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2024 DIGILAW 15 (HP)

Gulshan Kumar v. State of H. P.

2024-01-02

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla, J. The informant made a complaint before the police stating that she was married and was residing with her husband. She was introduced to the present petitioner. The petitioner called the informant and asked her to meet him. The informant met the accused/petitioner. The petitioner proposed to marry her. The informant said that she was already married and could not marry. The petitioner continued to talk to the informant. He took her to a hotel where he entered into sexual relations with the informant on the assurance of the marriage. He asked her to divorce her husband and marry him. The informant and her husband filed a divorce petition on 30.05.2019 and the same was decided on 04.12.2019. The informant contacted the petitioner; however, he changed his mobile phone. The informant traced the petitioner. He told her that he wanted to use her and never intended to marry her. He went to the house of the petitioner where the petitioner’s father told her to take some money and forget the petitioner. The police registered the F.I.R. and conducted the investigation. The police found that the petitioner never intended to marry the informant as she belonged to a different caste. 2. The petitioner has approached this Court to quash the F.I.R. It has been asserted that the informant filed the complaint against the petitioner to extract money from him. She demanded Rs.10,00,000/-. The informant had also made a complaint to SSP Pathankot on 14.10.2019 by making the same allegation. The police conducted the investigation and found that she had entered into sexual relations with the petitioner on her own and no case was made out. She filed a complaint in Police Station Damtal, District Kangra, H.P.. The allegation regarding taking the informant to Hotel Exotica was made for the first time. The informant and her husband have been in litigation since 2018. Her husband had filed a petition under Section 13 of the Hindu Marriage Act on 19.05.2018. The marriage between them was dissolved in the year 2019. The informant had wrongly mentioned her age as 28 years whereas she is aged 33 years. She is a mother of two children aged about 10 years and 8 years. She knew the consequences of her acts and that the marriage during the subsistence of an existing marriage was not permissible. The informant had wrongly mentioned her age as 28 years whereas she is aged 33 years. She is a mother of two children aged about 10 years and 8 years. She knew the consequences of her acts and that the marriage during the subsistence of an existing marriage was not permissible. The informant and the petitioner had a consensual relationship; therefore, it was prayed that the present petition be allowed and the F.I.R. be quashed. 3. The State filed a reply asserting that the police properly conducted the investigation. Offences punishable under Sections 201, 376, 506 of IPC, Section 66(e) of the Information and Technology Act and Section 3(2) va of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 were added after the investigation. The charge sheet was filed before the Court. The informant specifically stated that the petitioner was raped in a hotel located within the jurisdiction of Police Station Damtal, District Kangra, H.P. Therefore, it was prayed that the present petition be dismissed. 4. A rejoinder denying the contents of the reply and affirming those of the petition was filed. 5. No reply was filed on behalf of the informant although the informant is represented by the counsel. 6. I have heard Mr Hitesh Chopra, learned counsel for the petitioner through Video conferencing, Mr Prashant Sen learned Deputy Advocate General for respondent no.1/State and Mr Divya Raj Singh, Advocate, for respondent no.2. 7. Mr. Hitesh Chopra, learned counsel for the petitioner submitted that as per the contents of the F.I.R., the informant was married who could not have been deceived by the promise to marry her because she knew that it was not permissible for her to marry the petitioner during the subsistence of an existing marriage. Hence, he prayed that the present petition be allowed and F.I.R. be quashed. 8. Mr. Parshant Sen, learned Deputy Advocate General for respondent no.1/State submitted that the informant had specifically stated that she was raped on the assurance of the marriage. The petitioner never intended to marry her as is apparent from the fact that he declined to marry the informant after she had obtained a divorce from her husband; therefore, he prayed that the present petition be dismissed. 9. Mr. Divya Raj Singh, learned counsel for respondent No.2 adopted the submissions advanced by the learned Deputy Advocate General and prayed that the petition be dismissed. 10. 9. Mr. Divya Raj Singh, learned counsel for respondent No.2 adopted the submissions advanced by the learned Deputy Advocate General and prayed that the petition be dismissed. 10. I have given considerable thought to the rival submissions at the bar and have gone through the record carefully. 11. The principles of exercising the jurisdiction under Section 482 of Cr.P.C. were laid down by the Hon’ble Supreme Court in Supriya Jain v. State of Haryana, (2023) 7 SCC 711 : 2023 SCC OnLine SC 765 wherein it was observed at page 716:- “17. The principles to be borne in mind with regard to the quashing of a charge/proceedings either in the exercise of jurisdiction under Section 397CrPC or Section 482CrPC or together, as the case may be, has engaged the attention of this Court many a time. Reference to each and every precedent is unnecessary. However, we may profitably refer to only one decision of this Court where upon a survey of almost all the precedents on the point, the principles have been summarised by this Court succinctly. In Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2012) 4 SCC (Civ) 687 : (2013) 1 SCC (Cri) 986, this Court laid down the following guiding principles : (SCC pp. 482-84, para 27) “27. …27.1. Though there are no limits to the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. 27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in the exercise of its inherent powers. 27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. 27.8. Where the allegations made and as they appeared from the record and documents annexed therewith predominantly give rise to and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence. 27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 27.10. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. 27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. 27.12. In the exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was the possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution. 27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit a continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to deciding the admissibility and reliability of the documents or records but is an opinion formed prima facie. 27.14. Where the chargesheet, reported under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debitojustitiae i.e. to do real and substantial justice for the administration of which alone, the courts exist. *** 27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.” 12. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:- “26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. Similar is the judgment in Gulam Mustafa v. State of Karnataka, 2023 SCC OnLine SC 603 wherein it was observed:- “26. Although we are not for verbosity in our judgments, a slightly detailed survey of the judicial precedents is in order. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, this Court held: “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are 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. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” (emphasis supplied) 13. It was laid down in CBI v. Aryan Singh, 2023 SCC OnLine SC 379, that the High Court cannot conduct a mini-trial while exercising jurisdiction under Section 482 of Cr.P.C. The allegations are required to be proved during the trial based on evidence led before the Court. It was observed: “10. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of the trial. From the impugned common judgment and order passed by the High Court, it appears that the High Court has dealt with the proceedings before it, as if, the High Court was conducting a mini-trial and/or the High Court was considering the applications against the judgment and order passed by the learned Trial Court on conclusion of the trial. As per the cardinal principle of law, at the stage of discharge and/or quashing of the criminal proceedings, while exercising the powers under Section 482 Cr. P.C., the Court is not required to conduct the mini-trial. The High Court in the common impugned judgment and order has observed that the charges against the accused are not proved. This is not the stage where the prosecution/investigating agency is/are required to prove the charges. The charges are required to be proved during the trial on the basis of the evidence led by the prosecution/investigating agency. Therefore, the High Court has materially erred in going in detail in the allegations and the material collected during the course of the investigation against the accused, at this stage. At the stage of discharge and/or while exercising the powers under Section 482 Cr. P.C., the Court has very limited jurisdiction and is required to consider “whether any sufficient material is available to proceed further against the accused for which the accused is required to be tried or not”. 11. One other reason pointed by the High Court is that the initiation of the criminal proceedings/proceedings is malicious. At this stage, it is required to be noted that the investigation was handed over to the CBI pursuant to the directions issued by the High Court. That thereafter, on conclusion of the investigation, the accused persons have been charge-sheeted. Therefore, the High Court has erred in observing at this stage that the initiation of the criminal proceedings/proceedings is malicious. Whether the criminal proceedings was/were malicious or not, is not required to be considered at this stage. The same is required to be considered at the conclusion of the trial. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.” 14. This position was reiterated in Abhishek v. State of M.P., 2023 SCC OnLine 1083 wherein it was observed: 12. In any case, at this stage, what is required to be considered is a prima facie case and the material collected during the course of the investigation, which warranted the accused to be tried.” 14. This position was reiterated in Abhishek v. State of M.P., 2023 SCC OnLine 1083 wherein it was observed: 12. The contours of the power to quash criminal proceedings under Section 482 Cr. P.C. are well defined. In V. Ravi Kumar v. State represented by Inspector of Police, District Crime Branch, Salem, Tamil Nadu [ (2019) 14 SCC 568 ], this Court affirmed that where an accused seeks quashing of the FIR, invoking the inherent jurisdiction of the High Court, it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of the allegations in the complaint. In Neeharika Infrastructure (P). Ltd. v. State of Maharashtra [Criminal Appeal No. 330 of 2021, decided on 13.04.2021], a 3-Judge Bench of this Court elaborately considered the scope and extent of the power under Section 482 Cr. P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab ( AIR 1960 SC 866 ) and State of Haryana v. Bhajan Lal [(1992) Supp (1) SCC 335], the Court would have jurisdiction to quash the FIR/complaint. 15. It is apparent from these judgments that power under Section 482 of Cr.P.C. can be exercised to prevent the abuse of process or secure the ends of justice. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings. 16. It was submitted that the police had conducted the investigations and presented the challan. The Court can quash the F.I.R. if the allegations do not constitute an offence or make out a case against the accused. However, it is not permissible for it to conduct a mini-trial to arrive at such findings. 16. It was submitted that the police had conducted the investigations and presented the challan. Hence, this Court should not exercise its jurisdiction under Section 482 of Cr.P.C. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Abhishek v. State of M.P., 2023 SCC OnLine SC 1083 that the High Court will continue to exercise the power even if the charge sheet has been filed. It was observed: “11. This being the factual backdrop, we may note at the very outset that the contention that the appellants' quash petition against the FIR was liable to be dismissed, in any event, as the chargesheet in relation thereto was submitted before the Court and taken on file, needs mention only to be rejected. It is well settled that the High Court would continue to have the power to entertain and act upon a petition filed under Section 482 Cr. P.C. to quash the FIR even when a chargesheet is filed by the police during the pendency of such petition [See Joseph Salvaraj A. v. State of Gujarat ( (2011) 7 SCC 59 )]. This principle was reiterated in Anand Kumar Mohatta v. State (NCT of Delhi), Department of Home [ (2019) 11 SCC 706 ]. This issue, therefore, needs no further elucidation on our part.” 17. Thus, the submission that the power under Section 482 of Cr.P.C. cannot be exercised after filing of the charge sheet is not acceptable. 18. It was specifically mentioned in the F.I.R. that the informant was married at the time when she had entered into sexual relations with the petitioner. She stated that she obtained a divorce on 04.12.2019. She called the petitioner many times but his mobile number was not reachable or switched off. The petitioner even changed his mobile number. She nowhere stated that the petitioner had promised to marry her after she was divorced; hence, the promise to marry the informant is related to the period when she was already married. 19. She called the petitioner many times but his mobile number was not reachable or switched off. The petitioner even changed his mobile number. She nowhere stated that the petitioner had promised to marry her after she was divorced; hence, the promise to marry the informant is related to the period when she was already married. 19. It was laid down by the Hon’ble Supreme Court in Prashant Bharati vs. State 2013 (9) SCC 293 that where the separated wife alleged that she was made to undergo sexual intercourse on the promise of marriage, no offence is made out, as she could not have married without divorcing her husband. It was observed: “17. It is relevant to notice, that she had alleged, that she was induced into a physical relationship by Prashant Bharti, on the assurance that he would marry her. Obviously, an inducement for marriage is understandable if the same is made to an unmarried person. The judgment and decree dated 23.9.2008 reveals, that the complainant/ prosecutrix was married to Lalji Porwal on 14.6.2003. It also reveals that the aforesaid marriage subsisted till 23.9.2008 when the two divorced one another by mutual consent under Section 13B of the Hindu Marriage Act. In her supplementary statement dated 21.2.2007, the complainant/prosecutrix accused Prashant Bhati of having had physical relations with her on 23.12.2006, 25.12.2006 and 1.1.2007 at his residence, on the basis of a false promise to marry her. It is apparent from irrefutable evidence, that during the dates under reference and for a period of more than one year and eight months thereafter, she had remained married to Lalji Porwal. In such a fact situation, the assertion made by the complainant/prosecutrix, that the appellant-accused had physical relations with her, on the assurance that he would marry her, is per se false and as such, unacceptable. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under the assurance of marriage. She, more than anybody else, was clearly aware of the fact that she had a subsisting valid marriage with Lalji Porwal. Accordingly, there was no question of anyone being in a position to induce her into a physical relationship under the assurance of marriage. If the judgment and decree dated 23.9.2008 produced before us by the complainant/prosecutrix herself is taken into consideration along with the factual position depicted in the supplementary statement dated 21.2.2007, - it would clearly emerge, that the complainant/prosecutrix was in a relationship of adultery on 23.12.2006, 25.12.2006 and 1.1.2007 with the appellant-accused, while she was validly married to her previous husband Lalji Porwal. In the aforesaid view of the matter, we are satisfied that the assertion made by the complainant/ prosecutrix, that she was induced into a physical relationship by Prashant Bharti, the appellant- accused, on the basis of a promise to marry her, stands irrefutably falsified. Xxxxx 20. For the sake of argument, even if it is assumed, that Prashant Bharti, the appellant-accused and Priya, the complainant/prosecutrix, actually had a physical relationship, as alleged, the same would necessarily have to be consensual, since it is the case of the complainant/prosecutrix herself, that the said physical relationship was with her consent consequent upon the assurance of marriage. But then, the discussion above clearly negates such an assurance. A consensual relationship without any assurance, obviously will not substantiate the offence under Section 376 of the Indian Penal Code, alleged against Prashant Bharti.” 20. Similar is the judgment of this Court in Dushyant Kumar vs. State of H.P. 2017 (Supp) Shim. LC 202 wherein it was held: 8. Now adverting to the facts of this case. The complainant admittedly is the legally wedded wife of Shri Nitu. In the report under Section 173 Cr.P.C. though there is a reference to the dissolution of her marriage with said Shri Nitu in the year 2014, however, in view of the statement of her mother recorded on 3.8.2015 under Section 161 Cr.P.C. and placed on record along with the copy of the police report the marriage of the prosecutrix with said Shri Nitu was not dissolved by a decree of divorce even by that date also. Being so, how she could have fallen prey to the allurement of solemnization of marriage allegedly given to her by the accused- petitioner knowing fully well that she was legally wedded wife of Shri Nitu aforesaid. Even if it is believed to be true that her marriage with said Shri Nitu was dissolved in the year 2014 how she could have allowed the accused to subject her to sexual intercourse in the year 2011 and start living with him under the same roof as her first marriage was subsisting at that time. 9. Admittedly, there were physical relations between the accused-petitioner and the complainant. Such relations on the face of the record available at this stage cannot be said to be forcible or against her will and without her consent and rather consensual as she was a consenting party to such relation with the accused-petitioner. A married woman having her husband alive and three children maintaining physical relations with a third person that too during the currency of her marriage, cannot be said to be heard of any complaint that she has been subjected to sexual intercourse without her consent and against her will. 21. Similarly, it was laid down in Naim Ahamed vs. State of (NCT of Delhi) 2023 SCC Online SC 89, that when the informant was married, had three children, developed a liking for the accused and had a sexual relationship, her plea that she had entered into the relationship on the pretext of marriage could not be accepted as she being a married woman and mother of three children was mature and intelligent enough to understand the significance and consequences of her Act. It was observed:- 19. After duly examining the record in the light of the submissions made by the learned counsels for the parties, the following facts have emerged:— (i) Prosecutrix was a married woman having three children. (ii) Accused was staying in a tenanted premises situated in front of the house of the prosecutrix. (iii) Though initially hesitant, the prosecutrix developed a liking for the accused, and both started having sexual relationships with each other. (iv) The prosecutor delivered a male child on 28/10/2011 from the loin of the accused. (v) The prosecutrix went to the native place of the accused in 2012 and came to know that he was a married man having children. (iv) The prosecutor delivered a male child on 28/10/2011 from the loin of the accused. (v) The prosecutrix went to the native place of the accused in 2012 and came to know that he was a married man having children. (vi) Theprosecutrix still continued to live with the accused in separate premises. (vii) The prosecutrix and her husband took divorce by mutual consent in 2014 and thereafter prosecutrix permanently left her three children with her husband. (viii) The prosecutrix lodged the complaint on 21st March 2015 alleging that she had consented for a sexual relationship with the accused as the accused had promised her to marry and subsequently did not marry. 20. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for a sexual relationship under the misconception of fact, as the accused had given a false promise to marry her and subsequently he did not marry, and therefore such consent was no consent in the eye of law and the case fell under the Clause - Secondly of Section 375 IPC. In this regard, it is pertinent to note that there is a difference between giving a false promise and committing a breach of promise by the accused. In case of false promise, the accused right from the beginning would not have any intention to marry the prosecutrix and would have cheated or deceited the prosecutrix by giving a false promise to marry her only with a view to satisfy his lust, whereas in case of breach of promise, one cannot deny a possibility that the accused might have given a promise with all seriousness to marry her, and subsequently might have encountered certain circumstances unforeseen by him or the circumstances beyond his control, which prevented him to fulfill his promise. So, it would be folly to treat each breach of promise to marry as a false promise and to prosecute a person for the offence under Section 376. As stated earlier, each case would depend upon its proved facts before the court. 21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have a sexual relationship with the appellant. 21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have a sexual relationship with the appellant. Undisputedly, she continued to have such a relationship with him at least for about five years till she gave a complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as ‘rape’ by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was mature and intelligent enough to understand the significance and the consequences of the moral or immoral quality of the act she was consenting to. Even otherwise, if her entire conduct during the course of such a relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having a relationship with the accused, for whom she had developed a liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given a false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained a divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr. P.C. had stated that she had filed the complaint as he refused to fulfil her demand to pay her a huge amount. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313 of Cr. P.C. had stated that she had filed the complaint as he refused to fulfil her demand to pay her a huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of the imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 of IPC. 22. Thus, no case for the commission of an offence punishable under Section 376 of IPC is made out. 23. The F.I.R. does not mention anything about the caste of the informant or the accused. It appears that the informant stated subsequently that the petitioner refused to marry her because of her caste. The police added Section 3(2) va of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. It was laid down by Hon’ble Supreme Court in Dinesh v. State of Rajasthan, (2006) 3 SCC 771 , that in the absence of any evidence that rape was committed on a victim because she was a member of the scheduled caste, the offence punishable under Section 3 (2) (v) (a) of SC&ST, (Prevention of Atrocities) Act, 1989, is not made out. 15. Sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes or the Scheduled Tribes. In the instant case, no evidence has been led to establish this requirement. It is not the case of the prosecution that the rape was committed on the victim since she was a member of a Scheduled Caste. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and a fine. 24. In the absence of evidence to that effect, Section 3(2)(v) has no application. Had Section 3(2)(v) of the Atrocities Act been applicable then by operation of law, the sentence would have been imprisonment for life and a fine. 24. It was laid down by Hon’ble Supreme Court in Patan Jamal Vali v. State of A.P., (2021) 16 SCC 225, that the issue whether the offence was committed against a person on the ground that such person is a member of Scheduled Caste or Scheduled Tribe is to be established by the prosecution. It was observed:- 53. Under Section 3(2)(v), an enhanced punishment of imprisonment for life with a fine is provided where: 53.1. The offence is committed by a person who is not a member of a Scheduled Caste or Scheduled Tribe. 53.2. The offence arises under the Penal Code and is against a person or property and is punishable with imprisonment for a term of ten years or more. 53.3. The offence is committed “on the ground that such person is a member of a Scheduled Caste or Scheduled Tribe” or such property belongs to such a person. 54. The key words are “on the ground that such person is a member of an SC or ST”. The expression “on the ground” means “for the reason” or “on the basis of”. The above provision (as it stood at the material time prior to its amendment, which will be noticed later) is an example of a statute recognising only a single-axis model of oppression. As we have discussed above, such single-axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem. As we have discussed above, such single-axis models require a person to prove a discrete experience of oppression suffered on account of a given social characteristic. However, when oppression operates in an intersectional fashion, it becomes difficult to identify, in a disjunctive fashion, which ground was the basis of oppression because often multiple grounds operate in tandem. Larrisa Behrendt, an aboriginal legal scholar from Australia, has poignantly stated the difficulty experienced by women facing sexual assault, who are marginalised on different counts, to identify the source of their oppression: “When an Aboriginal woman is the victim of a sexual assault, how, as a black woman, does she know whether it is because she is hated as a woman and is perceived as inferior or if she is hated because she is Aboriginal, considered inferior and promiscuous by nature?” [Larissa Behrendt, “Aboriginal Women and the White Lies of the Feminist Movement: Implications for Aboriginal Women in Rights Discourse”, 1 Australian Feminist Law Journal 1 (1993), p. 35.] 55. Being cognizant of the limitation of Section 3(2)(v) — as it stood earlier — in dealing with matters of intersectionality, we are however bound to apply the standard that has been laid down in the law. The expression “on the ground” was considered in a two- judge Bench judgment of this Court in Dinesh v. State of Rajasthan, (2006) 3 SCC 771 : (2006) 2 SCC (Cri) 1, where the Court speaking through Arijit Pasayat, J. held : (SCC p. 777, para 15) “15. A sine qua non for application of Section 3(2)(v) is that an offence must have been committed against a person on the ground that such person is a member of the Scheduled Castes and Scheduled Tribes. In the instant case, no evidence has been led to establish this requirement. It is not a case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.” (emphasis supplied) 56. The Court held that in the absence of evidence to that effect, the offence under Section 3(2)(v) would not stand established. It is not a case of the prosecution that the rape was committed on the victim since she was a member of Scheduled Caste.” (emphasis supplied) 56. The Court held that in the absence of evidence to that effect, the offence under Section 3(2)(v) would not stand established. This principle was subsequently followed in a two-judge Bench judgment of this Court in Ramdas v. State of Maharashtra, (2007) 2 SCC 170 : (2007) 1 SCC (Cri) 546 where it was held that merely because a woman belongs to the SC & ST community, the provisions of the SC & ST Act would not be attracted in a case of sexual assault. This Court observed that there was no evidence to prove the commission of an offence under Section 3(2)(v) of the SC & ST Act. 57. The contours of the terms “on the ground of” have been explicated by this Court in the following cases. In Asharfi v. State of U.P., (2018) 1 SCC 742 : (2018) 1 SCC (Cri) 489] (“Asharfi”), a two-Judge Bench of this Court held that conviction under Section 3(2)(v) of the SC & ST Act cannot be sustained because the prosecution could not prove that the rape was committed only on the ground that the woman belonged to the SC & ST community. This Court speaking through R. Banumathi, J. held : (SCC p. 745, para 9) “9. The evidence and materials on record do not show that the appellant had committed rape on the victim on the ground that she belonged to Scheduled Caste. Section 3(2)(v) of the SC/ST Prevention of Atrocities Act can be pressed into service only if it is proved that the rape has been committed on the ground that PW 3 Phoola Devi belonged to the Scheduled Caste community. In the absence of evidence proving the intention of the appellant in committing the offence upon PW 3 Phoola Devi only because she belongs to the Scheduled Caste community, the conviction of the appellant under Section 3(2)(v) of the SC/ST Prevention of Atrocities Act cannot be sustained.” (emphasis supplied) 58. In another judgment of this Court in Khuman Singh v. State of M.P., (2020) 18 SCC 763 : (2021) 3 SCC (Cri) 614 (“Khuman Singh”), R. Banumathi, J. speaking for this Court held : (SCC p. 768, para 14) “14. In another judgment of this Court in Khuman Singh v. State of M.P., (2020) 18 SCC 763 : (2021) 3 SCC (Cri) 614 (“Khuman Singh”), R. Banumathi, J. speaking for this Court held : (SCC p. 768, para 14) “14. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to the “Khangar” — Scheduled Caste is not disputed. There is no evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” (emphasis supplied) 59. In the above two extracts, this Court has interpreted Section 3(2)(v) to mean that the offence should have been committed “only on the ground that the victim was a member of the Scheduled Caste”. The correctness of this exposition is debatable. The statutory provision does not utilise the expression “only on the ground”. Reading the expression “only” would be to add a restriction which is not found in the statute. The statute undoubtedly uses the words “on the ground” but the juxtaposition of “the” before “ground” does not invariably mean that the offence ought to have been committed only on that ground. To read the provision in that manner will dilute a statutory provision which is meant to safeguard the Scheduled Castes and Scheduled Tribes against acts of violence which pose a threat to their dignity. As we have emphasised before in the judgment, an intersectional lens enables us to view oppression as a sum of disadvantages resulting from multiple marginalised identities. To deny the protection of Section 3(2)(v) on the premise that the crime was not committed against an SC & ST person solely on the grounds of their caste identity is to deny how social inequalities function in a cumulative fashion. It is to render the experiences of the most marginalised invisible. It is to grant impunity to perpetrators who on account of their privileged social status feel entitled to commit atrocities against socially and economically vulnerable communities. It is to render the experiences of the most marginalised invisible. It is to grant impunity to perpetrators who on account of their privileged social status feel entitled to commit atrocities against socially and economically vulnerable communities. This is not to say that there is no requirement to establish a causal link between the harm suffered and the ground, but it is to recognise how a person was treated or impacted as a result of the interaction of multiple grounds or identities. A true reading of Section 3(2)(v) would entail that conviction under this provision can be sustained as long as caste identity is one of the grounds for the occurrence of the offence. In the view which we ultimately take, a reference of these decisions to a larger Bench in this case is unnecessary. We keep that open and the debate alive for a later date and case. 60. If the evidence in this case was sufficient to establish the commission of the offence on the ground that PW 2 was a member of a Scheduled Caste, a fresh look at the judgments in Asharfi [Asharfi v. State of U.P., (2018) 1 SCC 742 : (2018) 1 SCC (Cri) 489] and Khuman Singh [Khuman Singh v. State of M.P., (2020) 18 SCC 763 : (2021) 3 SCC (Cri) 614] would have been warranted. However, a close look at the evidence would demonstrate that the prosecution has not led evidence to prove the ingredients of Section 3(2)(v). Unfortunately, there has been a serious gap in the evidence on that count. In the present case, PW 11 who was the investigating officer deposed: “PW 1 and PW 2 did not state before me that since she belongs to Scheduled Caste the accused committed the offence. Part 1 CD does not disclose in specific that the accused was handed over to the Circle Inspector of Police. The witness adds by the time he reached the scene of the offence the Sub- Inspector and Circle Inspector of Police were present and the witnesses present there handed over the accused to them in turn he instructed them to take the accused to Mahanandi Police Station. The witness adds by the time he reached the scene of the offence the Sub- Inspector and Circle Inspector of Police were present and the witnesses present there handed over the accused to them in turn he instructed them to take the accused to Mahanandi Police Station. It is not true to suggest that my statement that the accused was handed over to the Sub- Inspector of Police or Circle Inspector of Police is false as the accused was not present at the scene of the offence.” 61. The Sessions Judge noticed the deposition of PW 11. However, the Sessions Judge noted that Ext. P-1 disclosed that PW 2 belongs to a Scheduled Caste. The Sessions Judge also observed in para 39 of the judgment that PW 1, who is the mother of PW 2 is an “illiterate village rustic woman” and merely because she did not mention in the report or statement to the police that the accused committed the offence on the ground that PW 2 belonged to the Scheduled Caste is not fatal to the case of the prosecution under Section 3(2)(v) of the SC & ST Act. The Sessions Judge has also made observations in that regard in para 40 of the judgment which has been extracted earlier where he stated that the accused would not have dared to commit the crime if PW 2 belonged to an upper caste community, particularly in a village atmosphere. In appeal, the submission that the ingredients of the offence under Section 3(2)(v) were not established was specifically urged before the High Court. The submission was dismissed with the observation that “even otherwise still the offence under Section 376(1) of the Penal Code is made out”. Both the Sessions Judge as well as the High Court have failed to notice the crucial ingredient of Section 3(2)(v) (as it stood at the material time prior to its substitution by Act 1 of 2016) [ Section 3(2)(v) of the SC & ST Act, prior to its amendment, read:“3. Both the Sessions Judge as well as the High Court have failed to notice the crucial ingredient of Section 3(2)(v) (as it stood at the material time prior to its substitution by Act 1 of 2016) [ Section 3(2)(v) of the SC & ST Act, prior to its amendment, read:“3. (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe—(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property on the ground that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;” The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015 w.e.f. 26-1-2016, amended Section 3(2)(v) and currently states: “3. (2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,***(v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;”]. 62. The issue as to whether the offence was committed against a person on the ground that such person is a member of an SC or ST or such property belongs to such member is to be established by the prosecution on the basis of the evidence at the trial. We agree with the Sessions Judge that the prosecution's case would not fail merely because PW 1 did not mention in her statement to the police that the offence was committed against her daughter because she was a Scheduled Caste woman. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW 2. However, there is no separate evidence led by the prosecution to show that the accused committed the offence on the basis of the caste identity of PW 2. While it would be reasonable to presume that the accused knew the caste of PW 2 since village communities are tightly knit and the accused was also an acquaintance of PW 2's family, the knowledge by itself cannot be said to be the basis of the commission of the offence, having regard to the language of Section 3(2)(v) as it stood at the time when the offence in the present case was committed. As we have discussed above, due to the intersectional nature of oppression PW 2 faces, it becomes difficult to establish what led to the commission of offence — whether it was her caste, gender or disability. This highlights the limitation of a provision where the causation of a wrongful act arises from a single ground or what we refer to as the single-axis model. 63. It is pertinent to mention that Section 3(2)(v) was amended by the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Amendment Act, 2015, which came into effect on 26-1-2016. The words “on the ground of” under Section 3(2)(v) have been substituted with “knowing that such person is a member of a Scheduled Caste or Scheduled Tribe”. This has decreased the threshold of proving that a crime was committed on the basis of caste identity to a threshold where mere knowledge is sufficient to sustain a conviction. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows: “8. Section 8 which deals with presumptions as to offences was also amended to include clause (c) to provide that if the accused was acquainted with the victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the victim unless proved otherwise. The amended Section 8 reads as follows: “8. Presumption as to offences.—In a prosecution for an offence under this Chapter, if it is proved that— (a) the accused rendered any financial assistance in relation to the offences committed by a person accused of, or reasonably suspected of, committing, an offence under this Chapter, the Special Court shall presume unless the contrary is proved, that such person had abetted the offence; (b) a group of persons committed an offence under this Chapter and if it is proved that the offence committed was a sequel to any existing dispute regarding land or any other matter, it shall be presumed that the offence was committed in furtherance of the common intention or prosecution of the common object. (c) the accused was having personal knowledge of the victim or his family, the Court shall presume that the accused was aware of the caste or tribal identity of the victim unless the contrary is proved.” 64. The Parliament Standing Committee Report on Atrocities Against Women and Children has observed that “high acquittal rate motivates and boosts the confidence of dominant and powerful communities for continued perpetration” and recommends inclusion of provisions of the SC & ST Act while registering cases of gendered violence against women from the SC & ST communities [“Parliament Standing Committee Report on Atrocities Against Women and Children”,15-3-2021,107 available at .]. However, as we have noted, one of the ways in which offences against SC & ST women fall through the cracks is due to the evidentiary burden that becomes almost impossible to meet in cases of intersectional oppression. This is especially the case when courts tend to read the requirement of “on the ground” under Section 3(2)(v) as “only on the ground of”. This is especially the case when courts tend to read the requirement of “on the ground” under Section 3(2)(v) as “only on the ground of”. The current regime under the SC & ST Act, post the amendment, has facilitated the conduct of an intersectional analysis under the Act by replacing the causation requirement under Section 3(2)(v) of the Act with a knowledge requirement making the regime sensitive to the kind of evidence that is likely to be generated in cases such as these. 65. However, since Section 3(2)(v) was amended and clause (c) of Section 8 was inserted by Act 1 of 2016 with effect from 26-1-2016 these amendments would not be applicable to the case at hand. The offence in the present case has taken place before the amendment, on 31-3-2011. Therefore, we hold that the evidence in the present case does not establish that the offence in the present case was committed on the ground that such a person is a member of an SC or ST. The conviction under Section 3(2)(v) would consequently have to be set aside. 25. In the present case, there are no allegations in the complaint made to the police that the informant was a member of the Schedule Caste and she had disclosed this fact to the petitioner or that the petitioner knew the caste of the informant or her family members, therefore, the F.I.R. and the evidence do not disclose the commission of an offence punishable under Section 3(2) va of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 26. Consequently, the F.I.R. and the investigation conducted thereafter do not disclose the commission of a cognizable offence against the petitioner. Hence, the continuation of the proceedings would be an abuse of the Court. Hence, the present petition is allowed and F.I.R. No. 36 of 2021 dated 19.03.2021 for the commission of offences punishable under Sections 376, 201, 506 of IPC, Section 3(2)va of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and Section 66(e) of the Informant and Technology Act is ordered to be quashed. 27. Pending application(s), if any, also stand disposed of.