Patna High Court
MD. SAIF ALI ANSARIversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- SONI SHRIVASTAVA
Holding
The court held that the prosecution under Section 376 IPC was not made out and quashed the order rejecting the discharge application.
Summary
The petitioner Md. Saif Ali Ansari sought quashing of the Additional Sessions Judge's order rejecting his discharge application under Section 227 CrPC for alleged rape under Section 376 IPC. The FIR alleged sexual exploitation of a 25‑year‑old woman on a false promise of marriage, but the court found that the relationship was consensual between adults, with no evidence of force, coercion, or a false promise made in bad faith. Medical evidence showed no spermatozoa and the victim’s statement did not allege assault. Citing Supreme Court precedents distinguishing false promise from breach of promise, the court held that the ingredients of an offence under Section 376 were absent. Consequently, the prosecution was deemed frivolous and an abuse of process, and the order rejecting the discharge application was quashed, allowing the petition.
Issues considered
- Whether the facts disclosed an offence punishable under Section 376 of the IPC.
- Whether the petition for discharge under Section 227 of the CrPC should be granted.
- Whether the continuation of the prosecution amounts to an abuse of process under Section 482 of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 164, 227, 482, 528
- Indian Contract Act, 1872 — s. 19
- Indian Penal Code — s. 341, 375, 376, 90
Subjects
- false promise to marry
- consensual relationship
- rape
- Section 376 IPC
- discharge under Section 227 CrPC
- abuse of process
- misconception of fact
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No. 3303 of 2022
Arising Out of PS. Case No.-121 Year-2019 Thana- JAGDISHPUR District- Bhagalpur
======================================================
MD. SAIF ALI ANSARI Son of Shakil Ansari Resident of Village - Momin Tola,
Uttari Puraini, P.S.- Jagdishpur, Distt.- Bhagalpur.
... ... Petitioner/s
Versus
1. The State of Bihar
2. RAVINA TABASSUM D/o Md. Sohail Resident of Village - Ahmad Khani,
Puraini, P.S.- Jagdishpur, Distt.- Bhagalpur.
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. Syed Masleh Uddin Ashraf, Sr. Advocate
Mr. Shehan Ashraf, Advocate
For the State : Mr. Bhanu Pratap Singh, APP
======================================================
CORAM: HONOURABLE JUSTICE SMT. SONI SHRIVASTAVA
ORAL JUDGMENT
Date : 12-01-2026
Heard Mr. S.M. Ashraf, learned Senior counsel for
the petitioner assisted by Mr. Shehan Ashraf, learned Advocate
and Mr. Bhanu Pratap Singh, learned APP for the State.
2. Despite valid service of notice, none appears on
behalf of opposite party no.2.
3. The present application has been filed for quashing
of the 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) whereby and
whereunder the petition dated 26.10.2021 filed by the petitioner
under Section 227 Cr.P.C. to discharge the petitioner under
Section 376 of the Indian Penal Code (hereinafter referred to as
IPC) has been rejected.
4. The brief facts leading to the impugned order
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emanates from an F.I.R bearing Jagdishpur P.S. Case No. 121 of
2019 dated 26.04.2019, registered under Section 341, 376,
379/34 of the IPC on the written statement of the informant
Rabina Tabassum aged about 25 years, alleging 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 22.04.2019, 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
are also preventing the marriage to happen.
5. 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
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of Cr.P.C. which stood rejected vide the impugned order dated
17.11.2021.
6. A report with regard to the stage of the case has
been called for which reveals that charges have not been framed
as yet.
7. Mr. S.M. Ashraf, learned Senior counsel
appearing on behalf of petitioner has 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 has 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 continuing for the past one year
and the informant being a 25 years old adult, as she herself
claims in the F.I.R, had entered into physical relationship with
the petitioner with open eyes and there is no allegation of any
threat perception or any force or coercion exercised upon her.
He has thus submitted that a relationship between two
consenting adults would not bring the case within the ambit of
Section 376 of IPC. Learned Senior Counsel has further
submitted that even in the statement of the informant/victim
recorded under Section 164 Cr.P.C., she has not whispered a
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single word with regard to any sexual assault by the petitioner
and has 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 is a definite pointer to the fact that there was a
bona fide intention of marriage with the opposite party no.2 and
there was no misconception of fact. The medical examination of
the informant/victim has also been referred to by the learned
Senior counsel to submit that the informant was an adult and
upon vaginal swab examination, no spermatozoa was found,
which is 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
learned Senior counsel has relied upon some recent judgments
of the Hon’ble Apex Court which are as follows:-
(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
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8. Per contra, the learned APP for the State has
opposed the present application on the ground that the
allegations made in the F.I.R along with the materials collected
during course of investigation constitute an offence under the
aforementioned provisions of Section 376 of IPC as the
informant was sexually exploited upon a false promise to marry
which is indicative of the fact that she had entered into a
physical relationship upon a misconception of fact and as such
the consent given by the informant would be no consent in the
eyes of law. The learned APP has thus defended the impugned
order by stating that there are sufficient grounds to proceed
against the petitioner and the order impugned requires no
interference.
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
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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
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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. In this regard, it would be
apt to refer to a judgment rendered by the Hon’ble Supreme
Court in the case of 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 has been
clarified in paragraph 21 of the said judgment which is being
quoted hereunder:-
“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
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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.”
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.
13. In the case of Pramod Suryabhan Pawar Vs.
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State of Maharashtra reported in (2019) 9 SCC 608, the
Hon’ble Supreme Court summarized 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. Paragraph 18 of the
said judgment is being quoted hereunder:-
“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.”
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
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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. This
proposition has been clearly laid down in the recent judgment
rendered by the Hon’ble Supreme Court in the case of Prashant
Vs. State (NCT of Delhi) reported in (2025) 5 SCC 764 and
paragraph 19 of the said judgment is being quoted hereunder:-
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“19. In our view, taking the
allegations in the FIR and the charge-
sheet as they stand, the crucial ingredients
of the offence under Section 376(2)(n)IPC
are absent. A review of the FIR and the
complainant's statement under Section
164CrPC discloses no indication that any
promise of marriage was extended at the
outset of their relationship in 2017.
Therefore, even if the prosecution's case is
accepted at its face value, it cannot be
concluded that the complainant engaged in
a sexual relationship with the appellant
solely on account of any assurance of
marriage from the appellant. The
relationship between the parties was
cordial and also consensual in nature. A
mere break up of a relationship between a
consenting couple cannot result in
initiation of criminal proceedings. What
was a consensual relationship between
the parties at the initial stages cannot be
given a colour of criminality when the
said relationship does not fructify into a
marital relationship……………………..
………………………………………..].”
16. It has also been held by the Hon’ble Supreme
Court in the case of Samadhan Vs. State of Maharashtra &
Anr. reported in 2025 SCC Online SC 2528 that the
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continuation of prosecution in case of a voluntary and
consensual relationship devoid of any coercion, fraud or mis-
representation, would amount to an abuse of the Court
machinery. Paragraph 40 of the said judgment is being quoted
hereunder:-
“40. In view of the foregoing analysis,
we are unable to concur with the findings
recorded by the High Court, inasmuch as
the present case pertains to a consensual
relationship, and the acts of respondent
No. 2 clearly manifest consent to such a
relationship devoid of any coercion, fraud,
or misrepresentation as contemplated in
Section 19 of the Indian Contract Act,
1872. In our opinion, the High Court's
refusal to exercise its jurisdiction under
Section 528 of BNSS is unsustainable. The
acts complained of in the present case
occurred within the contours of a
relationship that was, at the time,
voluntary and willing. The continuation of
the prosecution in such facts would be
nothing short of an abuse of the court
machinery.”
17. The impugned order rejecting the application
for discharge suffers from illegality as it was well within its
jurisdiction to sift and weigh the evidence available on record to
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assess as to whether there was sufficient grounds to proceed or
not against the petitioner. The Hon’ble Supreme Court in the
case of Kanchan Kumar Vs. State of Bihar reported in (2022)
9 SCC 577, has clearly enunciated the legal position with regard
to discharge that at the stage of framing of charge, the Court
concerned is not to act as a mere post office. It is true that there
can be no meticulous sifting of evidence at this stage but the
satisfaction of the Court with the materials available to see
whether the case is made out for trial, has to be reached. A
roving inquiry is not to be undertaken but a simple and
necessary inquiry for proper adjudication of an application for
discharge is required to be undertaken by the concerned Court.
In any view of the matter, there is a duty cast on the Court to
provide protection against vexatious and unwanted prosecution
and in the process of granting such protection, this Court would
choose to exercise the inherent jurisdiction provided under
Section 482 Cr.P.C. on the ground of abuse of process of law
and the parameters and guidelines of such power under Section
482 Cr.P.C. has been clearly formulated in the case of State of
Haryana & Ors. Vs. Bhajan Lal & Ors., [1992 Supp (1)
SCC335] and the relevant parameters for quashing are being
quoted hereunder:-
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“102………………………………………
…………………………………………...
(1) Where the allegations made in the first
information report or the complaint, even
if they are taken at their face value and
accepted in their entirety do not prima
facie constitute any offence or make out a
case against the accused.
(2) Where the allegations in the first
information report and other materials, if
any, accompanying the FIR do not disclose
a cognizable offence, justifying an
investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.
…………………………………………………
………………………………………………..
(7) Where a criminal proceeding is
manifestly attended with mala fide and/or
where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.”
18. Taking into consideration both the factual
conspectus of the case as also the settled legal position as
discussed hereinabove, this Court is of the considered view that
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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.
(Soni Shrivastava, J)
Harsh/-
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