The Bombay High Court refused to quash a rape case, emphasizing that even in a consensual relationship, consent can be withdrawn. Any sexual activity after such withdrawal would constitute rape.

The Bombay High Court in the case of Amol Bhagwan Nehul Vs State of Maharashtra dismissed a petition seeking to quash a rape case filed against the petitioner. The court observed that even if a relationship starts as consensual, it does not give a blanket consent to engage in sexual activity in perpetuity. The Court in paragraph 16 of the judgement observed that, The bench comprising Justice A.S. Gadkari and Justice Neela Gokhale refused to accept the petitioner's argument that the relationship was consensual, and therefore the First Information Report (FIR) and the criminal proceedings initiated against him should be quashed.

The Petitioner seeks to quash C.R. No. 490 of 2023 dated 31st July 2023, registered at Karad Taluka Police Station for offences under Sections 376, 376(2)(n), 377, 504, and 506 of the IPC. A charge sheet was filed on 26th September 2023 in R.C.C. No. 378 of 2023 before the Additional Sessions Judge at Karad. Respondent No. 2 (the Complainant) obtained a Khulanama from her husband and lives with her four-year-old son and her parents had passed away during the Corona Pandemic.

Since May 25, 2022, the Petitioner, who moved in next door to the Complainant with three friends, became acquainted with her. They began chatting on mobile phones, and their relationship grew intimate. The Petitioner professed his love, promised marriage, and demanded a sexual relationship, which the Complainant consistently refused.

The Complainant alleges that in July 2022, the Petitioner threatened to commit suicide if she refused to marry him and subsequently raped her despite her resistance. On September 21, 2022, during his birthday celebration at Rajyog Lounge, Karad, he raped her again. The F.I.R. also states that the Petitioner borrowed money from her without repayment.

In January 2023, he called her to Pushkar Lounge, Karad, where she demanded marriage and disclosure of their relationship to his family. The Petitioner promised to marry her after securing a job and raped her again despite her resistance.

The Complainant alleges that after the Petitioner coerced her into engaging in unnatural sexual acts, he distanced himself and began avoiding her. When she inquired about marriage with his parents and relatives, they verbally abused her, citing caste differences as a barrier to their union. Subsequently, the Petitioner and his relatives verbally abused and assaulted her, with threats of harm to her and her son Abraham. Frightened, she went to the police station and filed the FIR in question.

The Court responded to the defence taken in the Petition that, there was a consensual relationship between the parties is concerned, “it is trite that a relationship may be consensual at the beginning but the same state may not remain so for all time to come. Whenever one of the partners show their unwillingness to indulge in a sexual relationship, the character of the relationship as ‘consensual’ ceases to exist”.

The Court has stated that prima facie, F.I.R. constitutes the commission of an offence as per the law laid by the Apex Court the High Court cannot hold a mini-trial in its extra-ordinary writ jurisdiction. The Court has placed reliance on the case of Priyanka Jaiswal v. The State of Jharkhand and Others wherein, the court has held that Courts, in considering quashing criminal proceedings, cannot conduct a mini-trial or assess allegations based on potential defences, risking reversal if the proceedings are quashed erroneously.

Further reliance has been placed on the V. Ravikumar v. State, holding that when an accused seeks to quash an FIR using the High Court's inherent jurisdiction, the Court cannot delve into the factual merits of the allegations in the complaint.

The Court while making its observations has also relied on the dictum in Neeharika Infrastructure (P) Ltd. v. State of Maharashtra wherein, the Supreme Court, in a 3-Judge Bench, emphasized that the power under Section 482 of the Cr.P.C. to quash should be sparingly exercised, akin to the rarest of rare cases standard, distinct from death penalty norms. It reiterated that courts cannot inquire into the genuineness of allegations in an FIR/Complaint, but within lawful limits, may quash based on established parameters and judicial restraint.

The Bench has also referred to the position of law cemented by the Hon’ble Supreme Court in Priyanka Jaiswal v. The State of Jharkhand and Others has held that “This Court in catena of judgments has consistently held that at the time of examining the prayer for quashing of the criminal proceedings, the Court exercising extra-ordinary jurisdiction can neither undertake to conduct a mini-trial, nor enter into appreciation of evidence of a particular case. The correctness or otherwise of the allegations made in the complaint cannot be examined on the touchstone of probable defence that the accused may raise to stave off the prosecution and any such misadventure by the Courts resulting in proceedings being quashed would be set aside.”

Important observations:

Consent is Key: A relationship that begins with consent does not imply ongoing consent. If one partner expresses unwillingness to engage in sexual activity, the consensual nature of the relationship concerning that activity ceases.

False Promise vs. Breach of Promise: The court distinguished between a false promise of marriage to obtain consent for sex and a subsequent breach of that promise. The present case was not about a false promise, as the complainant alleged specific instances of forced intercourse despite her refusal.

High Court's Jurisdiction: The High Court, while exercising its extraordinary writ jurisdiction, cannot conduct a mini-trial or evaluate the evidence's reliability.

The court relied upon various Supreme Court precedents to emphasize that the High Court's role is not to determine the veracity of the allegations at this stage. Instead, if a prima facie case is made out, the matter should proceed to trial, where the evidence can be tested.

The judgment underscores the significance of consent in sexual relationships.

It reinforces the principle that consent must be ongoing and can be withdrawn at any time.

The judgment also highlights the court's approach to allegations of sexual assault, emphasizing that a mere claim of a consensual relationship does not automatically negate such allegations. It reinforces the importance of a full trial to assess evidence and determine the veracity of the claims.

CRIMINAL WRIT PETITION NO. 3181 OF 2023
CORAM: JUSTICE A.S. GADKARI AND HON'BLE JUSTICE DR. NEELA KEDAR GOKHALE
BETWEEN: AMOL BHAGWAN NEHUL Vs STATE OF MAHARASHTRA AND ANR
DOJ: 28.06.2024