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2018 (11) TMI 1915 - SC - Indian LawsRape or consensual sex? - appellant failed to marry as promised, and married some other woman - Section 482 of the Code of Criminal Procedure - HELD THAT:- It is well settled that exercise of powers Under Section 482 of the Code of Criminal Procedure is the exception and not the rule. Under this section, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any court or otherwise to secure the ends of justice. But the expressions "abuse of process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of process of law or the ends of justice could only be secured in accordance with law, including procedural law and not otherwise. In the instant case, FIR was registered against the Appellant and the co-accused Under Sections 376(2)(b), 420 read with Section 34 of the Indian Penal Code and Under Section 3(1)(x) of the SC/ST Act. Section 376(2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. 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 - 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. 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 - since complainant has failed to prima facie show the commission of rape, the complaint registered Under Section 376(2)(b) cannot be sustained. The impugned order of the High Court is hereby set aside - Appeal allowed.
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