ORDER : (B.V.L.N. Chakravarthi, J.) : The Criminal Petition is filed by the petitioner/Accused, under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.) to quash the P.R.C.No.38/2022 on the file of Judicial Magistrate of First Class, Special Mobile Court, Vizianagaram. 02. The case of the petitioner is that he was shown as accused in P.R.C.No.38/2022 on the file of Judicial Magistrate of First Class, Special Mobile Court, Vizianagaram, for the offence under sections 376, 417, 420 and 354 (D) of Indian Penal Code, 1860 (hereinafter referred to as ‘I.P.C.’). 03. The 2nd respondent presented a report to Women Police Station, Vizianagaram, on 20.06.2022 alleging that the 2nd respondent was studying Post Graduation course in Medicine at Nellimerla. The petitioner was senior to the 2nd respondent. He was after the 2nd respondent stating that he loves and intend to marry her. In July 2021, the 2nd respondent went to the flat of the accused located in Sathwik Apartments. At that time, the accused sexually assaulted her on the pretext of marriage. Thereafter he continued the promise to marry her. Subsequently, he had been to his parents at Vijayawada. Later, he was not taking the phone call and avoiding her. When she asked him about the marriage, he said that he will not marry her. She intimated her father. The petitioner was called to Kakinada and asked to marry her. The petitioner refused stating that he has nothing to do with the 2nd respondent. Hence, report to the police. 04. It was registered as a case in Cr.No.150/2022 of Women Police Station, Vizianagaram, for the offence under sections 376, 417, 420 and 354 (D) I.P.C. and investigated into the case. Later, laid police report (charge sheet) before Judicial Magistrate of First Class, Special Mobile Court, Vizianagaram. The learned Magistrate took cognizance and registered the same as P.R.C.38/2022 on the file of Judicial Magistrate of First Class, Special Mobile Court, Vizianagaram. 05. The contention of the petitioner is that even if the entire allegations are taken into consideration, they do not constitute any offence alleged in the charge sheet. The relationship between the petitioner and the 2nd respondent was of consensual in nature. There was no allegation that promise to marry was false at the inception. Subsequent refusal to marry cannot be a basis to say that the petitioner committed the offence. The relationship between the petitioner and the 2nd respondent was of consensual in nature. There was no allegation that promise to marry was false at the inception. Subsequent refusal to marry cannot be a basis to say that the petitioner committed the offence. The allegations in the First Information Report and charge sheet do not indicate that the promise alleged to have been made by the petitioner was false. 06. There is a distinction between breach of promise and making a false promise from the inception. Mere breach of promise due to various circumstances cannot be equated with a false promise to marry from the inception. It is a sine qua non to attract the offence alleged in the case. 07. They were in relationship consciously for a period of more than one year. Subsequent events lead to break up the relationship. Therefore, the proceedings initiated against the petitioner have no legal basis. The 2nd respondent was aware of the consequences of having sexual relationship and voluntarily submitted herself. It cannot be a rape as alleged by the 2nd respondent. 08. Due to subsequent unforeseen circumstances beyond control of the petitioner, relationship was broken, hence, it cannot be considered that the petitioner had malafide intention from the beginning. The 2nd respondent made omnibus allegations without any specific accusation. The petitioner after completion of M.S. course, joined in MCH in April 2022. The 2nd respondent presented report after gap of two months with false allegations. It is not a case of cheating or rape as alleged by the 2nd respondent. It was a love affair more than two years and later break up was the opinion of the petitioner and the 2nd respondent, as the marriage is not going to be compatible. Except the oral statement of the 2nd respondent, there is no other evidence. Police registered case without application of mind and laid charge sheet mechanically. 09. Heard Sri Mastan Naidu, learned Senior Counsel assisted by Sri P.L.Narasimha Rao, learned counsel for the petitioner. Sri L.J.Veera Reddy, learned Senior Counsel assisted by Sri Ramakrishna Akurathi, learned counsel for the 2nd respondent and Sri A.Sai Rohith, learned Assistant Public Prosecutor representing the State/1st respondent. 10. Police registered case without application of mind and laid charge sheet mechanically. 09. Heard Sri Mastan Naidu, learned Senior Counsel assisted by Sri P.L.Narasimha Rao, learned counsel for the petitioner. Sri L.J.Veera Reddy, learned Senior Counsel assisted by Sri Ramakrishna Akurathi, learned counsel for the 2nd respondent and Sri A.Sai Rohith, learned Assistant Public Prosecutor representing the State/1st respondent. 10. Sri Mastan Naidu, learned Senior Counsel vehemently argued that the FIR, statement of the victim and statements of other witnesses recorded under section 161 of Cr.P.C. by police during investigation of the case at best would disclose that the petitioner and the 2nd respondent who were collegemates in the year 2021 in Medical College at Nellimerla, fell in love. They were in relationship for about one year and later, due to unforeseen events, it was broken. The petitioner could not marry the 2nd respondent. Hence, it is not a case of rape or cheating under any circumstances. It is a fit case to quash the proceedings as continuance of the proceedings would amount to abuse of process. 11. The learned Senior Counsel would submit that when the criminal Court investigates the complaint, it must do so with an open mind. In support of his arguments, he relied upon the judgment of Hon’ble Apex Court in the case of Manoj Mahavir Prasad Khaitan Vs. Ram Gopal Poddar and another, 2010 (10) SCC 673 , wherein Hon’ble Supreme Court in para-No.12 held as under: “We reiterate that when the criminal Court looks into the complaint, it has to do so with the open mind. True it is that that is not the stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers there under to pass any order in the interest of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interests of justice. The High Court is invested with the tremendous powers there under to pass any order in the interest of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interests of justice. In our opinion, this was a case where the High Court ought to have used its powers under Section 482 Cr.P.C.”. 12. The learned Senior Counsel would further submit that the 2nd respondent was a grown-up girl studying medicine. She was in love with the petitioner. She knew the marriage was not possible due to certain contingencies. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to and agreed to them knowing the consequences. All these circumstances would show that she voluntarily and consciously consented to having sexual intercourse with the petitioner, and her consent was not in consequence of any misconception of fact. Therefore, it will not attract the offence U/s.376 IPC. 13. In support of his arguments, he relied on judgment of Hon’ble Apex Court in the case of Dr.Dhruvaram Muralidhar Sonar Vs. State of Maharashtra and others, 2019 (18) SCC 191 , wherein the Hon’ble Apex Court held in para 23 as under: “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. 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. 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”. 14. The learned Senior Counsel further argued that in similar circumstances, High Court for the State of Telangana at Hyderabad in Venkata Uday Teja Ganti Vs. State of Telangana and another, 2024 (1) ALD (Crl.) 526 (TS), quashed the proceedings and referred to para- No.18 as under: “Under similar circumstances, the Hon’ble Supreme Court in Pramod Suryabhavan Pawar’s case and also Mandal Deepak Pawar’s case (supra) had quashed the FIR. In the present case also, there was consensual physical relationship between adults and the marriage did not happen. There is nothing to remotely suggest that petitioner had induced the 2nd respondent though she was unwilling for sexual relation with him and only after an assurance of marriage, believing such assurance, 2nd respondent had a physical relation. None of the ingredients of either Section 376 or 420 of IPC are made out”. 15. The learned Senior Counsel would submit that the material on record would show that the present case was initiated by the 2nd respondent with an ulterior motive due to personal grudge between the petitioner and the 2nd respondent on account of break-up of relationship, due to subsequent events. Therefore, it falls in category 7 of Bhajanlal’s case to exercise jurisdiction U/s.482 Cr.P.C. In support of his argument, he relied upon judgment of Hon’ble Apex Court in the case of Ahmad Ali Quraishi and another Vs. State of Uttar Pradesh and another, 2020 (13) SCC 435 , wherein in para 23 held as under: “In the facts of present case, we are fully satisfied that present is a case where criminal proceedings have been initiated by complainant with an ulterior motive due to private and personal grudge. The High Court although noticed the judgment of this Court in State of Haryana and others versus Bhajan Lal and others (supra) in the impugned judgment but did not examine the facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal’s case. The High Court although noticed the judgment of this Court in State of Haryana and others versus Bhajan Lal and others (supra) in the impugned judgment but did not examine the facts of the case as to whether present is a case which falls in any of the category as enumerated in Bhajan Lal’s case. The present case clearly falls in category VII of Bhajan Lal’s case and the High Court failed to exercise jurisdiction under Section 482 Cr.P.C. in quashing the criminal proceeding initiated by the complaint”. 16. The learned Senior Counsel in support of his arguments, further relied on the judgment of the Hon’ble Apex Court in the case of Sonu @ Subhash Kumar Vs. State of Uttar Pradesh and another, AIR 2021 SC 1405 SC, wherein the Hon’ble Apex Court held in para 10 as under: Further, the Court has observed: “To summarize the legal position that emerges from the above cases, the “consent” of a woman with respect to section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act”. 17. The learned Senior Counsel would further submit that in the present case, if the allegations are considered in toto, they do not make any ingredients prima facie to show that the petitioner committed the offence U/s.376 or 420 I.P.C. On the other hand, they would show that the petitioner and the 2nd respondent were in relationship for one year and due to unforeseen events, their relationship was broken and marriage could not take place. Therefore, the 2nd respondent bore grudge against the petitioner and with an ulterior motive launched the present proceedings. Thus, it is a fit case to quash the proceedings invoking jurisdiction of High Court U/s.482 Cr.P.C. 18. Per contra, Sri L.J.Veera Reddy, learned Senior Counsel appearing for the 2nd respondent, would submit that there is no dispute that the petitioner and the 2nd respondent were collegemates, in Medical College at Nellimerla. Thus, it is a fit case to quash the proceedings invoking jurisdiction of High Court U/s.482 Cr.P.C. 18. Per contra, Sri L.J.Veera Reddy, learned Senior Counsel appearing for the 2nd respondent, would submit that there is no dispute that the petitioner and the 2nd respondent were collegemates, in Medical College at Nellimerla. The contention of the 2nd respondent is that the petitioner was after her for several months on the pretext of love and promise to marriage and developed acquaintance with the 2nd respondent. While so, in July 2021 one day, the 2nd respondent on account of the acquaintance with the petitioner, visited flat of the petitioner in Sathwik Apartments. It was also noticed by the watchman by name Boddara Appala Swamy. This was evidenced by the statement of the 2nd respondent as well as watchman recorded by the police during investigation. 19. He would further submit that when the 2nd respondent visited the flat of the petitioner, he sexually assaulted her on promising to marry her. Therefore, it cannot be treated as voluntary consent. The victim was forced to submit herself to the petitioner on the pretext of marriage and she was made to remain silent on the promise to marry her. The victim being a woman to save her reputation, remain silent with a hope that petitioner will marry her. 20. But the petitioner later exhibited his true colors and refused to marry her, without any reason. Therefore, it will lead to only one conclusion that he was not intending to marry her from the inception only to have sexual relationship he made a false promise of marriage. The petitioner except stating that due to unforeseen events he could not marry, not come with any bonafide reason why relationship was broken. Hence, the report of the 2nd respondent and the facts disclosed during investigation prima facie show a case for the offence under sections 376 and 420 I.P.C. against the petitioner. Certain disputed facts viz., whether the victim resisted the petition for sexual relationship, or she voluntarily participated in sexual relationship? whether the petitioner refused to marry the victim without any reason or there are any bona-fide reasons? can be answered by the trial Court, after fell pledged trial in the case. At this stage, this Court cannot presume answer for those questions on surmises and assumptions, without evidence recorded by the trial Court. whether the petitioner refused to marry the victim without any reason or there are any bona-fide reasons? can be answered by the trial Court, after fell pledged trial in the case. At this stage, this Court cannot presume answer for those questions on surmises and assumptions, without evidence recorded by the trial Court. Hence, it is not a fit case to quash the proceedings invoking jurisdiction U/s.482 Cr.P.C. 21. He would further submit that decisions relied upon by the learned Senior Counsel for petitioner relate to cases where the evidence was recorded by the trial Court. The petitioner had sexual relation with the 2nd respondent under the guise of promise to marry her. Hence, the consent of the 2nd respondent shall be presumed that it was based on a misconception and not based on free will of the 2nd respondent. In support of his arguments that a consent based on a misconception of fact is not a consent in the eye of law and that the consent obtained under the guise of promise to marry is only a consent based on misconception of fact. relied upon the judgment of Hon’ble Apex Court in the case of Mahamood Ali and Others Vs. State of Uttar Pradesh and others, 2023 LiveLaw (SC) 613, wherein the Hon’ble Apex Court held in para 12 as under: “It will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. The Court owes a duty to look into many other attending circumstances emerging from the record of the case over. The material collected in the course of investigation must also be considered”. 22. He would further submit that the power U/s.482 Cr.P.C. must be exercised in a sparing manner, and it shall not be used to choke or smother the prosecution that is legitimate. He relied on judgment of the Hon’ble Apex Court in the case of State of Telangana Vs. Habib Abdullah Jeelani, 2017 (2) SCC 779 . 23. The learned Senior Counsel for victim would further submit that whether the consent was based on misconception of fact and if the distinction between false promise and breach of promise are questions of fact. It shall be decided only after recording evidence by the trial Court. Habib Abdullah Jeelani, 2017 (2) SCC 779 . 23. The learned Senior Counsel for victim would further submit that whether the consent was based on misconception of fact and if the distinction between false promise and breach of promise are questions of fact. It shall be decided only after recording evidence by the trial Court. Therefore, the power U/s.482 Cr.P.C. shall not to be used to choke or smother the prosecution that is legitimate, before recording evidence, more so, when the material available before the Court show prima facie show that the alleged consent of the 2nd respondent was obtained by a misconception of fact arisen out of a false promise to marry. In support of his arguments, he relied on the following judgments of the Hon’ble Apex Court: 24. Rajkumar Vs. State of Karnataka and another, 2024 SCC Online 257, wherein the Hon’ble Apex Court held in para 5 as under: “In the instant case, we do not thing the relationship had remained consensual to justify quashing of the criminal complaint at the threshold. We also do not think that the complaint, in pursuance of which the FIR has been registered, lacks the ingredients of the offences alleged”. 25. Anurag Soni Vs. State of Chattisgarh, 2019 (13) SCC 1 , wherein the Hon’ble Apex Court held in para 19 as under: “As observed hereinabove, the consent given by the prosecutrix was on misconception of fact. Such incidents are on increase nowadays. Such offences are against the society. Rape is the most morally and physically reprehensible crime in a society, an assault on the body, mind and privacy of the victim. As observed by this Court in a catena of decisions, while a murderer destroys the physical frame of the victim, a rapist degrades and defiles the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamount to a serious blow to the supreme honour of a woman and offends both her esteem and dignity. Rape leaves a permanent scar on the life of the victim. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, the rape tantamount to a serious blow to the supreme honour of a woman and offends both her esteem and dignity. Therefore, merely because the accused had married with another lady and/or even the prosecutrix has subsequently married, is no ground not to convict the appellant accused for the offence punishable under Section 376 of the IPC. The appellant/accused must face the consequences of the crime committed by him”. 26. In the light of above rival contentions, the point for consideration is as under: Whether it is fit case to quash proceedings in P.R.C.No.38/2022 on the file of Judicial Magistrate of First Class, Special Mobile Court, Vizianagaram? 27. POINT: Perusal of the copies of FIR in Cr.No.150/2022 of Disha (Women) Police Station, Vizianagaram, presented by the victim, statements recorded U/s.161 Cr.P.C. of the victim and statements of L.Ws-2 to 7 recorded U/s.161 Cr.P.C. during investigation prima facie would show that the victim and the petitioner studied medicine course in medical college situated in Nellimerla village, Vizianagaram District during the years 2020-21. The petitioner was senior to the victim in Post Graduation Course. 28. The specific overt acts alleged in the first information report as well as in the statement of victim recorded by police during investigation are the petitioner was after the victim saying that he loves and intending to marry her and made a promise marry; It happened in the year 2020; The petitioner used to visit the house of victim and developed acquaintance also with the parents of the victim; Therefore, the victim believed the promise of the petitioner that he would marry her; Hence, continued the friendship with the petitioner; While so, in the month of July 2021, one day, the victim visited the flat of the petitioner; He was alone in the flat; The petitioner sexually assaulted her saying that he will marry her; The victim believed him. The petitioner continued the friendship with the victim promising that he will marry her, after completing the education; Later, after completion of education, the petitioner went to Vijayawada, promising that he will speak with his parents about marriage. 29. The petitioner continued the friendship with the victim promising that he will marry her, after completing the education; Later, after completion of education, the petitioner went to Vijayawada, promising that he will speak with his parents about marriage. 29. Subsequently, he did not respond to the phone calls of the victim; He behaved as if he does not know her; When the victim questioned him about the marriage, he deliberately stated that he will not marry her; There upon the she informed her parents and brother; Then her father along with a marriage counselor invited the petitioner to Kakinada; and requested the petitioner to marry the victim; The petitioner refused for the marriage; Then the she realized that the petitioner has no intention to marry her from the inception, and he made false promises to have sexual pleasure; Hence, he cheated the victim; Therefore, she presented report to the police on 20.06.2022. Therefore, when the above allegations are considered on their face value, primafacie they show that victim consented for the relationship with the petitioner as she sincerely believed his promises to marry, from inception till he left for Vijayawada, as truthful and he marry her. It must be remembered that at relevant point both were co-students in the college and became good friends. Therefore, no reason for the girl to suspect his bona-fides at that time. In fact, it is the contention of the petitioner that he could not marry her due to subsequent unforeseen events which are not under his control. Truth of these allegations cannot be gone into in a quash petition. 30. The other pleas raised in the petition are that the relationship between him and the victim was on consensual in nature; The victim consciously aware of the consequences of having sexual relationship and with that kind of knowledge, the victim voluntarily consented for sexual relationship; and therefore, mere breach of promise is not an offence of rape or cheating; The truth of said defence pleas have to be decided only after recording evidence in the trail. 31. Further defence pleas are that the marriage could not take place due to some subsequent circumstances not within the hands of the petitioner; The victim consciously aware of those consequences and they decided to live separately; Therefore, relationship was broken and hence, it cannot be equated with a false promise. 32. 31. Further defence pleas are that the marriage could not take place due to some subsequent circumstances not within the hands of the petitioner; The victim consciously aware of those consequences and they decided to live separately; Therefore, relationship was broken and hence, it cannot be equated with a false promise. 32. In the light of above defence pleas, I am of the considered opinion that recording of the evidence is necessary to answer the disputed facts and defence pleas. 33. In the light of above circumstances, as rightly contended by the learned Senior Counsel appearing for victim, in view of above serious factual disputes, whether it is a fit case to quash the proceedings under Section 482 CRPC? 34. It is pertinent to note down that in the FIR as well in the statement of the victim she categorically stated that alleged incident happened in the flat of the petitioner in the month of July, 2021 was against her will and she remains silent on account of promise to marry. There is no material is available before this Court to presume that subsequently they continued sexual relationship. 35. The factual question which would arise is whether the petitioner refused to marry the victim without any valid reason or whether there are any bona-fide reasons for the petitioner to commit breach of promise, due to subsequent events? This fact is very important to conclude whether the petitioner had malafide intention from the inception? If so, whether he made the promise to marry only to have sexual relationship with the victim? These factual issues will play a vital role to decide the offence U/s.376 I.P.C. or 420 I.P.C. 36. The Hon’ble Supreme Court in the cases of Anurag Soni Vs. State of Chattisgarh and Rajkukmar Vs. State of Karnataka and another observed that “such incidents are increased now a days. Such offences are against the society”. 37. The question is whether consent given by the prosecutrix was a misconception of fact, or the relationship was consensual be decided only after recording evidence, when the material prima facie show that the alleged consent was obtained by a misconception of fact arising out of a false promise to marry. Therefore, the present case would not fall under the category 7(seven) as laid down by the Hon’ble Apex Court in Bhajanlal’s case. 38. Therefore, the present case would not fall under the category 7(seven) as laid down by the Hon’ble Apex Court in Bhajanlal’s case. 38. At this juncture, it is pertinent to note down that the Parliament included a Section in BNS, 2023 to deal with sexual intercourse by employing deceitful means. Section 69 of BNS 2023, deal with sexual intercourse by employing deceitful means, which are on raise and affecting the society. 39. In the light of foregoing discussion, present case is not a fit to invoke section 482 Cr.P.C. to quash P.R.C.No.38/2022 on the file of Judicial Magistrate of First Class, Special Mobile Court, Vizianagaram. 40. In the result, the Criminal Petition is dismissed. As a sequel, Interlocutory Applications pending, if any, shall stand closed.