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Rape Law in Transition, Part 8: Charge, Quashing and the Trial

30 September 2026 · 13 min read

This is Part 8 of nine of Rape Law in Transition, a study of section 376 of the Indian Penal Code, sections 63, 64 and 69 of the Bharatiya Nyaya Sanhita, and the trial of sexual offences from complaint to appeal. One part is published each day from 27 September to 5 October 2026.

XII. Charge, Discharge and Quashing

The charge fixes what the prosecution must prove, and whether the presumption in section 120 of the Sakshya Adhiniyam is available to it. Quashing on the ground of compromise is closed for rape. Quashing on the ground that the complainant’s own case discloses a consensual relationship is open, and it is frequent.

Framing the charge

The standard at the stage of charge was stated in Sajjan Kumar v. CBI.1 The judge may sift the material, but only to see whether a prima facie case exists, and must take the prosecution’s material at face value. Grave suspicion that is not properly explained justifies a charge. Mere suspicion, as distinct from grave suspicion, justifies discharge. And the court is not a post office for the prosecution.

In a rape case the charge involves four choices that shape the whole trial. The first is between section 376(1) and section 376(2)(n), or between section 64(1) and section 64(2)(m); only the aggravated clause opens the way to the presumption (Pankaj Singh). The second is between the Penal Code and the Nyaya Sanhita, decided by the date of each act, with separate heads where the acts straddle 1 July 2024. The third, for a false promise made after July 2024, is between section 64 and section 69. The fourth is whether to frame the child-protection offence with section 376 in the alternative, so that a conviction under section 376 can be substituted if minority is not proved (Pynchemalangaki Bareh).

The court may alter or add to the charge at any time before judgment (section 239). It must then read and explain the altered charge to the accused, and permit witnesses to be recalled where the alteration prejudices him. An error or omission in the charge is fatal only if it has occasioned a failure of justice (sections 238 and 510).

In Pynchemalangaki Bareh the Supreme Court applied that test by asking three questions: whether the offences shared their ingredients; whether the accused knew the case he had to meet; and whether he had a fair opportunity to meet it.

Discharge

At the stage of discharge the defence can rely only on the prosecution’s own material. The argument must therefore be made from the complainant’s first information and her statement to the magistrate. Sonu is the model: the complaint there did not even allege that the promise was false when made.

In Saurabh Pal Singh the Allahabad High Court discharged an accused charged with rape, cheating, breach of trust and an offence under the SC/ST (Prevention of Atrocities) Act. It gave three reasons: the complainant’s statement under section 164 disclosed no promise that was false at the outset; the relationship had lasted more than ten years and was entangled with money, so the dispute was essentially civil; and the trial court had framed the charges in a summary manner.

Quashing under section 528

The inherent power, now preserved by section 528 of the Nagarik Suraksha Sanhita, has been exercised again and again in false-promise cases. The Supreme Court decisions traced in Part V run from Pramod Suryabhan Pawar and Dhruvaram, through Sonu, Prashant, Mahesh Damu Khare and Rajnish Singh, to Samadhan, Pramod Kumar Navratna and Kunal Rameshbhai Kalyani. The Allahabad High Court quashed the proceedings in Alok Ranjan. It held that the case fell within the first, fifth and seventh of the categories identified in State of Haryana v. Bhajan Lal, and that the complaint had been lodged to take revenge.2

Quashing is refused where the case turns on a disputed fact. In Himank Singh the Court held that whether a promise was false or merely broken requires evidence and is a matter for trial;3 in Vipin Kumar whether the complainant knew that the accused was married was left to the trial; and the Karnataka High Court declined to quash in Hanmantappa because the facts were disputed.

It is submitted that the dividing line is clear enough. Quashing succeeds where the complainant’s own documents show consent sustained over time and disclose no deceit at the outset. It fails where the prosecution case depends on a contested fact, such as when the promise was made or what she knew.

Compromise is not a ground

Compromise is not a ground for quashing a prosecution for rape. In Gian Singh v. State of Punjab a bench of three judges held that heinous and serious offences such as murder, rape and dacoity cannot fittingly be quashed, even though the parties have settled.4 Another bench of three judges reaffirmed the rule in State of M.P. v. Laxmi Narayan.5 And in Ramji Lal Bairwa v. State of Rajasthan the Supreme Court set aside the quashing, on compromise, of a teacher’s prosecution for sexual assault on a pupil, holding that such an offence is not a private dispute and that persons other than the victim had standing to challenge the quashing.6

Some High Courts have quashed prosecutions where the parties have since married each other. No binding authority for that course was found, and Gian Singh and Laxmi Narayan stand against compromise as such.

XIII. The Trial

The law protects the victim in the manner of her testimony and in what she may be asked. It continues to protect the accused in what must be proved against him. A conviction resting on her word alone requires testimony of sterling quality.

The forum and the setting

Offences under sections 64 to 71 of the Nyaya Sanhita, including section 69, are to be tried as far as practicable by a court presided over by a woman (section 21 of the Nagarik Suraksha Sanhita, proviso). Trials under sections 64 to 68, 70 and 71, and under the principal sections of the child-protection statute, must be held in camera, again as far as practicable before a woman judge (section 366(2)); section 69 is omitted from that list. Nothing relating to the proceedings may be printed or published without the court’s permission (section 366(3)).

The Supreme Court had anticipated much of this. In Gurmit Singh it said that such trials should ordinarily be held in camera, preferably before women judges, and that the victim’s name should not be disclosed. In Sakshi v. Union of India it directed three further measures: a screen or similar arrangement, so that the victim does not see the accused; questions in cross-examination to be given in writing to the presiding officer, who puts them to her in clear and non-embarrassing language; and sufficient breaks while she testifies.7

In Smruti Tukaram Badade v. State of Maharashtra the Court held that every victim of sexual assault, whatever her age, is a vulnerable witness. It directed that every district court have a vulnerable-witness deposition centre.8 In Mahender Chawla v. Union of India it held that the Witness Protection Scheme, 2018 binds as law until legislation replaces it.9 Section 398 of the Nagarik Suraksha Sanhita now requires every State to notify a scheme of its own.

The inquiry or trial is to be completed within two months of the charge-sheet for offences under sections 64 to 68, 70 and 71 (section 346, proviso). Section 69, once again, is left out.

The victim’s counsel

The court may permit the victim to engage an advocate to assist the prosecution (section 18(8), proviso). The role is assistive, not parallel. In Rekha Murarka v. State of West Bengal the Supreme Court held that the victim’s counsel may not ordinarily make oral arguments or examine witnesses.10 Counsel may, however: route questions through the Public Prosecutor; file written submissions; and bring to the court’s notice any point the prosecutor has missed.

What the victim may not be asked

Evidence of the victim’s character or previous sexual experience is irrelevant to consent. No question on those matters may be put in order to prove consent (sections 48 and 149 of the Sakshya Adhiniyam). Her identity is protected by sections 72 and 73 of the Nyaya Sanhita.

It is submitted that questions about her relations with other men are inadmissible without qualification. Questions about her relationship with the accused are permissible only so far as the prosecution’s own case puts that relationship in issue. Even then they may go only to the relationship and the promise, as Part IV explains.

The protection of the accused

The burden of proof never shifts. The only presumption against the accused is that in section 120, and it arises only on a charge under the aggravated clauses (Pankaj Singh). The central safeguard is the standard that uncorroborated testimony must meet.

In Rai Sandeep v. State (NCT of Delhi) the Supreme Court required a sole witness to be of “sterling” quality.11 Such a witness is consistent from the first statement to the last. The core of her account survives cross-examination. And her testimony fits the other evidence, whether medical, scientific or circumstantial.

The standard has been applied repeatedly. In Santosh Prasad v. State of Bihar the accused was acquitted where there was a prior land dispute between the families, the doctor found no evidence of rape, and the prosecutrix’s account was inconsistent.12 In Nirmal Premkumar v. State a bench of three judges applied the test to a prosecution for sexual harassment under the child-protection statute, and counted against the child the differences between her statement to the magistrate and her deposition.13 The Lucknow Bench, in Delinquent Child N, held that a prosecutrix is not a sterling witness where the investigating officer himself has disbelieved a core part of her account.14 And the Supreme Court has now held, in Paramjit Singh Bedi, that the prosecutrix’s evidence cannot be rejected on a charge of abduction and accepted on an intertwined charge of rape where both rest on the same account.15

Her testimony commands predominant consideration, but not where her story is improbable and belies logic.16 Three further rules protect the accused: her earlier written statements may be used to contradict her (section 148), with omissions confined to the categories in Tahsildar Singh; her statement to the magistrate is not substantive evidence (R. Shaji; Lal Babu); and every incriminating circumstance must be put to him in his examination under section 351 of the new Sanhita (formerly section 313).

The prosecution’s strengths

The prosecution has strengths of its own. The testimony of the prosecutrix, if it inspires confidence, needs no corroboration; to insist on corroboration as a rule, the Supreme Court said in Gurmit Singh, is to add insult to injury.17 She is not to be treated as an accomplice (Karnel Singh), and minor discrepancies and insignificant contradictions should not deflect the court from the broad probabilities of the case (Gurmit Singh).

Nor is the prosecution necessarily lost when she turns hostile. In Hemudan Nanbha Gadhvi v. State of Gujarat a bench of three judges held that the court must not be a mute spectator. A child who had identified her assailant at a test identification parade failed to identify him at trial, and the conviction was upheld on the identification, the medical evidence and a serological match.18 In Selvamani the Court held that the evidence of a hostile witness is not to be rejected wholesale, and observed that a gap of three and a half months between examination-in-chief and cross-examination had given the accused the chance to win the witnesses over.

It is submitted that the prosecution should press for the victim’s cross-examination to follow her examination-in-chief on the same day, or as soon after as the court allows. Selvamani shows the cost of delay.

The series

Authored by Eshan Kumar Gupta, Advocate, Hon'ble Allahabad High Court, Lucknow Bench.

Footnotes

  1. Sajjan Kumar v. CBI, decided on 20 September 2010 (P. Sathasivam and Anil R. Dave JJ), para 17 (Indian Kanoon numbering). The case concerned the events of 1984; the principles are general. ↩

  2. Alok Ranjan v. State of U.P., 2026:AHC:158011, paras 54–56. ↩

  3. Himank Singh @ Vinay v. State of U.P., Application u/s 482 No. 41284 of 2023, para 11. ↩

  4. Gian Singh v. State of Punjab, (2012) 10 SCC 303 (R.M. Lodha, Anil R. Dave and Sudhansu Jyoti Mukhopadhaya JJ), para 57 (Indian Kanoon numbering). ↩

  5. State of Madhya Pradesh v. Laxmi Narayan, (2019) 5 SCC 688 (A.K. Sikri, S. Abdul Nazeer and M.R. Shah JJ), para 13 (Indian Kanoon numbering; often cited as para 15 from the SCC report). ↩

  6. Ramji Lal Bairwa v. State of Rajasthan, 2024 INSC 846, decided on 7 November 2024 (C.T. Ravikumar and Sanjay Kumar JJ), paras 22, 28, 32 and 33. The offence was sexual assault under the child-protection statute, not rape. ↩

  7. Sakshi v. Union of India, (2004) 5 SCC 518, para 34. Only one signature appears on Indian Kanoon’s copy, so the coram could not be confirmed from it. ↩

  8. Smruti Tukaram Badade v. State of Maharashtra, M.A. No. 1852 of 2019 in Criminal Appeal No. 1101 of 2019, decided on 11 January 2022 (Dr D.Y. Chandrachud and Surya Kant JJ), para 5. ↩

  9. Mahender Chawla v. Union of India, (2019) 14 SCC 615 (A.K. Sikri and S. Abdul Nazeer JJ), para 35. ↩

  10. Rekha Murarka v. State of West Bengal, (2020) 2 SCC 474 (Mohan M. Shantanagoudar and Deepak Gupta JJ), paras 11, 12.1, 12.4 and 12.5. ↩

  11. Rai Sandeep @ Deepu v. State (NCT of Delhi), (2012) 8 SCC 21, para 15. ↩

  12. Santosh Prasad v. State of Bihar, AIR 2020 SC 985, decided on 14 February 2020 (Ashok Bhushan and M.R. Shah JJ), paras 5.2, 5.4.2, 5.4.3 and 6. ↩

  13. Nirmal Premkumar v. State, 2024 INSC 193, decided on 11 March 2024 (Dipankar Datta, K.V. Viswanathan and Sandeep Mehta JJ), paras 13, 16 and 21. The case did not concern rape. ↩

  14. Delinquent Child N v. State of U.P., 2026:AHC-LKO:51816, decided on 29 July 2026 (Subhash Vidyarthi J), paras 19–26. ↩

  15. Paramjit Singh Bedi v. State of Punjab, 2026 INSC 1054, para 28. ↩

  16. Tameezuddin @ Tammu v. State (NCT of Delhi), (2009) 15 SCC 566 (no paragraph numbers on Indian Kanoon). ↩

  17. See also Ganesan v. State, AIRONLINE 2020 SC 777, decided on 14 October 2020 (Ashok Bhushan, R. Subhash Reddy and M.R. Shah JJ), para 9, a case of sexual assault under the child-protection statute; and Phool Singh v. State of Madhya Pradesh, para 5.3. ↩

  18. Hemudan Nanbha Gadhvi v. State of Gujarat, AIR 2018 SC 4760, decided on 28 September 2018 (Ranjan Gogoi, Navin Sinha and K.M. Joseph JJ), paras 8–11. ↩

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