PRAMOD SURYABHAN PAWARversusTHE STATE OF MAHARASHTRA & ANR.

                          [2019] 11 S.C.R. 423                            423


                 PRAMOD SURYABHAN PAWAR                                   A
                                  v.
            THE STATE OF MAHARASHTRA & ANR.
                 (Criminal Appeal No. 1165 of 2019)
                         AUGUST 21, 2019                                  B
        [DR. DHANANJAYA Y. CHANDRACHUD AND
                    INDIRA BANERJEE, JJ.]
      Code of Criminal Procedure, 1973: s.482 – Inherent powers
of court – Scope of exercise – Held: Under s.482, the inherent            C
jurisdiction of the court can be exercised (i) to give effect to an
order under the CrPC; (ii) to prevent the abuse of the process of the
court; and (iii) to otherwise secure the ends of justice – The court
should be guarded in the use of its extraordinary jurisdiction to
quash an FIR or criminal proceeding as it denies the prosecution
                                                                          D
the opportunity to establish its case through investigation and
evidence – In deciding whether to exercise its jurisdiction under
s.482, the Court does not adjudicate upon the veracity of the facts
alleged or enter into an appreciation of competing evidence
presented – The limited question is whether on the face of the FIR,
the allegations constitute a cognizable offence.                          E
        Code of Criminal Procedure, 1973: s.482 – Petition for
quashing FIR filed under ss.376, 417, 504, and 506(2) IPC against
the appellant that he engaged in sexual relations with the complainant
against her will on the false promise of marrying her – Plea of
complainant that her “consent” premised on a “misconception of            F
fact” (the promise to marry) stood vitiated – High Court rejected
the plea and dismissed the petition – Held: The “misconception of
fact” alleged by the complainant is the appellant’s promise to marry
her – There is a distinction between a false promise given on the
understanding by the maker that it will be broken, and the breach
of a promise which is made in good faith but subsequently not             G
fulfilled – Where the promise to marry is false and the intention of
the maker at the time of making the promise itself was not to abide
by it but to deceive the woman to convince her to engage in sexual
relations, there is a “misconception of fact” that vitiates the woman’s
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                                 423
424            SUPREME COURT REPORTS                       [2019] 11 S.C.R.


A     “consent” – The “consent” of a woman under s.375 is vitiated on
      the ground of a “misconception of fact” where such misconception
      was the basis for her choosing to engage in the said act – In the
      instant case, the allegations in the FIR did not on their face indicate
      that the promise by the appellant was false, or that the complainant
      engaged in sexual relations on the basis of this promise – There
B
      was no allegation in the FIR that when the appellant promised to
      marry the complainant, it was done in bad faith or with the intention
      to deceive her – The appellant’s failure in 2016 to fulfil his promise
      made in 2008 cannot be construed to mean the promise itself was
      false – The allegations in the FIR indicated that the complainant
C     was aware that there existed obstacles to marrying the appellant
      since 2008, and that she and the appellant continued to engage in
      sexual relations long after their getting married had become a
      disputed matter – Even thereafter, the complainant travelled to visit
      and reside with the appellant at his postings and allowed him to
      spend his weekends at her residence – Therefore, offence under
D
      s.375 IPC against the appellant was not made out – FIR is quashed
      – Penal Code, 1860 – ss.375, 376, 417, 504, and 506(2).
             Code of Criminal Procedure, 1973: s.482 – Petition for
      quashing FIR filed under ss.3(1) (u), (w) and 3(2) (vii) of the SC/ST
      Act against the appellant that he sent her certain Whatsapp messages
E     which were insulting and attacked her on the grounds of her caste
      – High Court dismissed the petition – On appeal, held: The
      WhatsApp messages were alleged to have been sent by the appellant
      to the complainant on 27 and 28 August 2015 and 22 October 2015
      – At that time, ss.3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as it
F     stood today had not been enacted into the statute – These provisions
      were inserted by the (Prevention of Atrocities) Amendment Act 2015
      which came into force on 26 January 2016 – None of the offences
      as stood then were made out – The messages were not in public
      view, no assault occurred, nor was the appellant in such a position
      so as to dominate the will of the complainant. Therefore, even if the
G     allegations set out by the complainant with respect to the WhatsApp
      messages and words uttered were accepted on their face, no offence
      was made out under SC/ST Act (as it then stood) – FIR is quashed –
      Scheduled Castes and Scheduled Tribes (Prevention of Atrocities

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      PRAMOD SURYABHAN PAWAR v. THE STATE OF                           425
                 MAHARASHTRA

Act, 1989 (as amended by the Amendment Act, 2018) – ss.3(1) (u),       A
(w) and 3(2) (vii).
      Penal Code, 1860: s.375 – Consent – The consent with respect
to s.375 involves an active understanding of the circumstances,
actions and consequences of the proposed act – An individual who
makes a reasoned choice to act after evaluating various alternative    B
actions (or inaction) as well as the various possible consequences
flowing from such action or inaction, consents to such action –
Where a woman does not “consent” to the sexual acts described in
the main body of s.375, the offence of rape has occurred – While
s.90 does not define the term “consent”, a “consent” based on a
“misconception of fact” is not consent in the eyes of the law.         C

      Allowing the appeal, the Court
      HELD : 1.1 The powers of the court under Section 482 are
wide and the court is vested with a significant amount of discretion
to decide whether or not to exercise them. The court should be         D
guarded in the use of its extraordinary jurisdiction to quash an
FIR or criminal proceeding as it denies the prosecution the
opportunity to establish its case through investigation and
evidence. In deciding whether to exercise its jurisdiction under
Section 482, the Court does not adjudicate upon the veracity of
the facts alleged or enter into an appreciation of competing           E
evidence presented. The limited question is whether on the face
of the FIR, the allegations constitute a cognizable offence.
[Paras 7, 8] [432-G-H; 433-A; 434-C-D]
      Inder Mohan Goswami v. State of Uttaranchal (2007)
      12 SCC 1 : [2007] 10 SCR 847 ; State of Haryana v.               F
      Bhajan Lal 1992 Supp (1) SCC 335 : [1990] 3 Suppl.
      SCR 259 ; Dhruvaram Murlidhar Sonar v. State of
      Maharashtra 2018 SCC OnLine SC 3100 ; Kaini Rajan
      v. State of Kerala (2013) 9 SCC 113 : [2013]
      10 SCR 196 – relied on.                                          G
      2. The instant proceedings concerned an FIR registered
against the appellant under Sections 376, 417, 504, and 506(2) of
the IPC and Sections 3(1) (u), (w) and 3(2) (vii) of SC/ST Act.

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426            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A     Section 376 of the IPC prescribes the punishment for the offence
      of rape which is set out in Section 375. Section 375 prescribes
      seven descriptions of how the offence of rape may be committed.
      Where a woman does not “consent” to the sexual acts described
      in the main body of Section 375, the offence of rape has occurred.
      While Section 90 does not define the term “consent”, a “consent”
B
      based on a “misconception of fact” is not consent in the eyes of
      the law. The consent with respect to Section 375 of the IPC
      involves an active understanding of the circumstances, actions
      and consequences of the proposed act. An individual who makes
      a reasoned choice to act after evaluating various alternative
C     actions (or inaction) as well as the various possible consequences
      flowing from such action or inaction, consents to such action. This
      understanding of consent has also been set out in Explanation 2
      of Section 375. In the instant case, the “misconception of fact”
      alleged by the complainant is the appellant’s promise to marry
      her. There is a distinction between a false promise given on the
D
      understanding by the maker that it will be broken, and the breach
      of a promise which is made in good faith but subsequently not
      fulfilled. Where the promise to marry is false and the intention of
      the maker at the time of making the promise itself was not to
      abide by it but to deceive the woman to convince her to engage
E     in sexual relations, there is a “misconception of fact” that vitiates
      the woman’s “consent”. On the other hand, a breach of a promise
      cannot be said to be a false promise. To establish a false promise,
      the maker of the promise should have had no intention of
      upholding his word at the time of giving it. The “consent” of a
      woman under Section 375 is vitiated on the ground of a
F
      “misconception of fact” where such misconception was the
      basis for her choosing to engage in the said act. [Paras 9, 10,
      12-14, 16] [434-F-G; 435-E, G; 436-D; 437-A-B; 438-E, F]
            3.1 The false promise itself must be of immediate relevance,
      or bear a direct nexus to the woman’s decision to engage in the
G     sexual act. The allegations in the FIR indicate that in November
      2009, the complainant initially refused to engage in sexual
      relations with the accused, but on the promise of marriage, he
      established sexual relations. However, the FIR includes a

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      PRAMOD SURYABHAN PAWAR v. THE STATE OF                           427
                 MAHARASHTRA

reference to several other allegations such as, the complainant        A
and the appellant knew each other since 1998 and were intimate
since 2004; the complainant and the appellant met regularly,
travelled great distances to meet each other, resided in each
other’s houses on multiple occasions, engaged in sexual
intercourse regularly over a course of five years and on multiple
                                                                       B
occasions visited the hospital jointly to check whether the
complainant was pregnant; and the appellant expressed his
reservations about marrying the complainant on 31 January 2014.
This led to arguments between them. Despite this, the appellant
and the complainant continued to engage in sexual intercourse
until March 2015. [Paras 18, 19] [441-A-E]                             C
       3.2 The allegations in the FIR did not on their face indicate
that the promise by the appellant was false, or that the complainant
engaged in sexual relations on the basis of this promise. There
is no allegation in the FIR that when the appellant promised to
marry the complainant, it was done in bad faith or with the            D
intention to deceive her. The appellant’s failure in 2016 to fulfil
his promise made in 2008 cannot be construed to mean the
promise itself was false. The allegations in the FIR indicate that
the complainant was aware that there existed obstacles to
marrying the appellant since 2008, and that she and the appellant
continued to engage in sexual relations long after their getting       E
married had become a disputed matter. Even thereafter, the
complainant travelled to visit and reside with the appellant at his
postings and allowed him to spend his weekends at her residence.
The allegations in the FIR belie the case that she was deceived
by the appellant’s promise of marriage. Therefore, even if the         F
facts set out in the complainant’s statements are accepted in
totality, no offence under Section 375 of the IPC has occurred.
[Para 20] [441-F-H; 442-A]
      4. With respect to the offences under the SC/ST Act, the
WhatsApp messages were alleged to have been sent by the                G
appellant to the complainant on 27 and 28 August 2015 and 22
October 2015. At that time, Sections 3(1) (u), (w) and 3(2) (vii) of
the SC/ST Act as it stands today had not been enacted into the
statute. These provisions were inserted by the (Prevention of

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428            SUPREME COURT REPORTS                     [2019] 11 S.C.R.


A     Atrocities) Amendment Act 2015 which came into force on 26
      January 2016. None of the offences as stood then are made out.
      The messages were not in public view, no assault occurred, nor
      was the appellant in such a position so as to dominate the will of
      the complainant. Therefore, even if the allegations set out by
      the complainant with respect to the WhatsApp messages and
B
      words uttered are accepted on their face, no offence is made out
      under SC/ST Act (as it then stood). The allegations on the face
      of the FIR do not hence establish the commission of the offences
      alleged. [Paras 21, 22] [442-B, C, F-G; 443-A]
            Anurag Soni v. State of Chhattisgarh (2019) SCC
C           OnLine SC 509 ; Deepak Gulati v. State of Haryana
            (2013) 7 SCC 675 : [2013] 6 SCR 544 ; Yedla Srinivasa
            Rao v. State of Andhra Pradesh (2006) 11 SCC
            615 : [2006] 6 Suppl. SCR 760 ; Uday v. State
            of Karnataka (2003) 4 SCC 46 : [2003] 2 SCR 231
D           – relied on.
                            Case Law Reference
      [2007] 10 SCR 847              relied on               Para 7
      [1990] 3 Suppl. SCR 259        relied on               Para 8
E     [2013] 10 SCR 196              relied on               Para 12
      [2013] 6 SCR 544               relied on               Para 14
      [2006] 6 Suppl. SCR 760        relied on               Para 15
      [2003] 2 SCR 231               relied on               Para 17
F           CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 1165 of 2019.
            From the Judgment and Order dated 07.02.2019 of the High Court
      of Judicature at Bombay in Criminal Application No. 813 of 2016.

G           Sushil Karanjkar, K. N. Rai Advs. for the Appellant.
            Nishant Ramakantrao Katneshwarkar, Anoop Kandari, Nilesh
      Tribhavan, Anand Dilip Landge, Ms. Nidhi Chhada, Advs. for the
      Respondents.

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       PRAMOD SURYABHAN PAWAR v. THE STATE OF                                429
                  MAHARASHTRA

      The Judgment of the Court was delivered by                             A
      DR. DHANANJAYA Y CHANDRACHUD, J.
      1. Leave granted.
       2. By its judgement dated 7 February 2019, the High Court of
Judicature at Bombay dismissed an application under Section 482 of the       B
Code of Criminal Procedure 19731. The appellant sought the quashing
of a First Information Report2 registered against him on 17 May 2016
with the Panvel City Police Station for offences punishable under Sections
376, 417, 504 and 506(2) of the Indian Penal Code3 and Sections 3(1)
(u), (w) and 3(2) (vii) of The Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities Act, 1989 (as amended by the Amendment             C
Act, 2015)4. The second respondent is the complainant.
      3. The allegations in the FIR are summarised thus:
      (i) According to the complainant, she and the appellant have known
      each other since 1998. She would speak to the appellant on the         D
      phone and met him regularly as early as 2004. In 2008 the appellant
      proposed marriage and assured her that their belonging to different
      castes would not be a hindrance. The appellant allegedly promised
      to marry the complainant after the marriage of his elder sister.
      On 23 January 2009 the appellant allegedly re-iterated his promise
      to marry her at the Patnadevi Temple in Chalisgaon;                    E
      (ii) The complainant completed her B.Sc. in Agriculture in 2002
      and worked as a Junior Research Assistant. In 2007 she was
      selected as a Naib Tahsildar at Chalisgaon. In March 2009 she
      was appointed to the post of Assistant Sales Tax Commissioner
      at Mazgaon. The appellant would, it is alleged, come to meet her       F
      and lived with her in November 2009. During his visit, the
      complainant alleges that she refused to engage in sexual intercourse
      with the appellant, but “on the promise of marriage he forcibly
      established corporeal relationships”;
      (iii) The complainant alleges that throughout 2010, the appellant      G
      visited her on multiple occasions and they engaged in sexual

1
  “CrPC”
2
  “FIR”
3
  “IPC”
4
  “SC/ST Act”                                                                H
430      SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A     intercourse. When the appellant was posted in Gadchiroli, the
      complainant visited the appellant multiple times over the course
      of 2011. Each of these visits lasted four to five days during which
      the complainant resided with the appellant and they engaged in
      sexual intercourse. During these visits the complainant enquired
      about marriage and the appellant responded in the affirmative. In
B
      December 2011 the appellant visited her and resided in her house
      for four days;
      (iv) The appellant’s elder sister was married on 5 February 2012.
      On 23 December 2012 the appellant visited her and forced her to
      engage in sexual intercourse. Afterwards, for the first time the
C     appellant raised concerns about marrying her on the ground that
      their belonging to different castes would hinder the appellant’s
      younger sister’s marriage. In January 2013 the complainant visited
      the appellant in Nagpur, and the appellant also subsequently visited
      her. On both occasions they engaged in sexual intercourse;
D     (v) During these years she missed her menstrual periods on several
      occasions. In 2013-14 the complainant and appellant jointly visited
      the hospital multiple times to check whether she was pregnant.
      In June 2013 the appellant was posted in Navi Mumbai and used
      to spend his weekends residing at the complainant’s house. They
E     regularly engaged in sexual intercourse during this period.
      Beginning in January 2014 the appellant raised concerns about
      marrying the complainant on the ground of her caste. This led to
      heated arguments. However, the appellant used to regularly visit
      her house at Panvel until March 2015, each time engaging in sexual
      intercourse with her;
F
      (vi) On 27 and 28 August 2015 and 22 October of 2015 the
      appellant sent the complainant certain WhatsApp messages. The
      complainant alleges that these messages were insulting and
      attacked her on the grounds of her caste. The messages stated:

G     “You are bad for society. If shoe is kept on head, then head would
      get dirty. Reservation did not add any intelligence; You have got
      Govt. service with ease”.
      (vii) In November 2015 for the first time the complainant
      threatened to file a police complaint against the appellant. The
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   PRAMOD SURYABHAN PAWAR v. THE STATE OF                                   431
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

      appellant promised to marry her after the marriage of his brother.    A
      At this time also they engaged in sexual intercourse; and
      (viii) On 9 March 2016 the appellant engaged in sexual intercourse
      with the complainant against her will. Subsequently, the
      complainant was apprised of the fact that the appellant was
      engaged to another woman. The appellant informed the                  B
      complainant that the woman he was engaged to was demanding
      Rs. two lakhs to break of the engagement. On 28 March 2016
      the appellant re-iterated his promise to marry the complainant
      and arranged for her to speak to the woman he had been engaged
      to, to assure the complainant that the appellant was no longer in a
      relationship with her. Subsequently the complainant became            C
      aware that the appellant had married on 1 May 2016. On 17 May
      2016 she filed the FIR.
       4. The appellant applied for anticipatory bail. By an order dated
13 June 2016 he was granted ad-interim anticipatory bail. The order
dated 13 June 2016 was confirmed by the High Court of Bombay on 1           D
July 2016.
       5. In Criminal Application No. 813 of 2016, the appellant moved
the High Court under Section 482 of the CrPC to quash the FIR dated
17 May 2016. By its order dated 7 February 2019 the High Court rejected
the application, noting:                                                    E

      “3. Though the relationship was with consent, it appears that there
      was a promise to marry and statement shows that later on, giving
      reason of caste of Complainant, promise was not kept.
      4. In view of this prima facie situation, we are not inclined to      F
      intervene in extra ordinary jurisdiction. We make it clear that our
      observations are only for the purposes of refusing to entertain the
      grievance in extra ordinary jurisdiction and we have not recorded
      any finding either way on contentions.”
       6. Mr Sushil Karanjkar, learned counsel for the appellant contends
                                                                            G
that in refusing to quash the FIR the High Court failed to distinguish
between rape and consensual sex. It is submitted that the allegations on
the face of the FIR indicate that the physical relationship between the
appellant and the complainant existed for over a period of six years with

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432             SUPREME COURT REPORTS                          [2019] 11 S.C.R.


A     her consent as evidenced by multiple periods of co-habitation, visits,
      and lack of resistance or complaint by the complainant. Against this, Mr
      Katneshwarkar, learned counsel appearing for the respondent-State as
      well as Mr Nilesh Tribhavan, learned counsel for the complainant relied
      upon certain decisions of this Court. In her counter affidavit, the
      complainant has submitted:
B
            “i. It is submitted that the Petitioner has resorted forming a
            relationship with me only in order to fulfil his lust.
            ii.It is submitted that the Petitioner promised to marry me and
            then manipulated me emotionally and mentally to have physical
C           relations with him, even when he was well aware that such actions
            of his have caused me immense physical and mental suffrage.
            iii. It is submitted that the Petitioner promised me matrimony only
            so that he could maintain a physical relation and would not have
            to face the hassle of having to find multiple women and establish
D           physical relations with each one of them as his job was of a
            transferable nature and meeting multiple women to fulfil his luscious
            behaviour was not possible.
            iv. It is submitted that the Petitioner from the start had ill and
            misconstrued notions about people belonging from SC/ST caste
E           which he pretended to be absent of throughout the relationship
            and lied about but was unable to hold back when he was
            pressurized and put in a corner.”
             Learned counsel referred to the submissions which have been set
      out in the counter affidavit, during the course of the hearing.
F            7. Section 482 is an overriding section which saves the inherent
      powers of the court to advance the cause of justice. Under Section 482
      the inherent jurisdiction of the court can be exercised (i) to give effect to
      an order under the CrPC; (ii) to prevent the abuse of the process of the
      court; and (iii) to otherwise secure the ends of justice. The powers of
      the court under Section 482 are wide and the court is vested with a
G
      significant amount of discretion to decide whether or not to exercise
      them. The court should be guarded in the use of its extraordinary
      jurisdiction to quash an FIR or criminal proceeding as it denies the
      prosecution the opportunity to establish its case through investigation

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   PRAMOD SURYABHAN PAWAR v. THE STATE OF                                        433
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

and evidence. These principles have been consistently followed and re-           A
iterated by this Court. In Inder Mohan Goswami v State of
Uttaranchal5, this Court observed.
         “23. This Court in a number of cases has laid down the scope and
         ambit of courts’ powers under Section 482 CrPC. Every High
         Court has inherent powers to act ex debito justitiae to do real         B
         and substantial justice, for the administration of which alone it
         exists, or to prevent abuse of the process of the court. Inherent
         power under Section 482 CrPC can be exercised:
             (i) to give effect to an order under the Code;
             (ii) to prevent abuse of the process of the court, and              C

             (iii) to otherwise secure the ends of justice.
         24. Inherent powers under Section 482 CrPC though wide have
         to be exercised sparingly, carefully and with great caution and
         only when exercise is justified by the tests specifically laid down     D
         in this section itself. Authority of the court exists for the
         advancement of justice. If any abuse of the process leading to
         injustice is brought to the notice of the court, then the court would
         be justified in preventing injustice by invoking inherent powers in
         absence of specific provisions in the statute.”
                                                                                 E
       8. Given the varied nature of cases that come before the High
Courts, any strict test as to when the court’s extraordinary powers can
be exercised is likely to tie the court’s hands in the face of future
injustices. This Court in State of Haryana v Bhajan Lal6 conducted a
detailed study of the situations where the court may exercise its
extraordinary jurisdiction and laid down a list of illustrative examples of      F
where quashing may be appropriate. It is not necessary to discuss all
the examples, but a few bear relevance to the present case. The court in
Bhajan Lal noted that quashing may be appropriate where,
         “102. (1) Where the allegations made in the first information
         report or the complaint, even if they are taken at their face value     G
         and accepted in their entirety do not prima facie constitute any
         offence or make out a case against the accused.

5
    (2007) 12 SCC 1
6
     1992 Supp (1) SCC 335                                                       H
434                SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A              (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).
B              …
               (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.”
C            In deciding whether to exercise its jurisdiction under Section 482,
      the Court does not adjudicate upon the veracity of the facts alleged or
      enter into an appreciation of competing evidence presented. The limited
      question is whether on the face of the FIR, the allegations constitute a
      cognizable offence. As this Court noted in Dhruvaram Murlidhar
D     Sonar v State of Maharashtra,7 (“Dhruvaram Sonar”) :
               “13. It is clear that for quashing proceedings, meticulous analysis
               of factum of taking cognizance of an offence by the Magistrate is
               not called for. Appreciation of evidence is also not permissible in
               exercise of inherent powers. If the allegations set out in the
E              complaint do not constitute the offence of which cognizance has
               been taken, it is open to the High Court to quash the same in
               exercise of its inherent powers.”
             9. The present proceedings concern an FIR registered against
      the appellant under Sections 376, 417, 504, and 506(2) of the IPC and
F     Sections 3(1) (u), (w) and 3(2) (vii) of SC/ST Act. Section 376 of the
      IPC prescribes the punishment for the offence of rape which is set out
      in Section 375. Section 375 prescribes seven descriptions of how the
      offence of rape may be committed. For the present purposes only the
      second such description, along with Section 90 of the IPC is relevant
      and is set out below.
G
               “375. Rape – A man is said to commit “rape” if he –
               …


      7
          2018 SCC OnLine SC 3100
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   PRAMOD SURYABHAN PAWAR v. THE STATE OF                                     435
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

      under the circumstances falling under any of the following seven        A
      descriptions-
      Firstly …
      Secondly. – Without her consent.
      …                                                                       B
      Explanation 2. – Consent means an unequivocal voluntary
      agreement when the woman by words, gestures or any form of
      verbal or non-verbal communication, communicates willingness
      to participate in the specific sexual act:
      Provided that a woman who does not physically resist to the act         C
      of penetration shall not by the reason only of that fact, be regarded
      as consenting to the sexual activity.”
      “90. Consent known to be given under fear or misconception
      - A consent is not such a consent as is intended by any section of
      this Code, if the consent is given by a person under fear of injury,    D
      or under a misconception of fact, and if the person doing the act
      knows, or has reason to believe, that the consent was given in
      consequence of such fear or misconception; or…”
       10. Where a woman does not “consent” to the sexual acts
described in the main body of Section 375, the offence of rape has            E
occurred. While Section 90 does not define the term “consent”, a
“consent” based on a “misconception of fact” is not consent in the eyes
of the law.
      11. The primary contention advanced by the complainant is that
the appellant engaged in sexual relations with her on the false promise       F
of marrying her, and therefore her “consent”, being premised on a
“misconception of fact” (the promise to marry), stands vitiated.
       12. This Court has repeatedly held that consent with respect to
Section 375 of the IPC involves an active understanding of the
circumstances, actions and consequences of the proposed act. An               G
individual who makes a reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the various possible
consequences flowing from such action or inaction, consents to such
action. In Dhruvaram Sonar which was a case involving the invoking
of the jurisdiction under Section 482, this Court observed:
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436                SUPREME COURT REPORTS                       [2019] 11 S.C.R.


A              “15. … An inference as to consent can be drawn if only based on
               evidence or probabilities of the case. “Consent” is also stated to
               be an act of reason coupled with deliberation. It denotes an active
               will in mind of a person to permit the doing of the act complained
               of.”
B           This understanding was also emphasised in the decision of this
      Court in Kaini Rajan v State of Kerala8:
               “12. … “Consent”, for the purpose of Section 375, requires
               voluntary participation not only after the exercise of intelligence
               based on the knowledge of the significance of the moral quality of
C              the act but after having fully exercised the choice between
               resistance and asset. Whether there was consent or not, is to be
               ascertained only on a careful study of all relevant circumstances.”
            13. This understanding of consent has also been set out in
      Explanation 2 of Section 375 (reproduced above). Section 3(1) (w) of
D     the SC/ST Act also incorporates this concept of consent:
               “3(1) (w) -
               (i) intentionally touches a woman belonging to a Scheduled Caste
               or a Scheduled Tribe, knowing that she belongs to a Scheduled
               Caste or a Scheduled Tribe, when such act of touching is of a
E              sexual nature and is without the recipient’s consent;
               …
               Explanation.––For the purposes of sub-clause (i), the expression
               “consent” means an unequivocal voluntary agreement when the
               person by words, gestures, or any form of non-verbal
F
               communication, communicates willingness to participate in the
               specific act:
               Provided that a woman belonging to a Scheduled Caste or a
               Scheduled Tribe who does not offer physical resistance to any
               act of a sexual nature is not by reason only of that fact, is to be
G              regarded as consenting to the sexual activity:
               Provided further that a woman’s sexual history, including with the
               offender shall not imply consent or mitigate the offence;”

      8
          (2013) 9 SCC 113
H
   PRAMOD SURYABHAN PAWAR v. THE STATE OF                                   437
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

       14. In the present case, the “misconception of fact” alleged by      A
the complainant is the appellant’s promise to marry her. Specifically in
the context of a promise to marry, this Court has observed that there is
a distinction between a false promise given on the understanding by the
maker that it will be broken, and the breach of a promise which is made
in good faith but subsequently not fulfilled. In Anurag Soni v State of
                                                                            B
Chhattisgarh9, this Court held:
      “37. The sum and substance of the aforesaid decisions would be
      that if it is established and proved that from the inception the
      accused who gave the promise to the prosecutrix to marry, did
      not have any intention to marry and the prosecutrix gave the
      consent for sexual intercourse on such an assurance by the accused    C
      that he would marry her, such a consent can be said to be a consent
      obtained on a misconception of fact as per Section 90 of the IPC
      and, in such a case, such a consent would not excuse the offender
      and such an offender can be said to have committed the rape as
      defined under Sections 375 of the IPC and can be convicted for        D
      the offence under Section 376 of the IPC.”
      Similar observations were made by this Court in Deepak Gulati
v State of Haryana10 (“Deepak Gulati”):
      “21. … There is a distinction between the mere breach of a
      promise, and not fulfilling a false promise. Thus, the court must     E
      examine whether there was made, at an early stage a false promise
      of marriage by the accused…”
      15. In Yedla Srinivasa Rao v State of Andhra Pradesh11 the
accused forcibly established sexual relations with the complainant. When
she asked the accused why he had spoiled her life, he promised to marry     F
her. On this premise, the accused repeatedly had sexual intercourse
with the complainant. When the complainant became pregnant, the
accused refused to marry her. When the matter was brought to the
panchayat, the accused admitted to having had sexual intercourse with
the complainant but subsequently absconded. Given this factual              G
background, the court observed:


9
  (2019) SCC OnLine SC 509
10
   (2013) 7 SCC 675
11
   (2006) 11 SCC 615                                                        H
438            SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A           “10. It appears that the intention of the accused as per the
            testimony of PW 1 was, right from the beginning, not honest and
            he kept on promising that he will marry her, till she became
            pregnant. This kind of consent obtained by the accused cannot be
            said to be any consent because she was under a misconception of
            fact that the accused intends to marry her, therefore, she had
B
            submitted to sexual intercourse with him. This fact is also admitted
            by the accused that he had committed sexual intercourse which is
            apparent from the testimony of PWs 1, 2 and 3 and before the
            panchayat of elders of the village. It is more than clear that the
            accused made a false promise that he would marry her. Therefore,
C           the intention of the accused right from the beginning was not bona
            fide and the poor girl submitted to the lust of the accused,
            completely being misled by the accused who held out the promise
            for marriage. This kind of consent taken by the accused with
            clear intention not to fulfil the promise and persuading the girl to
            believe that he is going to marry her and obtained her consent for
D
            the sexual intercourse under total misconception, cannot be treated
            to be a consent….”
             16. Where the promise to marry is false and the intention of the
      maker at the time of making the promise itself was not to abide by it but
      to deceive the woman to convince her to engage in sexual relations,
E     there is a “misconception of fact” that vitiates the woman’s “consent”.
      On the other hand, a breach of a promise cannot be said to be a false
      promise. To establish a false promise, the maker of the promise should
      have had no intention of upholding his word at the time of giving it. The
      “consent” of a woman under Section 375 is vitiated on the ground of a
F     “misconception of fact” where such misconception was the basis for
      her choosing to engage in the said act. In Deepak Gulati this Court
      observed:
            “21. … There is a distinction between the mere breach of a
            promise, and not fulfilling a false promise. Thus, the court must
G           examine whether there was made, at an early stage a false promise
            of marriage by the accused; and whether the consent involved
            was given after wholly understanding the nature and
            consequences of sexual indulgence. There may be a case
            where the prosecutrix agrees to have sexual intercourse
            on account of her love and passion for the accused, and not
H
   PRAMOD SURYABHAN PAWAR v. THE STATE OF                                            439
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

          solely on account of misrepresentation made to her by the                  A
          accused, or where an accused on account of circumstances which
          he could not have foreseen, or which were beyond his control,
          was unable to marry her, despite having every intention to do so.
          Such cases must be treated differently.
          …                                                                          B
          24. Hence, it is evident that there must be adequate evidence to
          show that at the relevant time i.e. at the initial stage itself, the
          accused had no intention whatsoever, of keeping his promise to
          marry the victim. There may, of course, be circumstances, when
          a person having the best of intentions is unable to marry the victim       C
          owing to various unavoidable circumstances. The “failure to keep
          a promise made with respect to a future uncertain date, due to
          reasons that are not very clear from the evidence available, does
          not always amount to misconception of fact. In order to come
          within the meaning of the term “misconception of fact”,
          the fact must have an immediate relevance”. Section 90 IPC                 D
          cannot be called into aid in such a situation, to pardon the act of a
          girl in entirety, and fasten criminal liability on the other, unless the
          court is assured of the fact that from the very beginning, the accused
          had never really intended to marry her.”
                                                           (Emphasis supplied)       E

      17. In Uday v State of Karnataka12 the complainant was a college
going student when the accused promised to marry her. In the
complainant’s statement, she admitted that she was aware that there
would be significant opposition from both the complainant’s and accused’s
families to the proposed marriage. She engaged in sexual intercourse                 F
with the accused but nonetheless kept the relationship secret from her
family. The court observed that in these circumstances the accused’s
promise to marry the complainant was not of immediate relevance to
the complainant’s decision to engage in sexual intercourse with the
accused, which was motivated by other factors:                                       G
          “25. There is yet another difficulty which faces the prosecution in
          this case. In a case of this nature two conditions must be fulfilled
          for the application of Section 90 IPC. Firstly, it must be shown
12
     (2003) 4 SCC 46
                                                                                     H
440            SUPREME COURT REPORTS                         [2019] 11 S.C.R.


A           that the consent was given under a misconception of fact.
            Secondly, it must be proved that the person who obtained
            the consent knew, or had reason to believe that the consent
            was given in consequence of such misconception. We have
            serious doubts that the promise to marry induced the
            prosecutrix to consent to having sexual intercourse with
B
            the appellant. She knew, as we have observed earlier, that her
            marriage with the appellant was difficult on account of caste
            considerations. The proposal was bound to meet with stiff
            opposition from members of both families. There was therefore a
            distinct possibility, of which she was clearly conscious, that the
C           marriage may not take place at all despite the promise of the
            appellant. The question still remains whether even if it were
            so, the appellant knew, or had reason to believe, that the
            prosecutrix had consented to having sexual intercourse with
            him only as a consequence of her belief, based on his
            promise, that they will get married in due course. There is
D
            hardly any evidence to prove this fact. On the contrary, the
            circumstances of the case tend to support the conclusion that the
            appellant had reason to believe that the consent given by the
            prosecutrix was the result of their deep love for each other. It is
            not disputed that they were deeply in love. They met often, and
E           it does appear that the prosecutrix permitted him liberties
            which, if at all, are permitted only to a person with whom
            one is in deep love. It is also not without significance that the
            prosecutrix stealthily went out with the appellant to a lonely place
            at 12 o’clock in the night. It usually happens in such cases, when
            two young persons are madly in love, that they promise to each
F
            other several times that come what may, they will get married…”
                                                          (Emphasis supplied)
             18. To summarise the legal position that emerges from the above
      cases, the “consent” of a woman with respect to Section 375 must
G     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,


H
   PRAMOD SURYABHAN PAWAR v. THE STATE OF                                     441
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

given in bad faith and with no intention of being adhered to at the time it   A
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.
       19. The allegations in the FIR indicate that in November 2009 the
complainant initially refused to engage in sexual relations with the
accused, but on the promise of marriage, he established sexual relations.     B
However, the FIR includes a reference to several other allegations that
are relevant for the present purpose. They are as follows:
      (i)     The complainant and the appellant knew each other since
              1998 and were intimate since 2004;
      (ii)    The complainant and the appellant met regularly, travelled      C
              great distances to meet each other, resided in each other’s
              houses on multiple occasions, engaged in sexual intercourse
              regularly over a course of five years and on multiple
              occasions visited the hospital jointly to check whether the
              complainant was pregnant; and                                   D
      (iii)   The appellant expressed his reservations about marrying the
              complainant on 31 January 2014. This led to arguments
              between them. Despite this, the appellant and the
              complainant continued to engage in sexual intercourse until
              March 2015.                                                     E
     The appellant is a Deputy Commandant in the CRPF while the
complainant is an Assistant Commissioner of Sales Tax.
       20. The allegations in the FIR do not on their face indicate that
the promise by the appellant was false, or that the complainant engaged
in sexual relations on the basis of this promise. There is no allegation in   F
the FIR that when the appellant promised to marry the complainant, it
was done in bad faith or with the intention to deceive her. The appellant’s
failure in 2016 to fulfil his promise made in 2008 cannot be construed to
mean the promise itself was false. The allegations in the FIR indicate
that the complainant was aware that there existed obstacles to marrying
                                                                              G
the appellant since 2008, and that she and the appellant continued to
engage in sexual relations long after their getting married had become a
disputed matter. Even thereafter, the complainant travelled to visit and
reside with the appellant at his postings and allowed him to spend his

                                                                              H
442                SUPREME COURT REPORTS                       [2019] 11 S.C.R.


A     weekends at her residence. The allegations in the FIR belie the case
      that she was deceived by the appellant’s promise of marriage. Therefore,
      even if the facts set out in the complainant’s statements are accepted in
      totality, no offence under Section 375 of the IPC has occurred.
             21. With respect to the offences under the SC/ST Act, the
B     WhatsApp messages were alleged to have been sent by the appellant to
      the complainant on 27 and 28 August 2015 and 22 October 2015. At this
      time, Sections 3(1) (u), (w) and 3(2) (vii) of the SC/ST Act as it stands
      today had not been enacted into the statute. These provisions were
      inserted by the (Prevention of Atrocities) Amendment Act 2015 13 which
      came into force on 26 January 2016. Prior to the Amending Act, the
C     relevant provisions of the statute (as it stood then) were as follows:
               “3. (1) Whoever, not being a member of a Scheduled Caste or a
               Scheduled Tribe. –
               …
D              (x) intentionally insults or intimidates with intent to humiliate a
               member of a Schedule Caste or a Scheduled Tribe in any place
               within public view;
               (xi) assaults or uses force to any woman belonging to a Schedule
               Caste or a Scheduled Tribe with intent to dishonour or outrage
E              her modesty;
               (xii) being in a position to dominate the will of a woman belonging
               to a Scheduled Caste or a Scheduled Tribe and uses that position
               to exploit her sexually to which she would not have otherwise
               agreed; …”
F
             22. Without entering into a detailed analysis of the content of the
      WhatsApp messages sent by the appellant and the words alleged to
      have been spoken, it is apparent that none of the offences set out above
      are made out. The messages were not in public view, no assault occurred,
      nor was the appellant in such a position so as to dominate the will of the
G     complainant. Therefore, even if the allegations set out by the complainant
      with respect to the WhatsApp messages and words uttered are accepted
      on their face, no offence is made out under SC/ST Act (as it then stood).


      13
           “Amending Act”
H
   PRAMOD SURYABHAN PAWAR v. THE STATE OF                                  443
MAHARASHTRA [DR. DHANANJAYA Y CHANDRACHUD, J.]

The allegations on the face of the FIR do not hence establish the          A
commission of the offences alleged.
      23. For the above reasons, we allow the appeal and set aside the
impugned judgement and order of the High Court dated 7 February 2019.
The FIR dated 17 May 2016 is quashed.
                                                                           B
Devika Gujral                                            Appeal allowed.




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