IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08/10/2007
CORAM
THE HONOURABLE MR. JUSTICE S. PALANIVELU
Crl. O.P. No.28080 of 2007
S.Suresh ..Petitioner
Vs
State
represented by Inspector of Police
Kadathur Police Station
Dharmapuri District. ..Respondent
Petition under Section 482 of the Code of Criminal
Procedure.
For Petitioner : Mr.M.Ravi
For Respondent : Mr.A. Saravanan, Govt. Advocate (Crl. Side)
O R D E R
This petition has been filed to call for the
records in connection with F.I.R.No.212 of 2007 on the file
of Kadathur Police, Station, Dharmapuri District, and to
quash the same.
2. De facto complainant is a married woman, who
has got twin boys, aged three years, and a daughter. She is
living away from her husband, in view of certain
misunderstandings. Sons are with her husband, while she is
maintaining the daughter. She is working as a teacher in
Panchayat Union Elementary School in Veppilaipatti village.
She used to attend the teachers’ meeting every month in
Thalanattam Panchayat Union Middle School. The accused, who
too is a teacher in Panchayat Union Elementary School in
Nattamedu, also used to participate in the said meetings.
He voluntarily began to get familiarity with her. While he
is a brahmin, she belongs to Adi-dravidar community. She
had informed him about her family circumstances. He
represented that he was a bachelor and made her to believe
that he would marry her, thereby asking her to come with him
to some places. But, since she refused, both of them used
to go to house No.875 in Vennampatti Housing Board and have
carnal intercourse on several occasions from March,2007. On
14.04.2007, he took her to Mohana Lodge, Krishnagiri, stayed
there and had coitus with her. They vacated the room in the
evening of 15.04.2007. Because of him, she is now pregnant
by two-and-a-half months. The accused refused to marry her
and disconnected her relationship. Therefore, a case has
been registered in Crime No.212 of 2007 on the file of
respondent police for the offences under Sections 376 IPC
and Section 3 (1) (xii) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act.
3. Learned counsel for the petitioner would
vehemently contend that for employing Section 376 IPC, the
complaint does not bear any allegations and as per the
situation of the de facto complainant, namely, her avocation
and status i.e., to say, she was a married woman, living
with children, by no stretch of imagination, it could be
stated that she was sexually exploited by the accused
forcibly. It is his further contention that none of the
ingredients enumerated in Section 375 IPC would apply to
the facts of the present case and the alleged offence under
Section 376 did not exist. It is also his argument that the
de facto complainant gave her free consent for intercourse
as per her allegation and there was no obnoxious intention
on the part of the accused to spoil her life and, therefore,
no offence could be made out under Section 376 IPC.
4. It is beneficial to refer Section 90 IPC, which
reads as under :
“90.Consent known to be given
under fear or misconception.- A
consent is not such a consent as is
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.”
5. Learned counsel for the petitioner placed much
reliance upon a decision of the Hon’ble Supreme Court in
State of U.P. through C.B.I.,S.P.E., Lucknow, v.
R.K.Srivastava and others, AIR 1989 SUPREME COURT 2222, in
which it has been held that it is a well settled principle
of law that if the allegations made in the FIR are taken at
their face value and accepted in their entirety do not
constitute an offence, the criminal proceedings instituted
on the basis of such FIR should be quashed. But, the facts
in the case on hand are different. In this case, the
allegations are sufficient to constitute the offence.
6. The learned counsel also cited a decision of
the Supreme Court in Uday v. State of Karnataka, 2003 (4)
Supreme Court Cases 46, wherein certain guidelines have been
formulated, to infer the fact of “consent”, which are as
below :
“For determining whether
consent given by the prosecutrix was
voluntary or under a misconception
of fact, held there is no
straitjacket formula and each case
has to be decided considering the
evidence and surrounding
circumstances of the case – where
(i) the prosecutrix (aged 19 years
on the date of occurrence) had
sufficient intelligence to
understand the significance and
moral quality of the act she was
consenting to, (ii) she was
conscious of the fact that her
marriage with the applicant was
difficult on account of caste
considerations, (iii) it was
difficult to impute to the appellant
knowledge that the prosecutrix had
consented in consequence of a
misconception of fact arising from
his promise, and (iv) there was no
evidence to prove conclusively that
the appellant never intended to
marry the prosecutrix, held,
appellant’s conviction and sentence
under S.376 IPC was liable to be set
aside.”
7. Paragraph 25 of the above said ruling goes to
the effect that in order to constitute the consent under
Section 90 IPC, firstly, it must be shown that the consent
was given under a misconception of fact and, secondly, it
must be proved that the person who obtained the consent
knew, or had reason to believe that the consent was given in
consequence of such misconception.
8. As far as the facts of the present case are
concerned, we are in the first stage i.e., the consent was
given under a misconception of fact and the proof is a
subsequent affair, since the case has to reach its stage of
trial. It is further observed in the said decision as
follows :
25….As stated by the prosecutrix,
the appellant also made such a promise
on more than one occasion. In such
circumstances, the promise loses all
significance, particularly when they are
overcome with emotions and passion and
find themselves in situations and
circumstances where they, in a week
moment, succumb to the temptation of
having sexual relationship. This is what
appears to have happened in this case as
well, and the prosecutrix willingly
consented to having sexual intercourse
with the appellant with whom she was
deeply in love, not because he promised
to marry her, but because she also
desired it. In these circumstances, it
would be very difficult to impute to the
appellant knowledge that the prosecutrix
had consented in consequence of a
misconception of fact arising from his
promise….”
9. Another decision in Deelip Singh v. State of
Bihar, 2005 (1) Supreme Court Cases 88, was also relied upon
by the learned counsel for the petitioner, in which it was
observed as under :
“Though will and consent often
interlace and an act done against the
will of a person can be said to be an
act done without consent, the Indian
Penal Code categorises these two
expressions under heads in order to be
as comprehensive as possible. Further,
it is not easy to find a dividing line
between submission and consent except in
the situation contemplated by clause
fifthly of Section 375 IPC. Yet, the
evidence has to be carefully scanned.
The ultimate conclusion depends on the
facts of each case.”
10. It is the further contention of the learned
counsel for the petitioner that since the de facto
complainant is a full-grown girl, capable of understanding
the consequences while she gave consent to the sexual
intercourse and became pregnant, the consent obtained from
her could not be deemed to have been obtained by
misconception.
11. In the above judgment, it was opined that even
though consent cannot be said to have been obtained under a
misconception of fact, the Courts have to consider the
question of consent, after appreciating the materials
available in a particular case.
12. In a recent decision of the Supreme Court in
Pradeep Kumar @ Pradeep Kumar Verma v. State of Bihar and
Anr., 2007 (3) Crimes 346 (SC), the scheme of Section 90 IPC
has been elaborately dealt with and “what would be the
consent” obtained from the victim would come under the
category of “consent obtained by fear or misconception.” The
Apex Court also considered Uday’s case, stated supra, and
laid down a law as follows :
“20…..By making the solitary
observation that a false promise is
not a fact within the meaning of the
Code, it can not be said that this
Court has laid down the law
differently. The observations
following the aforesaid sentence are
also equally important. The Court was
cautious enough to add a qualification
that no straitjacket formula could be
evolved for determining whether the
consent was given under a
misconception of fact. Reading the
judgment in Uday case as a whole, we
do not understand the Court laying
down a broad proposition that a
promise to marry could never amount to
a misconception of fact. That is not,
in our understanding, the ratio of the
decision. In fact, there was a
specific finding in that case that
initially the accuseds intention to
marry cannot be ruled out.”
13. Hence, the legal principle to be applied in
similar cases is that the Court has to see whether the
person giving the consent has given it under fear or
misconception of fact and the Court should also be satisfied
that the person doing the act i.e., the alleged offender is
conscious of the fact or should have reason to think that
but for the fear or misconception, the consent would not
have been given.
14. As per Section 90 IPC, “consent” must be a
voluntary one and it could not be under misconception of
fact or misrepresentation or by fraudulent means. Obtaining
consent for sexual intercourse on the promise of marriage
should fulfil the requirements, adumbrated in Section 90.
In order to infer a qualified consent free from any legal
flaw, the allegations in the F.I.R.may not be sufficient.
Even though the consent was a voluntary one, if the Court
finds that it was obtained by misconception of fact or
misrepresentation, it will suffer from illegality. The
consent or absence of it could be gathered from the
attendant circumstances. On the face of it, it is learnt
that the accused knew of the misconception or had reason to
believe that the victim would act upon it.
15. As far as the facts of this case are
concerned, it is only in the F.I.R. stage and investigation
is pending. Only if the trial reaches its logical
conclusion, the real intention of the accused would be
unearthed, by appreciating the materials available in the
evidence on record.
16. Learned Government Advocate (Criminal Side)
would cite a decision of the Apex Court in Yedla Srinivasa
Rao v. State of A.P., 2006 (9) SCALE 692, wherein, the
Supreme Court, after referring to the principles laid down
in Uday’s case, considering the facts of the case, was
satisfied that the consent which had been obtained by the
accused was not a voluntary one which was given by her under
misconception of fact that the accused would marry her, but
this is not a consent in law, which is more evident from the
testimony of P.W.1 and P.W.6 who was functioning as
Panchayat where the accused admitted that he had committed
sexual intercourse and promised to marry her, but he
absconded despite the promise made before the Panchayat,
and, hence, the question as to whether the consent obtained
from the de facto complainant by the accused was under
misconception of fact has to be decided, only after scanning
and analysing the oral evidence on record.
17. In the above said decision, the Apex Court has
referred to various decisions and concluded as stated above.
Following the principles of law laid down by the Supreme
Court, it must be observed herein that whether the consent
was obtained fraudulently by the accused would be decided on
the merits of the case and on the basis of the allegations
available in the F.I.R. Since the allegations in this case
have prima facie constituted the offence under Section 376
IPC, there would be no question of quashing the F.I.R. at
this stage.
18. Learned counsel for the petitioner further
submitted that there is no sufficient material on record to
implicate the accused, for the offence under Section 3 (1)
(xii) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act.
19. In this connection, it is worthwhile to refer
to Section 3 (1) (xii) of the Act, which reads as under :
“being in a position to dominate
the will of a woman belonging to a
Scheduled Caste or a Scheduled Tribe
and uses that position to exploit her
sexually to which she would not have
otherwise agreed”
20. The allegations in the F.I.R. would go to the
effect that the de facto complainant had already informed
the accused of her situation and he also knew about her
fully. It goes to show that the accused was very well aware
that the de facto complainant belonged to Adi-dravidar
community. The aforesaid version in the FIR would be a
prima facie material to show the attitude of the accused,
attracting the said provision.
21. In the light of the above discussions and
following the ratio laid own by the Apex Court, the F.I.R.
could not be quashed. As a result, this petition is
dismissed. Consequently, the connected Crl.M.P.No.1 of 2007
is also dismissed.
dixit
To
1. The Inspector of Police,
Kadathur Police Station,
Dharmapuri District.
2. The Public Prosecutor,
High Court,
Madras.