Created by Fuzzy Cloud

Patna High Court

MD. SAIF ALI ANSARIversusThe State of Bihar

Decided
Disposal
ALLOWED

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

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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            2/15




         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            3/15




         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            4/15




         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            5/15




                         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            6/15




         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            7/15




         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            8/15




                            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.
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                            9/15




         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                           10/15




         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:-
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                           11/15




                                  “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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                           12/15




         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
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                           13/15




         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:-
Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                           14/15




                         “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
             Patna High Court CR. MISC. No. 3303 of 2022 dt.12-01-2026
                                                        15/15




                      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/-
AFR/NAFR                AFR
CAV DATE                N.A.
Uploading Date
Transmission Date


Continue reading with your account

Sign in to read the full judgment. It’s free.

Sign in to read

Checking your session…

For a signed copy suitable for filing, refer to the court's website.