In Md. Said Ali Ansari vs. The State of Bihar & Anr. (2026), Justice Soni Shrivastava of Patna High Court delivered a 15-page long judgement dated January 12, 2026 wherein, she quashed the order by Additional Sessions Judge-I, Bhagalpur in a Sessions Trial of 2021. The second respondent was Ravina Tabassum. Despite valid service of notice, none appeared on behalf of her. Justice Shrivastava concluded:"....this Court is of the considered view that the present prosecution against the petitioner is not only frivolous and vexatious, but the necessary ingredients of the offence under Section 375 of the IPC in order to prosecute the petitioner particularly for an offence under Section 376 of IPC is clearly and visibly not made out. In such view of the matter continuance of prosecution would amount to abuse of process of the Court, hence, the impugned order dated 17.11.2021 passed by the learned Additional Sessions Judge-I, Bhagalpur in S.Tr. No. 161 of 2021 (arising out of Jagdispur P.S. Case No.121 of 2019) is hereby quashed. 19. Accordingly, the present application filed by the petitioner is allowed."
The application was filed for quashing of of the order by the Additional Sessions Judge-I, Bhagalpur whereby and whereunder the petition dated October 26, 2021 filed by the petitioner under Section 227 Cr.P.C. to discharge the petitioner under Section 376 of the Indian Penal Code (IPC) was rejected. The brief facts leading to the impugned order emanated from an F.I.R bearing Jagdishpur P.S. Case No. 121 of 2019 dated April 26, 2019, registered under Section 341, 376, 379/34 of the IPC on the written statement of the informant Rabina Tabassum aged about 25 years, alleged inter alia that on the allurement and pretext of marriage, the informant was subjected to sexual exploitation by the petitioner for the last one year. The F.I.R further discloses that on April 22, 2019, on being asked by the petitioner to come along with him for getting married, she left her home along with cash and jewellery and went along with the petitioner to his maternal uncle’s house where they stayed in a room where the father of the petitioner had arrived and upon his assurance for marriage, she, along with the petitioner, came back to her village whereafter the mother of the petitioner also assured the informant’s parents about marriage which never happened. Hence, the present case was instituted stating in the F.I.R that other members of the family were also preventing the marriage to happen. After investigation, charge-sheet was submitted against the petitioner and others and cognizance was taken thereupon under Section 376, 341 read with Section 34 of the IPC and after commitment of the case to the Court of Sessions, the petitioner filed the discharge application under Section 227 of Cr.P.C. which stood rejected vide the impugned order dated November 17, 2021.
The senior counsel appearing on behalf of petitioner assailed the impugned order primarily on the ground that no offence is made out against the petitioner, much less an offence under Section 376 of the IPC. He substantiated his submission on account of the fact that a bare perusal of the allegations made in the F.I.R itself would disclose that the petitioner and the informant/victim were having a relationship which was continued for the past one year and the informant being a 25 years old adult, as she herself claimed in the F.I.R, had entered into physical relationship with the petitioner with open eyes and there was no allegation of any threat perception or any force or coercion exercised upon her. He submitted that a relationship between two consenting adults would not bring the case within the ambit of Section 376 of IPC. He also submitted that even in the statement of the informant/victim recorded under Section 164 Cr.P.C., she did not whisper a single word with regard to any sexual assault by the petitioner and had rather narrated the story in a different manner making reference to assurance given by the petitioner’s parents, specifically her mother about getting her married to the petitioner which was a definite pointer to the fact that there was a bona fide intention of marriage with Ravina Tabassum, the opposite party no.2 and there was no misconception of fact. The medical examination of the informant/victim was also referred to by the senior counsel to submit that the informant was an adult and upon vaginal swab examination, no spermatozoa was found, which was further indicative of the fact that medical evidence also did not corroborate the allegations made in the F.I.R by the informant. To buttress his submissions with respect to the offence under Section 376 of IPC not being made out, the senior counsel relied upon some recent judgments of the Supreme Court in (a) Jaspal Singh Kaural vs. The State (NCT of Delhi) & Anr. reported in (2025) 5 SCC 756. (b) Surendra Khawse vs. State of Madhya Pradesh & Anr. (2025 INSC 1143), (c) Prashant vs. State (NCT of Delhi) reported in (2025) 5 SCC 764
Justice Shrivastava observed: "9. After having heard the rival contentions of the parties and having considered the impugned order as also the material on record, the moot question which falls for consideration before this Court is as to whether there is sufficient material on record and grounds for proceeding against the petitioner, prosecuting him under Section 376 of the IPC. 10. Upon examining the contents of the F.I.R and the other materials on record, it is clear that the prosecutrix is a 25 years old adult and had entered into a relationship with the petitioner, which was continuing for the past one year leading to the inference that there was a consensual relationship between two adults. However, there is an allegation that sexual exploitation of the informant was done on the pretext of marriage. At this stage, it needs to be considered that there can be several reasons for developing physical intimacy between two consenting partners and the question of entering into a relationship under a misconception of fact needs to be established by way of specific assertion and material to show that the informant was made to enter into such relationship upon a false promise to marry and that she would not have done so in absence of such promise and assurance, coupled with the fact that the petitioner, in fact, never had any intention to marry the informant right from the inception. 11. The facts and materials disclosed in the present case, in no way, point towards any such intention of the petitioner to have sexually exploited her without intending to marry her. The prosecutrix has rather herself stated that it was due to the interference by the family members, including the parents of the petitioner, that impediments were caused in the marriage which could not fructify as a consequence of the same. It has to be kept in mind that there is a clear cut distinction between a ‘false promise’ to marry, which would come under the purview of misconception of fact as envisaged under Section 90 of the IPC and a ‘breach of promise’ which is a result of some supervening circumstances on account of which a promise earlier made has not been honored."
She referred to a judgment rendered by the Supreme Court in Naim Ahmed vs. State (NCT of Delhi) reported in (2023) 15 SCC 385 wherein the distinction between a false promise to marry and a breach of promise was clarified. It reads: “21. The bone of contention raised on behalf of the respondents is that the prosecutrix had given her consent for 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 the law and the case fell under 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 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 fulfil his promise. So, it would be a 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.”
Justice Shrivastava observed: "12. The aforesaid issue of a woman engaging in sexual relations on the basis of misconception of fact amounting to rape and a breach of promise being distinct from a false promise has also been dealt with in several other judicial pronouncements rendered by this Court as also the Hon’ble Apex Court and such grounds have led to quashing of the entire prosecution. She recollected teh Supreme Court's decision in Pramod Suryabhan Pawar vs. State of Maharashtra reported in (2019) 9 SCC 608, wherein the legal position with regard to “consent” of a woman vis-a-vis “mis-conception of fact” arising out of a false promise to marry, was summarized . Paragraph 18 of the said judgment reads:“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.”
She added: "14. Upon analysis of the facts of the present case, it can be safely concluded that there is nothing on record to indicate that it is only on account of a false promise to marry that the prosecutrix had engaged herself in a physical relationship with the petitioner and thus, existence of any such assurance or promise to marry cannot be said to bear a direct nexus with the decision of the informant to engage in any sexual act. 15. This Court cannot also loose sight of the fact that the informant, who by virtue of her age and maturity, was capable enough to take her independent decisions and engaging in a sexual relationship with the petitioner was a conscious and informed choice made by the informant, being in a position to assess the morality or immorality attached to the act in which she indulged with the petitioner without there being any force or coercion upon her. Such a willful conduct would lead to only an inevitable conclusion of her willingness in carrying a relationship, including physical intimacy with the petitioner, as
such, her consent was totally voluntary. A criminal prosecution under Section 376 of IPC cannot be permitted to be initiated and to continue merely on account of the reason that a cordial and consensual relationship between a consenting couple does not materialize and fructify into a marital relationship...."
Notably, 84th report of the Law Commission of India (1980) dealt with rape and allied offences. Section 63 of the Bharatiya Nyaya Sanhita (BNS) deals with rape. Section 64 of BNS deals with punishment for rape. The BNS replaced the IPC from July 2, 2024.
No comments:
Post a Comment