Prashant vs State Of Nct Of Delhi

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024 (Arising out of Special Leave Petition (Criminal) No.2793 of 2024)

PRASHANT …APPELLANT

VERSUS

STATE OF NCT OF DELHI …RESPONDENT

JUDGMENT

NAGARATHNA, J.

Leave granted.

2. Being aggrieved by the order passed by the High Court of Delhi

dated 16.10.2023 in CRL.M.C 6066 of 2019 filed under Section 482

of the Code of Criminal Procedure, 1973 (“CrPC” for short) whereby Signature Not Verified Digitally signed by RADHA SHARMA Date: 2024.11.20 17:48:19 IST the High Court refused to quash FIR No. 272 of 2019 dated Reason: Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 1 of 15 29.09.2019 registered with Police Station South Rohini, Delhi

under Sections 376(2)(n) and 506 of the Indian Penal Code, 1860

(“IPC” for short), the appellant is before this Court.

3. Briefly stated the facts of the case are that the complainant

lodged FIR No. 272 of 2019 dated 29.09.2019 registered at Police

Station South Rohini, Delhi under Sections 376(2)(n) and 506 of

the IPC. As per the said FIR, the complainant alleged that she was

living with her brother and working at the Vodafone Call Centre.

The appellant herein came in contact with the complainant in the

year 2017 and they had a conversation on call and got to know each

other. They first met in November 2017 and again in April 2018 at

a park. The complainant further stated that in January 2019, the

appellant found her address and had a forceful sexual relationship

with her. It was further stated that the appellant used to threaten

the complainant to have forceful sexual relationship with her.

However, the appellant later denied to marry the complainant by

giving excuses. Further, the appellant also refused that the

complainant should meet his parents.

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 2 of 15

4. The complainant has also given her statement under Section

164 CrPC. In the said statement, apart from reiterating the said

allegations, she further stated that the appellant used to take the

complainant to his room in Chhatarpur and have physical

relationship with her. After the conclusion of the investigation,

charge-sheet dated 22.11.2019 was filed.

5. Being aggrieved by the said criminal proceedings, the

appellant approached the High Court of Delhi by filing CRL.M.C.

No.6066 of 2019 under Section 482 CrPC seeking quashing of the

FIR No. 272 of 2019 dated 29.09.2019. By the impugned order

dated 16.10.2023, the High Court dismissed the said petition filed

by the appellant. The High Court noted that the alleged relationship

between the parties was not the outcome of consent on the part of

the complainant and that allegations made in the FIR and in the

statement made under Section 164 CrPC were sufficient to

constitute alleged offences against the appellant. Hence the instant

appeal.

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 3 of 15

6. We have heard learned counsel for the appellant and the

learned ASG for the respondent State.

7. Learned counsel for the appellant submitted that the contents

of the FIR and MLC report do not disclose any cognizable offence.

The parties were in a consensual relationship. The institution of the

FIR was with the ulterior motive of retribution due to a personal

vengeance. There are umpteen contradictions in the FIR, MLC

report and the statement made by the complainant under Section

164 CrPC. It was submitted that in the FIR dated 29.09.2019, the

complainant stated that the appellant committed alleged forceful

sexual acts on her in January 2019. However, in the MLC report

dated 28.09.2019, she alleged that the incident of rape happened

one week before the MLC. Further in the statement under Section

164 CrPC, she stated that the appellant used to take her to his

room in Chhatarpur and forcibly committed rape on her. Hence,

there is inconsistency in her statements. Therefore, it was prayed

that this Court may set aside the impugned order dated 16.10.2023

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 4 of 15 and quash the criminal proceedings pending against the appellant

herein arising out of FIR No. 272 of 2019 dated 29.09.2019.

8. Per contra, the learned ASG for the respondent-State

contended that a prima facie case has been made out and that the

statements made under Section 164 CrPC are sufficient to

constitute offences levelled against the appellant. Both FIR and

MLC reports state that the appellant had a physical relationship

with the complainant on false promise of marriage. The appellant

had also threatened the complainant to kill her brother if she

refused to have physical relationship with him. Only because of the

said threat, the complainant reported the incident nine months

later. Hence, the learned ASG argued that the High Court, vide

impugned order, was justified in dismissing the quashing petition

filed by the appellant and prayed for the dismissal of the present

appeal as well.

9. During the course of the arguments, it was also brought to the

notice of this Court that the appellant got married in 2019 and the

complainant was also married in the year 2020.

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 5 of 15

10. Having heard the learned counsel appearing for the parties

and having perused the material on record, the only question that

falls for our consideration is, whether, FIR No. 272 of 2019 dated

29.09.2019 lodged against the appellant herein should be quashed.

11. In State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC

335, this Court formulated the parameters in terms of which the

powers under Section 482 of CrPC could be exercised. While it is

not necessary to revisit all these parameters, a few that are relevant

to the present case may be set out. The Court held that quashing

may be appropriate:

“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).

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 6 of 15 xxx

(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.”

12. In the instant case the allegations in the FIR are under

Sections 376(2)(n) and 506 IPC.

13. An offence of rape if established in terms of Section 375 is

punishable under Section 376 of the IPC. In the present case, the

second description of Section 376 is relevant which is set out below:

“376. Punishment for rape. –

1. Whoever, except in the cases provided for in sub-

section (2), commits rap, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine.

2. Whoever, -

xxx

n. commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life,

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 7 of 15 which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine.”

14. Further, Section 506 IPC speaks of criminal intimidation

which is defines in Section 503 IPC. The said provisions read as

under:-

“503. Criminal intimidation.— Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

Explanation.— A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.

xxx

506. Punishment for criminal intimidation.— Whoever commits, the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;

If threat be to cause death or grievous hurt, etc.— And if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute, unchastity to a woman, shall be

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 8 of 15 punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.”

15. Sub-section 2 of Section 376 is an exception to sub-section 1

of the said provision. Sub-section 2, inter alia, states that

whosoever commits rape repeatedly on the same woman, shall be

punished with rigorous imprisonment for a term which shall not be

less than ten years, but which may extend to imprisonment for life,

which shall mean imprisonment for the remainder of that person’s

natural life, and shall also be liable to fine.

16. Therefore, the question whether in the instant case the

aforesaid offences were committed by the appellant within the

meaning of the aforesaid provisions.

17. In the present case, the issue that had to be addressed by the

High Court was whether, assuming all the allegations in the FIR are

correct as they stand, an offence punishable under Sections 376

and 506 IPC were made out. A bare perusal of the FIR reveals that

the appellant and the complainant first came in contact in the year

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 9 of 15 2017 and established a relationship thereafter. The parties met

multiple times at various places during the years 2017 and 2019,

including at parks and their respective houses. Although the

complainant stated that the appellant had a forceful sexual

relationship with her, neither did she stop meeting the appellant

thereafter, nor did she file a criminal complaint during the said

period.

18. It is inconceivable that the complainant would continue to

meet the appellant or maintain a prolonged association or physical

relationship with him in the absence of voluntary consent on her

part. Moreover, it would have been improbable for the appellant to

ascertain the complainant's residential address, as mentioned in

the FIR unless such information had been voluntarily provided by

the complainant herself. It is also revealed that, at one point, both

parties had an intention to marry each other, though this plan

ultimately did not materialize. The appellant and the complainant

were in a consensual relationship. They are both educated adults.

The complainant, after filing the FIR against the appellant, got

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 10 of 15 married in the year 2020 to some other person. Similarly, the

appellant was also married in the year 2019. Possibly the marriage

of the appellant in the year 2019 has led the complainant to file the

FIR against him as they were in a consensual relationship till then.

19. In our view, taking the allegations in the FIR and the charge-

sheet as they stand, the crucial ingredients of the offence under

Section 376 (2)(n) IPC are absent. A review of the FIR and the

complainant's statement under Section 164 CrPC discloses no

indication that any promise of marriage was extended at the outset

of their relationship in 2017. Therefore, even if the prosecution's

case is accepted at its face value, it cannot be concluded that the

complainant engaged in a sexual relationship with the appellant

solely on account of any assurance of marriage from the appellant.

The relationship between the parties was cordial and also

consensual in nature. A mere breakup of a relationship between a

consenting couple cannot result in initiation of criminal

proceedings. What was a consensual relationship between the

parties at the initial stages cannot be given a colour of criminality

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 11 of 15 when the said relationship does not fructify into a marital

relationship. Further, both parties are now married to someone else

and have moved on in their respective lives. Thus, in our view, the

continuation of the prosecution in the present case would amount

to a gross abuse of the process of law. Therefore, no purpose would

be served by continuing the prosecution.

20. The ingredients of criminal intimidation are threat to another

person, inter alia, with any injury to his person, reputation with

intent to cause alarm to that person or to cause that person to any

act which he is not legally bound to do. In the instant case, as

already noted, the relationship between the appellant and the

complainant was consensual in nature. In fact, they wanted to

fructify the relationship into marriage. It is in that context that they

indulged in sexual activity. Therefore, there cannot be a case of

criminal intimidation involved as against the complainant. We do

not find that there was any threat caused to the complainant by the

appellant when all along there was cordiality between them and it

was only when the appellant got married in the year 2019 that the

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 12 of 15 complainant filed a complaint. In the circumstances, we do not

think that the offence under Section 503 read with Section 506 of

the IPC has been made out in the instant case.

21. As demonstrated in the above analysis, the facts as they

stand, which are not in dispute, indicate that the ingredients of the

offence under Sections 376 (2)(n) or 506 IPC are not established in

the instant case. The High Court erred in concluding that there was

no consent on the part of the complainant and therefore she was a

victim of sexual assault over a period of time and therefore,

proceeded to dismiss the application under Section 482 CrPC on a

completely misconceived basis. The facts of the present case are

appropriate for the High Court to have exercised the power available

under Section 482 CrPC to prevent abuse of the court’s process by

continuing the prosecution.

22. Recently this Court in XXXX vs. State of Madhya

Pradesh, (2024) 3 SCC 496 held that when the relationship

between the parties was purely consensual and when the

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 13 of 15 complainant was aware of the consequences of her actions, the

ingredients of the offence of rape were not made out. Similarly, in

Pramod Suryabhan Pawar v. State of Maharashtra, (2019) 9

SCC 608 arising out of identical facts, this Court has enumerated

the following:

“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.”

23. We, accordingly allow the appeal and set-aside the impugned

judgment and order of the High Court dated 16.10.2023 in

application under Section 482 CrPC. The application under Section

482 of CrPC shall accordingly stand allowed. The FIR No.272 of

2019 dated 29.09.2019 registered with Police Station South Rohini,

Delhi under Sections 376(2)(n) and 506 of the IPC, charge-sheet

Criminal Appeal @ SLP (Crl.) No.2793 of 2024 Page 14 of 15 dated 22.11.2019 filed in the Court of Metropolitan Magistrate,

Rohini, Delhi and the trial pending in the Court of ASJ, Rohini,

Delhi shall accordingly stand quashed.

. . . . . . . . . . . . . . . . . . . . . . . . . . J.

[B.V. NAGARATHNA]

. . . . . . . . . . . . . . . . . . . . . . . . . . . J.

[NONGMEIKAPAM KOTISWAR SINGH]

NEW DELHI;

NOVEMBER 20, 2024.

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