K P Aswanth Babu
Intern @ UbAdvocate
[email protected]
6238312604
Dear Ms. Urmila,
Thank you for approaching me for seeking legal opinion on your legal matter.
Having read the facts of the matter, I can understand the boy Heeralal promised
to marry you and engaged with you in sexual relations. Ultimately, Heeralal
cheated you and you didn’t disclose this fact to anyone keeping in mind your
family’s reputation in the society. Heeralal had threatened you with dire
consequences if you disclosed the above-mentioned facts to anyone.
Heeralal has ultimately cheated you with a false promise to marry and has raped
you. He has also threatened you in case of a spill of his heinous act to others.
the false promise of marriage for sex is considered a ‘misconception of fact’
within the meaning of Section 90 of IPC. This means that the consent obtained
on the false promise is not considered valid consent in the eyes of the law and is
charged under Section 375 of the IPC. In Deelip Singh v. State of Bihar in the
year 2004,1 the Supreme Court held that consent taken from the prosecutrix
would be vitiated if it was obtained on the pretext of a false promise of marriage
by the accused. The Supreme Court of India recently affirmed the law and held
that where the promise to marry is false and the intention of the accused at the
time of making the promise was not to abide by it but to deceive the victim to
obtain her consent for sexual intercourse, there is a misconception of fact within
the meaning of Section 90 that vitiates the woman’s consent.
My client Urmila should be willing to file an FIR under section 375 of IPC for
the charges of rape and Heeralal must also be punished according to the rules
put down under section 503 of IPC for criminal intimidation. The punishment
for rape is detailed under Section 376 of the IPC. With the introduction of the
Criminal Law (Amendment) Act of 2013, the minimum jail term for rape is
increased from seven to ten years for an ordinary citizen. Anurag Soni v. State
of Chhattisgarh,2 a case from 2019, involved the accused proposing to marry the
victim when he already had other intentions to marry a different girl. He
engaged in sexual activity with her on the falsified pretext of marriage. As the
1
Deelip Singh v. State of Bihar, (2005) 1 SCC 88.
2
Anurag Soni v. State of Chhattisgarh (2017) 15 SCC 321.
victim's consent was acquired under false pretences, it was deemed to be
invalid. In accordance with IPC Section 376, the accused was found guilty of
rape.
To your second enquiry, i.e., whether you have to go back to Samastipur to file
the FIR (the location where the rape took place) I would like to say that you
need not to. Unlike an FIR, which is restricted by jurisdiction, a zero FIR can be
filed in any police station, regardless of whether the offence was committed
under the jurisdiction of that particular police station. Whereas FIRs have serial
numbers assigned to them, zero FIRs are assigned the number ‘0’. Hence the name.
After a police station registers a zero FIR, it has to transfer the complaint to a
police station that has the jurisdiction to investigate the alleged offence. Once a
zero FIR is transferred, the police station with the appropriate jurisdiction assigns it
a serial number, thereby converting it into a regular FIR. The concept of a zero FIR
is relatively new and was introduced on the recommendation of the Justice Verma
Committee in the aftermath of the Nirbhaya gangrape case in 2012 to put a legal
obligation on police to take quick action and prevent them from using the excuse
of absence of jurisdiction.3
In Kirti Vashisht vs. State & Ors,4 it was stated that even if the information to be
registered as FIR where the incident took place which is out of the jurisdictional
area of the police station, the police is still obliged to take the information and
register it as zero FIR and thereafter, transfer to the particular police station.
In State of Haryana vs. Harnam Singh,5 Harnam Singh along with 3 men kidnaps a
girl in school uniform. Later, upon receiving the information, both were taken to
the police station situated at Parliament Street where zero FIR was registered and a
subsequent medical examination was done and taken to the Police Station at Tilak
Nagar where the duty officer was given a copy of FIR.
So, even though the alleged incident happened at Samastipur you can file a zero
FIR at Kanpur against Heeralal on the charges of rape under section 375 of IPC
and criminal intimidation under section 503 of IPC. My opinion is supported by
provision of section 90 of IPC which explains consent and section 375 of IPC
which defines rape and further by rulings of Court in cases like Deelip Singh v.
State of Bihar, Anurag Soni v. State of Chhattisgarh, Kirti Vashisht vs. State &
Ors, State of Haryana vs. Harnam Singh and Mukesh v. State for NCT of Delhi.
Further, my opinion is based on the Youtube video https://youtu.be/ZZ9GJpyQ_ac
of Jeevan Prakash, AOR, Supreme Court and I believe that this is a helpful
opinion, upon which you can act safely.
3
Mukesh v. State for NCT of Delhi, (2017) 6 SCC 1.
4
Kirti Vashisht vs. State & Ors, W.P.(CRL) 383/2017
5
State of Haryana v. Harnam Singh, (1989) 2 SCC 151
Sd/-
K P Aswanth Babu
Intern at ubAdvocate
