Neutral Citation No. - 2025:AHC:50625 Court No. - 70 Case :- APPLICATION U/S 528 BNSS No. - 11250 of 2025 Applicant :- Krishna Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sudhakar Shukla Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. 1. Heard Mr. Sudhakar Shukla, the learned counsel for applicant and the learned A.G.A. for State. 2. Perused the record. 3. Applicant-Krishna, who is a charge sheeted accused and has been summoned by court below, has approached this Court by means of present application under Section 528 BNSS with the following prayer:- "It is therefore, most respectfully prayed that this Hon'ble Court may graciously be pleased to allow the present criminal misc. application and to quash the entire proceeding of Case No. 119826 of 2023 (State Vs. Krishna and others) arising out of Case Crime No. 452 of 2023, Under Section 376, 377, 506 I.P.C. P.S. Vrindavan, District Mathura as well as impugned charge sheet dated 19.09.2023 and impugned cognizance/summoning order dated 08.11.2023 passed by the learned Chief Judicial Magistrate, Mathura. It is further prayed that this Hon'ble Court may graciously be pleased to stay the further proceeding of Case No. 119826 of 2023 (State Vs. Krishna and others) arising out of Case Crime No. 452 of 2023, Under Section 376, 377, 506 1.P.C. P.S. Vrindavan, District Mathura pending before the learned Chief Judicial Magistrate, Mathura, during the pendency of the present Criminal Misc. Application before this Hon'ble meanwhile, Court, otherwise, the applicant shall suffer an irreparable loss and substantial injury." 4. Learned counsel for applicant submits that impugned criminal proceedings pending against applicant before court below are not only malicious but also an abuse of the process of Court. Consequently, the same are liable to be quashed by this Court. In furtherance of aforesaid submission, the learned counsel for applicant contends that there is a delay of two and a half months in lodging the F.I.R.. Since the delay in lodging the F.I.R. has not been sufficiently explained therefore criminal prosecution of applicant on the basis of delayed F.I.R. cannot be sustained. 5. It is then contended by the learned counsel for applicant that parties were in consensual relationship for almost nine months. It is thereafter that the F.I.R. giving rise to present criminal proceedings has been lodged. Considering the period of relationship between the parties, the criminal prosecution of applicant cannot be sustained. To buttress his submission he has referred to the judgement of Supreme Court in Mahesh Damu Khare Vs. State of Maharashtra and another 2024 SCC OnLine SC 3375. 6. It is lastly contended by the learned counsel for applicant that the parties have entered into affectionate relationship and thereafter with the consent of the prosecutrix, physical relationship was established. In view of above, no offence under Section 376 I.P.C. can be said to be made out against applicant. On the above premise, it is thus submitted by the learned counsel for applicant that present application is liable to be allowed by this Court. 7. Per contra, the learned A.G.A. representing State-opposite party- 1 has vehemently opposed this application. Learned A.G.A. submits that the genesis of the F.I.R. is regarding false promise of marriage. The issue as to what constitutes a false promise of marriage or breach of promise of marriage is no longer res-integra and now stands settled by the Supreme Court in Pramod Suryabhan Pawar Vs. State of Maharashtra, (2019) 9 SCC 608, wherein the Apex Court has drawn a distinction in between a false promise of marriage and breach of promise of marriage. After having undertaken an elaborate exercise, the Apex Court concluded that in the case of false promise of marriage, criminal prosecution of accusedt can be sustained but not on account of breach of promise of marriage. Learned A.G.A. has referred to paragraph 16 of the aforesaid judgement, which is, accordingly, reproduced herein below:- "16. 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 Deepak Gulati this Court observed: "21. There is a distinction between the mere breach of a promise, and not fulfilling 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. 24. Hence, it is evident that 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, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The ?failure to keep a promise made 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?. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.? (Emphasis supplied)" 8. Learned A.G.A. then submits that the issue as to whether there was a false promise of marriage extended by applicant or not is a question of fact which can be properly considered during the pendency of trial and not in present application under Section 528 BNSS. All the submission urged by the learned counsel for applicant in support of this application do not answer the allegations made in the F.I.R. that applicant had entered into physical relationship by extending a false promise of marriage. 9. So far as the delay in lodging the F.I.R. is concerned, the learned A.G.A. submits that the offence complained of is regarding dislodging the modesty of a woman. In such a circumstance, the delay in lodging the F.I.R. is not to be considered rigorously but equitably. In support of his submission, the learned A.G.A. has referred to the judgement of Supreme Court in State of Himachal Pradesh Vs. Prem Singh, (2009) 1SCC 420. 10. On the above conspectus, the learned A.G.A. submits that no indulgence be granted by this court in present application. 11. When confronted with above, the learned counsel for applicant could not overcome the same. 12. Having heard the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and upon perusal of record, this Court finds that the objections raised by the learned A.G.A. in opposition to this application under Section 528 BNSS are not only borne out from the record but furthermore, the same could not be dislodged by the learned counsel for applicant with reference to the record at this stage. As such no good ground exists to entertain the present application. 13. As a result, present application fails and is liable to be dismissed. 14. It is accordingly dismissed. Order Date :- 8.4.2025 YK Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad