Page No.# 1/4 GAHC010211292024 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1302/2024 TAPOBRAT CHUTIA S/O SRI DIMESWAR CHUTIA, R/O ANANDA NAGAR NEAR SAI BABA MANDIR, JAIL ROAD, WARD NO. 8, P.O. AND P.S.-NORTH LAKHIMPUR, DIST-LAKHIMPUR, ASSAM, PIN-787001 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM 2:SMTI DEEPSHIKHA BHUYAN D/O LATE HOREN BHUYAN R/O MOIDOMIA WARD NO. 2 P.O. AND P.S.-NORTH LAKHIMPUR DIST- LAKHIMPUR ASSAM PIN-78700 Advocate for the Petitioner : MR. R ISLAM, T TALUKDAR,S BEGUM Advocate for the Respondent : PP, ASSAM, MS. D SAIKIA, AMICUS CURIAE (R-2) Page No.# 2/4 :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 21.05.2025 Heard Mr. R. Islam, the learned counsel appearing for the petitioner. Also heard Mr. B. Sarma, the learned Addl. Public Prosecutor, Assam as well as the learned Amicus Curiae Ms. D. Saikia appearing for the Respondent No.2. 2. This is an application under Section 528 of the BNSS, 2023 praying for quashing the criminal proceedings of PRC Case No.71/2024 arising out of North Lakhimpur P.S. Case No.406/2023 pending in the court of learned Sub-Divisional Judicial Magistrate (S), Lakhimpur at North Lakhimpur. 3. On 22.11.2013, the informant Respondent No.2 lodged an FIR before police alleging that since the year 2021, she was maintaining a relationship with the petitioner and on promises of marriage, the petitioner had physical relationship with her. Later on, he married another girl. 4. After filing of the charge sheet, the trial court framed the charges under Sections 493 and 417 of the Indian Penal Code against the present petitioner. 5. I have considered the submissions of the learned counsel of both sides. 6. Section 493 of the Indian Penal Code reads as under: “493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.— Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a Page No.# 3/4 term which may extend to ten years, and shall also be liable to fine.” 7. The ingredients of Section 493 of the IPC are – (1) deceit causing false belief of existence of a lawful marriage and (2) cohabitation of sexual intercourse with the person causing such belief. It is not necessary to establish the factum of marriage according to personal law but the proof of inducement by a man deceitfully of a woman to change the status from that of an unmarried that that of a lawfully married woman and then makes the woman cohabit with him establishes and offence under Section 493 of the IPC. 8. In the case in hand, there is no allegation that the petitioner deceitfully caused the Respondent No.2 to believe that she was lawfully married to him. Hence, Section 493 of the IPC is not applicable in the instant case. Accordingly, the petitioner is discharged from the offence under Section 493 of the Indian Penal Code. 9. Regarding the offence of cheating, the learned Amicus Curiae Ms. Saikia has submitted that the offence under Section 417 of the IPC is made up of ingredients like dishonest intention to cause harm and dishonest inducement. According to Ms. Saikia, whether the petitioner had dishonest intention or he had dishonestly induced the Respondent No.2 to have sexual relationship with him, can be decided at the time of trial only. 10. This Court has decided to agree with the learned Amicus Curiae. Where the promise to marry was false and the intention of the maker at the time of making promise was not abide by it but to deceive the woman to convince her to have sexual relationship with him, there is a “misconception of fact” that vitiates the woman’s consent. To establish a false promise, the maker of the promise should have had no intention or of upholding his word at the time of giving it. The consent of a woman under Section 375 of the IPC is vitiated on the ground of a misconception of fact where such misconception was the basis for her choosing to engage in a said act. 11. For the aforesaid reasons, the criminal petition is found to be partly devoid of Page No.# 4/4 merit and stands dismissed and disposed of accordingly. 12. Before parting with the record, this Court will record a note of appreciation for the learned Amicus Curiae for her valuable assistance. JUDGE Comparing Assistant