JUDGMENT : PARTHIVJYOTI SAIKIA, J. 1. Heard Mr. P. Bhowmick, learned counsel appearing for the petitioner. Also heard Mr. K. Baishya, the learned Public Prosecutor, State of Assam representing Respondent No.1 as well as Mr. M.K. Das, the learned counsel representing Respondent No.2. 2. This is an application under Section 528 of the BNSS , 2023 praying for quashing the FIR and the charge sheet in respect of All Women P.S. Case No.32/2024 and the Charge Sheet No.27/2024 dated 29.06.2024. 3. The Respondent No.2 has stated that she met the present petitioner in Instagram. He introduced himself to be 35 years old, unmarried and was looking for a bride. Over a period of time, the petitioner managed to gain the trust of the Respondent No.2. The petitioner allegedly treated the Respondent No.2 as his wife. He even took her to his house where he lived alone. 4. The Respondent No.2 came to know that the person whom the petitioner introduced to her as his tenant was actually his elder brother. But the Respondent No.2 decided to neglect the said act of the petitioner, considering the fact that the petitioner treated her as his wife. 5. The petitioner and the Respondent No.2 had regular physical relationship. At that time, the Respondent No.2 came to know that the petitioner was actually 46 years old and was already married to Gayotri Saha. When the Respondent No.2 confronted the petitioner on this issue, he told her that a divorce petition being F.C. (Civil) Case No.274/2021, relating to Gayotri Saha was going on. 6. The Respondent No.2 was shattered when she came to know that the petitioner had a 12 year old son. 7. Slowly, the petitioner started to maintain distance from the Respondent No.2. In the meantime, she came to know that the petitioner was having affairs with a lot of married women and college going girls. She disclosed the names of three women. 8. For the aforesaid reasons, the petitioner and the Respondent No.2 had a quarrel. The petitioner allegedly beat her and also threatened that he would upload her compromising videos in the social media. The Respondent No.2 claimed that the petitioner had cheated her. 9. Mr. Bhowmick submits that it was the Respondent No.2 who had registered herself in a dating site named “Tinder”. Thereafter, in Instagram she came to know the petitioner. 10. According to Mr. The Respondent No.2 claimed that the petitioner had cheated her. 9. Mr. Bhowmick submits that it was the Respondent No.2 who had registered herself in a dating site named “Tinder”. Thereafter, in Instagram she came to know the petitioner. 10. According to Mr. Bhowmick, the couple was about to married in the month of April, 2024. They spent several nights together. He even videographed their intimate moments. 11. The learned counsel has submitted that the Respondent No.2 had uploaded her photographs with the petitioner in the social media. The petitioner was upset because the said act on the part of the Respondent No.2 might impact his divorce proceedings. 12. Mr. Bhowmick concluded his argument by stating that the Respondent No.2 was more than 30 years old and in spite of attaining maturity, she continued relationship with a man for a long time without marriage. According to the learned counsel, under the given circumstances, there are no elements of cheating on the part of the present petitioner. 13. The learned counsel Mr. Das has submitted that the petitioner had the habit of living an adulterous life. According to Mr. Das, in order to gain the trust of the Respondent No.2, the petitioner never disclosed before her that he was already married and had a 12 year old son. By gaining trust of the Respondent No.2, the petitioner had physical relationship with her and this amounts to the offence of cheating. 14. I have considered the submissions made by the learned counsel of both sides. 15. The Section 90 of the IPC has defined the word consent as under - Section 90 . By gaining trust of the Respondent No.2, the petitioner had physical relationship with her and this amounts to the offence of cheating. 14. I have considered the submissions made by the learned counsel of both sides. 15. The Section 90 of the IPC has defined the word consent as under - 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 ; or Consent of insane person if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or Consent of child unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age. 16. In the case of Uday v. State of Karnataka, 2003 Cri LJ 1539 , the Apex Court considered the earlier decisions on the subject and held as follows: “It, therefore, appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. 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 always 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.” 17. In Uday’s case (supra), the Court further held that- “There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 , IPC . Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There, therefore, a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The, question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young person are madly in love, that they promise to each other several times that come what may, they will get married. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young person are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment succumb to temptation of having sexual relationship. This is what appears to have happened in this case as well as, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to inpute to the appellant knowledge that the prosecutrix had consented in consequence of a misconception of fact arising from his promise. In any event, it was not possible for the appellant to know what in the mind of the prosecutrix when she consented, because there were more reasons than one for her to consent.” 18. In the case of Dilip Singh Alias Dilip Kumar v. State of Bihar, ( AIR 2005 SC 203 ), the Apex Court was as to whether consent given by a woman believing a man's promise to marry her is a 'consent', which excludes the offence of rape. The decision in Uday (supra) was further explained by the Apex Court, in Dilip Singh (supra), as follows: “The first two sentences in the above passage need some explanation. 'While we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. 'While we reiterate that a promise to marry without anything more will not give rise to "misconception of fact" within the meaning of Section 90, it needs to be clarified that a representation deliberately made with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly. This is what in fact was stressed by the Division Bench of the Calcutta High Court in the case of Jayanti Ram Panda, which was approvingly referred to in Uday case. The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the qualification at the end (Cri LJ p. 1530, para 7) -"unless the court can be assured that from the very inception the accused never really intended to marry her" (emphasis supplied) In the next para, the High Court referred to the vintage decision of the Chancery Court which laid down that a misstatement of the intention of the defendant in doing a particular act would tantamount to a misstatement of fact and an act of deceit can be founded on it. This is also the view taken by the Division Bench of the Madras High Court in Jaladu case (vide passage quoted supra). By making the solitary observation that "a false promise is not a fact within the meaning of the Code", it cannot be said that this court has laid down the laws differently. The observations following, the aforesaid sentence are also equally important. The court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case as a whole, we do not understand the court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. Reading the judgment in Uday case as a whole, we do not understand the court laying down a broad proposition that a promise to marry could never amount to a misconception of fact. That is not, in our understanding, the ratio of the decision. In fact, there was a specific finding in that case that initially the accused's intention to marry cannot be ruled out.” 19. In Bipul Medhi v. State of Assam , 2007 (2) GLR 200 , this Court, in a similar matter, held as under: “If a woman, believing in the promise of marriage made by a man, consents to the promisor having sexual intercourse with her, the promisor would be liable for the offence of rape if the Court finds, on examination of the materials on record, that the promise of marriage made by the promisor was really a hoax to obtain consent of the woman, for, such a consent given by the woman would not, in the light of the provisions of Section 90 IPC , amount to consent in law and the sexual intercourse by such a promisor with a woman, so induced, would constitute offence of rape. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and, when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under Section 417 IPC if the victim's having sexual intercourse, with such a person, causes or is likely to cause harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would not have permitted sexual act by the accused....” 20. Thereafter, in Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar and Anr., ( AIR 2007 SC 3059 ) , the Hon,ble Supreme Court has again dealt with the subject. Thereafter, in Pradeep Kumar @ Pradeep Kumar Verma Vs. State of Bihar and Anr., ( AIR 2007 SC 3059 ) , the Hon,ble Supreme Court has again dealt with the subject. The facts of the case before the Hon,ble Apex court are as under— “Respondent No.2 lodged the First Information Report (in short the 'FIR') alleging that with an assurance that the accused-appellant would marry her, he had sexual relationship with her. When this went on for some time, the informant had been taken to a temple where in the presence of deity he accepted her to be his wife and there was an agreement of marriage entered into. Alleging that the accused was likely to get married with some other lady, an FIR was lodged.” 21. In Pradeep Kumar @ Pradeep Kumar Verma (supra ), the Hon,ble Supreme Court has held and laid down the ratio as under— “A promise to marry without anything more will not give rise to “misconception of fact” within the meaning of Section 90, I.P.C., it needs to be clarified that a representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts it is established that at the very inception of the making of promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was a mere hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375, I.P.C. clause second.” 22. In Deepak Gulati v. State of Haryana, 2013 Crl. L.J. 2990 , in paragraph 18, the Hon'ble Apex Court has observed as follows: “ 18. Consent may be express or implied, coerced or misguided, obtained willingly or through deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a balance, the good and evil on each side. There is a clear distinction between rape and consensual sex and in a case like this, the court must very carefully examine whether the accused 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 latter falls within the ambit of cheating or deception. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. 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 misrepresentation made to her by the 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 so. Such cases must be treated differently. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives.” 23. The Respondent No.2 is aged more than 30 years old and she is a working woman. She developed relationship with the petitioner. Without marriage, she had regular physical relationship with him. Subsequently, she came to know that the petitioner was already married and had a son of 12 years. She also came to know that the petitioner was maintaining relationship with other women. These facts, led to a big dispute with the petitioner. Ultimately, she had to file an FIR before police. 24. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal , AIR 1992 SC 604 . Paragraph 102 of the judgment reads as under: “102. Ultimately, she had to file an FIR before police. 24. The guidelines for consideration of a petition under Section 482 of the CrPC has been laid down by the Hon’ble Supreme Court in State of Haryana v. Bhajan Lal , AIR 1992 SC 604 . Paragraph 102 of the judgment reads as under: “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. (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. (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.” 25. Reverting to the case in hand, this Court is of the opinion that the law on the point is very clear. The Respondent No.2 gave consent for sexual relationship without being married to the petitioner. She now claims that she did not know that the petitioner was already married. This fact cannot make out a case of cheating under the given circumstances. 26. It is an admitted fact that the Respondent No.2 knew that the petitioner was married. In spite of that, she agreed to be used by the petitioner. There are no elements in this case to show that the petitioner deceitfully induced the Respondent No.2 to believe that she was his lawful wife because the absence of marriage is an admitted fact. 27. This Court is of the opinion that there is no possibility of future conviction of the petitioner in this case. Allowing the criminal proceeding to continue before the trial court would be nothing but an abuse of the process of the court. 28. Under the aforesaid premised reasons, this Court is of the opinion that this is a fit case to exercise the power under Section 528 of the BNSS , 2023. 29. The FIR and the charge sheet in respect of All Women P.S. Case No.32/2024 and the Charge Sheet No.27/2024 dated 29.06.2024, are quashed and set aside. The Criminal Petition is accordingly disposed of.