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2019 DIGILAW 84 (JK)

Manik Seth v. State of J&K

2019-02-22

SANJAY KUMAR GUPTA

body2019
Judgment 1. Through the instant petition filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short, Cr.P.C) petitioner seeks quashing of FIR No.147/2018 dated 06.05.2018, registered with Police Station, Domana, Jammu for commission of offence punishable under Section 376/366 Ranbir Penal code against the petitioner and the proceedings/investigation being conducted by the respondent against the petitioner in the impugned FIR. 2. The case of the petitioner is that he and complainant-X (name withheld) were having a love affair for the last four years and after such a long drawn love affair, the engagement of the petitioner and the complainant took place, but the complainant refused for the marriage with the petitioner. It is stated that the complainant filed an application under section 156(3) of the Code of Criminal Procedure seeking directions to the SHO Police Station, Domana, Jammu to register an FIR against the petitioner in which a highly baseless and vexatious story of kidnapping and rape has been projected. Besides other accusation, it has been alleged by the complainant that on 28h April 2018 the petitioner was alleged to have kidnapped the complainant, who is living at Satwari Jammu from Domana i.e. the place where the petitioner is living and took her to Reasi where she was allegedly intoxicated and the petitioner was alleged to have committed rape on her on the pretext of marrying the complainant. It is further stated that on the directions of the Ld. Magistrate, the respondent has registered the impugned FIR No.0147 of 2018 dated 06.05.2018 for commission of offence punishable under section 366 and 376 Ranbir Penal code against the petitioner. 3. It is contended that the allegations alleged in the impugned FIR against the petitioner are highly baseless and frivolous inasmuch as from Jammu to Katra the complainant had driven the own car of the petitioner whereas the petitioner had sit next to her in the car. The complainant was driving the car herself is quite evident from their conversation which the petitioner had recorded in his mobile phone and can be produced before the Court as and when directed. It is further contended that the complainant is a resident of Satwari, Jammu whereas the petitioner is a resident of Domana, Jammu. The complainant in her complaint/FIR has herself-admitted that she has gone to Domana, Jammu. It is further contended that the complainant is a resident of Satwari, Jammu whereas the petitioner is a resident of Domana, Jammu. The complainant in her complaint/FIR has herself-admitted that she has gone to Domana, Jammu. If the complainant had herself gone to Domana and took the petitioner along with her to go to Reasi then the allegations of kidnapping alleged against the petitioner in the impugned FIR are not at all made out. It is stated that a bare perusal of the impugned FIR clearly shows that no allegation of sexual relations with any related details has been alleged in the impugned FIR and even the complainant before filing petition under Section 156(3) before the Ld. CJM Jammu did not approach the concerned Police Station, or SP Jammu as per the mandate of provisions of Section 154(1) of Cr.P.C. and 154(3) of Cr.?.?. If this been the position, then in the FIR these factors could have been reflected as the contents of FIR are generally reproduction of the complaint/application filed under Section 156(3) and forwarded to the concerned Police Station. CRMC No. 263/2018 Page 3 of 19 4. That the petitioner is aggrieved of the impugned FIR No. 147/2018 dated 06.05.2018 and challenges the same on the following grounds:— (a) That the impugned FIR has been registered by police on the directions passed by the Magistrate in flagrant violation and contravention of the law and guidelines laid down by the Hon’ble Supreme Court of India in landmark judgment in the case titled Priyanka Srivastava vs. State of U.P. 2015 (6) SCC 287 in which the Hon’ble Supreme Court has specifically held that before invoking the provisions of Section 156(3) of the Code of Criminal Procedure, it is incumbent upon the Magistrate to ensure that the complainant must have filed prior application under section 154(1) of Cr.P.C. and 154(3)of Cr.P.C. before filing application under section156(3) of Cr.P.C. and the application under section156(3) presented before the Magistrate must be accompanied by applications filed by the complainant under section 154(1) and 154(3) alongwith the personal affidavit of the complainant. In the instant case, as per the impugned FIR there is no mention of complainant prior to filing of application under section 156(3) has approached either SHO Police Station, Domana Jammu or the SP concerned as per the requirement of Section 154(1) and 154(3) of Code of Criminal Procedure. In the instant case, as per the impugned FIR there is no mention of complainant prior to filing of application under section 156(3) has approached either SHO Police Station, Domana Jammu or the SP concerned as per the requirement of Section 154(1) and 154(3) of Code of Criminal Procedure. Because of these inherent defects in the application as well as taking of cognizance by the Ld. Magistrate, the impugned FIR could not have been registered by the respondent. The complainant with application u/s 156(3) had annexed a copy of the complaint addressed to SHO Police station, Satwari, Jammu whereas the FIR has been registered with Police station, Domana. Further there is no receipt or acknowledgement evidencing that the aforesaid complaint was ever received by the SHO Police station, Satwari, Jammu. This clearly shows that the Ld. Magistrate has taken cognizance of the application u/s 156(3) in utter breach of the directions and guidelines issued by the Hon’ble Supreme Court of India. The impugned FIR in the instant case has been registered on the basis of highly faulty order passed by the Ld. Magistrate u/s 156(3) therefore, the impugned FIR deserve to be quashed. (b) That as per the allegations alleged in the application/complaint u/s 156(3), no case much less a case punishable under section 366 and 376 Ranbir Penal code is made out against the petitioner. The Hon’ble Supreme Court of India in case titled Udhay vs. State of Karnataka (2003) 4 SCC 46 has held 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. It has been further held that a false promise is not a fact within the meaning of the Code and that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary or whether it is given under a misconception of fact. Detailed submissions on this count shall be respectfully urged during the course of hearing of the afore-titled petition. Detailed submissions on this count shall be respectfully urged during the course of hearing of the afore-titled petition. (c) That the offence punishable under section 366 and376 Ranbir Penal code is further mot made out against the petitioner, because as per the allegations alleged by the complainant in her complaint/application under section 156(3) of Code of Criminal Procedure and as contained in the impugned FIR, the complainant herself gone with petitioner. Complainant in her testimony had admitted that she was in relationship with the appellant for last two years prior to the incident and the and the accused used to stay overnight at her residence. After perusal of the copy of the FIR and evidence on record the case set up by the complainant appears to be highly unrealistic and unbelievable and the act of sexual intercourse seems to be consensual Detailed (d) That the impugned FIR registered by the respondent on the complaint of complainant is totally illegal and based upon such accusations and allegations which are far -far away from truth. On this count, the impugned FIR deserves to be quashed. (f) That the petitioner knows the complainant, but no sexual relation was ever made between them and if the allegation of the complainant is to be believed even then the same do not constitute an offence punishable under section 376/366 Ranbir Penal code. Had the petitioner made any forcibly sexual relation with the complainant that too without her consent, then the complainant ought to have agitated the same and raised the alarm, which is not the case in hand? On this ground also, the allegations alleged by the complainant in her complaint are highly unbelievable and could not have been acted upon by the respondent by registering the impugned FIR without holding any preliminary enquiry into these allegations. On this ground also, the impugned FIR is totally illegal and vitiated, hence liable to be quashed. (g) That the allegations as contained in the impugned FIR if evaluated and weighed on the touchstone of provisions as contained in section 366 and 376 RPC, no case much less a case for commission of offence punishable under section 376 Ranbir Penal code or 366 Ranbir Penal code is made out against the petitioner. The respondent because of pressure and influence yielded by the complainant and on the basis of directions issued by the Ld. The respondent because of pressure and influence yielded by the complainant and on the basis of directions issued by the Ld. Magistrate has registered the impugned FIR that too without following the due procedure as established by law. On this ground also, the impugned FIR deserves to be quashed. 5. The respondent/ State has filed objections/status report. The stand taken by the respondent is that the petition is not maintainable in view of the judgment of the Apex Court reflected in AIR 1992 Page 604 in case titled Ch. Bhajan Lal Vs. State of Haryana. Further stand taken by the respondents is that once FIR is registered, it becomes an obligation on the part of the Investigating Agency to investigate the matter to its logical end and bring the real facts before the Hon’ble Court for further action, as such, the petitioner cannot seek quashment of FIR; that perusal of the FIR clearly discloses the cognizable offence which has to be investigated under law. Moreover, the jurisdiction of Court under Section 561-A Cr.P.C is very limited and the present case does not warrant any interference by invoking the exercise of the inherent jurisdiction; that the case is still under investigation and the question whether the petitioner is involved in the commission of offence or not is the question of fact which can be agitated before the trial court once the challan is produced against him and there is no illegality in registration of the said FIR; that mere registration of FIR does not cause any loss to the petitioner because he can prove himself innocent once challan is presented and in case no case is made out then the proceedings can be dropped against him, but for that matter the petitioner should wait for presentation of the challan before the trial court; that the petitioner instead of cooperating with the police has unnecessarily dragged the answering respondent into litigation; that brief facts of the case are that on 06.05.2018 complainant namely, Rashmi Magotra D/o Bhal Chander, Caste Brahmin, R/o Surya Chak, Satwari, Jammu lodged a written report in Police Station, Domana pursuant to which case FIR No.147/2018 under Section 366/376 Ranbir Penal code came to be registered and the investigation of the case was entrusted to SI Thoru Ram; that during the course of investigation the Investigating Officer got the medical examination of the complainant regarding rape done from Govt. Hospital Sarwal and obtained the medical opinion. The Investigating Officer thereafter recorded the statements of witnesses under Section 161 Cr.P.C and also got the statement of the complainant under Section 164-A Cr.P.C recorded from Judicial Magistrate Ist Class and obtained a certified copy of the said statement; that the arrest of the accused-petitioner was required for further investigation in the case, but the petitioner produced a copy of order dated 11.05.2018 passed by the Hon’ble Court in the Police Station by virtue of which the investigation in impugned FIRNo.147/2018 has been stayed and, as such, the arrest of the accused could not be effected and the investigation of the case could not be carried on. 6. During proceeding, complainant/X has also appeared through her counsel and has been heard. Her counsel has relied upon the judgments passed by this Court in case reported in 2018 Legal Eagle 838, in case titled Yashpal vs. State of J&K and anr.; 2017 Legal Eagle 275, in case titled Farooq Ahmed vs. State of J&K and ors.; 2018 Legal Eagle 820, in case titled Mushtaq Shah and ors. Vs. State and anr.; and 2015 Cr.L.J. 2049 in case titled Deepak v State of Haryana. Rajiv Thapar and Ors. Vs. Madan Lal Kapoor, (2013) 3 SCC 330 . (Para 7) 7. I have considered the rival contentions. Counsel for petitioner has reiterated the grounds taken in memo of petition, whereas State has also reiterated the stand taken in the objections. 8. I have given my thoughtful consideration to whole aspects of the matter and law on the subject. 9. Before dealing with the facts of the present case, it would be appropriate to note the law laid down by the Supreme Court in the decision reported as (2013) 3 SCC 330 Rajiv Thapar and Ors. Vs. Madan Lal Kapoor wherein while laying down the guidelines for quashing of a FIR and the proceedings pursuant thereto in exercise of its power under Section 482 Cr.P.C. by the High Court, the Supreme Court delineated the steps to be taken to determine the veracity of prayer as under:— “29. Vs. Madan Lal Kapoor wherein while laying down the guidelines for quashing of a FIR and the proceedings pursuant thereto in exercise of its power under Section 482 Cr.P.C. by the High Court, the Supreme Court delineated the steps to be taken to determine the veracity of prayer as under:— “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far- reaching consequences inasmuch as it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice. 30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashment raised by an accused by invoking the power vested in the High Court under Section 482 CrPC:— 30.1. Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? 30.2. Step two: whether the material relied upon by the accused would rule out the assertions contained in the charges levelled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? 30.3. Step three: whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? 30.4. Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 30.5. If the answer to all the steps is in the affirmative, the judicial conscience of the High Court should persuade it to quash such criminal proceedings in exercise of power vested in it under Section 482 CrPC. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as proceedings arising therefrom) specially when it is clear that the same would not conclude in the conviction of the accused.” 10. Following the decision in Rajiv Thapar’s case (supra), Supreme Court in the decision reported as (2013) 9 SCC 293 Prashant Bharti Vs. State (NCT of Delhi) dealing with a similar fact situation noting the facts of the complaint therein, material collected in investigation and placed by the accused therein, quashed the FIR, held as under:— “23. Following the decision in Rajiv Thapar’s case (supra), Supreme Court in the decision reported as (2013) 9 SCC 293 Prashant Bharti Vs. State (NCT of Delhi) dealing with a similar fact situation noting the facts of the complaint therein, material collected in investigation and placed by the accused therein, quashed the FIR, held as under:— “23. The details in respect of each aspect of the matter, arising out of the complaints made by Priya on 16-2-2007 and 21-2- 2007 have been examined in extensive detail in the foregoing paragraphs. We shall now determine whether the steps noticed by this Court in the judgment extracted hereinabove can be stated to have been satisfied. Insofar as the instant aspect of the matter is concerned, the factual details referred to in the foregoing paragraphs are being summarized hereafter: 23.1. Firstly, the appellant-accused was in Sector 37, Noida in the State of Uttar Pradesh on 15-2-2007.He was at Noida before 7.55 p.m. He, thereafter, remained at different places within Noida and then at Shakarpur, Ghaziabad, Patparganj, Jorbagh, etc. From 9.15 p.m. to 11.30 p.m. on 15-2- 2007, he remained present at a marriage anniversary function celebrated at Rangoli Lawns at Ghaziabad, Uttar Pradesh. An affidavit to the aforesaid effect filed by the appellant-accused was found to be correct by the investigating officer on the basis of his mobile phone call details. The accused was therefore not at the place of occurrence, as alleged in the complaint dated 16-2-2007. 23.2. Secondly, verification of the mobile phone call details of the complainant/prosecutrix Priya revealed, that on 15-2-2007, no calls were made by the appellant-accused to the complainant/prosecutrix, and that, it was the complainant/prosecutrix who had made calls to him. 23.3. Thirdly, the complainant/prosecutrix, on and around the time referred to in the complaint dated 16-2-2007, was at different places of New Delhi i.e. in Defence Colony, Greater Kailash, Andrews Ganj and finally at Tughlaqabad Extension, as per the verification of the investigating officer on the basis of her mobile phone call details. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16-2-2007. 23.4. The complainant was also not at the place of occurrence, as she herself alleged in the complaint dated 16-2-2007. 23.4. Fourthly, at the time when the complainant/prosecutrix alleged that the appellant-accused had misbehaved with her and had outraged her modesty on 15-2-2007 (as per her complaint dated 16-2-2007), she was actually in conversation with her friends (as per the verification made by the investigating officer on the basis of her mobile phone call details). 23.5. Fifthly, even though the complainant/prosecutrix had merely alleged in her complaint dated 16-2-2007 that the accused had outraged her modesty by touching her breasts, she had subsequently through a supplementary statement (made on 21-2-2007), levelled allegations against the accused for the offence of rape. 23.6. Sixthly, even though the complainant/prosecutrix was married to one Manoj Kumar Soni, s/o Seeta Ram Soni (as indicated in an affidavit appended to the Delhi Police format for information of tenants and duly verified by the investigating officer, wherein she had described herself as married), in the complaint made to the police (on 16-2-2007 and 21-2-2007), she had suggested that she was unmarried. 23.7. Seventhly, as per the judgment and decree of the Civil Judge (Senior Division), Kanpur (Rural) dated 23-9-2008, the complainant was married to Lalji Porwal on 14-6-2003. The aforesaid marriage subsisted till 23-9-2008. The allegations made by the complainant dated 16-2-2007 and 21-2-2007 pertain to occurrences of 23-12-2006, 25-12-2006, 1-1-2007 and 15-2-2007 i.e. positively during the subsistence of her marriage with Lalji Porwal. Thereafter, the complainant Priya married another man Manoj on 30-9-2008. This is evidenced by a “certificate of marriage” dated 30-9-2008. In view of the aforesaid, it is apparent that the complainant could not have been induced into a physical relationship based on an assurance of marriage. 23.8. Eighthly, the physical relationship between the complainant and the accused was admittedly consensual. In her complaints Priya had however asserted, that her consent was based on a false assurance of marriage by the accused. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the “certificate of marriage” dated 30-9- 2008, indicating her date of birth as 17- 7-1986. 23.9. Since the aspect of assurance stands falsified, the acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC. Especially because the complainant was a major on the date of occurrences, which fact emerges from the “certificate of marriage” dated 30-9- 2008, indicating her date of birth as 17- 7-1986. 23.9. Ninthly, as per the medical report recorded by AIIMS dated 16-2-2007, the examination of the complainant did not evidence her having been poisoned. The instant allegation made by the complainant cannot now be established because even in the medical report dated 16-2- 2007 it was observed that blood samples could not be sent for examination because of the intervening delay. For the same reason even the allegations levelled by the accused of having been administered some intoxicant in a cold drink (Pepsi) cannot now be established by cogent evidence. 23.10. Tenthly, the factual position indicated in the charge sheet dated 28-6-2007, that despite best efforts made by the investigating officer, the police could not recover the container of the cold drink (Pepsi) or the glass from which the complainant had consumed the same. The allegations made by the complainant could not be verified even by the police from any direct or scientific evidence, is apparent from a perusal of the charge-sheet dated 28-6-2007. 23.11. Eleventhly, as per the medical report recorded by AIIMS dated 21-2-2007 the assertions made by the complainant that the accused had physical relations with her on 23-12-2006, 25-12-2006 and 1-1-2007, cannot likewise be verified as opined in the medical report, on account of delay between the dates of occurrences and her eventual medical examination on 21-2-2007. It was for this reason, that neither the vaginal smear was taken, nor her clothes were sent for forensic examination. 24. Most importantly, as against the aforesaid allegations, no pleadings whatsoever have been filed by the complainant. Even during the course of hearing, the material relied upon by the accused was not refuted. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. As a matter of fact, the complainant/prosecutrix had herself approached the High Court, with the prayer that the first information lodged by her, be quashed. It would therefore be legitimate to conclude, in the facts and circumstances of this case, that the material relied upon by the accused has not been refuted by the complainant/prosecutrix. Even in the charge-sheet dated 28-6-2007, (extracted above) the investigating officer has acknowledged, that he could not find any proof to substantiate the charges. The charge-sheet had been filed only on the basis of the statement of the complainant/prosecutrix under Section 164 CrPC. 25. Based on the holistic consideration of the facts and circumstances summarized in the foregoing two paragraphs; we are satisfied, that all the steps delineated by this Court in Rajiv Thapar case [Rajiv Thapar v. Madan Lal Kapoor, (2013) 3 SCC 330 : (2013) 3 SCC (Cri) 158] stand satisfied. All the steps can only be answered in the affirmative. We therefore have no hesitation whatsoever in concluding, that judicial conscience of the Court ought to have persuaded it, on the basis of the material available before it, while passing the impugned order, to quash the criminal proceedings initiated against the appellant-accused, in exercise of the inherent powers vested with it under Section 482 CrPC. Accordingly, based on the conclusions drawn hereinabove, we are satisfied that the first information report registered under Sections 328, 354 and 376 of the Penal Code against the appellant accused, and the consequential charge-sheet dated 28-6-2007, as also the framing of charges by the Additional Sessions Judge, New Delhi on 1-12-2008, deserves to be quashed. The same are accordingly quashed.” 11. The Apex Court recently in Dr. Dhruvaram Murlidhar Sonar Vs. State of Maharashtra and Ors. [Criminal Appeal No. 1443 of 2018 arising out of S.L.P. (Criminal) No.6532 of 2018] decided on 22.11.2018, has held as under:— 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 CrPC 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. 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 8 be converted into an instrument of oppression or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding.” The present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings.” It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of the inherent powers. 13. In the instant case, FIR was registered against the appellant and the co-accused under Sections 376(2)(b), 420 read with Section 34 of the IPC and under Section 3(1)(x) of the SC/ST Act. Section 376(2)(b) prescribes punishment for the offence 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. The said provision during the relevant point of time was as under:— “376. Punishment for rape.—(1) .............. 2. Whoever,— (a) ............... (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c) to (g) ................ shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.” 14. Section 375 defines the offence of rape and enumerates six descriptions of the offence. shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.” 14. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the women is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting 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 IPC 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 under misconception of fact, it is vitiated. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but also after having fully exercised the choice between resistance and assent. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. 16. Whether there was any consent or not is to be ascertained only on a careful study of all relevant circumstances. 16. In Uday v. State of Karnataka (2003) 4 SCC 46 , this Court was considering a case where the prosecutrix, aged about 19 years, had 11 given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus:— “21. 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. 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 facts 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 the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them. 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. 23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-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 the following two questions relating to consent:— (1) “Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in? (2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her”? In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February, 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February, 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she became pregnant, she revealed the matter to her parents. Even thereafter, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time. With this factual back-ground, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus:— “The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention 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. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention 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 phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be leveled against the accused. 19. Recently, this Court, in Shivashankar @ Shiva v. State of Karnataka and Anr., in Criminal Appeal No.504 of 2018, disposed of on 6th April, 2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together as man and wife. It was held as under:— “In the facts and circumstances of the present case, it is difficult to sustain the charges leveled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as ‘rape’ especially in the face of the complainant’s own allegation that they lived together as man and wife”. 20. Thus, 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. 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 IPC. 12. In present case, from documents on record, it is evident that the complainant, who is major, lodged a written complainant before CJM Jammu against petitioner on 06.05.2008 and it was forwarded to Police Station Domana for registration of FIR under provision of section 156(3) Cr.P.C. On the basis of that order, FIR No.147/2018 dated 06.05.2018 was registered with Police Station, Domana, Jammu for commission of offence punishable under Sections 376/366 Ranbir Penal code. The relevant contents of FIR reads as under:— “That the accused is the friend of the brother of the complainant and used to visit her house from the last four years. During this time the friendship turned into relationship and the marriage was fixed with the complainant in the year 2015, but before one month of the marriage the accused came in a drunkard condition to the complainant’s house situated at Akhnoor District Jammu and created scene there and thereafter the complainant as well as her parents refused to marry him; that thereafter as such intimacy has been developed between the complainant and the accused, accused keep on apologizing and requested the complainant that he would marry only with the complainant and make his parents ready to get marry with the mutual consent of both the parents and kept her under the undue influence that he would definitely marry her and carry on his intimacy relationship with the complainant. It is pertinent to mentioned here he used to come to the complainant house at regular intervals and even met the complainant at public places also as complainant has a faith on him used to spent time with him in restaurants and other public places; that in the month of Feb. 2018 accused’s father suffered heart problem as told by the accused to the complainant and asked complainant that he could not attend his phone calls and started ignoring her on the pretext that he has to look after his father; it was bit a conspiracy with the family of accused including his father, mother, sister who despite knowing that accused has relation with complainant conspired and get him married in Chandigarh. When complainant came to know this fact she started enquiring from accused whereby he told the complainant and he would tell the true factual position, as it was not possible to talk in a restaurant or somewhere in Jammu; as he is going to Reasi on 28th April 2018 for officials work and therein in officials Guest House he will let her know what actually has happed; that accused make her believe that he will definitely marry her despite all odds and asked her to come nearby machine Domana Jammu where he would pick her and while on way of journey he will tell her the exact position; that the accused who was in process of trapping the complainant by marrying her fraudulently told her to meet at Machine Domana Jammu where the complainant went and held a scuffle with the accused and thereafter the accused forcibly abducted her in his car which was center locked and when complainant keep on asking about the marriage of accused with some other girls he keeps on clamming the complainant by asking her that nothing has happened like this and he would tell him when he will reach at some safe place; it was not known to the complainant where the accused was taking the complainant. Thus the complainant believed the accused on false promises; that it was not known to the complainant were the accused was taking; It was surprised for complainant that the accused has taken her to a Guest House in Reasi and had booked a room there. Thus the complainant believed the accused on false promises; that it was not known to the complainant were the accused was taking; It was surprised for complainant that the accused has taken her to a Guest House in Reasi and had booked a room there. The complainant raised the objection for booking a room but accused again asked her that he wanted to talk to her in room only and after some time the accused showed the photographs/videos of his ring ceremony. Thereafter the complainant got panic and started crying and screaming; the accused being afraid of getting a scene may be created by the complainant in the Guest House, he forcibly intoxicated her and thereafter complainant was a little unconscious and after this the accused forcibly committed sexual intercourses on her and left her locked in the room; that when the complainant became conscious at 2:00 AM, she called the accused and asked that she will call police; then at 5:00 am the complainant called her parents and narrated the whole incident to them. Thereafter the accused asked the complainant to keep calm as he is going to marry her only and assured the parents also. On the way back when complainant tried to call the accused father; accused broke her phone and threw it out of car and thereafter stopped the car at the residence of complainant. The complainant and her parents approached the parents and sister of the accused and narrated the whole incident to them. In the contrary accused and his parents threatened the complainant and her parents of dire consequences if the complainant approaches the police; that after assaulting her sexually, he threatened her of dire consequences for sharing the same with anyone or lodging report against him. Accused told her that he would damage her and family reputation if she disclosed her committing rape on her. The complainant, who is naive and fragile, succumbed to his threat and started acting on his directions. She did not share the said incident of sexual assault with anyone except her parents thinking the accused will damage her and her family members in the society. It was for saving the honor of the family she remained mum. The complainant, who is naive and fragile, succumbed to his threat and started acting on his directions. She did not share the said incident of sexual assault with anyone except her parents thinking the accused will damage her and her family members in the society. It was for saving the honor of the family she remained mum. It has been held by the Hon’ble Supreme Court in state of Punjab VS Gurmeet Singh and ors reported as 1996(2) SCC 384 that a murder destroyed the physical body of his victim, a rapist degrades the very soul of the hapless female. But at this stage complainant cannot stay calm and on 03/05/2018 the complainant has approached the SHO PS Satwari and given a handwritten complaint but till date no action has been taken on the on the said complaint; and she approached to SSP Jammu with request to lodge an FIR u/s 376 Ranbir Penal code ;that the parents of the complainant and the complainant are still under shock. The accused who has ruined the life of complainant is still extending life threat to the complainant and her family members. He has categorically told that complainant that he would not leave any of them if she would reveal the incident of committing sexual intercourse; that despite filling written complaints before the local police and SSP Jammu no one taken action against the accused; that despite the receipt of the written applications made by the complainant and also even after the expiry of stipulated time, the police authority have not taken any action against the accused who is trying to manipulate things and impersonate.” 13. During investigation, even statements of complainant has been recorded under section 164-A Cr.P.C., wherein she has reiterated all facts narrated in complaint, along with some improvements. 14. During investigation, even statements of complainant has been recorded under section 164-A Cr.P.C., wherein she has reiterated all facts narrated in complaint, along with some improvements. 14. From the facts of this case, it is evident that the prosecutrix is a grown-up girl, petitioner/accused was known to her for long-time as he was friend of her brother; she was in relationship with him from last so many years; she had many time went along with him at restaurants and public places and there was marriage fixed between them in 2015; but marriage could not be performed even thereafter they remained in touch with each other also; then it is further case of complainant that accused was trying to solemnize marriage with another person so she started enquiring from accused, who assured to tell her true facts; with regard to commission of offence of abduction and rape it has been stated that on 28th April 2018 accused asked her to come at Machine Domana, and he told her true facts; she went there at Machine Domana herself; there accused picked up her and took her forcibly in car in Guest House in Reasi, where he forcibly intoxicated her and thereafter complainant was a little unconscious and after that accused forcibly committed sexual intercourse on her and left her locked in the room; when the complainant became conscious at 2:00 AM, she called the accused and asked that she will call police; accused asked the complainant to keep calm as he is going to marry her only and assured the parents also. She was then brought back in car and she was left at the residence. 15. These all allegations appear to have been manufactured in order to create an illusion of cause of action with regard to commission of offence of abduction and rape. All the facts narrated are so improbable and so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. All the facts narrated are so improbable and so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. Complainant had herself came at Machine Domana, Jammu; then she herself gone from Jammu to Reasi in car with petitioner which place is more than 100 km from Jammu; on the way she never raised any alarm; she had remained with petitioner for night, but no report has been lodged by family of complainant with regard to missing of complainant at whole night. 16. The circumstances mentioned in complainant/FIR even if these are considered as true, that lead to the conclusion that she freely, voluntarily and consciously consented to go with petitioner and had sexual intercourse with her consent and was not in consequence of any misconception of fact that accused promised to marry her. I am conscious of fact that statement of complainant recorded u/s 164-a Cr.P.C. cannot be brushed aside especially in rape case; but her statement has to be read along with all other attending circumstances. Except bald version of prosecutrix there is nothing on record from which it can be prima facie proved that she was forcibly taken from Domana to Reasi in car and she was forcibly made to sexual intercourse by petitioner. The criminal proceeding has been initiated only when petitioner has refused to marry her. 17. Further as per FIR, complainant has moved a written complaint in this regard before SHO P/S Satwari, but direction for lodging FIR has been given to P/S Domana. Further, there is no evidence as to whether she has ever filed any written complaint to SHO of concerned police or then to District Superintendent as per section 154 (1) and (3) of Cr.P.C. As per Priyanka Srivastava and anr. vs. State of UP and ors. 2015 (6) 287, Apex court has held that before filing written complaint before magistrate, it is mandatory on behalf of complainant to comply with the provision of section 154 (1) and (3) of Cr.P.C. Further magistrate has to ensure that complainant has complied this provision of law, before taking cognizance or passing any order under section 156(3) Cr.P.C. 18. 2015 (6) 287, Apex court has held that before filing written complaint before magistrate, it is mandatory on behalf of complainant to comply with the provision of section 154 (1) and (3) of Cr.P.C. Further magistrate has to ensure that complainant has complied this provision of law, before taking cognizance or passing any order under section 156(3) Cr.P.C. 18. The law cited by learned counsel for respondent No.2 in case titled Yashpal vs. State of J&K and anr.; Farooq Ahmed vs. State of J&K and ors.; and Mushtaq Shah and ors. Vs. State and anr. (supra), are not applicable as facts of these cases are quite distinguishable to present case. The law enumerated in Deepak v State of Haryana (supra) is interpretation pertaining to presumption under section 114 of Evidence Act, so not applicable. 19. In view of what has been discussed above, I am of the considered opinion that, the FIR has been lodged with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge; thus criminal proceedings is manifestly attended with mala fide and has been maliciously instituted. Hence, this petition is allowed and FIR No.147/2018 dated 06.05.2018, registered with Police Station, Domana, Jammu for commission of offence punishable under Section 376/366 Ranbir Penal code against the petitioner and the proceedings/investigation being conducted by the respondent against the petitioner in the impugned FIR are quashed.