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Rajkishore Shrivastava vs. State of MP: Consent For Sexual Act Obtained By Making False Promise Of Reemployment Isn’t Free Consent: MP HC
The Gwalior Bench of Madhya Pradesh High Court, in a learned, laudable, landmark and latest judgment titled Rajkishore Shrivastava vs. the State of MP that was delivered on August 2, 2021, it’s a big slap on the face of all such sexual wolves who, as employers lower down their morality to such a low level that they obtain consent for a sexual act from a woman employee by making false promise of re-employment. The court has held unequivocally that getting the consent of the prosecutrix to involve in a sexual act by making a false promise of re-employment can’t be called ‘free consent, and it would amount to consent obtained under a misconception of fact (as per Section 90 of IPC). It must also be apprised here that the Single Judge Bench of Justice GS Ahluwalia of Gwalior Bench of Madhya Pradesh High Court observed thus as it refused to quash an FIR registered for the offence of rape against the Director of a hospital by the Receptionist of the hospital, who is the victim.
To start with, the Single Judge Bench of Justice GS Ahluwalia of Gwalior Bench of the Madhya Pradesh High Court sets the ball rolling of this brief, brilliant, bold and balanced judgment heard through video conferencing. While elaborating on the applicant-prosecutrix version, the Bench then envisages in the next para that, “The counsel submits for the applicant that the prosecutrix has lodged an FIR on the allegations that in the month of June 2020 she had started working in the hospital of the applicant on the post of Receptionist. After that, the applicant went to Gwalior and Delhi and returned in July 2020. It is alleged that on the pretext of giving a job, the applicant had violated her sexually on multiple occasions and started pressurising that the prosecutrix must indulge in sex with other persons, showing her denial will result in termination of her job. It is alleged that the applicant had sexually violated her and bullied her privately on a number of occasions. However, she was not given the job. When the prosecutrix threatened the applicant that she would inform his conduct of his wife, then the applicant gave an application against her in his defence. The prosecutrix was also beaten by the applicant and was humiliated by her director.
Simply put, the Bench then puts forth in the next para that, “It is submitted that four supplementary statements of the prosecutrix were also recorded. Further, from the statement of the prosecutrix, it is clear that she was a consenting party. Even after the termination of her service, if she continued to remain in a sexual relationship with the applicant, then it cannot be said that her consent was obtained by a misconception of fact.”
The Bench then observes in the next para that Section 90 of IPC; consent is not such consent if any section of this Code intends it if a person gives the consent under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or
Consent of insane person- If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or
Consent of child- unless the contrary appears from the context if the consent is given by a person who is under twelve years of age.” Thus, it is clear that if the consent is given in consequence of any misconception or fear, then it cannot be said to be a free consent.”
Afterwards, the Bench then enunciates in the next para that, In the present case, the applicant is the Director of a hospital undisputedly. It is the case of the prosecutrix that she was given an appointment on the post of Receptionist. Shortly thereafter, the applicant violated her sexually on multiple occasions, took her benefits for his sexual pleasure, and even tried to invite others. Suppose the prosecutrix did not make any complaint with regard to her sexual violation. In that case, it cannot be said that the prosecutrix had indulged in sexual acts voluntarily because she was an employee of the applicant and the applicant was in a position to dominate her wishes. Further, when the services were terminated, it is alleged that the applicant again allured her of giving her job and under the hope and belief that the prosecutrix would again get a job in the hospital if she continued to have a sexual relationship with the applicant, then it cannot be said that her consent was a free consent and there was no misconception of fact.
Most significantly and also most remarkably, what forms the cornerstone of this cogent, commendable, composed, clear and convincing judgment is that the Bench then very forthrightly observes that, “It is a well-established principle of law that the investigation or the charge sheet can be quashed only if uncontroverted allegations do not make out an offence. In the present case, by assuring her that the applicant would reemploy her in his hospital if he succeeded in getting the consent of the prosecutrix to involve in a sexual act, then such consent cannot be said to be free consent, and it was certainly obtained by making false promise of re-employment, and thus, in the light of Section 90 of IPC, it can be said that the said consent was obtained under the misconception of fact.
As an aside, the Bench then states in the next para that, “Before parting with this order, this Court would like to mention that certain observations have been made in order to consider the submissions of the counsel for the applicant.”
As it turned out, the Bench then points out clearly in the next para that, “The Trial Court is reminded that observations in this order have been made in the light of limited scope under Section 482 of Cr.P.C. The Trial Court must decide the Trial strictly in accordance with evidence which would come on record without getting prejudiced or influenced by any of the observations made in this order.”
Finally, in the last paragraph, the Bench then holds that “Accordingly, the application fails and is hereby dismissed.”
In short, it is really most heartening to note that the Single Judge Bench comprising of Justice GS Ahluwalia of Indore Bench of Madhya Pradesh High Court has made it crystal clear in its short, suave, straightforward and stimulating judgment that getting the consent of the prosecutrix to involve in a sexual act by making false promise of re-employment, can’t be called ‘free consent’ and it would certainly amount to consent obtained under a misconception of fact (as per Section 90 of IPC). So it must be underscored here that the employer cannot get away simply by just terming it as “sex with consent” and blaming women also for it.
Now it is entirely up to employers what they want for themselves – peaceful life or life in jail with stigmas attached with their character? So, it is needless to say that this leading, learned, latest and laudable judgment has certainly served to send out a loud and clear message to all the employers in our country that, “Be you ever so high, the law is above you always and always.”
