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2022 SCC OnLine Del 976 : (2022) 234 AIC 535

In the High Court of Delhi at New Delhi

(BEFORE SUBRAMONIUM PRASAD, J.)

In the Matter Of:

Shailendra Kumar Yadav … Petitioner;
Versus
State … Respondent.
Crl. Rev.P. 175/2021 & Crl.M.A. 6024/2021
Decided on April 5, 2022
Advocates who appeared in this case:
Through Mr. Badar Mahmood, Advocate.
Through Ms. Neelam Sharma, APP for the State with SI Ajay Singh,
Police Station Paharganj.
Complainant - in person.
The Judgment of the Court was delivered by
SUBRAMONIUM PRASAD, J.:— This petition under Sections 397/401
Cr.P.C. read with Section 482 Cr.P.C. has been filed for setting aside
the Order dated 08.03.2021, passed by the learned Additional Sessions
Judge/SFTC - 2 (Central), Tis Hazari Courts, Delhi, in Case No.
436/2020 arising out of FIR No. 319/2019 dated 10.11.2019 registered
at P.S. Paharganj for offences under Section 376(2)(n) of the Penal
Code, 1860 (hereinafter, “IPC”), framing charges against the Petitioner
for offences under Section 376(2)(n) IPC.
2. Facts, in brief, leading up to the instant petition are as follows:
a) It is stated that the Petitioner had extended a false promise of
marriage to the prosecutrix on the basis of which he had
sustained a physical relationship with her. The prosecutrix and the
Petitioner were engaged, and the wedding was postponed due to
some issues in the family of the prosecutrix. Thereafter,
arguments arose about the date of marriage as well as the
financial condition of the prosecutrix. It is stated that the
prosecutrix requested the Petitioner to marry her by way of court
marriage or in an Arya Samaj temple, and this request was
rejected by the Petitioner.
b) It is stated that the Petitioner and his family would quibble with
the prosecutrix with regard to her way of living and her lifestyle,
and other trivial matters, in order to put an end to the marriage.
The prosecutrix has alleged that the issues were being raised by
the Petitioner and his family due to the fact that the prosecutrix
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was not financially well-off, and that the Petitioner wanted to

marry a girl whose father would have the wherewithal to invest
money in his marriage. On the basis of this complaint, the instant
FIR was registered under Section 376(2)(n) IPC against the
Petitioner.
c) Vide Order dated 28.01.2020, this Court granted anticipatory bail
to the Petitioner herein. Chargesheet was filed on 19.08.2020,
and vide Order dated 08.03.2021, the Ld. Trial framed charges
against the Petitioner under Section 376(2)(n) IPC. Aggrieved by
this, the Petitioner has approached this Court by way of the
instant revision petition.
3. Mr. Badar Mahmood, learned Counsel for the Petitioner, submits
that the Petitioner and the prosecutrix were involved in a serious
relationship and that physical relations between the two had never
taken place. He states that despite the incompatibility between the
two, the Petitioner was in love with the prosecutrix and intended to
settle down with her. Mr. Mahmood states that a roka ceremony had
also taken place between the Petitioner and the prosecutrix, and that
the instant matter is merely a case of a relationship that has ended on
bad terms.
4. The learned Counsel for the Petitioner submits that the
prosecutrix would constantly fight with the Petitioner and taunt him
about his profession as well as his financial capacity. He states that the
prosecutrix insisted on the wedding ceremony being held at a venue
which was too expensive for the Petitioner to finance, and due to this,
the marriage between the two was put off which led to the parents of
the Petitioners being forced to face a very embarrassing position.
5. Mr. Mahmood brings to the attention of this Court that the
prosecutrix and her family threatened the Petitioner and his family that
if they did not get the Petitioner married to the prosecutrix
immediately, they would file false cases of rape and suicide against
them. As a result, the Petitioner and his father immediately filed a
complaint dated 11.11.2019 with SHO, North Rohini, Delhi. He states
that they were later on made aware that FIR No. 319/2019 dated
10.11.2019 was registered at P.S. Paharganj.
6. With regard to the impugned Order dated 08.03.2021, the learned
Counsel for the Petitioner submits that the Ld. Trial Court has failed to
apply its judicial mind to the facts of the case and has mechanically
framed charges against the Petitioner under Section 376(2)(n) IPC. Mr.
Mahmood submits that the disclosure statement of the prosecutrix
under Section 164 Cr.P.C. categorically notes that it had taken the
Petitioner three months to convince the parents of the prosecutrix to
allow her to get married, and therefore, the issue pertaining to false
pretext of marriage. He states that the allegations against the Petitioner
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are prima facie fabricated and that the Ld. Trial Court has failed to take
the same into account while discerning that there was sufficient ground
to proceed against the Petitioner. He, therefore, prays for the impugned
Order dated 08.03.2021 to be set aside.
7. Per contra, Ms. Neelam Sharma, learned APP for the State,
submits that the investigation has revealed that during investigation, a
statement of the prosecutrix under Section 164 Cr.P.C. had been
recorded and the allegations in the FIR were corroborated. She further
submits that raids had been repeatedly taken place at the residence of
the Petitioner and he was never found at the available address. She
states that the Petitioner did not join investigation initially, and that it
was only after this Court granted anticipatory bail to the Petitioner vide
Order dated 28.01.2020 that he joined investigation. She opposes the
instant application on the ground that the Ld. Trial Court has
sufficiently satisfied itself that a prima facie case is made out against
the Petitioner.
8. The prosecutrix-in-person has also addressed this Court and put
forth her submissions with regard to the matter at hand. She has
reiterated the allegations that have been delineated in FIR No.
319/2019 and has opposed the instant revision petition on the ground
that the facts of the case clearly make out the charges that have been
framed against the Petitioner.
9. Heard Mr. Badar Mahmood, learned Counsel for the Petitioner, Ms.
Neelam Sharma, learned APP for the State, the prosecutrix-in-person,
and perused the material on record.
10. Before delving into the correctness of the impugned Order dated
08.03.2021 whereby the Ld. Trial Court framed charges under Section
376(2)(n) IPC against the Petitioner, this Court finds it necessary to
reiterate the law pertaining to the framing of charges and the scope of
this Court to interfere under Sections 397/401 Cr.P.C. In Union of India
v. Prafulla Kumar Samal, (1979) 3 SCC 4, the Supreme Court laid down
the principles that are to be followed while dealing with discharge
under Section 227 Cr.P.C. or framing of charges under Section 228
Cr.P.C. The same has been reproduced as under:
“10. Thus, on a consideration of the authorities mentioned above,
the following principles emerge:
1) That the Judge while considering the question of framing the
charges under Section 227 of the Code has the undoubted
power to sift and weigh the evidence for the limited purpose of
finding out whether or not a prima facie case against the
accused has been made out.
2) Where the materials placed before the Court disclose grave
suspicion against the accused which has not been properly
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explained the Court will be fully justified in framing a charge

and proceeding with the trial.
3) The test to determine a prima facie case would naturally
depend upon the facts of each case and it is difficult to lay
down a rule of universal application. By and large however if
two views are equally possible and the Judge is satisfied
that the evidence produced before him while giving rise
to some suspicion but not grave suspicion against the
accused, he will be fully within his right to discharge the
accused.
4) That in exercising his jurisdiction under Section 227 of the
Code the Judge which under the present Code is a senior and
experienced court cannot act merely as a Post Office or a
mouthpiece of the prosecution, but has to consider the broad
probabilities of the case, the total effect of the evidence and
the documents produced before the Court, any basic infirmities
appearing in the case and so on. This however does not mean
that the Judge should make a roving enquiry into the pros and
cons of the matter and weigh the evidence as if he was
conducting a trial.”
(emphasis supplied)
11. The Supreme Court has time and again held that at the stage of
framing of charges, the Court possesses the power to sift and weigh the
evidence for the limited purpose of ascertaining whether or not a prima
facie case has been made out against the accused. The Ld. Trial Court
must exercise its judicial mind to the facts of the case before arriving at
the conclusion that there is sufficient ground for proceeding against the
accused. This exercise must be undertaken so as to ensure that an
individual does not have to be put through the rigours of the criminal
judicial system for no fault of their own.
12. Similarly, in P. Vijayan v. State of Kerala, (2010) 2 SCC 398, the
Supreme Court had enunciated that a Judge was not a mere post office
that was to frame the charge at the behest of the prosecution, but was
compelled to apply its mind to the facts of the case. The relevant
portion of the said judgment has been reproduced as under:
“10. Before considering the merits of the claim of both the
parties, it is useful to refer to Section 227 of the Criminal Procedure
Code, 1973, which reads as under:
“227. Discharge.—If, upon consideration of the record of the
case and the documents submitted therewith, and after hearing
the submissions of the accused and the prosecution in this behalf,
the Judge considers that there is not sufficient ground for
proceeding against the accused, he shall discharge the accused
and record his reasons for so doing.”
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If two views are possible and one of them gives rise to

suspicion only, as distinguished from grave suspicion, the trial
Judge will be empowered to discharge the accused and at this
stage he is not to see whether the trial will end in conviction
or acquittal. Further, the words “not sufficient ground for
proceeding against the accused” clearly show that the Judge
is not a mere post office to frame the charge at the behest of
the prosecution, but has to exercise his judicial mind to the
facts of the case in order to determine whether a case for trial
has been made out by the prosecution. In assessing this fact,
it is not necessary for the court to enter into the pros and
cons of the matter or into a weighing and balancing of
evidence and probabilities which is really the function of the
court, after the trial starts.
11. At the stage of Section 227, the Judge has merely to sift the
evidence in order to find out whether or not there is sufficient ground
for proceeding against the accused. In other words, the sufficiency of
ground would take within its fold the nature of the evidence recorded
by the police or the documents produced before the court which ex
facie disclose that there are suspicious circumstances against the
accused so as to frame a charge against him.”
(emphasis supplied)
13. In the instant case, it has been alleged that the Petitioner has
committed an offence under Section 376(2)(n) IPC as per which
whoever commits rape repeatedly on the same woman shall be
punished with rigorous imprisonment for a term which shall not be less
than ten years, but which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of that person's natural life,
and shall also be liable to fine. The allegation is that under the garb of
marriage, the Petitioner has repeatedly raped the prosecutrix.
14. At this juncture, it would be pertinent to examine the difference
between a false promise of marriage and a breach of promise to marry.
In the latter, sexual relations are initiated on the premise that the two
individuals will marry at a later point of time. However, in the former,
sexual relations take place without any intention of marrying at all and
the consent that is obtained for the said relations to take place is
vitiated by way of misconception of fact. The Supreme Court has
elaborated this aspect in various judgments. In Pramod Suryabhan
Pawar v. State of Maharashtra, (2019) 9 SCC 608, the Supreme Court
had observed as follows:
“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
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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 control, was unable to marry
her, despite having every intention to do so. Such cases must be
treated differently.
***
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, [Ed. : The
matter between two asterisks has been emphasised in original.]
unless the court is assured of the fact that from the very
beginning, the accused had never really intended to marry her
[Ed. : The matter between two asterisks has been emphasised in
original.].”
(emphasis supplied)
18. To summarise the legal position that emerges from the above
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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.”
15. Similarly, the Supreme Court had categorically distinguished
between rape and consensual sex, as well as the distinction between
the mere breach of a promise, and not fulfilling a false promise in
Deepak Gulati v. State of Haryana, (2013) 7 SCC 675. It had been
stated as follows:
“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 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
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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.”
16. Therefore, in order to arrive at the conclusion that sexual
relations were coerced, it is necessary to examine that whether at the
stage of rendering a promise to marry, it was done with the intention of
not keeping the promise and, therefore, was false at the inception itself
(See also Sonu @ Subash Kumar v. State of Uttar Pradesh, 2021 SCC
OnLine SC 181). If it is found that the promise of marriage was genuine
and that the marriage failed to fructify due to external circumstances,
then the promise cannot be said to be false, and consent as per Section
90 IPC is not vitiated.
17. The FIR as well as the Status Report stipulate that the Petitioner
and the prosecutrix were in a long-term relationship and even a roka
(engagement) had taken place. Pictures of the engagement ceremony
have also been produced before this Court. The FIR further states that a
wedding ceremony was supposed to take place and that it was only at
the instance of the prosecutrix that the marriage was postponed. The
FIR goes on to state that thereafter, arguments began to take place
between the prosecutrix and the Petitioner. Further, the prosecutrix
started facing resistance from the Petitioner's family who were against
the marriage and that this led to the breaking off of the relationship
between the Petitioner and the prosecutrix. The Section 164 CrPC
statement of the prosecutrix reveals that it took the Petitioner three
months to convince the prosecutrix's parents to allow her to marry him.
18. As per Section 90 IPC, consent given under fear or
misconception cannot be said to be consent, and in this context, it
becomes relevant to factor in the aspect that the prosecutrix and the
Petitioner were in a long-term relationship. Furthermore, even an
engagement ceremony had taken place between the two and the same
was attended by all family members, which indicates that the Petitioner
did indeed intend to marry the prosecutrix. Just because the
relationship ended on hostile terms, it cannot be said there was no
intention of the Petitioner to marry the prosecutrix in the first place.
Flowing from this, this Court is of the opinion that the consent so
accorded by the prosecutrix for the establishment of a physical
relationship was not predicated upon misconception or fear.
19. The impugned Order dated 08.03.2021 fails to accord any
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reasons to substantiate as to how there is sufficient material to proceed

against the Petitioner under Section 376(2)(n) IPC. The said Order has
merely recorded the submission of the Ld. APP therein that there is
sufficient material on record and has proceeded at the behest of the
prosecutor, without providing any reasons to justify its stand. As has
been stated above, the Ld. Trial Court is not a mere post office and
must apply its mind to the facts of the case to arrive at the conclusion
as to whether a prima facie case is made out against the accused that
would warrant charges to be framed against them. The impugned Order
dated 08.03.2021 has evidently failed to perform its duty and has
rendered a mechanical order on charge without sifting or weighing the
evidence before it. Due to the legal infirmity replete in the said Order,
this Court deems it fit to exercise its jurisdiction under Sections
397/401 Cr.P.C. read with Section 482 Cr.P.C. to set the same aside.
20. In light of the above observations, the instant petition is
allowed, along with pending application(s), if any.
———
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