“Will” is defined as wish, desire, pleasure, inclination, choice, and faculty of conscious, and especially of deliberate, action. It is purely and solely a mental process to be ascertained, in a prosecution for rape, by what the prosecuting witness may have said or done. It being a mental process there is no other manner by which her will can be ascertained, and it must be left to the jury to determine that will by her acts and statements, as disclosed by the evidence. It is but natural, therefore, that in charging the jury upon the subject of rape, or assault with intent to commit rape, the courts should have utmost universally, and, in many cases, exclusively, discussed “consent” and resistance. There can be no better evidence of willingness is a condition or state of mind no better evidence of unwillingness than resistance. No lexicographer recognizes “consent” as a synonym of willingness, and it is apparent that they are not synonymous. It is equally apparent, on the other hand, that the true relation between the words is that willingness is a condition or state of mind and “consent” one of the evidences of that condition. Likewise, resistance is not a synonym of willingness, though it is an evidence thereof. In all cases, therefore, where the prosecuting witness has an intelligent will, the court should charge upon the elements of “consent” and resistance as being proper elements from which the jury may infer either a favourable or an opposing will. It must, however, be recognized in all cases that the real test is whether the assault was committed against the will of the prosecuting witness. Broadly, this Court has accepted and followed the judgments referred to in the above judicial dictionaries as regards the meaning of the word ‘consent’ as occurring in Section 375 IPC. It is not necessary to refer to all the decisions and the reference to two decisions of this Court shall suffice. In State of H.P. v. Mango Ram3, a 3-Judge Bench of this Court while dealing with the aspect of ‘consent’ for the purposes of Section 375 IPC held at page 230 of the report as under: “Submission of the body under the fear of terror cannot be construed as a consented sexual act. Consent for the purpose of Section 375 requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance and moral quality of the act, but after having fully exercised the choices between resistance assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances.” In the case of Uday v. State of Karnataka, this Court put a word of caution that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. The Court at page 57 of the Report stated: “In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in ease case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar fact which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. The appellant filed a complaint u/s 138 of the Negotiable Instruments Act, 1881. The accused, on being summoned by a Magistrate, filed a petition before the High Court u/s 482 Cr.P.C., inter alia, praying for dispensing with her personal appearance before the Magistrate. The Single Judge of the High Court, while allowing the petition and permitting the accused to appear before the trial court through her counsel, issued general directions to all the criminal courts as regards holding of trials, particularly, in cases involving offences u/s 138 of the N.I. Act as also in all other cases involving offences technical in nature and not involving moral turpitude. The appeal filed by the complainant was listed before a Division Bench of the Supreme Court which felt the necessity of referring the matter to a larger Bench and, thus, the appeal was referred to the three-Judge Bench to consider the question: whether. the High Court in exercise of its jurisdiction u/s 482 and 483 of the Code of Criminal Procedure, 1973 and/or under Article 227 of the Constitution of India could issue guidelines directing all courts taking cognizance of offences u/s 138.
