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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 ..... ce 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. 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 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 - 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 Indian Penal Code. 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 work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 application Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciated 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 Code of Criminal Procedure 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 or harassment. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tting 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. It denotes an active will in mind of a person to permit the doing of the act complained of. 15. Section 90 of the Indian Penal Code defines consent known to be given under fear or misconception: Section 90: 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 consequence of such fear or misconception. 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -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 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 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 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to marry her at all from the inception and that the promise he made was false 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 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, 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 to go with the Accused to get married to him. She called the Accused on a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, 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 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 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 Indian Penal Code. 21. In the instant case, ..... 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