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Code of Criminal Procedure, 1973: s.482 – Inherent powersof court – Scope of exercise – Held: Under s.482, the inherentjurisdiction of the court can be exercised (i) to give effect to anorder under the CrPC; (ii) to prevent the abuse of the process of thecourt; and (iii) to otherwise secure the ends of justice – The courtshould be guarded in the use of its extraordinary jurisdiction toquash an FIR or criminal proceeding as it denies the prosecutionthe opportunity to establish its case through investigation andevidence – In deciding whether to exercise its jurisdiction unders.482, the Court does not adjudicate upon the veracity of the factsalleged or enter into an appreciation of competing evidencepresented – The limited question is whether on the face of the FIR,the allegations constitute a cognizable offence.Code of Criminal Procedure, 1973: s.482 – Petition forquashing FIR filed under ss.376, 417, 504, and 506(2) IPC againstthe appellant that he engaged in sexual relations with the complainantagainst her will on the false promise of marrying her – Plea ofcomplainant that her “consent” premised on a “misconception offact” (the promise to marry) stood vitiated – High Court rejectedthe plea and dismissed the petition – Held: The “misconception offact” alleged by the complainant is the appellant’s promise to marryher – There is a distinction between a false promise given on theunderstanding by the maker that it will be broken, and the breachof a promise which is made in good faith but subsequently notfulfilled – Where the promise to marry is false and the intention ofthe maker at the time of making the promise itself was not to abideby it but to deceive the woman to convince her to engage in sexualrelations, there is a “misconception of fact” that vitiates the woman’s“consent” – The “consent” of a woman under s.375 is vitiated onthe ground of a “misconception of fact” where such misconceptionwas the basis for her choosing to engage in the said act – In theinstant case, the allegations in the FIR did not on their face indicatethat the promise by the appellant was false, or that the complainantengaged in sexual relations on the basis of this promise – Therewas no allegation in the FIR that when the appellant promised tomarry the complainant, it was done in bad faith or with the intentionto deceive her – The appellant’s failure in 2016 to fulfil his promisemade in 2008 cannot be construed to mean the promise itself wasfalse – The allegations in the FIR indicated that the complainantwas aware that there existed obstacles to marrying the appellantsince 2008, and that she and the appellant continued to engage insexual relations long after their getting married had become adisputed matter – Even thereafter, the complainant travelled to visitand reside with the appellant at his postings and allowed him tospend his weekends at her residence – Therefore, offence unders.375 IPC against the appellant was not made out – FIR is quashed– Penal Code, 1860 – ss.375, 376, 417, 504, and 506(2).Code of Criminal Procedure, 1973: s.482 – Petition forquashing FIR filed under ss.3(1) (u), (w) and 3(2) (vii) of the SC/STAct against the appellant that he sent her certain Whatsapp messageswhich were insulting and attacked her on the grounds of her caste– High Court dismissed the petition – On appeal, held: TheWhatsApp messages were alleged to have been sent by the appellantto the complainant on 27 and 28 August 2015 and 22 October 2015– At that time, ss.3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as itstood today had not been enacted into the statute – These provisionswere inserted by the (Prevention of Atrocities) Amendment Act 2015which came into force on 26 January 2016 – None of the offencesas stood then were made out – The messages were not in publicview, no assault occurred, nor was the appellant in such a positionso as to dominate the will of the complainant. Therefore, even if theallegations set out by the complainant with respect to the WhatsAppmessages and words uttered were accepted on their face, no offencewas made out under SC/ST Act (as it then stood) – FIR is quashed –Scheduled Castes and Scheduled Tribes (Prevention of AtrocitiesAct, 1989 (as amended by the Amendment Act, 2018) – ss.3(1) (u),(w) and 3(2) (vii).Penal Code, 1860: s.375 – Consent – The consent with respectto s.375 involves an active understanding of the circumstances,actions and consequences of the proposed act – An individual whomakes a reasoned choice to act after evaluating various alternativeactions (or inaction) as well as the various possible consequencesflowing from such action or inaction, consents to such action –Where a woman does not “consent” to the sexual acts described inthe main body of s.375, the offence of rape has occurred – Whiles.90 does not define the term “consent”, a “consent” based on a“misconception of fact” is not consent in the eyes of the law. |
