Judgment This application is directed against the order dated 27.3.2009 passed by the then 3rd Additional Sessions Judge, Hazaribagh in Sessions Trial No.303 of 2008 whereby and whereunder learned Additional Sessions Judge after hearing on an application filed under Section 227 of the Code of Criminal Procedure on behalf of the opposite party no.2 did hold that no case is made out under Section 376 of the Indian Penal Code, rather prima facie case is made out under Section 417 of the Indian Penal Code. 2. It is the case of the petitioner that opposite party no.2 residing in the neighbourhood used to visit her house frequently, as a result of which, she developed friendship with him. During that course, opposite party no.2 started writing love letters to her. In the year 2003, when she took admission in B.A. at Hazaribagh, she started living with her brother in the house of one Naresh Prajapati on rent. There also opposite party no.2 started visiting her. Some times he used to take her to Jamshedpur. During these periods, he always used to say her that he will marry her after getting job. In the month of November-December, 2004, opposite party no.2 on making promise that he will marry her had had sex with her. In the year 2005, he was employed as Assistant Station Master and was posted at Dhanbad and Mahrail. At Dhanbad, he used to take her to Hotel where he used to have sex with her. In Mahrail they used to have sexual intercourse at his house. 3. It is also the case of the petitioner that when opposite party no.2 got employed petitioner asked him to marry her, upon which opposite party no.2 asked her to wait as he is undergoing training. After undergoing training, when he joined, she asked him to marry her but he refused to marry her, though sister and brother-in-law of opposite party no.2 used to say her that they will get her married to the opposite party no.2. When opposite party no.2 refused to marry, the petitioner informed all about it to her parents, upon which when the parents of the petitioner went to talk to the parents of the opposite party no.2 in this regard, they were scolded and were driven out from there. 4. When opposite party no.2 refused to marry, the petitioner informed all about it to her parents, upon which when the parents of the petitioner went to talk to the parents of the opposite party no.2 in this regard, they were scolded and were driven out from there. 4. On such allegation, F.I.R was lodged which was registered as Barhi P.S case no.300 of 2006 under Section 376 of the Indian Penal Code against the opposite party no.2. 5. The police after investigating the case did not find allegation of rape being true and hence, submitted final form. Thereupon, a protest petition was filed which was treated to be a complaint which was registered as Complaint Case no.478 of 2007. After holding enquiry, the court took cognizance of the offences under Section 376 of the Indian Penal Code and the case was committed to the court of sessions. 6. Thereupon an application was filed under Section 227 of the Code of Criminal Procedure on behalf of the opposite party no.2 for discharging him from accusation. 7. The court having heard counsel for the parties and taking into account the fact of the case and also decision rendered in a case of Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar and another [ (2007) 7 SCC 413 ] did hold that allegation made by the petitioner against the opposite party no.2 that he went on having sex with her on the pretext of marrying her and then refused to marry her will not constitute offence under Section 376 of the Indian Penal Code as it was with consent which can not be said to have been given by the petitioner under a misconception of fact. However, the court did find that prima facie material is there to constitute offence under Section 417 of the Indian Penal Code. 8. Being aggrieved with that order, this application has been preferred. 9. Mr. Ramesh Kumar Singh, learned counsel appearing for the petitioner submits that though the court relying upon a decision rendered in a case of Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar and another [ (2007) 7 SCC 413 ] and also in a case of Jayanti Rani Panda vs. State of West Bengal (1984 Cr. 9. Mr. Ramesh Kumar Singh, learned counsel appearing for the petitioner submits that though the court relying upon a decision rendered in a case of Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar and another [ (2007) 7 SCC 413 ] and also in a case of Jayanti Rani Panda vs. State of West Bengal (1984 Cr. L.J 1535) did hold that when a girl of more than 16 years old gives consent to her sexual intercourse to a man on a promise given to her by that man that he will marry her, subsequent act of refusal to marry her will neither amount to obtaining her consent by cheating nor make him liable to be prosecuted for an offence of rape and then did hold that prima facie case is there for constituting offence under Section 417 of the Indian Penal Code but the court did not understand the true import of the decision rendered in a case of Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar and another (supra) wherein it has been held that representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. 10. The Court has gone further to say that if on the facts it is established that at the very inception of making promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 and under this situation, the court should have framed charge under Section 376 of the Indian Penal Code so that prosecutrix could have laid evidence during trial to establish that from the very inception the accused never really intended to marry her and if the prosecutrix would have failed to establish the said fact, the accused would come out scot free. 11. Under these circumstances, the court by discharging opposite party no.2 from accusation of Section 376 can certainly be said to have committed illegality as the court has prevented the prosecutrix to establish that from the very inception the accused never really intended to marry her and went on having sex with the prosecutrix. 11. Under these circumstances, the court by discharging opposite party no.2 from accusation of Section 376 can certainly be said to have committed illegality as the court has prevented the prosecutrix to establish that from the very inception the accused never really intended to marry her and went on having sex with the prosecutrix. Therefore, the impugned order is fit to be set aside. 12. As against this, Mr. Anil Kumar, learned counsel appearing for the opposite party no.2 submits that from the statement made in the solemn affirmation by the prosecutrix, it would appear that she was deeply in love with the opposite party no.2 and as such, one can easily understand that she consented to the act alleged and even if it is accepted that opposite party no.2 on promising the petitioner of marrying her went on having sex, the petitioner cannot be said to have given her consent under a misconception of fact in terms of the provision as contained in Section 90 of the Indian Penal Code as if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity, it is an act of promiscuity on her part and not an act induced by misconception of fact and the court below taking into account the aforesaid principle did find that no case under Section 376 of the Indian Penal Code is made out and thereby the impugned order never warrants to be quashed. 13. Thus, on one hand, the stand which has been taken on behalf of the opposite party no.2 is that if a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity, it is an act of promiscuity on her part and not an act induced by misconception of fact whereas the stand which has been taken on behalf of the petitioner is that if the accused had had intention right from the beginning not to marry and secures consent to have sex on making promise of marrying her and indulges in sexual act, the consent can be said to have elicited on a misconception of fact. 14. 14. In this context, one needs to take notice of the provision of Section 90 of the Indian Penal Code which reads as follows: “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.” 15. The matter relating to indulgence in an act of sexual intercourse on securing consent on a promise of marriage came up for consideration before the Calcutta High Court in a case of Jayanti Rani Panda vs. State of W.B (supra) for consideration as to whether consent secured in that manner can be said to have been given under misconception of fact. Their Lordships after giving due consideration of the fact and circumstances and also the provision of law did observe as follows: “The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act o promiscuity on her part and not an act induced by misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full-grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act o promiscuity on her part and not an act induced by misconception of fact. Section 90 of the Indian Penal Code cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the court can be assured that from the very inception the accused never really intended to marry her.” Their Lordship have gone further to observe: “There must be a misstatement of an existing fact.” Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Section 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact.” 16. Subsequently, when more or less similar matter came for consideration before the Hon’ble Supreme Court in a case of Uday vs. State of Karnataka [ (2003) 4 SCC 46 ] , their Lordships after placing reliance on the decision of Jayanti Rani Panda vs. State of W.B (supra) observed as follows: “It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar acts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view thee fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.” 17. Apparently it does appear from the observation made by the Hon’ble Supreme Court that the consent given by the prosecutrix to the sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. 18. However, subsequently when similar matter came up for consideration before the Hon’ble Supreme Court in a case of Pradeep Kumar @ Pradeep Kumar Verma vs. State of Bihar and another (supra) Their Lordships after taking notice of the observation made in a case of Uday vs. State of Karnataka (supra) did observe that by making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this court has laid down the law differently. 19. Their Lordships after taking note of relevant observation made in a case of Uday vs. State of Karnataka (supra) was pleased to hold as follows: “The first two sentences in the above passage need some explanation. 19. Their Lordships after taking note of relevant observation made in a case of Uday vs. State of Karnataka (supra) was pleased to hold as follows: “The first two sentences in the above passage need some explanation. While we reiterate that a promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90, it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in Jayanti Rani Panda case which was approvingly referred to an Uday case. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the at the end (Cri L J p.1538 para 7) – ‘unless the court can be assured that from the very inception the accused never really intended to marry her’ (emphasis in original). In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an action of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that a false promise is not a fact within the meaning of the Code, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also eqully 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. The observations following the aforesaid sentence are also eqully 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. This is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused’s intention to marry cannot be ruled out. 20. Ultimately it was held that if on the facts it is established that at the very inception of making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375. 21. In such situation, the court below does not seem to be right at that point of time to hold that consent given by the petitioner to have sex with the opposite party no.2 on promise being made that he will marry her is free from misconception of fact as only when evidences are adduced before the court, it can be ascertained as to whether from the very inception the accused never really intended to marry her. 22. Under the circumstances that part of the order dated 27.3.2009 whereby it has been held that no offence is made out under Section 376 of the Indian Penal Code is hereby quashed. 23. In the result, the court after framing charge under Section 376 as well as under Section 417 of the Indian Penal Code will proceed with the trial. 24. Thus, this application stands allowed. Application allowed.