Oral Judgment:

1. Heard learned counsel Shri R.M.Patwardhan for the applicant and learned Additional Public Prosecutor Shri N.B.Jawade for the State. Admit. Heard finally by consent.

2. The present revision is preferred by the applicant challenging order dated 5.10.2019 passed by learned Additional Sessions Judge, Nagpur rejecting the application for discharge below Exh.6 in Sessions Trial No.281/2014.

3. Brief facts necessary for disposal of the revision are as under:

The applicant is prosecuted for offences punishable under Sections 376 and 417 of the IPC on the basis of a report lodged by the prosecutrix by filing FIR dated 11.9.2013 vide Crime No.246/2013. As per recital of the report, her marriage was performed in the year 1998 and she is having two sons from the said wedlock. Her marriage was dissolved in the February 2007. However, despite the dissolution of the marriage, she was residing together along with her husband for the better future of the children. She further alleged that in the year 2011, when she was serving in a school, she got acquaintance with the applicant. They were communicating with each other and during that communication, friendship was developed between them. The said friendship was resulted into love affair. The applicant promised her that he would take care of her children also for their future and on the promise of the same, he called her at his flat and subjected her for forceful sexual assault on the promise of marriage. She alleged that, thereafter, in July 2013, on various occasions, he called her at his house and on the same promise, subjected her forceful sexual assault. On the basis of the said report, the police have registered the crime against the applicant.

4. After registration of the crime, wheels of the investigation started rotating. During the investigation, the investigating officer referred her for medical examination. Various statements were recorded, incriminating articles were forwarded to the C.A. and after completion of the investigation, chargesheet was filed against the applicant. After the case was committed to the Court of Sessions, he filed an application for discharge on the ground that the nature of relationship between him and the prosecutrix was consensual in nature. The “consent” was not under inducement, but it was voluntary and, therefore, no offence under Section 376 of the IPC is made out. It is further contended that perusal of the record prima facie reveals that the prosecutrix was previously married and she is having two children. There was dissolution of marriage as far as his first marriage is concerned and, thereafter, they got acquainted with each other and by “consent,” they had physical relationship with each other. Thus, no offence is made out and, therefore, he be discharged from the said offence.

5. Learned counsel for the applicant endorsed the same contentions and invited my attention towards recital of the FIR as well as the subsequent statement of the prosecutrix and various statements of the witnesses and submitted that from the recital of the FIR itself it is clear that nature of the relationship was consensual in nature and, therefore, no offence is made out. There is distinction between the “consensual relationship” and “rape”. However, the trial court has not considered the same and wrongly and erroneously rejected the application. The considerations for framing of charge are also not considered by the trial court. In view of that, the application deserves to be allowed by allowing the said revision.

6. In support of his contentions, learned counsel for the applicant placed reliance on the decision in the case of Prashant Bharti vs. State of NCT of Delhi, reported in (2013)9 SCC 293.

7. Per contra, learned Additional Public Prosecutor for the State strongly opposed the said contentions and submitted that statement of the prosecutrix itself shows that the “consent” was obtained under “misconception of the fact.” She was promise that the applicant would perform marriage with her and also will take care of her children. Thus, the “consent” was obtained under the “misconception of fact” and, therefore, that “consent” is not consent within the meaning of Section 90 of the IPC. In view of that, the application deserves to be rejected.

8. Before entering into the merits of the case, it is necessary to see that what are the considerations for considering applications for discharge.

9. It is a settled principle of law that at the stage of considering an application for discharge, the court must proceed on the assumption that the material which has been brought on record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary of the offence alleged.

10. The Hon’ble Apex Court in the case of State of Gujarat vs. Dilipsinh Kishorsinh Rao, reported in MANU/SC/1113 2023, adverting to the earlier propositions of law in its earlier decisions in the cases of State of Tamil Nadu vs. N.Suresh Rajan and ors, reported in (2014) 11 SCC 709 and The State of Maharashtra vs. Som Nath Thapa, reported in (1996) 4 SCC 659 and The State of MP Vs. Mohan Lal Soni, reported in (2000) 6 SCC 338, has held as under: “

                   10. It is settled principle of law that at the stage of considering an application for discharge the court must proceed on an assumption that the material which has been brought on record by the prosecution is true and evaluate said material in order to determine whether the facts emerging from the material taken on its face value, disclose the existence of the ingredients necessary of the offence alleged”.

11. The Hon’ble Apex Court, in State of Tamil Nadu vs. N.Suresh Rajan and ors, (2014) 11 SCC 709, adverting to the earlier propositions of law laid down on this subject, has held as under:

                   "29. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."

12. Thus, the defence of the accused is not to be looked into at the stage of discharge. The expression "the record of the case" used in Section 227 of the Code of Criminal Procedure is to be understood as the documents and materials, if any, produced by the prosecution. The provisions of the Code of Criminal Procedure does not give any right to the accused to produce any document at the stage of framing of the charge. The submission of the accused is to be confined to the material produced by the investigating agency. The primary consideration at the stage of framing of charge is the test of existence of a prima facie case, and at this stage, the probative value of materials on record need not be gone into. At the stage of entertaining the application for discharge under Section 227 of the Code of Criminal Procedure, the court cannot analyze or direct the evidence of the prosecution and defence or the points or possible cross examination of the defence. The case of the prosecution is to be accepted as it is.

13. In the case of Union of India vs. Prafulla Kumar Samal and anr, reported in (1973)3 SCC 4, the Hon’ble Apex Court enumerated the following principles while considering the discharge application:

                   “(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 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 Judge cannot act merely as a Post office or a mouth-piece 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.”

14. Thus, the catena of decisions explains the scope of Sections 227 and 228 of the Code of Criminal Procedure.

15. In view of the above observations of the Hon’ble Apex Court, if the facts of the present case are taken into consideration, from the recital of the FIR and the statement of the prosecutrix it reveals that she got acquaintance with the applicant and thereafter, friendship was developed between them and the said friendship was resulted into love affair. It is further apparent that on the call of the applicant, on various occasions, the prosecutrix has joined his company and there was physical relationship between them. Thus, the material on record sufficiently shows that the relationship between the applicant and the prosecutrix was consensual in nature.

16. Though learned Additional Public Prosecutor for the State submitted that the “consent” was obtained under the “misconception of fact”, the Hon’ble Apex Court in the case of Maheshwar Tigga vs. State of Jharkhand, reported in LawFinder Doc. ID NO.1744698 in paragraph No.14 observed as under:

                   “14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her”.

17. In the present case also, the recital of the FIR shows that the prosecutrix got acquaintance with the applicant in the year 2011 and, thereafter, the relationship was continued, till filing of the said report i.e. till July 2013. Thus, the said relationship was continued for more than two years. Thus, there was no proximity as far as “consent” and “misconception of fact” are concerned.

18. In the present case, the prosecutrix who herself was a married woman having two children could not be said to have acted under the alleged false promise given by the applicant or under the “misconception of fact” while giving the “consent” to have sexual relationship with the applicant. Undisputedly, she continued to have such relationship with him at least for more than two years and, thereafter, she lodged the complaint. Even, if the allegations made by her in her statement are taken at their face value, then also to construe such allegations as “rape” by the applicant, would be stretching the case too far. The prosecutrix being a married woman and the mother of two children was mature and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Thus, it appears that by knowing repercussions of her act, she has accorded the “consent”.

19. In view of that, the principles laid down by the Hon’ble Apex Court in various judgments are to be taken into consideration wherein the Hon’ble Apex Court has considered that “consensual relationship” cannot be said to be sufficient to attract the offence under Section 376 of the IPC.

20. In view of that, the applicant has made out a prima facie case as far as the discharge application is concerned. Hence, I proceed to pass following order:

                   ORDER

                   (1) The Criminal Revision Application is allowed.

                   (2) The order dated 5.10.2019 passed by learned Additional Sessions Judge, Nagpur rejecting the application for discharge below Exh.6 in Sessions Trial No.281/2014 is hereby quashed and set aside.

                   (3) The applicant is discharged of offences Sections 376 and 417 of the IPC in connection with Crime No.246/2013.

The Revision stands disposed of.