Full Judgment Text
{1} CRI.WP 1734 Of 2019
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1734 OF 2019
. Shyamsundar s/o Haribhau Wagh
Age: 50 years, Occu.: Advocate,
R/o. Samrat Ashok Nagar
Laxmi Colony, Chhawani, Lane No.2,
Aurangabad, Tq. & Dist.Aurangabad. ..Petitioner
VERSUS
1. The State of Maharashtra,
Through Police Inspector/Investigation Ofcer,
Khultabad Police Station, Khultabad,
Tq. & Dist.Aurangabad.
2. Sau. Anita w.o. Raju Kharat
Age: 28 years, Occu.: Household,
At present Graves Company Road,
Ambedkar Nagar, Lane No.15,
CIDCO N-7, Aurangabad.
Tq. & Dist.Aurangabad. ..Respondents
...
Advocate for Petitioner : Shri M.B. Sandanshiv
APP for Respondent No.1-State : Shri.S.D.Ghayal
Advocate for Respondent No.2 : Smt.Satyabhama R. Awad
...
CORAM : T.V.NALAWADE &
M.G.SEWLIKAR, JJ.
nd
DATE: 2 December, 2020
JUDGMENT:- (Per: M.G.Sewlikar, J.)
1. By this petition under Articles 226 and 227 of the
Constitution of India and under Section 482 of the Code of
Criminal Procedure, the petitioner has sought quashing of the
First Information Report (FIR) No.570 of 2019 registered with
Cidco Police Station, Aurangabad, under charge-sheet after
investigation.
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{2} CRI.WP 1734 Of 2019
2. The petitioner is an Advocate practicing at Aurangabad.
The informant (respondent No.2 herein) lodged FIR on 25-09-
2019, alleging therein that she had engaged the petitioner as her
Advocate for instituting a suit for declaration of civil death of her
husband, who left the house on 27-07-2011 and did not return
since then. She has also fled a civil suit against her parents-in-
law at Buldana and has also fled application under the Protection
of Women from Domestic Violence Act, 2005. The entire
litigation is looked after by the petitioner. In the month of
February 2017, the petitioner started texting ‘good morning’ and
‘good night’ messages to the respondent No.2. On the Valentine
Day, he proposed her by making video call. The respondent no.2
- informant did not respond to his advances. The petitioner is a
married man and the respondent No.2 is also a married woman
having one son. The petitioner won her trust representing that
he is not happy with his wife and that he was deeply in love with
her and would marry her. In the month of March, 2017, the
petitioner called respondent No.2 - informant under pretext that
the case was listed in the District Court on that day. The
petitioner drove her to Mhaismal in his Car bearing registration
No.MH-20 DV-0094 and hired a room in Sagar Hotel. He
established physical relations with her. He had sexual intercourse
with respondent No.2 in Panchwad Pride, Nashik. He also had
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{3} CRI.WP 1734 Of 2019
sexual intercourse with respondent No.2 while coming back from
Mumbai to Aurangabad after attending the case there. When
respondent No.2 insisted on the petitioner to marry her, the
petitioner resiled from his promise. Thus, respondent No.2 has
alleged that the petitioner obtained her consent on false promise
of marriage. On these allegations, an FIR was lodged on
25-09-2019, on the basis of which Crime No.570 of 2019 came
to be registered at Cidco Police Station, Aurangabad, for the
offence punishable under Sections 323, 376(2)(n), 504 and 506
of the Indian Penal Code.
3. Heard Shri M.B.Sandanshiv, learned counsel for the
petitioner and Shri S.D.Ghayal, learned APP for the respondent
No.1-State.
4. Shri Sandanshiv, learned counsel for the petitioner argued
that the petitioner could not have married respondent No.2 as
both the petitioner and respondent No.2 are married. In terms of
Section 5 of the Hindu Marriage Act, no person can marry during
the life time of his spouse. The spouses of both the petitioner
and respondent No.2 are alive. He argued that the physical
relations between respondent No.2 and the petitioner were
consensual. Respondent No.2 was aware of the marital status of
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{4} CRI.WP 1734 Of 2019
the petitioner. Therefore, it cannot be said that the consent
given by the respondent No.2 was vitiated. He placed reliance
on the following case laws:-
1) Deepak Gulati Vs. State of Haryana [(2013) 7 Supreme
Court Cases 675].
2) Uday Vs. State of Karnataka [(2003) 4 Supreme Court
Cases 46].
3) Pramod Suryabhan Pawar Vs. State of Maharashtra
and Another [2019 SCC OnLine SC 1073.
5. In the case of Deepak Gulati (supra), the Hon’ble Supreme
Court observed thus:
“There is a distinction between the mere breach of a
promise, and not fulflling a false promise. Thus, the court
must 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 solely on account of misrepresentation
made to her by the 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. An accused can be convicted for rape
only if the court reaches to a conclusion that the intention of
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{5} CRI.WP 1734 Of 2019
the accused was malafde, and that he had clandestine
motives.”
6. In the case of Pramod Suryabhan Pawar (supra), after
considering the case of Uday and Deepak Gulati (supra), the
Hon’ble Supreme Court summarized the legal position, which
reads thus:
“22. To summarise the legal position that emerges
from the above cases, the “consent” of a woman with
respect to Section 375 must 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, given in bad faith and with no intention of
being adhered to at the time it 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.”
7. It is pertinent to note that the respondent No.2 – informant
has fled a suit for declaration of civil death of her husband. She
has also fled applications under the Protection of Women from
Domestic Violence Act, 2005, against her parents-in-law and has
also fled some litigation at Buldana. The respondent No.2 –
informant has engaged the petitioner as her Advocate for
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{6} CRI.WP 1734 Of 2019
conducting this litigation. Thus, there is a relationship of lawyer
and a client between the petitioner and respondent No.2, which
is fduciary relationship i.e. relationship of active trust and
confdence. It is not in dispute that respondent No.2 was aware
of the marital status of the petitioner.
8. In the case of Himalayan Cooperative Group Housing
Society Vs. Balwan Singh [AIR 2015 SC 2867] it has been held
that ‘one of the most basic principles of the lawyer-client relationships
is that lawyers owe fduciary duties to their clients’. In paragraph
Nos.24 and 25 of this Judgment, the Hon’ble Supreme Court has
observed about the duties and responsibilities of an Advocate, which
read thus:
“24. The Bar Council of India Rules, 1975 (for short, “the
BCI Rules”), in Part VI, Chapter II provide for the ‘Standards of
Professional Conduct and Etiquette’ to be observed by all the
advocates under the Advocates Act, 1972 (for short, “the Act,
1972”). In the preamble to Chapter II, the BCI Rules provide as
follows:
An advocate shall, at all times, comport himself in a
manner beftting his status as an ofcer of the Court, a
privileged member of the community and a gentleman,
bearing in mind that what may be lawful and moral for a
person who is not a member of the Bar, or for a member of
the Bar in his non-professional capacity may still be
improper for an advocate. Without prejudice to the
generality of the foregoing obligation, an advocate shall
fearlessly uphold the interests of his client and in his
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{7} CRI.WP 1734 Of 2019
conduct conform to the rules hereinafter mentioned both
in letter and in spirit. The rules hereinafter mentioned
contain canons of conduct and etiquette adopted as
general guides; yet the specifc mention thereof shall not
be construed as a denial of the existence of others equally
imperative though not specifcally mentioned (Emphasis
supplied)
25. The Preamble makes it imperative that an advocate has to
conduct himself and his duties in an extremely responsible
manner. They must bear in mind that what may be appropriate
and lawful for a person who is not a member of the Bar, or for a
member of the Bar in his non-professional capacity, may be
improper for an advocate in his professional capacity.”
9. Thus, the relationship between lawyer and the client is
fduciary relationship. On the backdrop of relationship between
the Advocate and his client being fduciary relationship, whether
consent for sexual intercourse is material. Section 376-C of the
Indian Penal Code deals with this contingency.
“ Section 376-C. Sexual intercourse by a person in
authority : Whoever, being -
(a) in a position of authority or in a fduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or
other place of custody established by or under any law for the
time being in force, or a women’s or children’s institution; or
(d) on the management of a hospital or being on the staff
of a hospital,
abuses such position or fduciary relationship to induce or seduce
any woman either in his custody or under his charge or present in
the premises to have sexual intercourse with him, such sexual
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{8} CRI.WP 1734 Of 2019
intercourse not amounting to the offence of rape, shall be
punished with rigorous imprisonment of either description for a
term which shall not be less than fve years, but which may
extend to ten years, and shall also be liable to fne.”
From this Section, it is evident that whoever being in a fduciary
relationship abuses such position and has sexual intercourse with
a woman with whom he has fduciary relationship, such an act
amounts to rape. In such cases consent of woman is immaterial.
10. Relationship of lawyer with his client is fduciary
relationship i.e. relationship of active trust and confdence. The
petitioner abused this position and had physical relations with his
client. An Advocate is in a position of superiority or dominance.
The hapless client like the one in the case at hand, whose
husband’s whereabouts are not known, can have reasonable
apprehension that her denial for physical relations with the
petitioner would adversely impact on her legal representations.
It is not expected of members of this noble profession to abuse
their position of active trust and confdence and indulge in such
immoral acts. The petitioner not only abused his position but
also misrepresented the respondent No.2 that he was not happy
with his wife. Having regard to this, the consent is immaterial
when a person who is having dominance over the other abuses
his position and establishes physical relations with the woman
over whom he has dominance.
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{9} CRI.WP 1734 Of 2019
11. In this view of the matter, there is prima-facie evidence to
show that the petitioner committed rape on his client i.e.
respondent No.2. The consent also gets vitiated as a female
client, whose condition has become precarious as her husband’s
whereabouts are not known, can have reasonable fear that there
would not be adequate representation from the side of the
Advocate, if she did not respond to his advances. From this
count also, the petitioner is not entitled to any relief. The case of
the prosecution, therefore, comes within the purview of Section
376(2)(k) and Section 376-C of the Indian Penal Code. The
petition is therefore, devoid of any substance. Hence, the
following order:
ORDER
I) The petition is dismissed.
II) The observations in this Judgment are made
for the disposal of this petition only. Trial Court
shall not get infuenced by these observations
and can come to an independent conclusion
during trial.
( M.G.SEWLIKAR ) ( T.V.NALAWADE )
JUDGE JUDGE
SPT
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.1734 OF 2019
. Shyamsundar s/o Haribhau Wagh
Age: 50 years, Occu.: Advocate,
R/o. Samrat Ashok Nagar
Laxmi Colony, Chhawani, Lane No.2,
Aurangabad, Tq. & Dist.Aurangabad. ..Petitioner
VERSUS
1. The State of Maharashtra,
Through Police Inspector/Investigation Ofcer,
Khultabad Police Station, Khultabad,
Tq. & Dist.Aurangabad.
2. Sau. Anita w.o. Raju Kharat
Age: 28 years, Occu.: Household,
At present Graves Company Road,
Ambedkar Nagar, Lane No.15,
CIDCO N-7, Aurangabad.
Tq. & Dist.Aurangabad. ..Respondents
...
Advocate for Petitioner : Shri M.B. Sandanshiv
APP for Respondent No.1-State : Shri.S.D.Ghayal
Advocate for Respondent No.2 : Smt.Satyabhama R. Awad
...
CORAM : T.V.NALAWADE &
M.G.SEWLIKAR, JJ.
nd
DATE: 2 December, 2020
JUDGMENT:- (Per: M.G.Sewlikar, J.)
1. By this petition under Articles 226 and 227 of the
Constitution of India and under Section 482 of the Code of
Criminal Procedure, the petitioner has sought quashing of the
First Information Report (FIR) No.570 of 2019 registered with
Cidco Police Station, Aurangabad, under charge-sheet after
investigation.
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{2} CRI.WP 1734 Of 2019
2. The petitioner is an Advocate practicing at Aurangabad.
The informant (respondent No.2 herein) lodged FIR on 25-09-
2019, alleging therein that she had engaged the petitioner as her
Advocate for instituting a suit for declaration of civil death of her
husband, who left the house on 27-07-2011 and did not return
since then. She has also fled a civil suit against her parents-in-
law at Buldana and has also fled application under the Protection
of Women from Domestic Violence Act, 2005. The entire
litigation is looked after by the petitioner. In the month of
February 2017, the petitioner started texting ‘good morning’ and
‘good night’ messages to the respondent No.2. On the Valentine
Day, he proposed her by making video call. The respondent no.2
- informant did not respond to his advances. The petitioner is a
married man and the respondent No.2 is also a married woman
having one son. The petitioner won her trust representing that
he is not happy with his wife and that he was deeply in love with
her and would marry her. In the month of March, 2017, the
petitioner called respondent No.2 - informant under pretext that
the case was listed in the District Court on that day. The
petitioner drove her to Mhaismal in his Car bearing registration
No.MH-20 DV-0094 and hired a room in Sagar Hotel. He
established physical relations with her. He had sexual intercourse
with respondent No.2 in Panchwad Pride, Nashik. He also had
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{3} CRI.WP 1734 Of 2019
sexual intercourse with respondent No.2 while coming back from
Mumbai to Aurangabad after attending the case there. When
respondent No.2 insisted on the petitioner to marry her, the
petitioner resiled from his promise. Thus, respondent No.2 has
alleged that the petitioner obtained her consent on false promise
of marriage. On these allegations, an FIR was lodged on
25-09-2019, on the basis of which Crime No.570 of 2019 came
to be registered at Cidco Police Station, Aurangabad, for the
offence punishable under Sections 323, 376(2)(n), 504 and 506
of the Indian Penal Code.
3. Heard Shri M.B.Sandanshiv, learned counsel for the
petitioner and Shri S.D.Ghayal, learned APP for the respondent
No.1-State.
4. Shri Sandanshiv, learned counsel for the petitioner argued
that the petitioner could not have married respondent No.2 as
both the petitioner and respondent No.2 are married. In terms of
Section 5 of the Hindu Marriage Act, no person can marry during
the life time of his spouse. The spouses of both the petitioner
and respondent No.2 are alive. He argued that the physical
relations between respondent No.2 and the petitioner were
consensual. Respondent No.2 was aware of the marital status of
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{4} CRI.WP 1734 Of 2019
the petitioner. Therefore, it cannot be said that the consent
given by the respondent No.2 was vitiated. He placed reliance
on the following case laws:-
1) Deepak Gulati Vs. State of Haryana [(2013) 7 Supreme
Court Cases 675].
2) Uday Vs. State of Karnataka [(2003) 4 Supreme Court
Cases 46].
3) Pramod Suryabhan Pawar Vs. State of Maharashtra
and Another [2019 SCC OnLine SC 1073.
5. In the case of Deepak Gulati (supra), the Hon’ble Supreme
Court observed thus:
“There is a distinction between the mere breach of a
promise, and not fulflling a false promise. Thus, the court
must 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 solely on account of misrepresentation
made to her by the 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. An accused can be convicted for rape
only if the court reaches to a conclusion that the intention of
::: Uploaded on - 06/01/2021 ::: Downloaded on - 02/06/2024 02:53:33 :::
{5} CRI.WP 1734 Of 2019
the accused was malafde, and that he had clandestine
motives.”
6. In the case of Pramod Suryabhan Pawar (supra), after
considering the case of Uday and Deepak Gulati (supra), the
Hon’ble Supreme Court summarized the legal position, which
reads thus:
“22. To summarise the legal position that emerges
from the above cases, the “consent” of a woman with
respect to Section 375 must 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, given in bad faith and with no intention of
being adhered to at the time it 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.”
7. It is pertinent to note that the respondent No.2 – informant
has fled a suit for declaration of civil death of her husband. She
has also fled applications under the Protection of Women from
Domestic Violence Act, 2005, against her parents-in-law and has
also fled some litigation at Buldana. The respondent No.2 –
informant has engaged the petitioner as her Advocate for
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{6} CRI.WP 1734 Of 2019
conducting this litigation. Thus, there is a relationship of lawyer
and a client between the petitioner and respondent No.2, which
is fduciary relationship i.e. relationship of active trust and
confdence. It is not in dispute that respondent No.2 was aware
of the marital status of the petitioner.
8. In the case of Himalayan Cooperative Group Housing
Society Vs. Balwan Singh [AIR 2015 SC 2867] it has been held
that ‘one of the most basic principles of the lawyer-client relationships
is that lawyers owe fduciary duties to their clients’. In paragraph
Nos.24 and 25 of this Judgment, the Hon’ble Supreme Court has
observed about the duties and responsibilities of an Advocate, which
read thus:
“24. The Bar Council of India Rules, 1975 (for short, “the
BCI Rules”), in Part VI, Chapter II provide for the ‘Standards of
Professional Conduct and Etiquette’ to be observed by all the
advocates under the Advocates Act, 1972 (for short, “the Act,
1972”). In the preamble to Chapter II, the BCI Rules provide as
follows:
An advocate shall, at all times, comport himself in a
manner beftting his status as an ofcer of the Court, a
privileged member of the community and a gentleman,
bearing in mind that what may be lawful and moral for a
person who is not a member of the Bar, or for a member of
the Bar in his non-professional capacity may still be
improper for an advocate. Without prejudice to the
generality of the foregoing obligation, an advocate shall
fearlessly uphold the interests of his client and in his
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{7} CRI.WP 1734 Of 2019
conduct conform to the rules hereinafter mentioned both
in letter and in spirit. The rules hereinafter mentioned
contain canons of conduct and etiquette adopted as
general guides; yet the specifc mention thereof shall not
be construed as a denial of the existence of others equally
imperative though not specifcally mentioned (Emphasis
supplied)
25. The Preamble makes it imperative that an advocate has to
conduct himself and his duties in an extremely responsible
manner. They must bear in mind that what may be appropriate
and lawful for a person who is not a member of the Bar, or for a
member of the Bar in his non-professional capacity, may be
improper for an advocate in his professional capacity.”
9. Thus, the relationship between lawyer and the client is
fduciary relationship. On the backdrop of relationship between
the Advocate and his client being fduciary relationship, whether
consent for sexual intercourse is material. Section 376-C of the
Indian Penal Code deals with this contingency.
“ Section 376-C. Sexual intercourse by a person in
authority : Whoever, being -
(a) in a position of authority or in a fduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or
other place of custody established by or under any law for the
time being in force, or a women’s or children’s institution; or
(d) on the management of a hospital or being on the staff
of a hospital,
abuses such position or fduciary relationship to induce or seduce
any woman either in his custody or under his charge or present in
the premises to have sexual intercourse with him, such sexual
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{8} CRI.WP 1734 Of 2019
intercourse not amounting to the offence of rape, shall be
punished with rigorous imprisonment of either description for a
term which shall not be less than fve years, but which may
extend to ten years, and shall also be liable to fne.”
From this Section, it is evident that whoever being in a fduciary
relationship abuses such position and has sexual intercourse with
a woman with whom he has fduciary relationship, such an act
amounts to rape. In such cases consent of woman is immaterial.
10. Relationship of lawyer with his client is fduciary
relationship i.e. relationship of active trust and confdence. The
petitioner abused this position and had physical relations with his
client. An Advocate is in a position of superiority or dominance.
The hapless client like the one in the case at hand, whose
husband’s whereabouts are not known, can have reasonable
apprehension that her denial for physical relations with the
petitioner would adversely impact on her legal representations.
It is not expected of members of this noble profession to abuse
their position of active trust and confdence and indulge in such
immoral acts. The petitioner not only abused his position but
also misrepresented the respondent No.2 that he was not happy
with his wife. Having regard to this, the consent is immaterial
when a person who is having dominance over the other abuses
his position and establishes physical relations with the woman
over whom he has dominance.
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{9} CRI.WP 1734 Of 2019
11. In this view of the matter, there is prima-facie evidence to
show that the petitioner committed rape on his client i.e.
respondent No.2. The consent also gets vitiated as a female
client, whose condition has become precarious as her husband’s
whereabouts are not known, can have reasonable fear that there
would not be adequate representation from the side of the
Advocate, if she did not respond to his advances. From this
count also, the petitioner is not entitled to any relief. The case of
the prosecution, therefore, comes within the purview of Section
376(2)(k) and Section 376-C of the Indian Penal Code. The
petition is therefore, devoid of any substance. Hence, the
following order:
ORDER
I) The petition is dismissed.
II) The observations in this Judgment are made
for the disposal of this petition only. Trial Court
shall not get infuenced by these observations
and can come to an independent conclusion
during trial.
( M.G.SEWLIKAR ) ( T.V.NALAWADE )
JUDGE JUDGE
SPT
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