SONU @ SUBHASH KUMARversusSTATE OF UTTAR PRADESH & ANR.

                          [2021] 2 S.C.R. 137                            137


                  SONU @ SUBHASH KUMAR                                   A
                                  v.
              STATE OF UTTAR PRADESH & ANR.
                 (Criminal Appeal No. 233 of 2021)
                           MARCH 01, 2021                                B
         [DR. DHANANJAYA Y CHANDRACHUD AND
                           M.R. SHAH, JJ.]
       Code of Criminal Procedure, 1973: s.482 – Second respondent
lodged FIR against the appellant alleging that appellant developed
friendship with her and assured that he would marry her – Appellant      C
and second respondent developed physical relationship for about
one and a half years and subsequently appellant expressed
disinclination to marry her – Charge sheet filed against appellant
under s.376 IPC – s.482 application filed by appellant for quashing
the charge-sheet – High Court dismissed the application with             D
direction that appellant may move trial court to seek discharge at
appropriate stage – Hence instant appeal – Held: To establish
whether the “consent” was vitiated by a “misconception of fact”
arising out of a promise to marry, two propositions must be
established – Promise of marriage must have been a false promise,
given in bad faith and with no intention of being adhered to at the      E
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 – In the instant case, the FIR and statement under
s.164 Cr.P.C showed that the relationship between the appellant
and second respondent was consensual in nature – There was no            F
allegation to the effect that the promise to marry given to the second
respondent was false at the inception – On the contrary, the contents
of the FIR showed that there was a subsequent refusal on the part
of the appellant to marry the second respondent which gave rise to
the registration of the FIR – On these facts, the High Court was in
error in declining to entertain the petition under s.482 on the basis    G
that it was only the evidence at trial which would lead to a
determination as to whether an offence was established – Penal
Code, 1860 – ss.375, 376.

                                                                         H
                                 137
138           SUPREME COURT REPORTS                     [2021] 2 S.C.R.


A          Allowing the appeal, the Court
            HELD: 1. The FIR specifically records that the second
      respondent had developed a friendship with the appellant and
      that he had assured that he would marry her. The FIR then
      records that the appellant and the second respondent developed
B     a physical relationship which spread over a period of one and a
      half years, during the course of which the second respondent
      conversed with the parents and sister of the appellant. It has
      been alleged in the FIR that the parents of the appellant were
      agreeable to the couple getting married. As a matter of fact, the
      appellant returned to his home town at Jhansi on 5 January 2018
C     when he had made a phone call to her stating that she should
      come and visit him so that they can get married. On travelling to
      Jhansi at the behest of the appellant, the second respondent was
      informed by the father of the appellant that the appellant did not
      wish to marry her. The contents of the statement under Section
D     164 of Cr.PC also indicate that the second respondent had
      “voluntarily developed relationship of husband-wife with him”.
      The second respondent has then stated that “now, he and his
      family members are refusing to marry with me”. The second
      respondent has further stated that “my sole grievance is that
      Sonu is refusing to marry with me”. [Para 7][142-B-E]
E
            2. The contents of the FIR as well as the statement under
      Section 164 of CrPC leave no manner of doubt that, on the basis
      of the allegations as they stand, three important features emerge:
      The relationship between the appellant and the second respondent
      was of a consensual nature; The parties were in the relationship
F     for about a period of one and a half years; and Subsequently, the
      appellant had expressed a disinclination to marry the second
      respondent which led to the registration of the FIR. [Para 8][142-
      F-G]
            3. There is no allegation to the effect that the promise to
G     marry given to the second respondent was false at the inception.
      On the contrary, it would appear from the contents of the FIR
      that there was a subsequent refusal on the part of the appellant
      to marry the second respondent which gave rise to the registration

H
    SONU @ SUBHASH KUMAR v. STATE OF UTTAR PRADESH                         139
                       & ANR.

of the FIR. On these facts, the High Court was in error in declining       A
to entertain the petition under Section 482 of Cr.PC on the basis
that it was only the evidence at trial which would lead to a
determination as to whether an offence was established.
[Para 11][143-E-G]
      Pramod Suryabhan Pawar v State of Maharashtra                        B
      (2019) 9 SCC 608 : [2019] 11 SCR 423 – relied on.
                        Case Law Reference
[2019] 11 SCR 423                 relied on              para 4
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 233 Of 2021                                                            C
      From the Judgment and Order dated 26.9.2019 of the High Court
of Judicature at Allahabad in Criminal Miscellaneous Application
No. 35811 of 2019
      Amit Pawan, Anand Nandan, Advs. for the Appellant.
      Vishnu Shankar Jain, Chanakya Gupta, Simant Kumar, Ravi              D
Prakash, Ms. Jaishree Raj Soni, Sandeep Malik, Vagisha Nandini, Vikram
Singh Arya, Advs. for the Respondents.
      The Judgment of the Court was delivered by
      DR. DHANANJAYA Y CHANDRACHUD, J.
      1. Leave granted.                                                    E
        2. This appeal, by way of an SLP, arises from a judgment of a
learned Single Judge of the High Court of Judicature at Allahabad dated
26 September 2019 in Criminal Miscellaneous Application No 35811 of
2019. The above application was instituted under Section 482 of the
Code of Criminal Procedure 19731 for quashing the charge sheet dated       F
25 April 2018 in Case No 1066/IX/19 arising out of Case Crime No 121
of 2008 under Section 376 of the Indian Penal Code 18602 at PS Kotwali,
District Mathura. The High Court dismissed the application with a
direction that the appellant herein may move the trial Court to seek
discharge at the appropriate stage. However, the High Court directed
                                                                           G
that if the appellant moves an application for bail before the competent
Court, the application should be disposed of in accordance with law. In
the meantime, the appellant was protected against coercive action for a

1
    “CrPC”
2
    “IPC”                                                                  H
140             SUPREME COURT REPORTS                           [2021] 2 S.C.R.


A     period of thirty days and was directed to appear before the Competent
      Court within the aforesaid period.
              3. In order to consider the grievance of the appellant, it would be
      necessary to advert to the contents of the FIR. The FIR was lodged by
      the second respondent on 7 February 2018. The FIR, which is registered
B     on the basis of a written complaint of the second respondent to the
      SHO, PS Kotwali, Mathura, states that the second respondent developed
      friendship with the appellant and that he assured that he would marry
      her. It has then stated that she was exploited physically for one and a
      half years and that the second respondent had also spoken to the parents
      and sister of the appellant. It has been stated that the father of the
C     appellant had informed the second respondent that he would arrange the
      marriage of the appellant with her. After a lapse of about a year and a
      half, the appellant is stated to have gone back to his home town which is
      Jhansi on 5 January 2018 and made a phone call to the second respondent
      that, since he wishes to perform a “court marriage”, the second
D     respondent may come to Jhansi. This was on the ground that the appellant
      could not travel to Mathura where the second respondent lived. The
      second respondent has alleged that she proceeded to Jhansi, but on
      reaching the residence of the appellant, she was informed by the father
      of the appellant that the appellant does not wish to marry her. The
      appellant’s father also stated that the appellant did not desire to meet her
E     and further asked her to take some money and leave from there. The
      FIR further records that the second respondent was assaulted by the
      appellant’s sister and thrown out of the appellant’s house. The statement
      of the second respondent was recorded under Section 164 of CrPC.
      The entirety of the statement is extracted below:
F           “Statement U/s 164 Cr.P.C.
            Name of victim: Geeta D/o Ram Babu, Age 25 years, stated on
            oath that -
            I had love affair with Sonu S/o Kamlesh, age 27 years, for the last
G           1-1/2 years. He used to tell to marry with me. I got influenced by
            his talks. I voluntarily developed relationship of husband-wife with
            him. Now, he and his family members are refusing to marry with
            me. On 5th January, 2018 Sonu went to Jhansi and from there
            also he kept on taking [sic talking] with me on phone. He called
            me to Jhansi and then on 21.01.2018 without informing anybody
H           in my home, I went to Jhansi on the address given by Sonu. His
    SONU @ SUBHASH KUMAR v. STATE OF UTTAR PRADESH                            141
       & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

         father met me there and told me that they are not intending to       A
         solemniz’e my marriage with Sonu and advised me to ran away
         from there after taking some money. Sonu’s mother Shobha and
         sister Neha assaulted me. On 21.1.2018 I stayed at Jhansi station
         and then on the training [sic train] of 12 O’ clock in the night I
         came back to Mathura. My sole grievance is that Sonu is refusing
                                                                              B
         to marry with me. I have studied upto class 6th. I have nothing
         more to say.
         It is certified that the above statement has been given by the
         victim with her own voluntary wish and without any force or
         pressure.
                                                                              C
                                                Recorded by
                                                Sd/- .
                                                6.3.18
                                                Heard and verified            D
                                                Sd/- _
                                                Victim”
       4. Mr Amit Pawan, learned counsel appearing on behalf of the
appellant, has relied upon a decision of this Court in Pramod Suryabhan
Pawar v State of Maharashtra3. Learned counsel submitted that the             E
relationship between the appellant and the second respondent was
consensual in nature. It has been urged that a bare reading of the FIR as
well as the statement under Section 164 of CrPC would indicate that
there was absolutely no intent on the part of the appellant, when he
entered upon the relationship, not to marry the second respondent nor         F
can it be even suggested that the promise to marry was false. Hence, it
has been submitted that no offence has been made out within the meaning
of Section 376 of IPC.
       5. On the other hand, Mr Simant Kumar, learned counsel appearing
on behalf of the second respondent, supported the judgment of the High        G
Court stating that the FIR would indicate that the complaint of the second
respondent on the basis of which the FIR was registered would indicate
that the second respondent had developed a friendship with the appellant
who had assured that he would marry her.
3
    (2019) 9 SCC 608                                                          H
142                SUPREME COURT REPORTS                        [2021] 2 S.C.R.


A            6. Mr Vishnu Shankar Jain, learned counsel appearing on behalf
      of the State of Uttar Pradesh, has similarly supported the decision of the
      High Court, relying on the observations contained in paragraph 16 of the
      decision of this Court in Pramod Suryabhan Pawar (supra).
             7. On the basis of the rival submissions and with the assistance of
B     the counsel, we have perused the FIR. The FIR specifically records that
      the second respondent had developed a friendship with the appellant
      and that he had assured that he would marry her. The FIR then records
      that the appellant and the second respondent developed a physical
      relationship which spread over a period of one and a half years, during
      the course of which the second respondent conversed with the parents
C     and sister of the appellant. It has been alleged in the FIR that the parents
      of the appellant were agreeable to the couple getting married. As a
      matter of fact, the appellant returned to his home town at Jhansi on 5
      January 2018 when he had made a phone call to her stating that she
      should come and visit him so that they can get married. On travelling to
D     Jhansi at the behest of the appellant, the second respondent was informed
      by the father of the appellant that the appellant did not wish to marry
      her. The contents of the statement under Section 164 of CrPC also
      indicate that the second respondent had “voluntarily developed relationship
      of husband-wife with him”. The second respondent has then stated that
      “now, he and his family members are refusing to marry with me”. The
E     second respondent has further stated that “my sole grievance is that
      Sonu is refusing to marry with me”.
             8. The contents of the FIR as well as the statement under Section
      164 of CrPC leave no manner of doubt that, on the basis of the allegations
      as they stand, three important features emerge:
F
            (i)      The relationship between the appellant and the second
                     respondent was of a consensual nature;
            (ii)     The parties were in the relationship for about a period of
                     one and a half years; and
G           (iii)    Subsequently, the appellant had expressed a disinclination
                     to marry the second respondent which led to the registration
                     of the FIR.
             9. In Pramod Suryabhan Pawar (supra), while dealing with a
      similar situation, the principles of law which must govern a situation like
H     the present were enunciated in the following observations:
SONU @ SUBHASH KUMAR v. STATE OF UTTAR PRADESH                               143
   & ANR. [DR. DHANANJAYA Y CHANDRACHUD, J.]

       “Where the promise to marry is false and the intention of the         A
maker at the time of making the promise itself was not to abide by it but
to deceive the woman to convince her to engage in sexual relations,
there is a “misconception of fact” that vitiates the woman’s “consent”.
On the other hand, a breach of a promise cannot be said to be a false
promise. To establish a false promise, the maker of the promise should
                                                                             B
have had no intention of upholding his word at the time of giving it...”
      10. Further, the Court has observed:
      “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       C
      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       D
      the woman’s decision to engage in the sexual act.”
       11. Bearing in mind the tests which have been enunciated in the
above decision, we are of the view that even assuming that all the
allegations in the FIR are correct for the purposes of considering the
application for quashing under Section 482 of CrPC, no offence has           E
been established. There is no allegation to the effect that the promise to
marry given to the second respondent was false at the inception. On the
contrary, it would appear from the contents of the FIR that there was a
subsequent refusal on the part of the appellant to marry the second
respondent which gave rise to the registration of the FIR. On these          F
facts, we are of the view that the High Court was in error in declining to
entertain the petition under Section 482 of CrPC on the basis that it was
only the evidence at trial which would lead to a determination as to
whether an offence was established.
       12. For the above reasons, we allow the appeal and set aside the      G
impugned judgment and order of the High Court dated 26 September
2019. In view of the reasons which have been adduced earlier, the charge
sheet dated 25 April 2018, which has been filed in pursuance of the
investigation which took place, shall stand quashed. The order of the
trial Court dated 3 October 2018 taking cognizance shall accordingly
stand quashed and set aside.                                                 H
144              SUPREME COURT REPORTS                        [2021] 2 S.C.R.


A            13. In view of the above order, Mr Amit Pawan, learned counsel
      appearing on behalf of the appellant, states that no further step shall be
      taken in respect of the cross-FIR which was registered against the second
      respondent at the behest of the appellant.
             14. Pending application, if any, stands disposed of.
B
      Devika Gujral                                                 Appeal allowed




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