BEFORE THE HONOURABLE BOMBAY HIGH COURT

UNDER SECTION 482 OF CODE OF CRIMINAL PROCEDURE, 1973

IN THE MATTER OF:

VAIBHAV .....PLAINTIFF

V.

KANIKA ...DEFENDANT

WRITTEN SUBMISSION ON BEHALF OF THE PLAINTIFF

MEMORANDUM ON BEHALF OF PLAINTIFF

MEMORANDUM ON BEHALF OF PLAINTIFF Page 1

 INDEX

S PARTICULARS PAGE
NO. NO.
1. LIST OF ABBREVIATIONS 3

2. INDEX OF AUTHORITIES 4-5

3. STATEMENT OF JURISDICTION 6

4. SYNOPSIS OF FACTS 7-8

5. ISSUES PRESENTED 9

6. SUMMARY OF ARGUMENTS 10

7. ARGUMENTS ADVANCE 11-23

8. PRAYER 24

MEMORANDUM ON BEHALF OF PLAINTIFF Page 2

LIST OF ABBREVIATIONS

AIR : All India Report

AP : Andhra Pradesh
Art : Article
Bom : Bombay
IT Act : Information Technology Act
SC : Supreme Court

MEMORANDUM ON BEHALF OF PLAINTIFF Page 3

INDEX OF AUTHORITIES

TABLE OF CASES

1. Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465

2. Bhimrao v State of Maharashtra, ( 1975 Mah. LJ 660 )
3. Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013
(7) Scale 383
4. Deepak Gulati v. State of Haryana (2013) 7 SCC 675.
5. Gopi Shanker v State of Rajasthan, ( AIR 1967 Rajasthan 159 ),
6. In Bhikari v. State of U.P., AIR 1966 SC 1
7. Jayanti Rani Panda v. State of West Bengal & Anr. 7.AIR 2007 Cal 298
8. Jugal Kishore Prasad v. The State of Bihar 1972 AIR 2522
9. Kaini Rajan v. State of Kerala (2013) 9 SCC 113
10. Karthi @ Karthick v State, 2013 Cr LJ 3765 (SC)
11. Khatri vs. State of Bihar 1 SCC 635
12. Mahesh Balkrishna Dandane v. The State of Maharashtra. 2014 SCC OnLine Bom 348
13. N Jaladu, Re ( ILR (1913) 36 Madras 453)
14. Pradeep Kumar v State of Bihar AIR 2007 SC 3059
15. Pramod Suryabhan Pawar v. State of Maharashtra (2019) 9 SCC 608.
16. Queen v. Flattery1877 QBD 410
17. R. Palanisamy Vs.State rep. by Inspector of Police AIR 1984 SC 33
18. Rakesh Kumar Paul vs. State of Assam 2017 (15) SCC 67,
19. Ravi v State, 2010 Cr LJ 3493 (Mad)
20. Swapan Chatterjee v State of WB, 2009 Cr LJ 16 (Cal)
21. Tukaram and others Vs. State of Maharashtra AIR 1979 SC 185
22. Vijayan Pillai v State of Kerala, (1989 (2) KLJ 234)
23. Vinod Mangilal v State of MP, 2009 Cr LJ 1204 (MP).

BOOKS:

1. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
2. P.S.A. Pillai (13th Ed. 2017)
3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
MEMORANDUM ON BEHALF OF PLAINTIFF Page 4
 4. Gupta and Dighe, Criminal Manual, (7th Ed. 2007)
5. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)

WEBSITES:

1. https://caselaw.in/allahabad/arvind-kumar-opposite-party-state/25387/

STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)

MEMORANDUM ON BEHALF OF PLAINTIFF Page 5

STATEMENT OF JURISDICTION

Section 482 of CrPC

Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or
affect the inherent powers of the High Court to make such orders as may be necessary to give
effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise
to secure the ends of justice.

MEMORANDUM ON BEHALF OF PLAINTIFF Page 6

SYNOPSIS OF FACTS

1. Mr. Vaibhav Shukla is alleged to have committed various offences against Ms. Kanika
Pandya who is presently a college student studying in the fourth year of Bachelor of
Dental Surgery (B.D.S.), in a college in the city.
2. Vaibhav claims that, Ms. Kanika and he were friends for more than four years since
2016. Ms. Kanika alleges that Vaibhav used to follow her up to her college and had
approached her on several occasions to have friendship with him.
3. She states that, she did not like Vaibhav following her and trying to track her on
Facebook. whenever she visited along with her friends in a restaurant cum bar Vaibhav
who was a manager at that place made her feel uncomfortable and that, she had told
these facts to her friends as well.
4. She further alleges that once Vaibhav had pulled her dupatta in the Restaurant- cum-
Bar and had tried to molest her. Ms. Kanika added that she was going through
psychological and emotional trauma because of the behaviour of Vaibhav as she was
about 18 years old at that time.
5. Ms. Kanika further states that Vaibhav had requested her to meet him once to which
she agreed just to tell him not to follow her and to leave her alone. However, she states
that she actually met him more than once and that Vaibhav promised to marry her but
had taken advantage of her against her will and had physical relations with her which
he now claims to be consensual relationship. Vaibhav was showing her some videos on
pornography against her will. She further alleges that Vaibhav had also taken photos of
intimate relations with her and had sent her those photos on her WhatsApp asking for
further sexual favours. Vaibhav also had another affair with a girl name Amrita.
6. Ms. Kanika has lodged an F.I.R. bearing No. 23 dated 12/11/2020, under Sections 354
A, 354 B, 354 C, 354 D, 350, 351, 376 of the I.P.C. 1860 and Sections 66 A, 66 C, 66
E of the I. T. Act, 2000 with the Chembur Police Station, alleging that Vaibhav had
committed various offenses against her in the year 2013 and did not marry her inspite
of promising her. The police had recovered black coloured Nokia phone with IMEI No.
242070251622411 from Vaibhav, pursuant to the F.I.R. No. 23 dated 12/11/2020
lodged by her against Vaibhav under Sections 345 A, 354 B, 354 C, 354 D, 350, 351,
376 of the I.P.C. 1860 and Sections 66 A, 66 C, 66 E of the I.T. Act, 2000 lodged by
MEMORANDUM ON BEHALF OF PLAINTIFF Page 7
 Ms. Kanika but the memory could not be fully recovered and the result was
inconclusive. The Facebook account was also investigated but it did not advance the
case of Ms. Kanika.
7. Vaibhav is now working for a multinational Pharmaceutical company in Mumbai as a
Manger administration. His employer has given him a show cause notice for
terminating his employment on the grounds that he had not disclosed about his previous
employment as a Manager in the Hotel-cum- Restaurant at Chembur.
8. Vaibhav vehemently denied the allegations citing them as false accusations and claimed
that Ms. Kanika was wilfully, deliberately, intentionally and maliciously defaming him
and ruining his career. Vaibhav will file the defamation case if Kanika doesn’t give a
written apology to Vaibhav .
9. Ms. Kanika had lodged an F.I.R. Vaibhav who is already on Anticipatory Bail granted
by the Honorable Sessions Court, has filed a Criminal Application An. 226 of the
Constitution and U/s. 482 of the Criminal Procedure Code, 1973 in the Bombay High
Court for quashing of the said F.I.R. filed against him while the matter is pending in
the trial court and charge-sheet is not yet filed.

MEMORANDUM ON BEHALF OF PLAINTIFF Page 8

ISSUES PRESENTED

ISSUE I: Whether it is a fit case where the F.I.R. should be quashed under Section 482 of
the Criminal Procedure Code, 1973 and in the interim, the matter in the trial court be
stayed by the Hon’ble Bombay High Court?

ISSUE II: Whether Vaibhav can claim the benefit of Probationary Offenders Act, and
whether he can be accused of rape under I.P.C., 1860 besides other alleged offences?

ISSUE III: Whether any amendments / changes are required to be made in the existing
laws against women or any directions / guidelines are required to be given by the Hon’ble
Court, if yes, what would be the nature of amendments / changes or directions /
guidelines, if any?

MEMORANDUM ON BEHALF OF PLAINTIFF Page 9

SUMMARY OF ARGUMENTS

ISSUE I: Whether it is a fit case where the F.I.R. should be quashed under Section 482 of
the Criminal Procedure Code, 1973 and in the interim, the matter in the trial court be
stayed by the Hon’ble Bombay High Court?
It is humbly submitted before the Hon’ble Court that, the F.I.R and the charges framed in the
F.I.R. are completely baseless and false hence the present F.I.R. is needed to be w=quashed
without any further dalay. The Defendant (Kanika) is just onlky trying to defame the plaintiff
(Vaibhav) and due to which he is suffering irreparable losses. Vaibhav had been fired from his
permanent job also due to the behaviour and actions of Defendant (Kanika).

ISSUE II: Whether Vaibhav can claim the benefit of Probationary Offenders Act, and
whether he can be accused of rape under I.P.C., 1860 besides other alleged offences?
It is most respectfully submitted before this honourable court that the FIR registered by
Respondent reeks of malafide and vindictiveness. It is submitted that the Petitioner has not
committed the offence of Rape as mentioned in Section 376 Indian Penal Code, 1860
(hereinafter will be referred as IPC). It is submitted that, accused has not committed any
offence as alleged in the FIR and this a fit case to be quashed by the exercise the inherent power
of the High Court as mentioned in Section 482 Cr.PC.

ISSUE III: Whether any amendments / changes are required to be made in the existing
laws against women or any directions / guidelines are required to be given by the Hon’ble
Court, if yes, what would be the nature of amendments / changes or directions /
guidelines, if any

It is humbly submitted by the Plaintiff (Vaibhav) before this Hon’ble Court that, the present
law which we have, has already been amended much of the times. The amendments which have
been made is enough to observe that our law is evolving and keeping the pace with the changing
times of our society. The only thing which is needed now a days is, implementation of these
existing laws in a very effective manner so that expected result shall be seen in the coming
days.

MEMORANDUM ON BEHALF OF PLAINTIFF Page 10

ARGUMENTS ADVANCED

ISSUE I: Whether it is a fit case where the F.I.R. should be quashed under Section 482 of
the Criminal Procedure Code, 1973 and in the interim, the matter in the trial court be
stayed by the Hon’ble Bombay High Court?

The counsel for the Plaintiff most humbly submits before the Hon’ble Court that, the present
F.I.R. is needed to quashed as the allegations and charges which have been framed in the F.I.R.
by the Defendant is baseless. According to the facts stated in the factsheet itself, these
evidences do not stand before the court of law as valid proof.

No case under Section 376 I.P.C. is made out against the applicants as there is no medical
examination report. It is settled legal position that medical examination report is the only
evidence for initiating a trial against the accused persons in rape cases and the statements of
victim is not enough to prove the case beyond reasonable doubt.1

It is further submitted before this Hon’ble Court that here in this case Defendant have been
frequently changing her statements with regard to some incidents. From the facts of the present
case, it could be observed very well firstly, Kanika (Defendant) while making her statement
says that, she and the Plaintiff (Vaibhav) met 2-3 times but at the same time she says that
Vaibhav asked only to meet her once or rather it can be said she had been forced but later after
that Kanika went to meet him on her own without any provocation or force. This clearly proves
that, Defendant herself is not able to take a stand at a point due to which there is ambiguity is
there in the statement of Defendant and raises a question on its admissibility. According to
Indian Evidence Act, it shall be stated and explained that frequently changing of statements are
having very less admissibility value in the court of law. Changing a statement made before the
court under Section 164 cr.pc stands a risk of getting punished for lying under oath.2

It is to be further submitted before this Hon’ble High Court that, Defendant claims that the
Plaintiff after making the false promise of marrying the Defendant had made a relationship
with the Defendant. With respect to this relation there is no such statement from the side of

1
In Bhikari v. State of U.P., AIR 1966 SC 1
2
R. Palanisamy Vs.State rep. by Inspector of Police AIR 1984 SC 33
MEMORANDUM ON BEHALF OF PLAINTIFF Page 11
Vaibhav (Plaintiff). This contradiction in the statements of both the parties, establishes that
both are making the statements and some of the facts are not revealed.

It is submitted before this Hon’ble Court that, in point 5 of this fact sheet it had been clearly
mentioned that, after getting aware about the affair of Defendant (Kanika) with Plaintiff
(Vaibhav), her fiancée (Ajay Kumar) broke off all his relations with the Defendant so, here in
this case Defendant cannot frame the allegations of affair, rape and assault against the Plaintiff
as her act itself showcase her as of bad character. Hence the charges framed against Vaibhav
(Plaintiff) is false and hence this FIR shall be quashed without any prejudice.

Few evidences which have been collected by the police according to the statements made in
the F.I.R. and those shown by the Defendant is not having any weightage which could
accelerate the case and one can reach to a conclusion. Therefore, the evidences collected is not
having any evidentiary value3 and thus these cannot be taken into consideration and statements
made in the F.I.R on the basis of that is needed to be quashed.

It is to be further submitted before this Hon’ble Court that, F.I.R. had been lodged by Kanika
on 12/11/2020 and after this till today no charge sheet had been filed. According to Section
167 of Cr.P.C a charge sheet is needed to be registered within 90 days after the filing of F.I.R.4
but according to facts mentioned in the factsheet it is evident that during the 90 days fixed
duration of time period and now the time has been lapsed without having any appropriate result.
Here, it is needed to be focused that the charges which has been framed under F.I.R are of
punishment more than 10 years for which charge sheet is needed to have been filed within 90
days and if not done so then, very clear and strong explanation is needed to be done for such
delay. Delay in filing the F.I.R or charge sheet cannot be the only reason for quashing of the
F.I.R but it is very necessary that the valid reason is there to validate the reasoning behind such
delay.

Submitting before this Hon’ble Court that, the statements made by the Defendant (Kanika)
against Plaintiff that she did not liked Vaibhav following her, due to Vaibhav’s behaviour she
has to change her working timetable. Not only this, according to him (Vaibhav) due to his
behaviour she (Kanika) had to face mental trauma and undergo various therapies which is not

3
Khatri vs. State of Bihar 1 SCC 635
4
Rakesh Kumar Paul vs. State of Assam 2017 (15) SCC 67,
MEMORANDUM ON BEHALF OF PLAINTIFF Page 12
healthy as she is only 18 years old as of now. On the other hand, it could be seen that, she had
been invited by Vaibhav to meet once but she after resisting not only agreed for the same but
also met after that one meeting without any force which shows her nature and intention behind
the whole incident.

MEMORANDUM ON BEHALF OF PLAINTIFF Page 13

 ISSUE II: Whether Vaibhav can claim the benefit of Probationary Offenders Act, and
whether he can be accused of rape under I.P.C., 1860 besides other alleged offences?

1. It is humbly submitted that the case at hand is divided into two sub-divisions for better
understanding and argument as follows [2.1] That The Petitioner Has Not Committed The
Offence Of Rape As Given In Section 376 IPC, 1860; [2.2] That the Petitioner arguendo if
convicted must be given the benefit Probation of offender Act.

2.1 That The Petitioner Has Not Committed The Offence Of Rape As Given In Section 376
IPC, 1860

2. It is most respectfully submitted that the Petitioner has not committed the offence of Rape.
Separating grain from the chaff, it was maintained in the F.I.R by the prosecutrix that the
Petitioner committed rape on her by giving her a promise of marriage.

3. Thus it is essential for us to know the jurisprudence of commission of rape on the pretext of
marriage as settled by the Honourable Supreme Court since its inception.

4. Section 375 of the Indian Penal Code, 1860 [hereinafter "IPC"] defines "rape". Clauses (a) to
(d) gives a list of actions which amount to rape under Section 375. The second description
reads as under: "Secondly. – Without her consent."

5. This false promise of marriage for obtaining consent for sexual intercourse is considered as
‘misconception of fact’ within the meaning of Section 90 of Indian Penal Code, 18605. Thus,
it is not considered as a valid consent in the eyes of the law and would be charged under Section
375 of the IPC.

6. The second explanation of Section 375 of IPC provides punishment for rape if sexual
intercourse is done without victims’ consent6. However, Indian Courts have started taking a
different approach towards Section 375 and interpreted the term “consent” in a broader way.
Various judgments passed by the court have interpreted ‘consent’ which violates certain basic
principles of statutory interpretation. In certain cases, courts observed that everytime, a man
cannot be charged under Section 375 when he fails to marry a woman despite he made a

5
Kaini Rajan v. State of Kerala (2013) 9 SCC 113
6
Tukaram and others Vs. State of Maharashtra AIR 1979 SC 185

MEMORANDUM ON BEHALF OF PLAINTIFF Page 14

 promise. There is a need for the strict interpretation of statutes to hold an accused guilty under
Section 375 of IPC.

2.1.1 Nature of consent

7. The interpretation of the term ‘consent’ plays a very vital role in the conviction of accused in
the rape cases. Consent under the provisions of IPC may be implied or expressed, willingly or
coerced and obtained by misconception or fraud. Consent may be defined as an act of reason
performed with deliberation and balance the good and evil on each side. The provisions of
Section 907 of the Indian Penal Code, 1860 states that consent will not amount to a valid consent
if it is given by a person under fear of injury, or under a misconception of fact, or if a person
who is acting has reason to believe that the consent was obtained under fear or misconception.
8. The Indian courts have operated on the assumption that Section 90 IPC is very significant when
it comes to the interpretation of Section 375 IPC though the definition of consent was given
under the Amendment of 2013. It is noted that Section 90 may be read with Section 375 to hold
an accused guilty.
9. Therefore, if a person commits any sexual intercourse on false promise of marriage with the
intention to deceive the prosecutrix, it would be considered as ‘without her consent’ within the
meaning of the second explanation of Section 375 and the accused should be punishable
under Section 376 IPC.
10. It is submitted that Section 90 of IPC provides every aspect related to the term,’consent’. It
is noted that the consent acquired from the prosecutrix by the accused in the pretext of a false
promise of marriage. Therefore, the consent is given by the victim under a misconception of
fact would amount to rape within the meaning of Section 375 IPC.
11. In the case of Kaini Rajan v. State of Kerala8 the Supreme Court held that Section 375 of
IPC contains provisions of “rape” where the first clause provides that woman is in possession
of her senses and capable of giving consent but the action takes place against her will, and the
second clause states that the act is done without her consent.
12. The court further observed that the expression without her consent is considered to be an act
of reason coupled with deliberation. Though, Section 90 IPC does not define consent but

7
The Indian Penal Code, 1860, s. 90, No. 45, Acts of Parliament, 1860 (India).
8
(2013) 9 SCC 113; Pradeep Kumar v State of Bihar, AIR 2007 SC 3059, relied on N Jaladu, Re ( ILR (1913)
36 Madras 453).
MEMORANDUM ON BEHALF OF PLAINTIFF Page 15
 provides ‘what is not consent’9. The question that whether there was the consent of the victim
was present or not would be ascertained by courts by considering all the relevant facts and
circumstances of the case.

2.1.2 Misconception of fact

13. It is submitted that the ‘misconception of fact’ within the meaning of Section 90 read with
Section 375 provides that when the accused gives false promise of marriage without his
intention to marry and the victim believed that the accused has a good faith and gave her
consent for sexual intercourse due to the assurance given by the accused. The act is punishable
under the provisions of IPC and would amount to rape. In the case of Pradeep Kumar v. State
of Bihar 10it was held by the Supreme Court that the term ‘misconception of fact’ defined under
Section 90 of IPC is broad enough to include all cases pertaining to misrepresentation of facts,
deceit, fraud etc reference to which consent is given.

14. Section 3 of the Indian Evidence Act, 1872 also provides for intention to be treated as fact.
11
Thus, if the consent of the victim is procured by misrepresentation of facts or fraud then it
will be treated as against her will12. It is an offence under the provisions of criminal law to
obtain consent from a person by fraud and misrepresentation of fact13. Therefore, if the accused
had sexual intercourse with the victim on false promise of marriage, would amount to rape
within the meaning of Section 375 of IPC.The prosecution needs to prove before the court of
law beyond a reasonable doubt that the accused never intended to marry her and begin sexual
attempts without the intention of marriage with the prosecutrix.14

15. In certain cases, it is seen that the accused had no intention to marry the prosecutrix from the
very beginning. However, there can be certain cases where a person who has the best intention
to marry the prosecutrix may not be able to fulfil it due to some unavoidable circumstances.
Therefore, a promise made with respect to future uncertainty, and due to facts that are not
considered from the evidence available to the prosecution, does not always come within the

9
Mahesh Balkrishna Dandane v. The State of Maharashtra. 2014 SCC OnLine Bom 348
10
Gopi Shanker v State of Rajasthan, ( AIR 1967 Rajasthan 159 ), Bhimrao v State of Maharashtra, ( 1975 Mah.
LJ 660 ) and Vijayan Pillai v State of Kerala, (1989 (2) KLJ 234) quoted from R v Day, (173 ER 1026) in 1841
approved in Pradeep Kumar v State of Bihar, AIR 2007 SC 3059.
11
Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465
12
Queen v. Flattery1877 QBD 410
13
Pradeep Kumar v. State of Bihar (2007) AIR 2007 SC 3059
14
Jayanti Rani Panda v. State of West Bengal & Anr. 7.AIR 2007 Cal 298
MEMORANDUM ON BEHALF OF PLAINTIFF Page 16
 ambit of the misconception of fact in the criminal law.It is observed on a number of occasions
that the accused had a “clear intention” not to marry the victim from the very beginning.
Therefore, sexual intercourse under total misconception cannot be treated as consent.

16. The Calcutta High Court in the case of Jayanti Rani Panda v. State of West Bengal & Anr.15,
held that in order to invoke misconception of fact under Section 90 of IPC, the fact shown by
the prosecution must have direct and immediate relevance. The court further held that if a fully
grown-up girl gave her consent to sexual intercourse on the pretext of a false promise of
marriage and continues to indulge in such activity on the same belief is considered an act of
‘promiscuity’ on her part. The court held that it is not an act of misconception of fact and
Section 90 of IPC cannot be simply invoked in such acts unless the court assures that the
accused never intended to marry the prosecutrix from the very beginning. Therefore, the court
concludes that it depends upon case to case based on facts and circumstances and the intention
of the accused is very prominent in such cases.

17. Additionally it is submitted that in Deepak Gulati v. State of Haryana16 the Supreme Court of
India observed that there is a distinction between a mere breach of a promise, and not fulfilling
a false promise. 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 be a case where the prosecutrix agreed 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.

18. The "failure" to keep a promise 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.17

15
1984 CriLJ 1535; Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013 (7)
Scale 383 . See also Swapan Chatterjee v State of WB, 2009 Cr LJ 16 (Cal); Karthi @ Karthick v State, 2013 Cr
LJ 3765 (SC); Ravi v State, 2010 Cr LJ 3493 (Mad); Vinod Mangilal v State of MP, 2009 Cr LJ 1204 (MP).
16
(2013) 7 SCC 675.
17
Mahesh Balkrishna Dandane v. The State of Maharashtra2014 SCC OnLine Bom 348

MEMORANDUM ON BEHALF OF PLAINTIFF Page 17

19. Recently, in Pramod Suryabhan Pawar v. State of Maharashtra18 the Supreme Court of India
explained the distinction between false promise and breach of promise. After examining the
judicial precedents, the Supreme Court concluded as under:
"18. 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."

20. Thus applying the aforementioned settled position of law it is abundantly clear that even if the
allegation levelled by the prosecutrix is deemed to be true it will not constitute the offence of
rape. Firstly, as alleged by her that there was a promise of marriage given to her by the
Petitioner, however it appears from the investigation carried out and materials unearthed that
there was no promise of marriage made to her.

21. No material is shown by the prosecutrix to insinuate any promise given to her by the accused.
It is writ large from the fact that this is just an attempt to vent vengeance and to harass the
Petitioner. It is also done to defame the accused. Further it was alleged by the prosecutrix that
they used to spend their time in a hotel but when it was investigated there were no entries found
in the diary of the hotel.

22. It shows that the whole story and the charges levelled by the prosecutrix are trumped up.
Additionally the passage of time in registering FIR must be borne in mind. Prosecutrix is a
MBBS student, literate enough to know the consequences of the alleged act. The question
which must be asked is why so much of time was taken in lodging the FIR? Delay is an
important factor for consideration. Thus it is humbly submitted before this honourable court
that it would be in the interest of justice that the FIR be quashed as the prosecutrix has failed
to prove the promise of marriage let alone the breach of it.19

18
(2019) 9 SCC 608.

19
Pramod Suryabhan Pawar Vs. State of Maharashtra & ANR.[Criminal Appeal No. 1165

MEMORANDUM ON BEHALF OF PLAINTIFF Page 18

 2.1 That the Petitioner arguendo if convicted must be given the benefit Probation of offender
Act

23. It is humbly submitted that arguendo let’s assume that Petitioner gets convicted for the
offence of Rape, then also it is submitted that the benefit of the Probation of the offenders act,
195820 (hereinafter will be referred as Act) must be extended to the Petitioner. It is submitted
that the object of Criminal Law is more inclined towards the reformation of the offender than
to punish him. Instead of keeping an accused with hardened criminals in a prison, the court can
order personal freedom on promise of good behaviour and can also order a period of
supervision over an offender.
24. This is the concept behind probation. Black’s law dictionary defines probation as allowing a
person convicted of some minor offence (particularly juvenile offenders) to go at large, under
a suspension of sentence, during good behaviour, and generally under the supervision or
guardianship of a probation officer. It is believed that imprisonment decreases the capacity of
an offender to readjust to the normal society after the release and association with professional
delinquents often has undesired effects on him and his life thereafter.
25. Probation is a socialized penal device which has come up as the result of modification, over
a period of time, of the doctrine of deterrence into the principle of reformation; a development
that paved the way to the introduction of clinical approach and the principle of individualization
in the handling of offenders.
26. The Probation of Offenders Act, 1958, is based on the concept that young offenders can be
saved from becoming habitual offenders by treating them amicably and providing them with a
chance to reform rather than dumping them into jails. The probation officer insists on the
problem or need of the offender and tries to solve his problem and sees to it that the offender
becomes a useful citizen of the society.
27. For our discussion Section 4 of the Act is relevant. It talks about the power of the court to
release certain offenders on probation of good conduct21. It says when any person is found
guilty of having committed an offence not punishable with death or imprisonment for life and
the court by which the person is found guilty is of opinion that, having regard to the
circumstances of the case including the nature of the offence and the character of the offender,

20
THE PROBATION OF OFFENDERS ACT, 1958 ACT NO. 20, Acts of Parliament, 1958.
21
Jugal Kishore Prasad v. The State of Bihar 1972 AIR 2522,
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 it is expedient to release him on probation of good conduct, then, notwithstanding anything
contained in any other law for the time being in force, the court may, instead of sentencing him
at once to any punishment direct that he be released on his entering into a bond, with or without
sureties, to appear and receive sentence when called upon during such period, not exceeding
three years, as the court may direct, and in the meantime to keep the peace and be of good
behaviour.
28. Further provided that the court shall not direct such release of an offender unless it is satisfied
that the offender or his surety, if any, has a fixed place of abode or regular occupation in the
place over which the court exercises jurisdiction or in which the offender is likely to live during
the period for which he enters into the bond.
29. Before making any order under sub-section (1), the court shall take into consideration the
report, if any, of the probation officer concerned in relation to the case.
When an order under sub-section (1) is made, the court may, if it is of opinion that in the
interests of the offender and of the public it is expedient so to do, in addition pass a supervision
order directing that the offender shall remain under the supervision of a probation officer named
in the order during such period, not being less than one year, as may be specified therein, and
may in such supervision order, impose such conditions as it deems necessary for the due
supervision of the offender.
30. The court making a supervision order under sub-section (3) shall require the offender, before
he is released, to enter into a bond, with or without sureties, to observe the conditions specified
in such order and such additional conditions with respect to residence, abstention from
intoxicants or any other matter as the court may, having regard to the particular circumstances,
consider fit to impose for preventing a repetition of the same offence or a commission of other
offences by the offender.
31. Thus the two requirements which are mandated by section 4 of the act for the benefit of
Probation is a) The accused must not be guilty of offence punishable by life imprisonment or
death penalty and b) nature of offence and the character of the offender must be taken into
consideration.
32. In this case it must be first stated that the offence alleged by the prosecutrix might be grave
but it was not a result of passion. It must be stated that as alleged by the prosecutrix it was a
breach of promise of marriage. It is punishable by 7 years. The second requirement is the nature
of offence and the character of the offender. As already mentioned it was not an offence of
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violent nature, additionally the Petitioner is working in a MNC and has no criminal antecedents.
Thus it is humbly stated before this honourable court that the benefit of Section 4 must be
extended to the Petitioner if in case he is convicted.

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ISSUE III: Whether any amendments/ changes are required to be made in the existing
laws against women or any directions/ guidelines are required to be given by the Hon’ble
Court, if yes, what would be the nature of amendments/ changes or directions / guidelines,
if any

It is most respectfully submitted before this Hon’ble Court that there is no need of
amenmendnts/ changes to be done with respect to the existing laws. The existing laws itself
have been enacted with total due diligence and utmost care and protection. These laws have
been framed keeping all the pros and cons in mind. Not only this, while legislating the laws,
the law makers have also given a thought about the effects which it could cause in every part
of the society. Laws are not only framed for the sake of it, their impliumentation plays a very
vital role.

In relation to CODE OF CRIMINAL PROCEDURE it could be observed that, the whole

procedure from filing the case till the justice being served to the victim, every part have been
explained very weel and in organized manner hemnce, it does not need any type of change/
amendment to be done.
Further, Indian Penal Code (IPC) which has provisions regarding every possible crime
happening in our society. This law is applicable throughout india so, if anybody is aggrieved
or facing any type of injuctice one can go to the court of law and seek for jusctice without any
hesitation or delay.
The biggest loophole lies where the punishemnts which have been prescribed in our laws are
are not properly applicable. Due to the influence of political parties, corruption or some high
profile image in the soc-+iety the needed implementation is not bwing doen of the exuistiung
laws itself and only th law framers are being blamed for the ineffectivity. It is needed to be
observed that, what all laws we have in our society, what provisions Indian laws have that is
needed to be implemented wholly in successful manner without any biasness or prejudice.
From the facts mentioned it could be observed that, the evidences presented before the police
by the defendant (Kanika) was not of any importance. Those evidences could not prove
anything, any crime or could not validate the charges which had been framed against the
plaintiff (Vaibhav). The cell which had been recovered by the police, could not recover the
SIM fully due to which that could not of any use. It could also be possibility that she had just
framed wrong charges against Vaibhav just in jealousy as he had also relationship with other
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friend’s of Kanika.
Changing the laws, making amendments in the laws, framing new laws, changing the
drafters, questioning the ability of law makers, blaming the legislatures. Are these the correct
and appropriate solution of oour problems? The clear answer is NO. We need to trake one
step ahead and come forward and raise our voices for injustice happening. We need to speak
up for the laws which are not being enformed in proper manner. There are many who are
using laws just for the sake of their revenge, seeking help thorugh laws in order to prove their
enimosity. This is not the purpose of law. This not how law can setrve better for the society.
So rather than changing the laws, amending the laws just “TRY TO MAKE EFFECTIVE
IMPLIMENTATION OF THE EXISTING LAWS IN INDIA.”
Making the laws harsher is not going to bring any change in the existing laws or that is not
going to help in any manner. For example: if we take the case of rape it could be understood
well that rape is more heinous than murder but the gravity of punishment cannot justify those
all. Increasing the punishment will not bring any solution for the victim or neither for the
accused as that would not bring any positive change herein. Our country believes in
reformative system and that could only take place through the best of its implementation.

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 PRAYER

Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities
cited, that this Hon'ble Supreme Court may be pleased to adjudge and declare that:

1. It is a fit case where the F.I.R. should be quashed under Section 482 of the Criminal
Procedure Code, 1973 and in the interim, the matter in the trial court be stayed by the
Hon’ble Bombay High Court.

2. The claim of benefit under the Probationary Offenders Act is not required and can only be
claimed if Mr. Vaibhav is convicted for the said offences in arguendo.

3. Mr. Vaibhav cannot be accused of rape under IPC, 1860, and must be respectfully
acquitted for the same.

4. No Amendments / changes are required to be made in the existing laws against women or
any directions / guidelines are required to be given by the Hon’ble Court.

AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

And for this, the Plaintiff as is duty bound, shall humbly pray.

Sd/-
COUNSEL FOR PLAINTIFF

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