Patna High Court
Sehwag Kumar @ Sahwag KumarversusThe State of Bihar
- Decided
- Disposal
- DISPOSED
- Bench
- PURNENDU SINGH
Holding
The court held that the petitioner is not entitled to pre‑arrest bail and the application is disposed, directing mediation between the parties.
Summary
The petitioner, Sehwag Kumar, sought pre‑arrest bail in a case where he was alleged to have had a sexual relationship with the informant starting when she was about 15 years old, continuing for six years, and later marrying another woman after attaining the age of majority. The FIR charged him under Sections 126(2), 115(2), 351(2) and 69/3(5) of the BNS and Section 376(2) of the IPC, alleging that the relationship was obtained by a false promise of marriage. The petitioner argued that the consent was voluntary and that the conditions of Section 90 IPC were not satisfied, relying on Uday v. State of Karnataka. The court examined the facts, noted the continuous relationship, the subsequent marriage, and the claim of cruelty, and referred to Supreme Court precedents on false promise of marriage and repeated rape. Concluding that the matter required mediation rather than bail, the court directed the district court to explore settlement and disposed of the bail application.
Issues considered
- Whether the petitioner is entitled to pre‑arrest bail in view of the alleged sexual relationship and subsequent marriage.
- Whether the consent obtained from the informant was given under a false promise of marriage, invoking Section 90 of the IPC.
- Whether the facts constitute an offence under Section 376(2) of the IPC (rape).
- Whether mediation is an appropriate remedy in the present dispute.
Legislation cited
- BNS — s. 115(2), 126(2), 351(2), 69/3(5)
- Indian Penal Code — s. 376(2), 90
Subjects
- pre‑arrest bail
- consent
- false promise of marriage
- rape
- Section 376 IPC
- mediation
- minor relationship
- cruelty
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.723 of 2026
Arising Out of PS. Case No.-105 Year-2025 Thana- MAHILA P.S. District- Patna
======================================================
Sehwag Kumar @ Sahwag Kumar S/O Anil Kumar Paswan Resident of Ward
No. 05, Miyan Toli, Khushrupur, P.S.- Khushrupur, District- Patna
... ... Petitioner/s
Versus
1. The State of Bihar
2. Shyama Kumari D/o Ashok Paswan Resident of village Bhuski Ward no. 10
P.O.+P.S. Khusrupur, District Patna
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.Saket Tiwary, Advocate
For the Informant : Ms.Kumari Kalpana Mishra, Advocate
For the Opposite Party/s : Mr.Sanjay Kumar Tiwary, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE PURNENDU SINGH
ORAL ORDER
3 06-04-2026 Heard learned counsel appearing on behalf of the
petitioner, learned counsel for the informant and the learned
APP for the State.
2. Petitioner seeks pre-arrest bail in connection with
Mahila P.S.Case No.105 of 2025, registered for the offences
punishable under Sections 126(2), 115(2), 351(2) and 69/3(5)
of BNS.
3.As per the allegations made in the FIR, the
petitioner allegedly established physical relationship with the
victim (informant) while she was aged about 15 years and the
relationship continued allegedly for total period of six years,
thereafter, the petitioner deserted her and got married with
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another woman, after he became major, which calls for
prosecution against the petitioner.
4. Mr. Saket Tiwari, learned counsel appearing on
behalf of the petitioner has admitted that there was relationship
between the petitioner & the informant and the petitioner
established physical relationship with her but that had been done
as per the own choice of the informant (victim). As such, the
petitioner can not be said to have committed crime, which falls
under Section 376(2) of the IPC.
5. Learned counsel has relied on Paragraph 25 of the
judgment passed in the case of Uday v. State of Karnataka,
reported in (2003) 4 SCC 46, to content that for the application
of Section 90 of BNS, two conditions must be fulfilled- Firstly
that the consent was given under a misconception of fact and
Secondly that the accused knew or had reason to believe that
such consent was given in consequence of such misconception,
most respectfully submitted that in the present case both these
essential ingredients are conspicuously absent, inasmuch as, the
material on record does not establish that the prosecutrix had
consented to the alleged relationship solely on account of any
promise of marriage, rather the circumstances indicate that the
parties were in a relationship of mutual affection and deep love,
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where consent was a product of voluntary inclination and
emotional involvement, as also observed by the Hon’ble
Supreme Court that in such situations, the promise to marry
loses significance when parties, overcome by passion and
emotions, engage in a physical relationship, and further there is
no evidence whatsoever to show that the petitioner knew or had
reason to believe that the consent of the prosecutrix was based
on any misconception of fact arising out of such promise,
especially when multiple factors could have influenced her
decision, thereby making it impossible to impute the requisite
knowledge to the petitioner, and consequently the prosecution
has failed to satisfy the twin conditions mandated under Section
90 of the IPC, rendering the present prosecution unsustainable
in the eyes of law.
6. Learned counsel further submitted that the victim
(informant) had given the petitioner a sum of Rs.4 lac and she
had transacted the said amount into the bank account of the
petitioner as per her own choice. Considering the said
allegation, the learned counsel has submitted that the informant
has remedy before the learned district court to realize the said
amount by filing the Money Suit, if it is due with the petitioner.
On these grounds, the learned counsel seeks that the petitioner
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has made out a case to be released on pre-arrest bail.
7. Per contra, Ms. Kumari Kalpana Mishra, learned
counsel, who has tendered her appearance on behalf of the
informant has submitted that the petitioner has admitted that he
was in relationship with the informant since the time when both
of them were minor and after attaining the age of majority and
enjoying relationship for more than six years, the petitioner
subjected her to cruelty by deserting her whereas he had
promised her to marry, such relationship has now been accepted
and has legal force. Learned counsel further submitted that the
informant being innocent and on the pretext of marriage when
she was of tender age and had not attained the age of marriage
was trapped in the lust of the petitioner. The intention of the
petitioner from the very beginning was to seduce her with a lust
to establish physical relationship with the victim and he
continued to have relationship with her for six years even after
they attained majority and even forced the informant to transfer
Rs.4 lac in the bank account on the pretext of marriage. As
such, the petitioner does not deserve to be released on pre-arrest
bail.
8. Learned APP for the State has vehemently opposed
the prayer for grant of pre-arrest bail and he has submitted that
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in course of the investigation, sufficient materials has come
against the petitioner.
9. Heard the parties.
10. Having considered the rival submissions made on
behalf of the parties, as well as, having perused the allegations
made in the FIR and also perused the evidences, which have
come in course of the investigation, it is admitted that the
petitioner was in relationship with the informant when they
were minor and they were unaware of the result of such
relationship. The petitioner and the informant come from very
downtrodden class to the society and their parents were not
aware of such relationship. Though, it is admitted that while the
petitioner and the informant used to go to take tuition, the
petitioner influenced her though the informant was minor and
the petitioner had also not attained the age of majority. It has not
been denied by the parties that they were in continuous physical
relationship for more than six years and when the petitioner
attained the age of majority (21 years), he has got married
allegedly with another woman, however, no evidence has come
in course of the investigation in support of the said claim made
on behalf of the informant also in respect of certain money
transaction, which she claimed amounting to Rs.4 lac to the
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petitioner. However, in absence of denial of the relationship, the
case under Section 376(2) of the IPC is made out against the
petitioner. Petitioner’s counsel has relied on the law laid down
in the case of Uday (Supra). In the background of the above
facts and allegation made in the present case, I find that in very
similar circumstances, the Apex Court in the case of Pramod
Kumar Navratna Vs. The State of Chhattisgah & Ors. reported
in 2026 LiveLaw (SC) 118, in which the Apex Court concluded
in Paragraph Nos .14, 15 and 16 as follows : -
“14. We have given our thorough consideration to
the arguments advanced at the Bar and the material
on record.
15. In the instant case the allegations in the FIR are
under Section 376(2)(n) of the IPC. An offence of
rape, if established in terms of Section 375 of the
IPC, is punishable under Section 376 of the IPC. In
the present case, the second description of Section
376 is relevant which is set out below:
“376. Punishment for rape. — (1).
Whoever, except in the cases provided
for in sub-section (2), commits rape,
shall be punished with rigorous
imprisonment of either description for a
term which [shall not be less than ten
years, but which may extend to
imprisonment for life, and shall also be
liable to fine].
2. Whoever, -
xxx
(h) commits rape repeatedly on the same
woman, shall be punished with rigorous
imprisonment for a term which shall not
be less than ten years, but which may
extend to imprisonment for life, which
shall mean imprisonment for the
remainder of that person's natural life,
and shall also be liable to fine.
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Explanation.—For the purposes of this
sub-section,—
(a) “armed forces” means the naval,
military and air forces and includes any
member of the Armed Forces constituted
under any law for the time being in
force, including the paramilitary forces
and any auxiliary forces that are under
the control of the Central Government
or the State Government;
(b) “hospital” means the precincts of the
hospital and includes the precincts of
any institution for the reception and
treatment of persons during
convalescence or of persons requiring
medical attention or rehabilitation;
(c) “police officer” shall have the same
meaning as assigned to the expression
“police” under the Police Act, 1861 (5
of 1861);
(d) “women's or children's institution”
means an institution, whether called an
orphanage or a home for neglected
women or children or a widow's home or
an institution called by any other name,
which is established and maintained for
the reception and care of women or
children.”
16. Section 376(2)(n) of the IPC provides for
enhanced punishment in cases where rape is
committed repeatedly on the same woman. It
mandates rigorous imprisonment for a term of not
less than ten years which may extend to life
imprisonment for the remainder of the person's
natural life. The object of this provision is to
address aggravated instances of sexual assault
where the offence is not a single incident but has
occurred repeatedly on the same victim. The
expression “repeatedly” employed in the provision
is of significance. It contemplates more than one act
of sexual assault, committed at different points in
time on the same victim. Courts have consistently
interpreted this phrase to mean a series of acts that
are separate in nature and not a continuation of a
single transaction. In genuine cases under Section
376(2)(n) of the IPC, the pattern is usually
unmistakable; it is an initial act of sexual assault,
followed by multiple acts under fear, pressure,
captivity, or continued deceit, often when the woman
is rendered vulnerable and unable to escape the
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situation.”
11. The Apex Court in the case of Pramod Kumar
Navratna (supra) relying on its earlier judgment passed in the
case of Naim Ahamed Vs. State (NCT of Delhi) reported in
2023 (15) SCC 385 has finally concluded in Paragraph no.21
as under:
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 375IPC. 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 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. In the present case also, the facts are almost
identical in the facts and circumstances of the case and
evidences which have come in course of investigation, the
petitioner has not denied the relationship and the money
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transaction of Rs.4 lac, which was given to him by the
informant. Subsequently, the petitioner has got married after
attaining the age of marriage of 21 years recently with another
woman, which goes to prove that the petitioner has subjected
the informant to cruelty.
13. The entire gamut of the case goes to prove that the
two had relationship of their choice but the petitioner after
attaining the age of majority got married with another women
and he has subjected the informant to cruelty. I find that the
petitioner has just attained the age of 21 years of age and the
informant is of the same age and now they understand each
other, a chance can be provided to them to settle their dispute
amicably.
14. This Court finds that three individuals have been
put to face a situation in which all are psychologically and
emotionally attached to each other but the triangular relationship
is the stigma on the society.
15. However, considering the age of the petitioner,
who is now 21 years old and has just enjoyed as an adult,
relying upon the judgment of the Madras High Court passed in
the case of Vijay Lakshmi & Anr. Vs. State rep. Inspector of
Police & Anr. reported in 2021 SCC OnLine Mad. 317, the
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learned district court is directed to pass fresh order after
exploring the opportunity of mediation between the parties first
by resorting to mediation giving opportunity to the parents of
three individuals, who can now understand the consequences
of their own action best to decide their interest and future.
16. Learned Mediator of the District Mediation Center
concerned, upon appearance of the parties, shall make his/her
best efforts to settle the dispute amicably between the parties.
17. In case the parties fail to reconcile, then in that
case, parties may avail appropriate remedy in accordance with
law.
18. With aforesaid direction and observation, the
present application stands disposed of.
(Purnendu Singh, J)
chn/-
U T .
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