

Appeal allowed

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