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Consent For Sexual Act Obtained By Making False Promise Of Reemployment Isn’t Free Consent: MP HC

                                   In a big slap on the face of all such sexual predators who as employers stoop to such a low level that they obtain the consent for sexual act from a woman employee by making false promise of reemployment, the Gwalior Bench of Madhya Pradesh High Court in a learned, laudable, landmark and latest judgment titled Rajkishore Shrivastava vs. State of MP and another in M.Cr.C. No.38456/2021 that was delivered on August 2, 2021 has held unequivocally that getting the consent of the prosecutrix to involve in a sexual act by making false promise of re-employment, can’t be called ‘free consent’ and it would amount to consent obtained under a misconception of fact (as per Section 90 of IPC). It must also be apprised here that the single Judge Bench of Justice GS Ahluwalia of Gwalior Bench of Madhya Pradesh High Court observed thus as it refused to quash an FIR registered for the offence of rape against the Director of a hospital by the receptionist of the hospital (victim). Very rightly so!

                                      To start with, the single Judge Bench of Justice GS Ahluwalia of Gwalior Bench of the Madhya Pradesh High Court sets the ball rolling of this brief, brilliant, bold and balanced judgment heard through video conferencing by first and foremost observing in the opening para that, “This application under Section 482 of Cr.P.C. has been filed for quashing the FIR in Crime No.8/2021 registered at Police Station AJK, District Bhind for offence under Sections 376(2)(n), 323, 294, 506 of IPC and under Sections 3(2)(v), 3(2)(va), 3(1)(r), 3(1)(s), 3(1) (w) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as well as the charge sheet and its all consequential proceedings.”

                                While elaborating on the applicant-prosecutrix version, the Bench then envisages in the next para that, “It is submitted by the counsel for the applicant that the prosecutrix has lodged an FIR on the allegations that in the month of June, 2020 she had started working in the hospital of the applicant on the post of Receptionist. Thereafter, the applicant went to Gwalior and Delhi and came back in the month of July, 2020. It is alleged that on the pretext of giving job, the applicant had violated her sexually on multiple occasions and also started pressurizing that the prosecutrix must indulge in sex with other persons. When the prosecutrix did not agree for indulging in sex with other persons, then her services were terminated. It is alleged that on the pretext of reinstatement, the applicant had sexually violated her on number of occasions till December, 2020, however, she was not given the job. When the prosecutrix threatened the applicant that she would inform his conduct to his wife, then the applicant gave an application against her in his defence. The prosecutrix was also beaten by the applicant and by humiliating her by her caste, a threat was extended.”

                  Simply put, the Bench then puts forth in the next para that, “It is submitted that four supplementary statements of the prosecutrix were also recorded. Further, from the statement of the prosecutrix, it is clear that she was a consenting party. Even after the termination of her service, if she continued to remain in sexual relationship with the applicant, then it cannot be said that her consent was obtained by misconception of fact.”

                                  Be it noted, the Bench then observes in the next para that, “Heard learned counsel for the applicant. Section 90 of IPC reads as under:

“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; or

Consent of insane person- If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or

Consent of child- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.” Thus, it is clear that if the consent is given in consequence of any misconception or fear, then it cannot be said to be a free consent.”

                         Quite significantly, the Bench then enunciates in the next para that, “In the present case, undisputedly the applicant is the Director of a hospital. It is the case of the prosecutrix that she was given appointment on the post of Receptionist and thereafter the applicant had violated her sexually on multiple occasions. If the prosecutrix did not make any complaint with regard to her sexual violation, then it cannot be said that the prosecutrix had indulged in sexual act voluntarily because she was an employee of the applicant and the applicant was in a position to dominate her wishes. Further, when the services were terminated, it is alleged that the applicant again allured her of giving her job and under the hope and belief that the prosecutrix would again get a job in the hospital, if she continued to have sexual relationship with the applicant, then it cannot be said that her consent was a free consent and there was no misconception of fact.”

            Most significantly and also most remarkably, what forms the cornerstone of this cogent, commendable, composed, clear and convincing judgment is that the Bench then very forthrightly observes that, “It is well established principle of law that the investigation or the charge sheet can be quashed only if uncontroverted allegations do not make out an offence. In the present case, by giving her an assurance that she would be reemployed by the applicant in his hospital, if he succeeded in getting the consent of the prosecutrix to involve in sexual act, then such consent cannot be said to be a free consent and it was certainly obtained by making false promise of reemployment and thus, in the light of Section 90 of IPC, it can be said that the said consent was obtained under misconception of fact. Under these circumstances, no case is made out for quashment of FIR in Crime No.8/2021 registered at Police Station AJK, District Bhind or the charge sheet arising out of the aforesaid FIR.”

                                 As an aside, the Bench then states in the next para that, “Before parting with this order, this Court would like to mention that certain observation have been made in order to consider the submissions of the counsel for the applicant.”

                                 As it turned out, the Bench then points out clearly in the next para that, “The Trial Court is reminded that observations in this order have been made in the light of limited scope under Section 482 of Cr.P.C. The Trial Court must decide the Trial strictly in accordance with evidence which would come on record without getting prejudiced or influenced by any of the observations made in this order.”

                           Finally, the Bench then holds in the last para that, “Accordingly, the application fails and is hereby dismissed.”

                                  In short, it is really most heartening to note that the single Judge Bench comprising of Justice GS Ahluwalia of Indore Bench of Madhya Pradesh High Court has made it crystal clear in its short, suave, straightforward and stimulating judgment that getting the consent of the prosecutrix to involve in a sexual act by making false promise of re-employment, can’t be called ‘free consent’ and it would certainly amount to consent obtained under a misconception of fact (as per Section 90 of IPC). So it must be underscored here that the employer cannot get away simply by just terming it as “sex with consent” and blaming women also for it! Of course, it definitely merits no reiteration that all the employers who dare to ever indulge in such type of serious misdemeanour must now always remember that they cannot get away easily by pleading the specious plea of “sex with consent”! It is a no brainer and it goes without saying that they (the employers) will have to face the serious devastating consequences that will rock their life if they dare to ever indulge in sex with women by resorting to such specious and shameless plea of “sex with consent”! The earlier they (the employers) realize this and refrain from indulging in such type of shameless conduct, the better it shall be for them in their own best interest!

               Now the ball is in the court of the employers and it is entirely up to them that what do they want for themselves – peaceful life or life in jail with stigmas attached with their character? So, needless to say, this leading, learned, latest and laudable judgment has certainly served to send out a loud and clear message to all the employers in our country that, “Be you ever so high, the law is above you.”

Sanjeev Sirohi

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