Madhya Pradesh High Court
Varun Pratap Singh vs The State Of Madhya Pradesh on 11 March, 2026
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VINAY SARAF
ON THE 11th OF MARCH, 2026
MISC. CRIMINAL CASE No. 35779 of 2025
VARUN PRATAP SINGH
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Kailash Chandra Ghildiyal - Senior Advocate with
Shri Awadhesh Kumar Ahirwar - Advocate for the petitioner .
Ms. Nalini Gurung - Panel Lawyer for the respondent No.1/State.
Shri Dinesh Tripathi - Advocate for the respondent No.2.
ORDER
1. The petitioner has approached this court by filing the present
application under section 528 of BNSS, 2023 seeking quashment of first
information report dated 27.03.2025 (FIR No.95/2025) lodged by respondent
No. 2/complainant at Police Station Mahila Thana, Bhopal, District Bhopal
which is registered under Section 351(2) and 69 of BNS, 2023. The trial is
pending before the competent court.
2. As per the allegation levelled in the First Information Report, the
petitioner met to the complainant on 23.12.2012 in Army Canteen,
Shahjahanabad, Bhopal and thereafter the petitioner and the complainant
started calling each other on mobile and the petitioner made a false promise
of marriage to the complainant by representing the he is bachelor and
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developed physical relation with the complainant on the pretext of marriage.
First time the physical relations were made on 25.12.2012 and thereafter
several times the petitioner and complainant made the physical relations.
3. As per the FIR in the year 2013, the complainant came to know that
the petitioner is already married but when she enquired the petitioner, the
petitioner told to the complainant that the character of his wife is bad and
they are not living together nor they want to live together in future and in
near future he will obtain a decree of divorce. He assured that thereafter the
petitioner will marry to the complainant. The complainant and the petitioner
continued relationships till 2025, when on 24.02.2025 the complainant came
to know that the petitioner is in contact with other ladies also and assured
them in similar manner. It is also alleged in the FIR that thereafter the
petitioner threatened to the complainant and complainant lodged the report
against the petitioner.
4. The instant petition has been preferred for quahment of the FIR and
with the consent of parties the arguments heard for the purpose of final
disposal of the petition.
5. Learned senior counsel appearing on behalf of the petitioner submits
that the physical relations between the petitioner and the complainant were
developed due to mutual consent and understanding and the relationship
was consensual. The complainant is also a matured lady and working as
Police Constable in Special Police Establishment, Lokayukt Organization,
Bhopal. She was fully aware since beginning that the petitioner is already
married and the petitioner never promised her to marry and therefore no
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misrepresentation on the part of the petitioner. He further submits that the
complainant continued in relationship with the petitioner on her own volition
and the relationship was voluntary on the part of two major persons. He
further submits that as per the FIR itself the complainant came to know
regarding the marital status of the petitioner in the year 2013 but even
thereafter she continued the relationship with the petitioner till 2025 without
any complaint. He further submits that as the relationship was consensual no
offence under Section 69 of BNS 2023 is made out. He further submits that
the petitioner has not obtained the consent of the complainant by deceitful
manner or by making promise to marry. He further submits that sexual
relationship between both of them was consensual and therefore no case of
rape is made out.
6. Learned senior counsel relied upon the judgment delivered by
Supreme Court in Prashant V. vs. State of NCT of Delhi (2025) 5 SCC
764. Relevant para of which reads as under;
”20. In our view, taking the allegations in the FIR and
the charge-sheet as they stand, the crucial ingredients of
the offence under Section 376(2)(n)IPC are absent. A
review of the FIR and the complainant’s statement under
Section 164CrPC discloses no indication that any
promise of marriage was extended at the outset of their
relationship in 2017. Therefore, even if the
prosecution’s case is accepted at its face value, it cannot
be concluded that the complainant engaged in a sexual
relationship with the appellant solely on account of any
assurance of marriage from the appellant. The
relationship between the parties was cordial and also
consensual in nature. A mere break up of a relationship
between a consenting couple cannot result in initiation
of criminal proceedings. What was a consensual
relationship between the parties at the initial stages
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cannot be given a colour of criminality when the said
relationship does not fructify into a marital relationship.
Further, both parties are now married to someone else
and have moved on in their respective lives. Thus, in
our view, the continuation of the prosecution in the
present case would amount to a gross abuse of the
process of law. Therefore, no purpose would be served
by continuing the prosecution.”
7. He further relied on the judgment delivered by Supreme Court
i n Bishwajyoti Chatterjee vs. State of West Bengal and Anr. (2025) 5 SCC
749 and relied on the following paras which read as under;
14. A bare perusal of the FIR dated 14-12-2015, and the
statement of the complainant under Section 164CrPC,
clearly establish that the appellant and the complainant
had come in contact in the year 2014, during the
pendency of matrimonial disputes arising out of the
complainant’s marriage. It is the own case of
Respondent 2 complainant that during the relevant time,
the appellant had duly informed her that he was
separated from his wife. The complainant who was well
aware of the personal as well as the professional
background of the appellant, who had been receiving
financial help from the appellant for herself and her son,
must have carefully weighed her decision before
entering into a relationship with the appellant.
15. Even if we take the case of the complainant at the
face value or consider that the relationship was based on
an offer of marriage, the complainant cannot plead
“misconception of fact” or “rape on the false pretext to
marry”. It is from day one that she had knowledge and
was conscious of the fact, that the appellant was in a
subsisting marriage, though separated. It is upon having
an active understanding of the circumstances, actions
and the consequences of the acts, that the complainant
made a reasoned choice to sustain a relationship with
the appellant.
16. The conduct of Respondent 2 complainant ex
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facie represents a reasoned deliberation, as summarised
by this Hon’ble Court in Pramod Suryabhan Pawar v.
State of Maharashtra [Pramod Suryabhan Pawar v. State
of Maharashtra, (2019) 9 SCC 608 : (2019) 3 SCC (Cri)
903] as under : (SCC p. 620, para 18)
“18. To summarise 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. In our considered view, even if the allegations in the
FIR and the charge-sheet are taken at their face value, it
is improbable that Respondent 2 complainant had
engaged in a physical relationship with the appellant,
only on account of an assurance of marriage. As rightly
observed by this Hon’ble Court in Prashant v. State
(NCT of Delhi) [Prashant v. State (NCT of Delhi),
(2025) 5 SCC 764] , that it is inconceivable, that the
complainant or any woman would continue to meet the
appellant or maintain a prolonged association or
physical relationship with him in the absence of
voluntary consent on her part.
18. In Uday v. State of Karnataka [Uday v. State of
Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] ,
the Court had acquitted the accused on the basis that she
was a mature college student who had consented to
sexual intercourse with the accused of her own free
will. It is unlikely that her consent was not based on any
misconception of fact. In Uday [Uday v. State of
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Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] ,
the Court noted that : (SCC pp. 56-57, para 21)
21. It therefore appears that the consensus of
judicial opinion is in favour of the view that
the consent given by the prosecutrix to sexual
intercourse with a person with whom she is
deeply in love on a promise that he would
marry her on a later date, cannot be said to be
given under a misconception of fact. A false
promise is not a fact within the meaning of
the Code. We are inclined to agree with this
view, but we must add that there is no
straitjacket formula for determining whether
consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given
under a misconception of fact. In the ultimate
analysis, the tests laid down by the courts
provide at best guidance to the judicial mind
while considering a question of consent, but
the court must, in each case, consider the
evidence before it and the surrounding
circumstances, before reaching a conclusion,
because each case has its own peculiar facts
which may have a bearing on the question
whether the consent was voluntary, or was
given under a misconception of fact. It must
also weigh the evidence keeping in view the
fact that the burden is on the prosecution to
prove each and every ingredient of the
offence, absence of consent being one of
them.
”
19. A careful reading of the evidence on record also
clearly shows that there is no evidence against the
appellant, to conclude that there was any fraudulent or
dishonest inducement of the complainant to constitute
an offence under Section 415IPC. One may argue that
the appellant was in a position of power to exert
influence, however, there is nothing on record to
establish “inducement” or “enticement”. There is also
no material on record, that there was any threat of injury
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or reputation to the complainant. A bare allegation that
the appellant had threatened the complainant or her son
cannot pass the muster of an offence of criminal
intimidation under Section 506IPC.”
8. Learned senior counsel submits that from bare perusal of the FIR it
is apparent that the present case is a case of consensual relationship from the
beginning and even if the case of prosecutrix is accepted it does not appear
that the relationship was developed on the basis of promise to marry and the
relationship continued for 13 years. He further submits that as the
relationship turn sour the FIR has been lodged by the complainant after a
period of 13 years and in view of the material on record no case for
prosecuting the present petitioner is made out. He prays for allowing the
petition and quashment of criminal case registered against the present
petitioner.
9. Learned counsel appearing on behalf of the respondent/State
opposed the petition and submits that initially when relationship was
developed, the petitioner falsely represented before the complainant that he is
unmarried and he promised to the complainant that he will marry her and on
the aforesaid deceitful promise the complainant developed the physical
relations against her will with the petitioner. Therefore, prima facie offence
is made out against the present petitioner. She further submits that the
intention of petitioner was deceitful since beginning and by making false
promise to marry the petitioner developed the physical relations with the
complainant and even later on when the complainant came to know that the
petitioner is already married he assured her that he will obtain divorce from
his wife and will marry her. She further submits that petitioner is working in
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Army and therefore, the complainant believed upon the petitioner and
developed physical relations with the petitioner on a false promise of
marriage. She submits that sufficient material is available in the matter and
no case for quashment is made out. She also submits that the complainant has
levelled allegation of rape against the petitioner in the statement record under
Section 183 of BNSS 2023 also, she prays for dismissal of the petition.
10. Learned counsel appearing for the respondent No.2 complainant
vehemently opposed the petition on the ground that the petitioner is
fraudulently and dishonestly abused the complainant and obtained her
consent for developing the physical relationship and as the physical
relationship was developed on the basis of the false pretext to marry, the case
of rape is made out. He further submits that the petitioner time to time not
only made false promises to marry to the complainant but also assured to the
parents of the complainant that he will marry the complainant. He submits
that no case for quashment of FIR is made out. Charge sheet has already
been filed and trial has already been started. He prays for dismissal of the
petition.
11. After consideration the arguments advanced by the learned counsel
for the parties and perusal of record as well as the contents of FIR and the
statement of prosecutrix recorded under Section 183 of BNSS 2023, it is
apparent that the petitioner and the complainant were known to each other
since 2012 and they developed the physical relations which continued for 12
to 13 years. They both are well educated. The complainant is working as
lady Constable in Special Police Establishment, Lokayukta Organization,
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Bhopal, whereas the petitioner is working in Indian Army. 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.
12. It is not convincible that the complainant or any woman who is
working in a Police Department would continue to meet the petitioner or
maintained a prolonged physical relationship with him in the absence of
voluntary consent on her part. The petitioner and the complainant both are
highly educated and working in uniformed services therefore and it cannot
be believed that on the pretext of false marriage the complainant developed
the physical relationship with the petitioner and continued the same without
any demur or objection even after knowing the fact that the petitioner is
already married.
13. Reference may be had to the Judgment of Supreme Court in the
matter of Pramod Suryabhan Pawar Vs. State of Maharashtra and another
reported as (2019) 9 SCC 608 and the relevant para reads as under;
12. This Court has repeatedly held that consent with
respect to Section 375 IPC involves an active
understanding of the circumstances, actions and
consequences of the proposed act. An individual who
makes a reasoned choice to act after evaluating various
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alternative actions (or inaction) as well as the various
possible consequences flowing from such action or
inaction, consents to such action. In Dhruvaram Sonar
[Dhruvaram Murlidhar Sonar v. State of Maharashtra,
(2019) 18 SCC 191 : 2018 SCC OnLine SC 3100]
which was a case involving the invoking of the
jurisdiction under Section 482, this Court observed :
(SCC para 15)
“15. An inference as to consent can be drawn
if only based on evidence or probabilities of
the case. “Consent” is also stated to be an act
of reason coupled with deliberation. It
denotes an active will in mind of a person to
permit the doing of the act complained of.”
This understanding was also emphasised in the decision
of this Court in Kaini Rajan v. State of Kerala [Kaini
Rajan v. State of Kerala, (2013) 9 SCC 113 : (2013) 3
SCC (Cri) 858] : (SCC p. 118, para 12)
“12. … “Consent”, for the purpose of Section
375, requires voluntary participation not only
after the exercise of intelligence based on the
knowledge of the significance of the moral
quality of the act but after having fully
exercised the choice between resistance and
assent. Whether there was consent or not, is
to be ascertained only on a careful study of
all relevant circumstances.”
13. This understanding of consent has also been set out
in Explanation 2 of Section 375 (reproduced above).
Section 3(1)(w) of the SC/ST Act also incorporates this
concept of consent:
“3. (1)(w)(i) intentionally touches a woman belonging
to a Scheduled Caste or a Scheduled Tribe, knowing
that she belongs to a Scheduled Caste or a Scheduled
Tribe, when such act of touching is of a sexual nature
and is without the recipient’s consent;
Explanation.–For the purposes of sub-clause (i), the
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expression “consent” means an unequivocal voluntary
agreement when the person by words, gestures, or any
form of non-verbal communication, communicates
willingness to participate in the specific act:
Provided that a woman belonging to a Scheduled Caste
or a Scheduled Tribe who does not offer physical
resistance to any act of a sexual nature is not by reason
only of that fact, is to be regarded as consenting to the
sexual activity:
Provided further that a woman’s sexual history,
including with the offender shall not imply consent or
mitigate the offence;
14. In the present case, the “misconception of fact”
alleged by the complainant is the appellant’s promise to
marry her. Specifically in the context of a promise to
marry, this Court has observed that there is a distinction
between a false promise given on the understanding by
the maker that it will be broken, and the breach of a
promise which is made in good faith but subsequently
not fulfilled. In Anurag Soni v. State of Chhattisgarh
[Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1
: 2019 SCC OnLine SC 509] , this Court held : (SCC
para 12)“12. The sum and substance of the aforesaid
decisions would be that if it is established and
proved that from the inception the accused
who gave the promise to the prosecutrix to
marry, did not have any intention to marry
and the prosecutrix gave the consent for
sexual intercourse on such an assurance by
the accused that he would marry her, such a
consent can be said to be a consent obtained
on a misconception of fact as per Section 90
IPC and, in such a case, such a consent
would not excuse the offender and such an
offender can be said to have committed the
rape as defined under Sections 375 IPC and
can be convicted for the offence under
Section 376 IPC.”
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Similar observations were made by this Court in
Deepak Gulati v. State of Haryana [Deepak Gulati v.
State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC
(Cri) 660] (Deepak Gulati) : (SCC p. 682, para 21)
21…. 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;”
********
16. Where the promise to marry is false and the
intention of the maker at the time of making the promise
itself was not to abide by it but to deceive the woman to
convince her to engage in sexual relations, there is a
“misconception of fact” that vitiates the woman’s
“consent”. On the other hand, a breach of a promise
cannot be said to be a false promise. To establish a false
promise, the maker of the promise should have had no
intention of upholding his word at the time of giving it.
The “consent” of a woman under Section 375 is vitiated
on the ground of a “misconception of fact” where such
misconception was the basis for her choosing to engage
in the said act. In Deepak Gulati [Deepak Gulati v. State
of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri)
660] this Court observed : (SCC pp. 682-84, paras 21 &
24)
“21. 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
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differently.
********
18. To summarise 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.”
14. Reference may also be had to the judgment of Supreme
Court Uday vs. State of Karnataka (2003) 4 SCC 46 wherein considering
the issue Supreme Court has held as under;
”21. It therefore appears that the consensus of judicial
opinion is in favour of the view that the consent given
by the prosecutrix to sexual intercourse with a person
with whom she is deeply in love on a promise that he
would marry her on a later date, cannot be said to be
given under a misconception of fact. A false promise is
not a fact within the meaning of the Code. We are
inclined to agree with this view, but we must add that
there is no straitjacket formula for determining whether
consent given by the prosecutrix to sexual intercourse is
voluntary, or whether it is given under a misconception
of fact. In the ultimate analysis, the tests laid down by
the courts provide at best guidance to the judicial mind
while considering a question of consent, but the court
must, in each case, consider the evidence before it and
the surrounding circumstances, before reaching a
conclusion, because each case has its own peculiar facts
which may have a bearing on the question whether the
consent was voluntary, or was given under a
misconception of fact. It must also weigh the evidence
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keeping in view the fact that the burden is on the
prosecution to prove each and every ingredient of the
offence, absence of consent being one of them.
**********
23. Keeping in view the approach that the court must
adopt in such cases, we shall now proceed to consider
the evidence on record. In the instant case, the
prosecutrix was a grown-up girl studying in a college.
She was deeply in love with the appellant. She was,
however, aware of the fact that since they belonged to
different castes, marriage was not possible. In any event
the proposal for their marriage was bound to be
seriously opposed by their family members. She admits
having told so to the appellant when he proposed to her
the first time. She had sufficient intelligence to
understand the significance and moral quality of the act
she was consenting to. That is why she kept it a secret as
long as she could. Despite this, she did not resist the
overtures of the appellant, and in fact succumbed to
them. She thus freely exercised a choice between
resistance and assent. She must have known the
consequences of the act, particularly when she was
conscious of the fact that their marriage may not take
place at all on account of caste considerations. All these
circumstances lead us to the conclusion that she freely,
voluntarily and consciously consented to having sexual
intercourse with the appellant, and her consent was not
in consequence of any misconception of fact.
********
25. 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
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considerations. The proposal was bound to meet with
stiff opposition from members of both families. There
was 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 persons 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 the temptation of having sexual relationship. This is
what appears to have happened in this case as well, 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 impute 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 was in the mind of the
prosecutrix when she consented, because there were
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more reasons than one for her to consent.”
15. Supreme Court in the matter of Maheshwar Tigga vs. State of
Jharkhand (2020) 10 SCC 108 has observed as under;
”20. We have no hesitation in concluding that the
consent of the prosecutrix was but a conscious and
deliberated choice, as distinct from an involuntary
action or denial and which opportunity was available to
her, because of her deep-seated love for the appellant
leading her to willingly permit him liberties with her
body, which according to normal human behaviour are
permitted only to a person with whom one is deeply in
love. The observations in this regard in Uday [Uday v.
State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri)
775] are considered relevant: (SCC p. 58, para 25)
“25. It usually happens in such cases, when
two young persons 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 the temptation of
having sexual relationship. This is what
appears to have happened in this case as well,
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
impute 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 was in the mind
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of the prosecutrix when she consented,
because there were more reasons than one for
her to consent.
16. Reference may also be had to the judgment
passed by Supreme Court in the matter of Deepak
Gulatee vs. State of Haryana (2013) 7 SCC 675,
relevant para reads as under;
21. 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
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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.
**********
24. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time i.e. at the initial stage itself, the accused
had no intention whatsoever, of keeping his
promise to marry the victim. There may, of
course, be circumstances, when a person
having the best of intentions is unable to
marry the victim owing to various
unavoidable circumstances. The “failure to
keep a promise made with respect to a future
uncertain date, due to reasons that are not
very clear from the evidence available, does
not always amount to misconception of fact.
In order to come within the meaning of the
term “misconception of fact”, the fact must
have an immediate relevance”. Section 90
IPC cannot be called into aid in such a
situation, to pardon the act of a girl in
entirety, and fasten criminal liability on the
other, unless the court is assured of the fact
that from the very beginning, the accused had
never really intended to marry her.
17. In the matter of Mahesh Damu khare vs. State of Maharastra and
Ors. 2024 11 SCC 398 Supreme Court observed as under,
27. In our view, if a man is accused of having sexual
relationship by making a false promise of marriage and
if he is to be held criminally liable, any such physical
relationship must be traceable directly to the false
promise made and not qualified by other circumstances
or consideration. A woman may have reasons to have
physical relationship other than the promise of marriage
made by the man, such as personal liking for the male
partner without insisting upon formal marital ties.
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28. Thus, in a situation where physical relationship is
maintained for a prolonged period knowingly by the
woman, it cannot be said with certainty that the said
physical relationship was purely because of the alleged
promise made by the appellant to marry her. Thus,
unless it can be shown that the physical relationship was
purely because of the promise of marriage, thereby
having a direct nexus with the physical relationship
without being influenced by any other consideration, it
cannot be said that there was vitiation of consent under
misconception of fact.
29. It must also be clear that for a promise to be a false
promise to amount to misconception of fact within the
meaning of Section 90IPC, it must have been made
from the very beginning with an intention to deceive the
woman to persuade her to have a physical relationship.
Therefore, if it is established that such consent was
given under a misconception of fact, the said consent is
vitiated and not a valid consent. In this regard we may
refer to Deepak Gulati v. State of Haryana [Deepak
Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3
SCC (Cri) 660] , in which it was held as follows: (SCC
pp. 682-84, paras 21 & 24)
“21. 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
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20 MCRC-35779-2025
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.
* * * ***
24. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time i.e. at the initial stage itself, the accused
had no intention whatsoever, of keeping his
promise to marry the victim. There may, of
course, be circumstances, when a person
having the best of intentions is unable to
marry the victim owing to various
unavoidable circumstances. The ‘failure to
keep a promise made with respect to a future
uncertain date, due to reasons that are not
very clear from the evidence available, does
not always amount to misconception of fact.
In order to come within the meaning of the
term “misconception of fact”, the fact must
have an immediate relevance’. Section 90IPC
cannot be called into aid in such a situation,
to pardon the act of a girl in entirety, and
fasten criminal liability on the other, unless
the court is assured of the fact that from the
very beginning, the accused had never really
intended to marry her.”
(emphasis in original and supplied)
30. It may be also noted that there may be occasions
where a promise to marry was made initially but for
various reasons, a person may not be able to keep the
promise to marry. If such promise is not made from the
very beginning with the ulterior motive to deceive her,
it cannot be said to be a false promise to attract the
penal provisions of Section 375IPC, punishable under
Section 376IPC.”
18. After considering the law laid down by the Supreme Court and the
circumstances as stated hereinabove, I have no hesitation to exercise the
inherent power vested under Section 528 of BNSS 2023, it appears that due
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21 MCRC-35779-2025
to failure of relationship between the petitioner and the complainant, the
complainant has lodged the instant FIR to pressurize the petitioner to
continue the relationship.
19. Considering the long relationship between the petitioner and
complainant it is difficult to believe that the petitioner has developed the
physical relations on the basis of a false pretext of marriage and committed
the rape.
20. In view of the same, this court is of the view that the petitioner is
able to make out a case that it is not a case of rape but a case of consensual
relationship. The registration of FIR appears to be the abuse the process of
law and the Supreme Court in the case State of Haryana and others Vs.
Bhajan Lal and others reported in 1992 Supp (1) SCC 335 observed that
where the allegations made in the FIR or complaint are not sufficient to
make out a case against the accused the FIR deserves to be quashed.
21. Consequently, this Court does not find any material and any
ingredient in the FIR that any offence under Section 69 of BNS or 351(2) of
BNS, 2023 is made out against the petitioner and as such FIR and the
prosecution initiated against the petitioner are liable to be quashed by
exercising the powers provided under Section 528 of BNSS, 2023,
Consequently, the petition succeeds and FIR registered vide Crime No.
95/2025 at PS Mahila Thana, Bhopal for the offence punishable under
Section 351(2) and 69 of BNS, 2023 is hereby quashed and consequently the
charge sheet filed against the petitioner and all further proceedings based
upon the said FIR are also quashed.
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22. Petition is allowed.
23. No order as to costs.
(VINAY SARAF)
JUDGE
Akm
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