Full Text
HIGH COURT OF DELHI
JUDGMENT
GAUTAM SHARMA .....Petitioner
Through: Mr. Samrat Nigam, Mr. Ajay Dabas, Ms. Priyanka Dagar, Ms. Arpita Rawat, Advocates.
Through: Mr. Naresh Kumar Chahar, APP for the State with Ms. Puja Mann, Advocate and with
SI Nehal along with Main IO Inspector Jagrup Singh.
1. The petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 [hereafter „Cr.P.C.‟], praying for quashing of the FIR bearing no. 655/2020, registered on 15.10.2020, at Police Station Vasant Kunj South, Delhi for the commission of offence punishable under Section 376/506 of the Indian Penal Code, 1860 [hereafter „IPC‟] and all consequential proceedings emanating therefrom.
FACTUAL BACKDROP
2. Brief facts of the case, as borne out from the complaint filed by the prosecutrix (respondent no. 2) are that, she was employed as a cabin crew member with SpiceJet Airlines between 2017 and October 2018, and subsequently with Vistara Airlines in Delhi till December
2019. She had first met the petitioner-accused, Gautam Sharma, a pilot, in March 2018 on a SpiceJet flight, following which he had contacted her through WhatsApp after obtaining her number from the company directory. As alleged, the accused had gradually gained her confidence, while concealing his marital status. In May 2018, the accused had arranged her stay at Radisson Blu Plaza Hotel, Mahipalpur, where on the night of 20.05.2018, he had allegedly spiked her drink and committed forcible sexual intercourse with her without her consent. On the following morning, upon being confronted, the accused had assured her of marriage and disclosed for the first time that he was married to one Ms. „M‟ but was allegedly separated. He had thereafter persuaded the prosecutrix not to report the incident, promising that he would soon obtain a divorce and marry her. Believing these assurances, the prosecutrix had continued the relationship. In June 2018, the accused had stayed with her for three days at her rented apartment in Kolkata and had allegedly engaged in sexual intercourse against her will. In July 2018, he had again subjected her to sexual acts at Fairfield by Marriott, Bengaluru. On her birthday in August 2018, the prosecutrix had stayed with him at his Gurugram residence, where he again forced himself upon her. On 25.08.2018, the prosecutrix had discovered that she was pregnant. Despite her insistence on marriage, the accused had prevailed upon her to undergo an abortion, which was carried out at Petals Clinic, Pune, under the supervision of Dr. Madhu Juneja. He had allegedly stayed with her from 28.08.2018 to 31.08.2018 at Hotel Hyatt, Pune, during which the termination of pregnancy had taken place. In October 2018, the prosecutrix had shifted to Delhi to work with Vistara Airlines. Between October 2018 and 2019, she had resided first in a PG accommodation in Gurugram, and thereafter in an apartment at Dwarka. During this period, the accused had continued to meet her and had allegedly maintained sexual relations with her on repeated assurances of marriage. In April 2019, she had again conceived and, despite her protests, had been compelled to undergo a second abortion at Max Hospital, Gurugram, under the supervision of Dr. Suman Lal, after staying for five days at the accused‟s residence. From September to October 2019, the prosecutrix had accompanied the accused to Goa, Coorg, Ooty, and later to her hometown Trivandrum. In November 2019, when she had pressed him about divorce, he had disclosed for the first time that he had earlier been divorced from his first wife, and was presently married to his second wife, i.e. Ms. „M‟. According to the prosecutrix, this disclosure had left her shocked, since his marital status had never been revealed to her prior to their physical relationship. However, to reinforce her trust, he had introduced her to his mother at Ambience Mall, Gurugram, in November 2019. On New Year‟s Eve of 2019, the prosecutrix had accompanied the accused to a party at Unplugged Courtyard, Gurugram, where, under the influence of drugs and alcohol, he and his friends had misbehaved with her. When she had resisted, the accused had allegedly threatened to leak her private photographs and videos, which he had secretly recorded. Thereafter, in March 2020, he had compelled her to move into his residence at Gurugram, where she had allegedly suffered physical, sexual, and psychological abuse, particularly during the COVID-19 lockdown period. On 15.06.2020, the prosecutrix had discovered that she was pregnant for the third time. Despite her unwillingness, she had been forced to undergo another abortion on 19.06.2020 at Dr. Anmol‟s Clinic, Gurugram, under the supervision of Dr. Latha. Subsequently, in August 2020, the accused had allegedly taken away her belongings, including her passport, mobile phone, and other documents, and had ended the relationship while threatening to release her private photographs and videos. According to the prosecutrix, she had been subjected to repeated sexual intercourse under false promises of marriage, despite the accused being married, and had been forced to undergo three abortions in August 2018, April 2019, and June 2020. She had further alleged threats, intimidation, physical and psychological abuse, and blackmail at the hands of the accused, leading her to lodge the present complaint on 19.09.2020, pursuant to which the present FIR was registered.
3. During investigation, the prosecutrix was counselled by the CIC Counsellor and medically examined at Safdarjung Hospital vide MLC No. 251036120, wherein she alleged that on 20.05.2018, the petitioner had intoxicated her at Radisson Blu Hotel, committed rape upon her, and thereafter compelled her to undergo three abortions. Her statement under Section 164 of the Cr.P.C. was recorded at Patiala House Courts, and the site plan of the place of incident was prepared at her instance. A notice under Section 91 of the Cr.P.C. was served upon the Security Manager of Hotel Radisson Blu to furnish room booking details in the name of the petitioner and prosecutrix.
4. On 14.12.2020, the petitioner was granted anticipatory bail by the learned Sessions Court and he joined the investigation. Two iPhones, an iPad and a MacBook belonging to the petitioner were seized. Further, notices under Section 91 of the Cr.P.C. were issued to Max Hospital, Gurugram and Dr. S. Lata Clinic to obtain records regarding abortions of the prosecutrix. The replies revealed that the prosecutrix had undergone abortions on 06.05.2019 and 20.06.2020. In the consent form for medical termination of pregnancy at Dr. S. Lata Clinic, the petitioner‟s signatures were found. Employment details of both the prosecutrix and petitioner were also collected from SpiceJet.
5. The seized electronic devices were sent to FSL, Rohini. Upon completion of investigation, chargesheet was filed on 08.02.2021 and committed to the learned Sessions Court on 30.03.2021. The FSL report qua the electronic devices was filed by way of second supplementary chargesheet. The case is pending at the stage of arguments on charge before the learned Sessions Court.
SUBMISSIONS BEFORE THE COURT
6. The learned counsel appearing on behalf of the petitioner contends that the allegations levelled by the prosecutrix are false, frivolous, and motivated by a vindictive intent to harass the petitioner. It is argued that the narrative of physical relations on the false promise of marriage stands completely contradicted by the WhatsApp conversations exchanged between the parties (Annexure P-4), which have been duly admitted by the prosecutrix in the bail order. It is argued that the case of petitioner rests on two principal aspects: first, the WhatsApp chats exchanged immediately before and after the alleged incident of 20.05.2018, which clearly reflect a consensual relationship and voluntary participation of the prosecutrix; and second, the material contradictions between her FIR and her statement under Section 164 Cr.P.C., exposing her mala fide intent to falsely implicate the petitioner. It is urged that these documents furnish prima facie irrefutable evidence of a consensual association between two adults, untainted by coercion, inducement, or false pretext.
7. It is further argued that the photographs annexed as Annexure P-5 establish that the prosecutrix had herself shared intimate pictures with the petitioner even prior to their personal meeting on 20.05.2018, thereby falsifying her allegations. On the contrary, the petitioner is stated to have supported the prosecutrix in pursuing her career as a pilot and even sponsored her training course, as evident from the sponsorship letter forwarded by her with her visa application. Such circumstances, according to counsel, demonstrate that the petitioner acted as a supportive partner, negating any suggestion of exploitation. The learned counsel also points to the unexplained delay of more than two years and four months in lodging the FIR, which gravely affects the prosecution‟s case. It is further contended that the chargesheet is devoid of any material to show that the prosecutrix was ever administered any psychotropic substance by the petitioner.
8. It is next argued that the relationship between the parties was consensual from inception, without any promise of marriage, divorce, or concealment of marital status. The prosecutrix, being aware of the petitioner‟s marital status at the outset, nevertheless continued the relationship for more than two years, thereby providing her unconditional consent. Her allegations are thus stated to be a fabrication, made only after the breakup in May 2020. The learned counsel emphasizes that the prosecutrix underwent abortions of her own volition in the course of this consensual relationship, without any element of coercion. Moreover, there is no material to show that she ever proposed marriage to the petitioner or that any such proposal was refused. Thus, it is prayed that the FIR in question be quashed.
9. The learned APP for the State, opposing the present petition, contends that the FIR in question discloses serious allegations of rape, repeated exploitation under the false promise of marriage, and coercion by the petitioner. It is submitted that the investigation has been duly completed and a detailed chargesheet has already been filed before the learned Sessions Court, where the matter is now pending consideration of charge. At this stage, the truthfulness or otherwise of the prosecutrix‟s version, or the defence sought to be raised by the petitioner on the basis of WhatsApp chats and photographs, cannot be adjudicated in a petition seeking quashing of the FIR, as such issues pertain to trial. It is further argued that the material collected during investigation, including the MLC, the statement of the prosecutrix under Section 164 of the Cr.P.C., and the documentary record of abortions, sufficiently disclose commission of cognizable offences. The learned APP therefore prays for dismissal of the present petition, as no case for quashing of the FIR is made out.
10. It is noted that no one appeared on behalf of the prosecutrix on the last three dates of hearing and, accordingly, the matter was reserved after hearing arguments on behalf of the petitioner and the learned APP for the State. The prosecutrix, however, had filed her reply to the present petition, wherein it was submitted that she was first raped by the petitioner after being administered a stupefying substance, and thereafter the physical relationship continued on the false assurances of marriage extended by the petitioner as well as under the threat of misuse of her intimate photographs and videos recorded by him. It is submitted that from the very inception, there was no voluntary consent of the prosecutrix, who was compelled to undergo three abortions as a result of the petitioner‟s acts. It is further urged that since the chargesheet has already been filed before the competent court, there exists no ground to seek quashing of the FIR.
ANALYSIS & FINDINGS
11. The case of the prosecutrix, as reflected in the FIR and her statement under Section 164 of the Cr.P.C., is that on 20.05.2018, while the parties were having drinks together at Radisson Blu Hotel, Mahipalpur, the petitioner allegedly administered some stupefying substance to her and committed rape upon her. It is further alleged that thereafter, he continued to establish physical relations with her on the false pretext of marriage and also by allegedly misusing her intimate photographs and videos. The prosecutrix has further alleged that she was compelled to undergo multiple abortions during the subsistence of this relationship.
12. The main contention of the learned counsel appearing for the petitioner is that the relationship between the parties was entirely consensual, which is evident from a perusal of the material on record, including the conversations exchanged between them, reflecting that the prosecutrix willingly continued her association with the petitioner.
13. This submission has been opposed by the prosecutrix, who submits that the very first incident of sexual assault dated 20.05.2018 was against her wishes, as the petitioner had administered a stupefying substance to her. It is contended that the subsequent relationship continued only because the petitioner, after apologizing to her for the said incident, assured her that he would marry her. In essence, the prosecutrix‟s case, as projected in her reply, is that she was a victim of circumstances, and her continued relationship with the petitioner was not out of free and informed consent but under the influence of intimidation and on the false pretext of marriage.
14. To appreciate the aforesaid rival contentions, this Court notes that the material on record reveals that the first incident of physical relations between the parties took place on 20.05.2018 at the aforesaid hotel in Delhi, as alleged by the prosecutrix. It has further come on record that immediately after this incident, the prosecutrix became aware that the petitioner was a married man and, therefore, could not have solemnised marriage with her. Despite this knowledge, the prosecutrix continued her relationship with the petitioner for more than two years thereafter, during which period the parties maintained regular physical and intimate relations.
15. In her complaint, the prosecutrix herself has enumerated several specific instances when she had sexual intercourse with the petitioner, namely, on 20.05.2018 at Radisson Blu Plaza Hotel, Mahipalpur; in June 2018 for three days at her rented apartment in Kolkata; in July 2018 at Fairfield by Marriott, Bengaluru; in August 2018 at the Gurugram residence of the petitioner on the occasion of her birthday; between 28.08.2018–31.08.2018 at Hotel Hyatt, Pune; in October 2018 onwards after shifting to Delhi at different accommodations, including a PG in Gurugram and later a flat in Dwarka; in April 2019 at the petitioner‟s residence in Gurugram; and thereafter, from March 2020 onwards at the petitioner‟s Gurugram residence during the COVID-19 lockdown, until the relationship finally ended in August 2020. She has further stated that she went on trips with the petitioner during September–October 2019 to Goa, Coorg, Ooty, and Trivandrum.
16. The prosecutrix has alleged that she conceived on multiple occasions and underwent medical terminations of pregnancy. The record confirms two such procedures, namely, on 06.05.2019 at Max Hospital, Gurugram, and on 20.06.2020 at Dr. S. Lata Clinic, Gurugram, where the consent forms bear the petitioner‟s signatures.
17. However, it is also evident from the complaint itself that the prosecutrix was aware of the petitioner‟s marital status from the very beginning, i.e., immediately after the first alleged incident of sexual assault in May 2018, when he disclosed that he was married. She further reiterates in her complaint that in November 2019, she was made aware in greater detail that the petitioner had divorced his first wife and was married for the second time. Notwithstanding this knowledge, she continued to voluntarily maintain physical relations with the petitioner until August 2020, when the relationship finally broke down, leading to the registration of the present FIR in September 2020.
18. This Court‟s attention has also been invited to the chats exchanged between the petitioner and the prosecutrix, which prima facie indicate that the relationship between them was consensual. The messages exchanged after the first alleged incident of 20.05.2018 show both parties discussing and expressing that they had enjoyed the said act. Even the conversations preceding the incident reflect mutual intimacy and suggest that their relationship was voluntary and consensual from the very outset.
19. In the above context, this Court considers it appropriate to briefly examine what constitutes „consent‟ in the context of a sexual relationship between two adults.
20. In Deepak Gulati v. State of Haryana: (2013) 7 SCC 675, the Hon‟ble Supreme Court held as under, on the aspect of distinction between rape and consensual sex and also between mere breach of promise, and not fulfilling a false promise. The relevant observations are as under:
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. An accused can be convicted for rape only if the court reaches a conclusion that the intention of the accused was mala fide, and that he had clandestine motives. * * *
24. Hence, it is evident that there must be adequate evidence to show that at the relevant time, i.e. at 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 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 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.”
21. In Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra: (2019) 18 SCC 191, the Hon„ble Supreme Court had observed as under:
22. In Shivashankar v. State of Karnataka and Anr: (2019) 18 SCC 204, the Hon‟ble Supreme Court quashed proceedings for offence under Section 376 of IPC in the following circumstances:
23. Most recently, the Hon‟ble Supreme Court in Pradeep Kumar Kesarwani v. The State of Uttar Pradesh & Anr: Crl. Appeal NO. 3831/2025 has observed as under: “13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are of the view that the Additional Chief Judicial Magistrate committed an error in passing the summoning order. The High Court too overlooked the relevant aspects of the matter while rejecting the Section 482 application. It is very apparent on a plain reading of the complaint, more particularly, considering the nature of the allegations that the same doesn‟t inspire any confidence. There is no good explanation offered, why it took four years for the respondent no.2 to file a complaint. ***
18. There is a clear distinction between rape and consensual sex and in a case where there is a promise of marriage, the Court must very carefully examine whether the accused had actually wanted to marry the victim, or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls in the ambit of cheating or deception.”
24. This Bench, in State v. Sudershan Kumar: 2023 SCC OnLine Del 1647, while discharging the accused of the offence under Section 376 of IPC on the ground that the relationship between the accused and the complainant was prima facie consensual in nature, made the following observations:
sexual relationship took place at the house of the accused in a Government provided accommodation in a busy locality of Delhi. ***
46. To conclude in cases as the present one, the critical issue of consent which is the dividing line between consensual sex or sexual assault had to be examined in light of the facts of the case. Thus, the story of the petitioner and the respondent„s relationship of 12 years and two children being born from this sexual union on some interval of time without any whisper of complaint to anyone points out implied and behavioural consent inferred from the long years of their sexual relationship and behavior which is based on assumption of continuous consent in light of the evidence available on record.
47. The pattern of repeatedly consenting to sex with accused for 12 years is noteworthy. The assumption is based on the complainant„s behaviour which is based on her own statement before the police. The behaviour of no attempt to ever report the matter and repeatedly going with him to his house answers the central legal issue of the case regarding the consent being voluntary. ***
53. In case of rape, sexual violence and effective enforcement of sexual assault laws, conceptualization of definition of sexual consent is of utmost importance so that the delicate balance between rape and consensual sexual sex is fairly arrived at in such complaints and cases. The issue of consent, thus, merits close scrutiny for analysis of sexual assault offences.
54. No doubt, in cases of rape depending on facts from case to case, consent cannot be said to be inferred or proved by passivity or silence alone from the complainant. However, continuous consent, as in the present, without any whisper of complaint assists the Court in consent analysis. The prosecutrix admittedly, as per her own admission used to herself go to the official accommodation of the accused at his asking continuously for 12 years. Therefore, the sexual element of the relationship and the assumption of ongoing consent to that sexual element are very material to have come to the conclusion regarding her conscious consent in the present case. In the present case, the petitioner was capable of consciously evaluating the outcome of her consent and the act she was indulging in making her a conscious consenting partner to the sexual relationship.”
25. This Court is of the opinion that law cannot be static; it has to move and progress with the changing norms of society. As society and communities evolve, the law too must advance. It cannot lag behind or apply an outdated intent to a society that has already moved forward. While cases relating to commercial or contractual disputes are necessarily decided on settled legal principles which remain relevant, cases involving human relationships stand slightly on a different footing. They must be seen in the light of the way human relations themselves have changed, and they cannot be approached with a rigid or outdated lens. Judges, too, are part of this changing society, and the justice system cannot remain detached from these realities.
26. The justice system, therefore, must also look at such cases through the same prism – not being judgmental, but recognising the responsibility that flows from adult choices. If two adults, even though one may be married, decide to live together or to have a sexual relationship, they must also take responsibility for the consequences of such a decision. Judges cannot impose their personal morality on the parties before them. At the same time, courts cannot ignore how educated adults themselves now look at relationships through a prism that was not acceptable in earlier times.
27. In this context, when an educated woman chooses to continue a relationship with a man despite knowing that he is married, she also takes upon herself the responsibility of that choice. She must recognise the possibility that the relationship may not culminate in marriage, or that it may eventually turn sour. The law cannot always be invoked as a remedy for a relationship that fails, where it was otherwise consensual in nature. When a woman voluntarily enters into such a relationship, she must also accept the repercussions that may arise from it.
28. Adverting to the facts of the present case, it becomes evident that the prosecutrix was fully aware, from the very inception, that the petitioner was a married man. Despite this knowledge, she chose to continue the relationship for more than two and a half years, accompanying him on trips, residing with him at different places, and even undergoing medical procedures such as abortions during this period. These are not isolated encounters but reflect that the prosecutrix was an active participant in the relationship. Once such choices are made by educated adults, the responsibility of those choices must also be acknowledged, and it is not open to one party, after the relationship turns sour, to retrospectively paint it as a crime of sexual assault.
29. To reitrate, in the present case, the allegation of sexual assault is levelled against a man with whom the prosecutrix lived for nearly two and a half years, with whom she admittedly underwent three abortions, and with whom she continued to reside even after alleged instances of public humiliation and sexually inappropriate behaviour. Most importantly, even after knowing from the very beginning that he was married, she chose to stay with him and maintain physical relations. Even as per her own account, despite repeated instances of alleged abusive conduct, she still remained in the relationship. However, as noted above, the conversations exchanged between them, including WhatsApp chats placed on record, clearly point towards a consensual relationship. It is an admitted case of the prosecutrix herself that these chats, including those pertaining to the time of first incident, nowhere reflect any assertion by the prosecutrix that she had been raped or subjected to intercourse against her will.
30. Therefore, this Court is of the considered opinion that the present case is a fit case for exercise of inherent powers of this Court under Section 482 of the Cr.P.C. for quashing of FIR in questions, as well as all the consequential proceedings emanating therefrom.
31. Accordingly, the present petition is allowed and the FIR bearing no. 655/2020, registered on 15.10.2020, at Police Station Vasant Kunj South, Delhi and all consequential proceedings emanating therefrom are quashed.
32. The petition is disposed of.
33. The judgment be uploaded on the website forthwith. DR.
SWARANA KANTA SHARMA, J SEPTEMBER 10, 2025 T.D.