False promise of Reemployment isn't free consent for sexual act - MP High Court

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The Gwalior Bench of the Madhya Pradesh High Court, in a learned, laudable, landmark and recent judgement titled Raj Kishore Shrivastava vs. the State of MP and another in M.Cr.C. No.38456/2021 that was dissenting, slapped all such sexual predators who as employers stoop to such a low level that they obtain consent for a sexual act from a woman employee by making false promise of re (as per Section 90 of IPC). It should also be noted that the Single Judge Bench of Justice GS Ahluwalia of the Gwalior Bench of the Madhya Pradesh High Court made this observation when it declined to dismiss an FIR filed for rape against the Director of a hospital by the facility's receptionist (victim). To be sure, you are correct!

To begin, the Single Judge Bench of Justice GS Ahluwalia of the Madhya Pradesh High Court's Gwalior Bench sets the tone for this brief, brilliant, bold, and balanced judgement heard via video conferencing by first stating in the opening para that " “This application has been filed under Section 482 of the Cr.P.C. for the quashing of the FIR in Crime No.8/2021 registered at Police Station AJK, District Bhind for an offence under Sections 376(2)(n), 323, 294, 506 of the IPC, and Sections 3(2)(v), 3(2) (VA), 3(1)(r), 3(1)(s), 3(1)(w) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as well as the charge sheet and its all consequential proceedings.”

 

“It is submitted by the counsel 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 applicant's hospital on the post of Receptionist,” the Bench writes in the next para while elaborating on the applicant-prosecutrix version. Following that, the candidate travelled to Gwalior and Delhi before returning in July 2020. The applicant allegedly abused her sexually several times under the guise of offering her a job and then began pressuring the prosecutrix to engage in sex with other people.

 

The prosecutrix's services were terminated after she refused to engage in sex with other people. The applicant is accused of sexually abusing her several times until December 2020 under the guise of reinstatement, but she was denied the job. When the prosecutrix told the applicant that she would notify his wife about his conduct, he filed an application in his defence against her. The prosecutrix was also assaulted by the applicant, who threatened her by insulting her because of her caste.”

 

“It is argued that four supplemental statements of the prosecutrix were also recorded,” the Bench says in the next paragraph. Furthermore, it is evident from the prosecutrix's statement that she was a willing participant. If she continued to have a sexual connection with the applicant after her service was terminated, it cannot be claimed that her consent was acquired via misrepresentation of facts.”

“Heard learned counsel for the applicant,” the Bench comments in the next paragraph. “90. Consent is known to be given under fear or misconception: A consent is not such a consent as is intended by any section of this Code if it is given by a person 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.”

Consent of an insane person- If the consent is provided by a person who is unable to grasp the nature and consequences of the action to which he consents due to mental illness or drunkenness; or

Permission of a child—unless the context indicates otherwise—if the consent is provided by a person under the age of twelve. ” As a result, it is evident that permission provided as a result of a misunderstanding or fear cannot be called free consent.”

 

The Bench then goes on to say in the next paragraph, "Unquestionably, the petitioner is the Director of a hospital in the current instance." The prosecutrix claims that she was hired as a receptionist and that the candidate sexually assaulted her on several occasions after she accepted the position. Because she was an employee of the applicant and the applicant was in a position to control her wants, it cannot be argued that the prosecutrix engaged in sexual acts willingly if she made no complaint about her sexual violation.

 

If the prosecutrix continued to have sexual relations with the applicant after the services were terminated in the hope and belief that she would get a job in the hospital if she continued to have sexual relations with the applicant, it cannot be said that her consent was free consent and there was no misinterpretation of fact.” 

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,” which is the cornerstone of this cogent, commendable, composed, clear and convincing judgement.

In the present case, by assuring her that she would be reemployed by the applicant in his hospital if he was successful in obtaining the prosecutrix's consent to engage in sexual activity, such consent cannot be said to be free consent, and it was almost certainly obtained by making a false promise of reemployment, and thus, in light of Section 90 of the IPC, it can be said that the said consent was obtained by making a false promise of reemployment. 

 

Under these circumstances, there is no basis for quashing the FIR in Crime No.8/2021 filed at Police Station AJK, District Bhind, or the charge sheet filed in connection with the aforementioned FIR.”

 

“Before parting with this judgement, this Court would like to remark that some observations have been made in order to examine the representations of the counsel for the applicant,” the Bench says in the next para.

The Bench then explicitly states in the next part, "The Trial Court is reminded that remarks in this decision have been made in light of restricted scope under Section 482 of Cr.P.C." The Trial Court must resolve the case purely on the evidence that will be presented on the record, without being influenced or biassed by any of the remarks expressed in this order.”

Finally, in the concluding paragraph of the decision, the Bench states, "Accordingly, the application fails and is thus dismissed."

In short, it is heartening to note that the Single Judge Bench of the Madhya Pradesh High Court, led by Justice GS Ahluwalia of the Indore Bench, has made it crystal clear in its short, suave, straightforward, and stimulating judgement that obtaining the prosecutrix's consent to engage in a sexual act by falsely promising re-employment cannot be called "free consent," and it would be illegal (as per Section 90 of IPC).

So it's important to emphasise that the employer can't get away with calling it "sex with permission" and blame women for it! Of course, it goes without saying that any employer who dares to engage in such a major offence must now constantly keep in mind that they will not be able to get away with pleading the bogus plea of "sex with permission"! It is a no-brainer, and it goes without saying that if they (the bosses) dare to engage in sex with women under the fallacious and shameless excuse of "sex with permission," they will face significant and catastrophic consequences that will shatter their lives!

The sooner they (the employers) see this and abstain from engaging in such heinous behaviour, the better it will be for them in the long run!

Now the ball is in the employers' court, and it is totally up to them to decide whether they want a tranquil life or a life in prison with stigmas connected to their names. Without a doubt, this important, learned, recent, and praiseworthy decision has served to convey a loud and obvious message to all employers in our nation that “the law is above you, no matter how high you rise.”