Sex After False Promise Of Marriage: Bombay HC Refuses To Quash Charges Of Cheating And Sexual Assault [Read Judgment]

The Bombay High Court has refused to quash proceedings against a 45-year-old businessman from Goregaon, Mumbai and held that the only way to find out whether charges of fraud and sexual assault against him, were true is through a trial where all the material gathered during the investigation can be examined.

Justice SS Shinde was hearing a criminal writ petition filed by the accused Vishal Singh who sought quashing of charges under Sections 376 and 420 of the Indian Penal Code levelled by the complainant.

According to the petitioner, FIR was lodged for offence under Section 420 but there was no mention of the allegation of sexual assault and it was only in the supplementary statement of the complainant recorded on April 8, 2013, allegations were made against the petitioner that under the pretext and promise to marry her, he extracted huge amount from the complainant and sexually exploited her.

Petitioner's advocate Samarth Karmarkar submitted that, material collected during the course of an investigation is not sufficient and relevant to sustain allegations of cheating and sexual assault against the petitioner. The alleged offence has never taken place, Karmarkar said. He relied upon e-mail messages and pointed out that perusal of one of such messages would indicate that the complainant herself, was not ready to marry the petitioner.

On the other hand, State's lawyer APP NB Patil submitted that overwhelming evidence has been collected by the investigating officer during the course of investigation. He further argued that apart from the evidence collected by the investigating officer during the course of investigation, the complainant will step in witness box and would depose before the Court. Therefore, at this stage prayer of the petitioner for quashing the proceedings pending before the Trial Court may be rejected, Patil said.

Court referred to the judgment of the Supreme Court in the case of Anurag Soni Vs. State of Chhattisgarh, wherein it was held -

"In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub­ section (2) of Section 376 of the Indian Penal Code (45 of 1860), where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent"

Thus, Court concluded-

"Upon appreciating rival submissions and perusal of grounds in the petition and annexures thereto, and also copies of compilation of documents submitted by the learned counsel for the petitioner, I am of the opinion that only way to resolve the controversy is by way of appreciating the material collected during the course of investigation by way of trial. The various contentions raised by the petitioner in his defence needs to be considered during the course of trial, and while exercising writ jurisdiction it is not desirable to enter in to exercise of appreciation of statements of the prosecutrix, and also other material collected during the course of investigation and draw inferences.

The material collected during the course of investigation will have to be tested during the Trial. On the whole material collected during the course of investigation and also allegations made in the FIR and also in the supplementary statement, prima facie constituted alleged offences and therefore, those needs to be tried by the Trial Court."

The writ petition was rejected.

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