In the judgment of the case – Dr. Dhruvaram Murlidhar Sonar v. the State of Maharashtra & Others, delivered on November 22, 2018, Justice A.K. Sikri and Justice S. Abdul Nazeer, at the Supreme Court have ruled in clear terms that if the accused has not made the promise (to marry) with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape.
The Court has drawn a clear distinction between rape and consensual sex. The Court has struck a note of caution and observed that “ in such cases” the court 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.
The Court has also drawn distinction between mere breach of a promise and not fulfilling a false promise. There may be as 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 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 IPC.
The appeal in this case was directed against the judgment and order passed by the Aurangabad Bench of the Bombay High Court on July 2, 2018,dismissed the criminal application filed by the petitioner under section 482 of the Cr.P.C. for quashing the F.I.R. 59/2000 registered with Mhasawad Police Station In Nandurbar district for the offences punishable under section 376 (2) (b), 420 read with section 34 of the IPC and under section 3 (1) (x)of the SC and the ST ( Prevention of Atrocities ) Act,1989 and the charge-sheet filed in the court of JMFC, Shahda, Nandurbar district.
In this case, it was an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant-widow was working as Asst. Nurse there. It was alleged by her that the appellant informed her that he was a married man and that he has differences with his wife. Admittedly, they belong to different communities. It was also alleged that the appellant/accused needed a month’s time to get their marriage registered.
The complainant further stated that she had fallen in love with the appellant and that she needed a companion as she was a widow. She had specifically stated that “as I was 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 sometime at his home.”
Thus, they were living together. They were in a relationship with each other for quite some time and enjoyed each other’s company. When she came to know that the appellant had married some other woman, she lodged the complaint.
It was not her case that the appellant had forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It was not a case of 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.
The Court was of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, those do not make out a case against the appellant. The Court is also of the view that since the complainant has failed prima facie to show the commission of rape, the complaint registered under section 376 (2) (b) cannot be sustained.
Commenting on the impugned judgment delivered by the HC, the Apex- Court has observed that it is well settled that exercise of powers under section 482 Cr.P.C. is the exception, not the rule. Under this section, the HC 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 the process of law” or “to secure the ends of justice” do not confer unlimited jurisdiction on the HC 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.
The Supreme Court has reminded of its decision in the case- State of Haryana and Others v. Bhajanlal and Others -1992 Supp. 1 SCC 335,wherein the Court has elaborately considered the scope and ambit of Section 482 Cr.P.C. Seven categories of cases have been identified where power can be exercised under section 482 of the Cr.P.C.
Further, the FIR nowhere spells out any wrong committed by the appellant under section 420 of the IPC or under section 3(1)(x) of the SC/ST Act. Therefore, the HC was not justified in rejecting the petition filed by the appellant under section 482 of the Cr.P.C.
But at the same time, the Court has quite candidly admitted that these seven categories are mere illustrations and it is not possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases requiring exercise of such power.
In the result, appeal has been allowed. The impugned order of the HC passed on July 2, 2018 by the HC at Aurangabad in criminal application 3590/2012 has been set aside. The FIR lodged by the complainant on the basis of which crime was registered against the appellant, was quashed.
The charge-sheet of June 14, 2001 filed by the Mhasawad Police Station against the appellant for the offences under section 376(2)(b) , 420,read with section34 of the IPC and section 3(1)(x)of the SC/ST Act has been also quashed.