DR. DHRUVARAM MURLIDHAR SONARversusTHE STATE OF MAHARASHTRA & ORS.

920                     [2018] REPORTS
               SUPREME COURT   13 S.C.R. 920             [2018] 13 S.C.R.


A                DR. DHRUVARAM MURLIDHAR SONAR
                                        v.
                  THE STATE OF MAHARASHTRA & ORS.
                      (Criminal Appeal No. 1443 of 2018)
B                            NOVEMBER 22, 2018
                [A. K. SIKRI AND S. ABDUL NAZEER, JJ.]
           Code of Criminal Procedure, 1973: s.482 – Exercise of power,
      scope – Discussed.
             Code of Criminal Procedure, 1973: s.482 – Quashing of
C     proceedings – FIR was registered against the appellant and the co-
      accused under ss.376(2)(b), 420 r/w s.34, IPC and under s.3(1)(x)
      of the SC/ST Act – Appellant-acussed no.1 was a government doctor
      while complainant was nurse in the same establishment – Case of
      complainant was that she had fallen in love with the appellant and
D     that she needed a companion as she was a widow – They were
      living together, sometimes at her house and sometimes at the residence
      of the appellant – They were in a relationship with each other for
      quite some time and enjoyed each other’s company and appellant
      had promised that he would marry her – However, when she came
      to know that the appellant had married another woman, she lodged
E     an FIR – Appellant filed petition for quashing the FIR – High Court
      dismissed the petition – On appeal, held: It was not the case of
      complainant that the appellant had forcibly raped her – The
      acknowledged consensual physical relationship between the parties
      would not constitute an offence under s.376, IPC – There was a
      tacit consent on part of complainant and the tacit consent given by
F
      her was not the result of a misconception created in her mind –
      Even if the allegations made in the complaint were taken at their
      face value and accepted in their entirety, they would not make out a
      case against the appellant – Further, the FIR nowhere spelt out any
      wrong committed by the appellant under s.420, IPC or under
G     s.3(1)(x) of the SC/ST Act – Therefore, the High Court was not
      justified in rejecting the petition filed by the appellant under s.482
      of the Cr.P.C. – FIR quashed – Penal Code, 1860 – ss. 376(2)(b),
      420 r/w s.34 – Scheduled Castes and Scheduled Tribes (Prevention
      of Atrocities) Act, 1989 – s.3(1)(x).
H
                                    920
 DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                        921
                MAHARASHTRA

      Allowing the appeal, the Court                                  A
      HELD: 1. It is well settled that exercise of powers under
Section 482 of the Cr.P.C. 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     B
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.
[Para 8][926-B-C]                                                     C
      State of Haryana and Ors. v. Bhajan Lal and Ors. 1992
      Supp (1) SCC 335 : [1990] 3 Suppl. SCR 259 ; Rajesh
      Bajaj v. State NCT of Delhi & Ors. (1999) 3 SCC 259 :
      [1999] 1 SCR 1012 ; State of Karnataka v.
      M. Devendrappa and Anr. (2002) 3 SCC 89 : [2002] 1              D
      SCR 275 ; Vineet Kumar and Ors. v. State of Uttar
      Pradesh and Anr. (2017) 13 SCC 369 : [2017] 6
      SCR 922 – relied on.
      2. For quashing the proceedings, meticulous analysis of
factum of taking cognizance of an offence by the Magistrate is        E
not called for. Appreciation of evidence is also not permissible
in exercise of inherent powers. If the allegations set out in the
complaint do not constitute the offence of which cognizance has
been taken, it is open to the High Court to quash the same in
exercise of the inherent powers. [Para 12][928-G
                                                                      F
       3. 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. Section
375 defines the offence of rape and enumerates six descriptions
of the offence. The first clause operates where the women is in       G
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 putting her, or any person in whom she
                                                                      H
922            SUPREME COURT REPORTS                       [2018] 13 S.C.R.


A     is interested, in fear of death or of hurt. The expression ‘against
      her will’ means that the act must have been done in spite of the
      opposition of the woman. An inference as to consent can be drawn
      if only based on evidence or probabilities of the case. “Consent”
      is also stated to be an act of reason coupled with deliberation. It
      denotes an active will in mind of a person to permit the doing of
B
      the act complained of. Section 90 of the IPC though does not
      define “consent”, but describes what is not “consent”. Consent
      may be express or implied, coerced or misguided, obtained
      willingly or through deceit. If the consent is given by the
      complainant under misconception of fact, it is vitiated. Consent
C     for the purpose of Section 375 requires voluntary participation
      not only after the exercise of intelligence based on the knowledge
      of the significance and moral quality of the act, but also after
      having fully exercised the choice between resistance and
      assent. Whether there was any consent or not is to be
      ascertained only on a careful study of all relevant circumstances.
D
      [Paras 13, 14, 15][928-H; 929-A, D-E; 930-A-B]
            Uday v. State of Karnataka (2003) 4 SCC 46 : [2003]
            2 SCR 231 ; Deelip Singh alias Dilip Kumar v. State of
            Bihar (2005) 1 SCC 88 : [2004] 5 Suppl. SCR 909 ;
            Deepak Gulati v. State of Haryana (2013) 7 SCC 675 :
E           [2013] 6 SCR 544 – relied on
             4. 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
F     effect only to satisfy his lust, as the latter 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. There may be a case where the prosecutrix agrees to
G
      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
H
 DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                          923
                MAHARASHTRA

intention to do. Such cases must be treated differently. If the         A
accused 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. [Para 20][933-G-H;
934-A-C]
                                                                        B
       5. In the instant case, 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
she 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      C
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. They were living together,
sometimes at her house and sometimes at the residence of the            D
appellant. They were in a relationship with each other for quite
some time and enjoyed 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       E
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. Even if the allegations made         F
in the complaint are taken at their face value and accepted in
their entirety, they do not make out a case against the appellant.
Also, since complainant has failed to prima facie show the
commission of rape, the complaint registered under Section
376(2)(b) cannot be sustained. Further, the FIR nowhere spells
out any wrong committed by the appellant under Section 420 of           G
the IPC 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 under Section 482 of the Cr.P.C. [Paras 21, 22]
[934-D-H; 935-A-B]
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924             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A                              Case Law Reference
      [1990] 3 Suppl. SCR 259            relied on                  Para 9
      [1999] 1 SCR 1012                  relied on                  Para 10
      [2002] 1 SCR 275                   relied on                  Para 11
B     [2017] 6 SCR 922                   relied on                  Para 12
      [2003] 2     SCR 231               relied on                  Para 16
      [2004] 5 Suppl. SCR 909            relied on                  Para 17
      [2013] 6 SCR 544                   relied on                  Para 18
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
C     No. 1443 of 2018.
            From the Judgment and Order dated 02.07.2018 of the High Court
      of Judicature at Bombay, Bench at Aurangabad in Criminal Application
      No. 3590 of 2012.
           Jayant Sud, Sr. Adv., Sandeep S. Deshmukh, Vasim Siddiqui,
D
      Sandeep Sudhakar Deshmukh, Advs. for the Appellant.
            Ms. Deepa M. Kulkarni, Nishant R. Katneshwarkar, Advs. for
      the Respondents.
            The Judgment of the Court was delivered by
E           S. ABDUL NAZEER, J. 1. Leave granted.
             2. This appeal is directed against the judgment and order dated
      02.07.2018 in Criminal Application No.3590 of 2012, whereby the High
      Court of Judicature at Bombay (Bench at Aurangabad) dismissed the
      application filed by the petitioner under Section 482 of the Code of Criminal
F     Procedure, 1973 (for short ‘Cr.P.C’) for quashing the First Information
      Report No.59 of 2000 registered with Mhasawad Police Station, District
      Nandurbar, for the offences punishable under Sections 376 (2)(b), 420
      read with Section 34 of the Indian Penal Code, 1860 (for short ‘IPC’)
      and under Section 3(1)(x) of the Scheduled Castes and the Scheduled
      Tribes (Prevention of Atrocities) Act, 1989 (for short ‘the SC/ST Act’)
G     and the chargesheet filed in the court of judicial magistrate, F.C. Shahada,
      Nandurbar District.
             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
H     Health Centre at Toranmal, Dhadgaon Taluq, Nandurbar District,
 DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                                  925
        MAHARASHTRA [S. ABDUL NAZEER, J.]

whereas the complainant was working as an Assistant Nurse at the                A
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
                                                                                B
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           C
and some time at the house of the appellant. The appellant acted as if
he has married her and has maintained a physical relationship with her.
However, he has failed to marry her as promised. When things stood
thus, his brother, i.e accused No. 2, claims to have married her.
Thereafter, in the year 2000, complainant received the information from
                                                                                D
the co-accused about the marriage of the appellant with some other
woman. Therefore, she filed the aforesaid complaint and FIR dated
06.12.2000 came to be registered against the appellant and the co-
accused.
       4. After the completion of the investigation, the investigating agency
filed a final report on 14.06.2001. The appellant filed the criminal            E
application under Section 482 before the High Court for quashing the
FIR and the chargesheet. As noticed above, the High Court has dismissed
the criminal petition by its order dated 02.07.2018.
       5. Learned counsel for the appellant contends that in the instant
case the process of the court is sought to be abused by the complainant         F
with oblique motive. The criminal proceeding is manifestly intended
with mala fides and the proceeding is maliciously instituted with an ulterior
motive. It is submitted that the complainant was involved in relationship
with the brother of the appellant and the appellant was not in relationship
with her at any point of time. As a matter of fact, marriage was
                                                                                G
solemnized between the brother of the appellant and complainant. The
complainant was constantly blackmailing the appellant for some reason
or the other. It is submitted that even if the entire allegations made in the
complaint are taken at their face value and accepted in its entirety, such
allegations do not constitute any offence.
                                                                                H
926            SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A           6. On the other hand, learned advocate appearing for respondent
      Nos.1 to 3 has sought to justify the impugned order.
           7. We have carefully considered the submissions of the learned
      counsel made at the Bar and perused the materials placed on record.
            8. It is well settled that exercise of powers under Section 482 of
B     the Cr.P.C. 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”
C     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.
            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 Cr.P.C. Seven categories of cases have been
D     enumerated where power can be exercised under Section 482 of Cr.P.C.
      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
E           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
F           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 formulae and to give
            an exhaustive list of myriad kinds of cases wherein such power
            should be exercised.
               (1) Where the allegations made in the first information report
G
               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
H              a cognizable offence, justifying an investigation by police
 DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                                 927
        MAHARASHTRA [S. ABDUL NAZEER, J.]

          officers under Section 156(1) of the Code except under an            A
          order of a Magistrate within the purview of Section 155(2) of
          the Code.
          (3) Where the uncontroverted allegations made in the FIR or
          complaint and the evidence collected in support of the same
          do not disclose the commission of any offence and make out a         B
          case against the accused.
          (4) Where, the allegations in the FIR do not constitute a
          cognizable offence but constitute only a non-cognizable offence,
          no investigation is permitted by a police officer without an order
          of a Magistrate as contemplated under Section 155(2) of the          C
          Code.
          (5) Where the allegations made in the FIR or complaint are so
          absurd and inherently improbable on the basis of which no
          prudent person can ever reach a just conclusion that there is
          sufficient ground for proceeding against the accused.
                                                                               D
          (6) Where there is an express legal bar engrafted in any of the
          provisions of the Code or the concerned Act (under which a
          criminal proceeding is instituted) to the institution and
          continuance of the proceedings and/or where there is a specific
          provision in the Code or the concerned Act, providing efficacious
          redress for the grievance of the aggrieved party.                    E
          (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.”
       10. In Rajesh Bajaj v. State NCT of Delhi & Ors., (1999) 3              F
SCC 259, this Court has held that it is not necessary that a complainant
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      G
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
Cr.P.C., the court does not function as a court of appeal or revision.
Inherent jurisdiction under the Section though wide has to be exercised
                                                                               H
sparingly, carefully and with caution and only when such exercise is
928            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A     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
B           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 justice. When no offence is
            disclosed by the complaint, the court may examine the question of
            fact. When a complaint is sought to be quashed, it is permissible
            to look into the materials to assess what the complainant has
C           alleged and whether any offence is made out even if the allegations
            are accepted in toto”.
           12. Recently, in Vineet Kumar and Ors. v. State of Uttar
      Pradesh and Anr. (2017) 13 SCC 369, this Court has observed as under:
            “Inherent power given to the High Court under Section 482 CrPC
D           is with the purpose and object of advancement of justice. In case
            solemn process of Court is sought to be abused by a person with
            some oblique motive, the Court has to thwart the attempt at the
            very threshold. Judicial process is a solemn proceeding which
            cannot be allowed to be converted into an instrument of oppression
E           or harassment. When there are materials to indicate that a criminal
            proceeding is manifestly attended with mala fide and proceeding
            is maliciously instituted with an ulterior motive, the High Court
            will not hesitate in exercise of its jurisdiction under Section 482
            CrPC to quash the proceeding. The present is a fit case where
            the High Court ought to have exercised its jurisdiction under Section
F           482 CrPC and quashed the criminal proceedings.”
             It is clear that for quashing the proceedings, meticulous analysis
      of factum of taking cognizance of an offence by the Magistrate is not
      called for. Appreciation of evidence is also not permissible in exercise
      of inherent powers. If the allegations set out in the complaint do not
G     constitute the offence of which cognizance has been taken, it is open to
      the High Court to quash the same in exercise of the inherent powers.
              13. 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 IPC and under Section 3(1)(x) of the SC/ST Act. Section 376(2)(b)
H     prescribes punishment for the offence of rape committed by a public
 DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                                 929
        MAHARASHTRA [S. ABDUL NAZEER, J.]

servant taking advantage of his official position on a woman in his custody    A
as such public servant or in the custody of a public servant subordinate
to him. The said provision during the relevant point of time was as
under:-
      “376. Punishment for rape.-
      (1) …………..                                                               B
      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
                                                                               C
      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.”                                                 D
       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 putting      E
her, or any person in whom she is interested, in fear of death or of hurt.
The expression “against her ‘will’” means that the act must have been
done in spite of the opposition of the woman. An inference as to consent
can be drawn if only based on evidence or probabilities of the case.
“Consent” is also stated to be an act of reason coupled with deliberation.     F
It denotes an active will in mind of a person to permit the doing of the act
complained of.
      15. Section 90 of the IPC defines “consent” known to be given
under fear or misconception:-
      “Section 90:                                                             G
      Consent known to be given under fear or misconception.—
      A consent is not such a consent as it intended by any section of
      this Code, if the consent is given by a person under fear of injury,
      or under a misconception of fact, and if the person doing the act
      knows, or has reason to believe, that the consent was given in           H
      consequence of such fear or misconception”
930            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A            Thus, Section 90 though does not define “consent”, but describes
      what is not “consent”. Consent may be express or implied, coerced or
      misguided, obtained willingly or through deceit. If the consent is given by
      the complainant under misconception of fact, it is vitiated. Consent for
      the purpose of Section 375 requires voluntary participation not only after
      the exercise of intelligence based on the knowledge of the significance
B
      and moral quality of the act, but also after having fully exercised the
      choice between resistance and assent. Whether there was any consent
      or not is to be ascertained only on a careful study of all relevant
      circumstances.
             16. In Uday v. State of Karnataka (2003) 4 SCC 46, this Court
C     was considering a case where the prosecutrix, aged about 19 years, had
      given consent to sexual intercourse with the accused with whom she
      was deeply in love, on a promise that he would marry her on a later date.
      The prosecutrix continued to meet the accused and often had sexual
      intercourse and became pregnant. A complaint was lodged on failure of
D     the accused to marry her. It was held that consent cannot be said to be
      given under a misconception of fact. It was held thus:-
            “21. It therefore appears that the consensus of judicial opinion is
            in favour of the view that the consent given by the prosecutrix to
            sexual intercourse with a person with whom she is deeply in love
            on a promise that he would marry her on a later date, cannot be
E
            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
F           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
G
            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.
H
 DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                                  931
        MAHARASHTRA [S. ABDUL NAZEER, J.]

      23. Keeping in view the approach that the court must adopt in             A
      such cases, we shall now proceed to consider the evidence on
      record. In the instant case, the prosecutrix was a grown-up girl
      studying in a college. She was deeply in love with the appellant.
      She was, however, aware of the fact that since they belonged to
      different castes, marriage was not possible. In any event the
                                                                                B
      proposal for their marriage was bound to be seriously opposed by
      their family members. She admits having told so to the appellant
      when he proposed to her the first time. She had sufficient
      intelligence to understand the significance and moral quality of
      the act she was consenting to. That is why she kept it a secret as
      long as she could. Despite this, she did not resist the overtures of      C
      the appellant, and in fact succumbed to them. She thus freely
      exercised a choice between resistance and assent. She must have
      known the consequences of the act, particularly when she was
      conscious of the fact that their marriage may not take place at all
      on account of caste considerations. All these circumstances lead
                                                                                D
      us to the conclusion that she freely, voluntarily and consciously
      consented to having sexual intercourse with the appellant, and
      her consent was not in consequence of any misconception of fact.”
      17. In Deelip Singh alias Dilip Kumar v. State of Bihar, (2005)
1 SCC 88, the Court framed the following two questions relating to
consent:-                                                                       E
      (1) “Is it a case of passive submission in the face of psychological
      pressure exerted or allurements made by the accused or was it a
      conscious decision on the part of the prosecutrix knowing fully
      the nature and consequences of the act she was asked to indulge
      in?                                                                       F
      (2) Whether the tacit consent given by the prosecutrix was the
      result of a misconception created in her mind as to the intention of
      the accused to marry her”?
       In this case, the girl lodged a complaint with the police stating that
she and the accused were neighbours and they fell in love with each             G
other. One day in February, 1988, the accused forcibly raped her and
later consoled her by saying that he would marry her. She succumbed
to the entreaties of the accused to have sexual relations with him, on
account of the promise made by him to marry her, and therefore
continued to have sex on several occasions. After she became pregnant,
                                                                                H
932            SUPREME COURT REPORTS                         [2018] 13 S.C.R.


A     she revealed the matter to her parents. Even thereafter, the intimacy
      continued to the knowledge of the parents and other relations who were
      under 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
B
      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
C     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
D           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 no evidence which gives rise to an inference beyond
            reasonable doubt that the accused had no intention to marry her
            at all from the inception and that the promise he made was false
E           to his knowledge. No circumstances emerging from the
            prosecution evidence establish this fact. On the other hand, the
            statement of PW 12 that “later on”, the accused became ready to
            marry her but his father and others took him away from the village
            would indicate that the accused might have been prompted by a
F           genuine intention to marry which did not materialise on account
            of the pressure exerted by his family elders. It seems to be a case
            of breach of promise to marry rather than a case of false promise
            to marry. On this aspect also, the observations of this Court
            in Uday case at para 24 come to the aid of the appellant”.
             18. In Deepak Gulati v. State of Haryana, (2013) 7 SCC 675,
G
      the Court has drawn a distinction between rape and consensual sex.
      This is a case of a prosecutrix aged 19 years at the time of the incident.
      She had an inclination towards the accused. The accused had been
      giving her assurances of the fact that he would get married to her. The
      prosecutrix, therefore, left her home voluntarily and of her own free will
H     to go with the accused to get married to him. She called the accused on
 DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                                 933
        MAHARASHTRA [S. ABDUL NAZEER, J.]

a phone number given to her by him, to ask him why he had not met her          A
at the place that had been pre-decided by them. She also waited for him
for a long time, and when he finally arrived, she went with him to a place
called Karna Lake where they indulged in sexual intercourse. She did
not raise any objection at that stage and made no complaints to anyone.
Thereafter, she went to Kurukshetra with the accused, where she lived
                                                                               B
with his relatives. Here too, the prosecutrix voluntarily became intimate
with the accused. She then, for some reason, went to live in the hostel
at Kurukshetra University illegally, and once again came into contact
with the accused at Birla Mandir there. Thereafter, she even proceeded
with the accused to the old bus-stand in Kurukshetra, to leave for Ambala
so that the two of them could get married at the court in Ambala. At the       C
bus station, the accused was arrested by the police. The Court held that
the physical relationship between the parties had clearly developed with
the consent of the prosecutrix as there was neither a case of any resistance
nor had she raised any complaint anywhere at any time, despite the fact
that she had been living with the accused for several days and had
                                                                               D
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 & Anr., in Criminal Appeal No.504 of 2018, disposed of on
6th April, 2018, has observed that it is difficult to hold that sexual         E
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        F
      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 together as man and wife”.                                    G
        20. Thus, 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
                                                                               H
934             SUPREME COURT REPORTS                          [2018] 13 S.C.R.


A     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. There may be a 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
B
      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
C     consensual physical relationship between the parties would not constitute
      an offence under Section 376 of the IPC.
             21. 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
D     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.
E     She has specifically stated that “as I was also 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 some time at his home.”
      Thus, they were living together, sometimes at her house and sometimes
F     at the residence of the appellant. They were in a relationship with each
      other for quite some time and enjoyed 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
G     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
H     value and accepted in their entirety, they do not make out a case against
  DR. DHRUVARAM MURLIDHAR SONAR v. THE STATE OF                              935
         MAHARASHTRA [S. ABDUL NAZEER, J.]

the appellant. We are also of the view that since complainant has failed     A
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 IPC or under Section 3(1)(x) of
the SC/ST Act. Therefore, the High Court was not justified in rejecting      B
the petition filed by the appellant under Section 482 of the Cr.P.C.
      23. In the result, the appeal succeeds and is accordingly allowed.
The impugned order of the High Court dated 02.07.2018 in Criminal
Application No.3590 of 2012, is hereby set aside. The First Information
Report dated 6.12.2000 filed by the complainant in the Police Station at     C
Mhasawad, District Nandurbar, on the basis of which Crime No.59 of
2000 is registered against the appellant, is hereby quashed. The
chargesheet dated 14.06.2001 filed by Mhasawad Police Station against
the appellant for the offences under Sections 376 (2)(b), 420 read with
Section 34 of the IPC and Section 3(1)(x) of the SC/ST Act is also
quashed.                                                                     D


Devika Gujral                                              Appeal allowed.



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