The submissions made by Mr.K.S.Arumugam, learned counsel for the petitioner were heard. The petition and the other documents produced along with the petition were also perused.
2. Based on the complainant of the 2nd respondent herein, a case was registered on the file of All Women Police Station, Chengalpet as Crime No.15/2008 for alleged offences punishable under
sections 417,376 of I.P.C. After completion of the investigation, the Investigating Officer submitted a positive final report alleging commission of the above said offences by the petitioner herein. The same was taken on file by the learned Judicial Magistrate No.II, Chengalpet as P.R.C.No.24/2009. The petitioner who figured as the sole accused in the said P.R.C. Case, has come forward with the present petition under
section 482 of Cr.P.C to quash the Criminal Proceedings initiated against him in P.R.C.No.24 of 2009 on the file of the Judicial Magistrate No.II, Chengalpet.
3. The learned counsel appearing for the petitioner has argued that the offences under
sections 417 and
376 would not go together, because an offence under
section 417 of the I.P.C. implies a consent whereas the offence under section
376 of I.P.C implies absence of consent.
4. In support of his contention, the learned counsel appearing for the petitioner cited a judgment of the Hon'ble the Supreme Court of India in Uday Vs. State of Karnataka reported in 2003 SCC Cri 775. It is true that the Hon'ble Supreme Court in the said case has held that a woman submitting herself voluntarily to sexual intercourse with a man believing his promise that he would marry her at a later point of time, cannot be said to have been raped and that a consent given by the prosecutrix believing a false promise, was not an invalid consent to take the act of the accused beyond the scope of
Section 375 I.P.C. In the said case before the Supreme Court it was sought to be projected that a misconception of fact contemplated under
Section 375 shall include the belief of the prosecutrix that the promise made to her to marry her would be honoured. The Hon'ble Supreme Court has held in categorical terms that the misconception must be confined to the circumstances falling under
Section 375 to make such a consent invalid. The misconception contemplated in clause 4 of
Section 375 is that the consent should have been given because the prosecutrix believed the accused to be another person to whom she is married or believe herself to be lawfully married to him. If she submits herself to the sexual intercourse believing the promise of the accused to marry her she cannot be said to have been acted on a mis-conception that the accused was another person to whom she was married.
5. Unfortunately the judgment of Hon'ble Supreme Court cited by the learned counsel appearing for the petitioner is not applicable to the case on hand. In this case, apart from the contention that the petitioner cheated her by making false promise to marry her and thereby making her to submit to sexual intercourse with him, clear allegation has been made in the complaint to the effect that on a particular day (14.04.2008) at about 12.00 noon, the petitioner had sexual intercourse with the prosecutrix (defacto complainant) against her will and despite her objection. The mere fact that she had also stated that on subsequent occasions she submitted herself to such intercourse with the petitioner believing the promise made by him to marry her will not make the said first act of sexual assault out of the purview of the
Section 375 I.P.C.
6. Whether the allegation made by the second respondent for the first act of intercourse alleged on a particular day was with her consent or without her consent, cannot be proved in this petition as this Court is not supposed to weigh the evidence and it is a matter for the trial court to decide. Therefore this court comes to a conclusion that this petition deserves to be dismissed, even without notice to the respondents. Accordingly, this petition is dismissed.
tsh/pbn To The State by Inspector of Police, All Womens Police Station, Chengalpet, Kancheepuram DIstrict