PRASHANTversusSTATE OF NCT OF DELHI

                 [2024] 11 S.C.R. 825 : 2024 INSC 879

                                 Prashant
                                     v.
                           State of NCT of Delhi
                     (Criminal Appeal No. 4721 of 2024)
                              20 November 2024
                     [B.V. Nagarathna* and
                Nongmeikapam Kotiswar Singh, JJ.]


                            Issue for Consideration
       Whether FIR u/ss.376(2)(n) and s.506 IPC lodged against the
       appellant should be quashed; whether allegations in the FIR are
       correct; whether relationship between the parties was consensual
       in nature.

                                  Headnotes†
       Penal Code, 1860 – s.376(2)(n) and s.506 – The appellant
       and complainant came in contact with each other in the year
       2017 and after some time they got to know each other –
       Complainant alleged that in the year 2019 appellant had a
       forceful sexual relationship her – Further, it was alleged that
       appellant used to threaten the complainant to have forceful
       sexual relationship with her – Later, appellant refused to
       marry the complainant – FIR u/s.s.376(2)(n) and s.506 was
       registered – The High Court in concluding that there was no
       consent on the part of the complainant and therefore she was
       a victim of sexual assault – Correctness:
       Held: Taking the allegations in the FIR and the chargesheet as
       they stand, the crucial ingredients of the offence u/s.376(2)(n) IPC
       are absent – A review of the FIR and the complainant's statement
       u/s.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

* Author
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       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 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, the
       continuation of the prosecution in the present case would amount
       to a gross abuse of the process of law – The High Court erred in
       concluding that there was no consent on the part of the complainant
       and she was a victim of sexual assault – Thus, the FIR registered
       u/ss.376(2)(n) and 506 of the IPC and the charge-sheet filed are
       accordingly quashed. [Paras 19, 21]

                                 Case Law Cited
       State of Haryana v. Bhajan Lal [1992] Supp. 3 SCR 735 : (1992)
       Supp 1 SCC 335; XXXX v. State of Madhya Pradesh [2024] 3 SCR
       309 : (2024) 3 SCC 496; Pramod Suryabhan Pawar v. State of
       Maharashtra [2019] 11 SCR 423 : (2019) 9 SCC 608 – relied on.

                                   List of Acts
       Code of Criminal Procedure, 1973; Penal Code, 1860.

                                List of Keywords
       Section 376(2)(n) of Penal Code, 1860; Section 506 of Penal
       Code, 1860; Forceful sexual relationship; Sexual assault; Sexual
       relationship; Assurance of marriage; Consensual relationship.

                               Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       4721 of 2024
       From the Judgment and Order dated 16.10.2023 of the High Court
       of Delhi at New Delhi in CRLMC No. 6066 of 2019

                            Appearances for Parties
       Dr. Sunil Kumar Agarwal, Nikhil Tyagi, Atul Agarwal, Rakesh
       Kumar Khare, Ms. Kirti Sharma, Mrs. Amita Agarwal, Advs. for
       the Appellant.
[2024] 11 S.C.R.                                                         827

                     Prashant v. State of NCT of Delhi


     Vikramjit Banerjee, A.S.G., Mukesh Kumar Maroria, Ajay Kumar
     Prajapati, Ayush Anand, Annirudh Sharma Ii, Veer Vikrant Singh,
     Advs. for the Respondent.

                Judgment / Order of the Supreme Court

                                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 the
     High Court refused to quash 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 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.
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.
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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.
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 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
[2024] 11 S.C.R.                                                        829

                     Prashant v. State of NCT of Delhi


     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.
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).
                                      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.
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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 rape, 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, 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
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                     Prashant v. State of NCT of Delhi


          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 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 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
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       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 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 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
[2024] 11 S.C.R.                                                       833

                     Prashant v. State of NCT of Delhi


     along there was cordiality between them and it was only when the
     appellant got married in the year 2019 that the 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 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
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       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 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.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Ankit Gyan