Section 69 of the Bhartiya Nyaya Sanhita 2023 provides for Sexual Intercourse by employing deceitful means etc. It is a new offence inserted in the newly enacted Bharatiya Nyaya Sanhita 2023. The provision for the offence is based on various judgments of the Hon’ble Apex Court including those rendered in Deepak Gulati vs. State of Haryana, Anurag Soni vs. State of Chattisgarh, Yedla Srinivasa Rao vs. State of Andhra Pradesh, and Pramod Suryabhan Pawar vs. State of Maharashtra. Before the newly introduced section, the act of false promise to marry amounted to an offence of rape under Section 375 read with Section 90 of the Indian Penal Code.
By carving out a new offence, the intent of the Parliament is to distinctly identify the offence of sexual intercourse by employing deceitful means, differentiating it from Rape, and evolving the offence to give it a wider meaning.
Section 69 of the Bhartiya Nyaya Sanhita 2023 is as follows:
Whoever, by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.
Explanation: “deceitful means” shall include the false promise of employment or promotion, inducement or marring after suppressing identity.
The ingredients of Section 69 of BNS are as follows:
- There must be either a promise to marry a woman without any intention of fulfilling the same, or deceitful means
- By such promise or deceitful means, there must be sexual intercourse with the victim
These two ingredients are required to be demonstrated in order to make out a case under Section 69 of Bhartiya Nyaya Sanhita. It is pertinent to mention that such sexual intercourse by deceitful means or false promise to marry does not amount to “rape” and it is a distinct offence under Section 69 of BNS.
Distinction between Breach of Promise and False Promise
The Hon’ble Apex Court has distinguished between breach of promise and false promise in the case of Pramod Suryabhan Pawar vs. State of Maharashtra. Wherein it has been held as follows:
“Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act.”
In a recent judgment of Amol Bhagwan Nehul vs. State of Maharashtra and another, the Hon’ble Supreme Court held that a consensual relationship should be differentiated from offence under Section 376 of Indian Penal Code. It held as follows:
“A consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. Such conduct not only burdens the Courts, but blots the identity of an individual accused of such a heinous offence. This Court has time and again warned against the misuse of the provisions, and has termed it a folly3 to treat each breach of promise to marry as a false promise and prosecute a person for an offence under section 376 IPC.”
In the case of Mahesh Damu Khare vs. State of Maharashtra and another, the Hon’ble Supreme Court held that a relationship for a prolonged period knowingly by a woman, the same cannot be only attributed to a false promise. The relevant portion of the judgment is as follows:
“In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.”
What if Prosecutrix is a married woman?
The Hon’ble Apex Court in the case of Amol Bhagwan Nehul vs. State of Maharashtra and another, the Hon’ble Apex Court held that it is inconceivable that a prosecutrix would engage in physical relationship with the accused on the assurance of marriage, while she was already married to someone else. The Court further held that such a promise to begin with was illegal and unenforceable qua the accused person. The Court further held that there is no reasonable possibility that a married woman with a child would continue to be deceived or maintain prolonged association with an accused person who has sexually exploited her.
In XXXX vs. State of Maharashtra and another, and Naim Ahamed vs. State (NCT of Delhi), the Hon’ble Supreme Court quashed the proceeding against the accused therein on, inter alia, the ground that the prosecutrix was already married at the time the promise was made, and the conduct of the prosecutrix as a married woman ruled out any reasonable possibility of her being a victim.
Criminal Proceeding under Section 69 of Bhartiya Nyaya Sanhita
Upon distinction from rape, the offence under Section 69 of the Bhartiya Nyaya Sanhita 2023 requires separate consideration. The offence is cognizable and non-bailable, and is triable by a Court of Sessions, as provided under Schedule 1 of Bhartiya Nagarik Suraksha Sanhita 2023. In case an offence is committed, a First Information Report may be registered under Section 173 of Bhartiya Nagarik Suraksha Sanhita 2023.
Upon the registration of the First Information Report, the accused person has three options:
- Seek Anticipatory Bail
- Seek Quashing of the First Information Report
- Seek Protection from arrest subject to cooperation in the investigation (Shobit Nehra vs. State of U.P.)
An application for anticipatory bail can be filed before the Sessions Court or the High Court under Section 482 of the Bhartiya Nagarik Suraksha Sanhita 2023, whereas a Criminal Miscellaneous Writ Petition challenging the First Information Report and praying for stay of arrest may be filed before the Hon’ble Allahabad High Court.
In a long line of judgments including Gurbaksh Singh Sibbia and Others v. State of Punjab, Siddharam Satlingappa Mhetre v. State of Maharashtra and Others, and Sushila Aggarwal and Others v. State (NCT of Delhi) and Another, the Hon’ble Apex Court has upheld the facet of right to personal liberty enshrined under Article 21 of the Constitution of India.
In the judgment of Shobit Nehra vs. State of Uttar Pradesh, the Hon’ble Allahabad High Court upheld the liberty of accused persons while the investigation continued, and the First Information Report sustained, albeit subject to cooperation in the investigation by the accused persons.
In case of Anticipatory Bail, the court considers factors like nature and gravity of the offence, criminal antecedents, role of the accused, possibility of fleeing, possibility of repeating offences, and the impact of grant of anticipatory bail in such cases.
In case of Section 69 of Bhartiya Nyaya Sanhita 2023, unique factors must be taken into consideration apart from the normal factors for anticipatory bail or arrest stay, including age of prosecutrix and the accused, nature of relationship – whether consensual or not, physical relationship if prolonged or not, criminal history, nature and gravity of allegations, etc.
In case of quashing of First Information Report, it must be the case that from the perusal of the contents of the First Information Report, the offence is not only made out, and as such, would call for quashing.
Quashing of Entire Proceedings under Section 528 BNSS
If the police report is submitted and cognizance is taken upon the same by the Concerned Magistrate, and accordingly the accused are summoned to face trial, an accused person may approach the Hon’ble High Court under Section 528 of Bhartiya Nagarik Suraksha Sanhita 2023 praying for quashing of entire proceeding including Chargesheet, and consequential proceeding.
At the stage of entertaining an application under Section 528 of Bhartiya Nagarik Suraksha Sanhita 2023, the Hon’ble Allahabad High Court has the inherent power to prevent the abuse of the process of court, and to otherwise secure the ends of justice. In doing so, the Hon’ble Court may quash the entire proceeding pending against the accused persons, if from the entire material, a fit case for quashing is made out.
When the entire material collected by the Investigating Officer is available, the Court is better equipped to deal with a matter involving an offence under Section 69 BNS.
Although, the Allahabad High Court is vested with vast inherent powers, however, the same may be sparingly used, and matters relating to appreciation of evidence must not be done at this stage. The discretion has to be exercised wisely and astutely by the Court, as the offence is of such a nature that makes it prone to be misused against innocent men involved in legitimate pre-marital relationships which may later turn sour.
In case a prima facie case is not made out under Section 69 BNS, the continuation of the same will be an abuse of the process of the court, and the Court may exercise its powers to quash the entire proceeding against the accused.
Preventing Misuse
Circumstances such as married prosecutrix in the duration of commission of the offence, behavior and acts on the part of the prosecutrix like her involvement in the alleged relationship, whether a case of consensual relationship turned sour, work in the favour of the accused person.
In the case of Biswajyoti Chatterjee vs. State of West Bengal and Anr., the Hon’ble Apex Court made a clear observation on consensual relationships and the misuse of provisions of law, which is as follows:
“We find that there is a growing tendency of resorting to initiation of criminal proceedings when relationships turn sour. Every consensual relationship, where a possibility of marriage may exist, cannot be given a colour of a false pretext to marry, in the event of a fall out. It is such lis that amounts to an abuse of process of law, and it is under such circumstances, that we deem fit to terminate the proceedings at the stage of charge itself.”