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TMI Blog2018 (11) TMI 1915X X X X Extracts X X X X X X X X Extracts X X X X ..... trict. 3. The Appellant is the Accused No. 1 in the aforesaid FIR, registered at the instance of the complainant/Respondent No. 4. At the relevant point of time, the Appellant was serving as a medical officer, Primary Health Centre at Toranmal, Dhadgaon Taluq, Nandurbar District, whereas the complainant was working as an Assistant Nurse at the same establishment. The allegations made by the complainant in the FIR in brief are that her husband died on 05.11.1997, leaving behind her and her two children. During this time, the Appellant informed her that there have been differences between him and his wife, and therefore, he is planning to divorce his wife. Further, the Appellant informed the complainant that since they belong to different communities, a month is needed for the registration of their marriage. Therefore, she started living with the Appellant at his Government quarters. The FIR further states that she had fallen in love with the Appellant and that she needed a companion as she is a widow. Therefore, they started living together, as if they were husband and wife. They resided some time at her house and some time at the house of the Appellant. The Appellant acted as if h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. This Court in State of Haryana and Ors. v. Bhajan Lal and Ors. 1992 Supp (1) SCC 335, has elaborately considered the scope and ambit of Section 482 Code of Criminal Procedure Seven categories of cases have been enumerated where power can be exercised Under Section 482 of Code of Criminal Procedure Para 102 thus reads: 102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power Under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant should verbatim reproduce in the body of his complaint all the ingredients of the offence he is alleging. If the factual foundation for the offence has been laid in the complaint, the court should not hasten to quash criminal proceedings during the investigation stage merely on the premise that one or two ingredients have not been stated with details. 11. In State of Karnataka v. M. Devendrappa and Anr., (2002) 3 SCC 89, it was held that while exercising powers Under Section 482 Code of Criminal Procedure, the court does not function as a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It was further held as under: It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; (1) .............. 2. Whoever,-- (a) ............... (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) to (g) ................ shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine. 14. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first Clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om 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 such cases, we shall now proceed to consider the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the impression that the Accused would marry the girl, but the Accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time. With this factual back-ground, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the Accused is prima facie accountable for damages under civil law. It was held thus: The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the Accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the Accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any complaint anywhere at any time, despite the fact that she had been living with the Accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the Accused. 19. Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka and Anr., in Criminal Appeal No. 504 of 2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is 'rape', especially in the face of the complainant's own allegation that they lived together as man and wife. It was held as under: In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the Appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as 'rape' especially in the face of the complainant's own allegation that they lived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d each other's 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 the 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 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. 22. Further, the FIR nowhere spells out any wrong committed by the Appellant Under Section 420 of the Indian Penal Code or Under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the Appellant U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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