Karnataka High Court
Mr. Ranjith @ Ranjith Kumar Brahmavar vs State Of Karnataka on 19 June, 2025
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 11764 of 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 11764 OF 2024
BETWEEN:
1. MR. RANJITH @ RANJITH KUMAR BRAHMAVAR
S/O BHASKARA
AGED ABOUT 33 YEARS
R/AT 3-6, NISARGA, HERANJE
HEROOR CROSS, NEAR KRISHI KENDRA
CHANTARU VILLAGE, BRAHMAVARA TALUK
UDUPI DISTRICT - 576 213.
2. SMT. INDIRA
W/O BHASKARA
AGED ABOUT 58 YEARS
R/AT 3-6, NISARGA, HERANJE
HEROOR CROSS, NEAR KRISHI KENDRA
Digitally signed CHANTARU VILLAGE, BRAHMAVARA TALUK
by NAGAVENI UDUPI DISTRICT - 576 213.
Location: High
Court of
Karnataka 3. SRI VISHWANATH
S/O GANAPA
AGED ABOUT 60 YEARS
R/AT 'INCHARA', TEHNKUBIRTHI
VARAMBALLI VILLAGE, BRAMAVARA TALUK
UDUPI DISTRICT - 576 213.
4. SRI SANDESH @ SANDESH KUMAR
S/O VISHWANATHA
AGED ABOUT 32 YEARS
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R/AT 'INCHARA', TEHNKUBIRTHI
VARAMBALLI VILLAGE, BRAMAVARA TALUK
UDUPI DISTRICT - 576 213.
5. SRI SANTHOSHA
S/O PADDA
AGED ABOUT 47 YEARS
HOUSE NO.3.191
PANCHAMI SEED FARM ROAD
VARAMBALLI VILLAGE
BRAMAVAR TALUK
UDUPI DISTRICT - 576 213.
6. SRI UDAYA @ UDAY KUMAR TALLOOR
S/O SADANANDA
AGED ABOUT 46 YEARS
R/AT KOTEBAGILU, GUDDE MANE
THALOOR VILLAGE, KUNDAPURA TALUK
UDUPI DISTRICT - 576 201.
...PETITIONERS
(BY SRI RAGHUNATHA K., ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY UDUPI WOMEN PS, UDUPI
REPRESENTED BY SPP
HIGH COURT OF KARNATAKA
BENGALURU - 560 001.
2. RANJANI
D/O SOMAPPA
AGED ABOUT 33 YEARS
R/AT TEHNKUBIRTHI
BRAHMAVARA TALUK
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CRL.P No. 11764 of 2024
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UDUPI DISTRICT - 576 213.
...RESPONDENTS
(BY SRI B.N.JAGADEESHA, ADDL. SPP FOR R1
R2 - SERVED AND UNREPRESENTED)
THIS CRL.P IS FILED U/S 482 OF CR.P.C (U/S 528 BNSS)
PRAYING TO QUASH THE ANNEXURE-A i.e., CHARGE SHEET IN
S.C.NO.46/2024 IN CR.NO.17/2023 (PCR NO.59/2023) OF
UDUPI WOMEN P.S., FILED AGAINST THE PETITIONERS NO.1
TO 6, FOR AN OFFENCE P/U/S 376(2)(n), 354(A)(1)(i),
354(A)(2), 504, 506, 509, 417, 201, 109 R/W 34 OF IPC,
PENDING ON THE FILE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, UDUPI AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioners are before this Court calling in question
proceedings in S.C.No.46/2024, pending before the Principal
District and Sessions Judge, Udupi, for offences punishable
under Sections 376(2)(n), 354A(1)(i), 354A(2), 504, 506, 509,
417, 201, 109 r/w. 34 of the IPC.
2. Heard Sri Raghunatha K., learned counsel for
petitioners and Sri B.N.Jagadeesha, learned Additional State
Public Prosecutor for respondent No.1.
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3. Facts in brief, germane, are as follows:
The second respondent is the complaint. The petitioner –
accused No.1 is said to have relationship with the complainant,
on the score that they were known to each other since
childhood. The friendship appears to have blossomed into
relationship and the relationship getting physical as well, on the
pretext of promise of marriage. The talks of marriage take
place and on rejection of the marriage proposal, a crime then
emerges in crime No.17/2023, on a complaint registered by the
second respondent, for the allegations of repeated rape, as
obtaining under Section 376(2)(n) of the IPC, on the pretext of
marriage. The police after investigation, file a charge sheet
and maintained the afore-quoted offences that were alleged at
the time of registration of the crime. The concerned Court
commits the case to the Court of Sessions, in the light of the
offence being rape. The matter is now pending before the
Sessions Court, in S.C.No.46/2024, for the afore-quoted
offences. The pendency or continuance of the proceedings is
what has driven the petitioners to this Court in the subject
petition.
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4. The learned counsel for the petitioners would
vehemently contend that the entire issue sprang out of a
private complaint registered by the complainant in P.C.R.No.59
of 2023 and on its reference made under Section 156(3) of the
Cr.P.C. by the learned Magistrate, for it to become a crime in
crime No.17/2023, for the afore-quoted offences. Learned
counsel would submit that there is no promise of marriage ever
meted out by petitioner No.1 and that petitioner No.1 and
respondent No.2 were friends and having relationship. All acts
in the relationship are consensual between petitioner No.1 and
the complainant, which went on for a period of 2 years or more
and when petitioner No.1 wanted to marry someone else, the
complaint emerges from the hands of the second respondent.
He would submit that none of the offences that are alleged
against the petitioners can be laid as they are not on breach of
promise of marriage or love but are consensual acts. Learned
counsel would seek to place reliance upon plethora of
judgements, all of which would bear consideration qua the
relevance in the course of the order.
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5. Insofar as the other accused are concerned, learned
counsel for the petitioners submits that petitioner Nos.2 to 6
are the mother and friends of petitioner No.1 – accused No.1,
who are also drawn into the web of crime for the aforesaid
offences. He would submit that this is a clear case of abuse of
the process of the law.
6. Per contra, learned Additional State Public Prosecutor
Sri B.N.Jagadeesha, would vehemently refute the submissions
to contend that petitioner No.1 – accused No.1 and the second
respondent – complainant did have a relationship and it was on
the pretext of marriage. Whether it was a false promise of
marriage or a promise of marriage that had gone wrong, is a
matter of trial and therefore, the petition should not be
entertained at this juncture, as it is for the accused to come out
clean in a full blown trial. Even with regard to other petitioners
– accused Nos.2 to 6, learning Additional State Public
Prosecutor would point that the summary of the charge sheet
as obtaining in column No.17, contending that the allegations
so alleged would clearly point at other accused, as well. He
would seek dismissal of the petition.
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7. I have given my anxious consideration to the
submissions made by the learned counsel for the respective
parties and have perused the material on record.
8. The complainant though served long ago, has chosen
to remain unrepresented. Therefore, the learned counsel for
petitioners and the learned Additional State Public Prosecutor
are heard in the matter.
9. The afore-narrated facts are a matter of record. The
two, i.e., petitioner No.1 and respondent No.2 were friends
since childhood. Later, when they were in the college, the
friendship blossomed into relationship and the relationship
turned into physical relationship. The allegations are that, it
was on account of a promise of marriage. The promise having
been breached, leads the complainant to the concerned Court
by way of filing a private complaint for the afore-quoted
offences. The learned Magistrate refers the matter for
investigation under Section 156(3) of the Cr.P.C., which then
becomes a crime in crime No.17/2023.
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10. Since the entire issue is now triggered from the
registration of the complaint, I deem it appropriate to notice
the complaint so registered. It reads as follows:
“SUBJECT MATTER OF COMPLAINT:-
1. That the complainant living along with her father,
mother and brother. She is a MA Post Graduate in English
Literature. Earlier she was working at Thenkabettu
School, K.G Road as Teacher. Since from three month she
is working at the office of Advocate at Bramavara. The
accused no.1 is the resident of address mentioned in the
cause title. He is a BCA Graduate, working at YUCCA IT
Solution Company at Bangalore. Because of Corona
pandemic for the last 2 to 3 years he is working from
home. The complainant and accused belongs to Adi
dravida caste. The accused and his parents were earlier
resided near by the resident of complainant as she knows
him from childhood. For the last few years they become
friends in social media. The accused no.1 is having a car
and recently purchased a new car. The accused no.1 is in
contact with the complainant and he chatting with the
complainant continuously in social media and their
friendship turned in to love. It is the first time on 01-04-
2022 the accused no.1 called the complainant and invited
her for a jolly ride of Udupi beach. There they had a
discussion and the accused no.1 given an offer of
marrying the complainant and promised her of marrying
her within a short period Even he promised her to the
extent of marrying her only. Thereafter he started
forcefully kissing her, had oral sex, touched her private
parts and except the intercourse, he has done everything
on that day inspite of her resistance. She was not a
consenting party. It was continued for 2, 3 times. Later
he went to Bangalore and he was in contact with the
complainant through social media.
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2. The complainant submits that, it is on 01-05-
2022 the accused no.1 came to the native place
Bramavara. After one week i.e on 08-05-2022 the
accused no.1 called the complainant and told her to
come near by Bramavara Holy family church. He
came there in his car at about 6.30 p.m and picked
the complainant and came to Ajjarkad Bhujanga
Park and parked the car in a corner lonely place.
After parking he requested the complainant to move
to the back seat of the car. Then he also moved to
the back seat of the car and once again promised
the complainant that he will going to marry her and
without waiting for her consent and in spite of her
protest he removed all her dress and later forcibly
had sex with her. The complainant not disclosed
these facts to her family members as he promised
her of marrying her. Later he took her to various
places. Though she advised him that it is not correct
on her part to have sex before marriage, but he
assured her of marrying at the earliest possible.
Later the physical relationship was continued
through out the year. In between one day he took
the complainant to Agumbe and while coming back,
near Hebri in a lonely remote place while having
sex, the Police attached to Hebri Police Station
observed the same and took both the complainant
and accused no.1 to the station, warned him and
released both the accused and the complainant
later.
3. The complainant submits that, in the month of
February 2023 when the complainant discussed about the
marriage with the accused no.1, then he told her that he
want some time to discuss the matter with his family
members. The accused no.1 was sending obscene
pictures and messages to the complainant through social
media and she was also replying for the same. The
complainant was continuously discussing the
matter of marriage with the accused no.1 and
requesting him for the solemnization of marriage.
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But unfortunately instead of procceding for the
marriage the accused no.1 stopped calling the
complainant and also not replying to her messages
properly. It is on 01-05-2023 on the occasion of
birthday of accused no.1 the complainant and
accused no.1 met at a place and the complainant
pressurized him for the marriage then the accused
no.1 openly told that he is not going to marry her
and if she wants she can marry any other boy and
he will marry other girl. He threatened her and put
her in fear of injury and death, further threatened
her not to insist him for the marriage and by saying
these words he said he is having contact with the
criminal goondas and his family members are
members of Dalitha Sangarsha Samithi. The
complainant was shocked by hearing the same.
Then without any option she discussed this matter
with her family members. The family members told
her to invite him to discuss the matter of marriage
but he completely stopped to replying to her
messages and also not picking her calls.
4. The complainant submits that, both the family
members of complainant and accused no.1 decided to
have a meeting at Ambedkar Bhavana Bramavara.
Meeting was called on 06/08/2023 at 6.30 p.m in
the evening. The family members of the
complainant and accused and accused no.2 to 7
were present. Then the complainant and her
parents proposed for the marriage, then the
accused no.1 refused and accused no.2 to 7 formed
an unlawfull assembly among them, 2,3 persons
were holding wooden rods and hockey sticks
surrounded the complainant and her family
members by saying that “you enjoyed with accused
no.1 at your own interest and not only enjoying
with accused no.1 you are also enjoying with other
boys, you are freely available to all”. Further they
demanded to have sex with them also and even
they have gone to the extent of saying that she has
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to sleep with them and they will give full
satisfaction. Further they threatened of kidnapping
and committing murder. etc. further they said these
are all common things now a days and you can
continue the same and forget about the marriage
etc. It is heard that accused no.6 collected money
from accused no.1 and insisted accused no.2 to 5 to
commit the crime. The accused no.1 said that she is
having relationship with others and she being a
prostitute enjoyed with other boys. Further he
offered “whatever the amount she wants to leave
him he is ready to give” and they together abused
her by calling her ಸೂ ೆ,ೆ, ೆವ , ರಂ ೆ ೋ ೋ ೕ etc.,
5. The complainant submits that, accused no.1 by
promising the complainant of marriage, induced her
for sex with him and he cheated her, committed
breach of trust and by colluding with accused no.2
to 6 he put her in fear of death and abused her by
saying her “prostitute” etc. Further said it is her
mistake and these are all common things and advised her
to have sex with other accused. Thereby the accused no.1
committed the offences punishable under section 376,
354B, 420, 406 of IPC and accused no.1 to 6 together
have committed the offenses punishable under section
384, 506, 504, 143, 147, 148 r/w 149 of IPC.
6. The Complainant submits that, it is on 07/08/2023 she
approached the Inspector Womens Police Station Udupi,
but unfortunately they instead of registering the case
issued a notice to the accused and they had discussion
and there is a meeting between the parties on
09/08/2023, on that day the accused assured of marrying
the complainant after consultation with his parents and he
requested to give 8 days time. After laps of 8 days he
once again turned hostile. Once again she approached the
police and they refused to register the case by informing
her to approach the court by filing the complaint and refer
the same to them. Then she approached the
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Superintendent of Police Udupi District on 28/08/2023,
there also no response till this date. Now therefore the
complainant is having no other option except to approach
this court by filing this complaint.
Therefore it is prayed that the court may be
pleased to take the offences into cognizance and for
detailed investigation, the complaint may be referred to
S.H.O Womens Police Station for investigation and to
report, in the ends of justice.”
(Emphasis added)
The narration in the complaint is that, the friendship of
petitioner No.1 and respondent No.2 – complainant and
petitioner No.1 and respondent No.2 travelling to several
places; the promise of marriage allegedly breached by
petitioner No.1 and insofar as, other accused are concerned,
the allegations are that, they have threatened the complainant
that if she would insist upon marriage with petitioner No.1,
they would kill. This is the purport of the complaint. The
complaint as observed, is referred for investigation, which leads
to filing of the charge sheet by respondent No.1 – police for the
aforesaid offences. The summary of the charge sheet as
obtaining in column No.17 reads as follows:
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"17. Brief facts of the case
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(Emphasis added)
The allegation is against accused No.1, who is said to
have had physical relationship with the complainant on the
promise of marriage. It narrates the breach of promise of
marriage and also criminally intimidating the complainant by
petitioner No.1 – accused No.1. Accused Nos.2 to 6 are the
mother and the friends of petitioner No.1 – accused No.1. On
filing of the charge sheet, the concerned Court commits the
matter to the Court of Sessions and is now pending trial before
the Court of Sessions.
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11. The issue now would be, whether on the aforesaid
facts, trial should be permitted to continue against the
petitioners.
12. Before delving upon the allegations made against
accused No.1, I deem it appropriate to notice the allegations
made against accused Nos.2 to 6. Accused No.2 is the mother
of accused No.1 and accused Nos.3 to 6 are said to be friends
of accused No.1. The narration in the complaint is that,
accused Nos.2 to 6 have threatened the complainant that if she
would insist on marriage, they would kill her. There is no other
corroborative material that is produced to demonstrate that
there was any threat meted out by accused Nos.2 to 6. The
police appear to have drawn the charge sheet as obtaining in
column No.17 supra only to assuage the complainant or her
family, without there being any corroboration of the documents
or statements, which are not appended to the petition.
13. Insofar as the allegation of repeated rape or sexual
harassment against accused No.1 is concerned, what is the role
of the mother is a mystery, as the mother is drawn into the
web of crime without any rhyme or reason. Therefore,
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permitting further proceedings against accused Nos.2 to 6
would on the face of it, become an abuse of the process of the
law and the proceedings against them are to be obliterated.
14. Insofar as the first petitioner is concerned, who is
said to have had a relationship with the complainant on several
bouts, as narrated in the complaint or in the summary of the
charge sheet, they are indicative of the facts that they all are
consensual acts between accused No.1 and respondent No.2.
The offence of rape cannot spring, when there is consensual
act, is the law laid down by the Apex Court right from the case
of DR. DHRUVARAM MURLIDHAR SONAR v. STATE OF
MAHARASHTRA1, wherein the Apex Court holds as follows:
“…. …. ….
14. In the instant case, FIR was registered against
the appellant and the co-accused under Sections 376(2)(b),
420 read with Section 34 IPC and under Section 3(1)(x) of
the SC/ST Act. Section 376(2)(b) prescribes punishment for
the offence of rape committed by a public servant taking
advantage of his official position on a woman in his custody
as such public servant or in the custody of a public servant
subordinate to him. The said provision during the relevant
point of time was as under:
“376. Punishment for rape.–
(1) * * *
(2) Whoever,--
1
(2019) 18 SCC 191
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(a)***
(b) being a public servant, takes advantage
of his official position and commits rape
on a woman in his custody as such public
servant or in the custody of a public
servant subordinate to him; or
(c)-(g)***
shall be punished with rigorous imprisonment
for a term which shall not be less than ten years
but which may be for life and shall also be liable
to fine.”
15. Section 375 defines the offence of rape and
enumerates six descriptions of the offence. The first
clause operates where the woman is in possession of
her senses and, therefore, capable of consenting but
the act is done against her will and the second where
it is done without her consent; the third, fourth and
fifth when there is consent but it is not such a
consent as excuses the offender, because it is
obtained by putting her, or any person in whom she
is interested, in fear of death or of hurt. The
expression “against her ‘will’ ” means that the act
must have been done in spite of the opposition of the
woman. An inference as to consent can be drawn if
only based on evidence or probabilities of the case.
“Consent” is also stated to be an act of reason
coupled with deliberation. It denotes an active will in
mind of a person to permit the doing of the act
complained of.
16. Section 90 IPC defines “consent” known to be
given under fear or misconception:
“90. Consent 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 the
consent 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;”
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17. Thus, Section 90 though does not define
“consent”, but describes what is not “consent”.
Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. If
the consent is given by the complainant under
misconception of fact, it is vitiated. 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 also
after having fully exercised the choice between
resistance and assent. Whether there was any
consent or not is to be ascertained only on a careful
study of all relevant circumstances.
18. In Uday v. State of Karnataka [Uday v. State of
Karnataka, (2003) 4 SCC 46: 2003 SCC (Cri) 775] , this
Court was considering a case where the prosecutrix, aged
about 19 years, had given consent to sexual intercourse
with the accused with whom she was deeply in love, on a
promise that he would marry her on a later date. The
prosecutrix continued to meet the accused and often had
sexual intercourse and became pregnant. A complaint was
lodged on failure of the accused to marry her. It was held
that consent cannot be said to be given under a
misconception of fact. It was held thus: (SCC pp. 56-57,
paras 21 & 23)
“21. It therefore appears that the consensus of
judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual intercourse
with a person with whom she is deeply in love on a
promise that he would marry her on a later date,
cannot be said to be given under a misconception of
fact. A false promise is not a fact within the meaning of
the Code. We are inclined to agree with this view, but
we must add that there is no straitjacket formula for
determining whether consent given by the prosecutrix
to sexual intercourse is voluntary, or whether it is
given under a misconception of fact. 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 each case,
consider the evidence before it and the surrounding
circumstances, before reaching a conclusion, because
each case has its own peculiar facts which may have a
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bearing on the question whether the consent was
voluntary, or was given under a misconception of fact.
It must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence of
consent being one of them.
* * *
23. Keeping in view the approach that the court
must adopt in such cases, we shall now proceed to
consider the evidence on record. In the instant case,
the prosecutrix was a grown-up girl studying in a
college. She was deeply in love with the appellant. She
was, however, aware of the fact that since they
belonged to different castes, marriage was not
possible. In any event the proposal for their marriage
was bound to be seriously opposed by their family
members. She admits having told so to the appellant
when he proposed to her the first time. She had
sufficient intelligence to understand the significance
and moral quality of the act she was consenting to.
That is why she kept it a secret as long as she could.
Despite this, she did not resist the overtures of the
appellant, and in fact succumbed to them. She thus
freely exercised a choice between resistance and
assent. She must have known the consequences of the
act, particularly when she was conscious of the fact
that their marriage may not take place at all on
account of caste considerations. All these
circumstances lead us to the conclusion that she freely,
voluntarily and consciously consented to having sexual
intercourse with the appellant, and her consent was
not in consequence of any misconception of fact.”
19. In Deelip Singh v. State of Bihar [Deelip
Singh v. State of Bihar, (2005) 1 SCC 88: 2005 SCC (Cri)
253], the Court framed the following two questions relating
to consent: (SCC p. 104, para 30)
(1) Is it a case of passive submission in the face
of psychological pressure exerted or allurements made
by the accused or was it a conscious decision on the
part of the prosecutrix knowing fully the nature and
consequences of the act she was asked to indulge in?
(2) Whether the tacit consent given by the
prosecutrix was the result of a misconception created
in her mind as to the intention of the accused to marry
her?
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In this case, the girl lodged a complaint with the
police stating that she and the accused were
neighbours and they fell in love with each other. One
day in February 1988, the accused forcibly raped her
and later consoled her by saying that he would marry
her. She succumbed to the entreaties of the accused
to have sexual relations with him, on account of the
promise made by him to marry her, and therefore
continued to have sex on several occasions. After she
became pregnant, she revealed the matter to her
parents. Even thereafter, the intimacy continued to
the knowledge of the parents and other relations who
were under the impression that the accused would
marry the girl, but the accused avoided marrying her
and his father took him out of the village to thwart
the bid to marry. The efforts made by the father of
the girl to establish the marital tie failed. Therefore,
she was constrained to file the complaint after
waiting for some time.
20. With this factual background, the Court held that
the girl had taken a conscious decision, after active
application of mind to the events that had transpired. It
was further held that at best, it is a case of breach of
promise to marry rather than a case of false promise to
marry, for which the accused is prima facie accountable for
damages under civil law. It was held thus : (Deelip
Singh [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 :
2005 SCC (Cri) 253] , SCC p. 106, para 35)
“35. The remaining question is whether on the
basis of the evidence on record, it is reasonably
possible to hold that the accused with the fraudulent
intention of inducing her to sexual intercourse, made a
false promise to marry. We have no doubt that the
accused did hold out the promise to marry her and that
was the predominant reason for the victim girl to agree
to the sexual intimacy with him. PW 12 was also too
keen to marry him as she said so specifically. But we
find no evidence which gives rise to an inference
beyond reasonable doubt that the accused had no
intention to marry her at all from the inception and
that the promise he made was false to his knowledge.
No circumstances emerging from the prosecution
evidence establish this fact. On the other hand, the
statement of PW 12 that “later on”, the accused
became ready to marry her but his father and others
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took him away from the village would indicate that the
accused might have been prompted by a genuine
intention to marry which did not materialise on account
of the pressure exerted by his family elders. It seems
to be a case of breach of promise to marry rather than
a case of false promise to marry. On this aspect also,
the observations of this Court in Uday
case [Uday v. State of Karnataka, (2003) 4 SCC 46 :
2003 SCC (Cri) 775] at para 24 come to the aid of the
appellant.”
21. In Deepak Gulati v. State of
Haryana [Deepak Gulati v. State of Haryana, (2013) 7
SCC 675 : (2013) 3 SCC (Cri) 660] , the Court has
drawn a distinction between rape and consensual
sex. This is a case of a prosecutrix aged 19 years at
the time of the incident. She had an inclination
towards the accused. The accused had been giving
her assurances of the fact that he would get married
to her. The prosecutrix, therefore, left her home
voluntarily and of her own free will to go with the
accused to get married to him. She called the accused
on a phone number given to her by him, to ask him
why he had not met her at the place that had been
pre-decided by them. She also waited for him for a
long time, and when he finally arrived, she went with
him to a place called Karna Lake where they indulged
in sexual intercourse. She did not raise any objection
at that stage and made no complaints to anyone.
Thereafter, she went to Kurukshetra with the
accused, where she lived with his relatives. Here too,
the prosecutrix voluntarily became intimate with the
accused. She then, for some reason, went to live in
the hostel at Kurukshetra University illegally, and
once again came into contact with the accused at
Birla Mandir there. Thereafter, she even proceeded
with the accused to the old bus-stand in Kurukshetra,
to leave for Ambala so that the two of them could get
married at the court in Ambala. At the bus station,
the accused was arrested by the police. The Court
held that the physical relationship between the
parties had clearly developed with the consent of the
prosecutrix as there was neither a case of any
resistance nor had she raised any complaint
anywhere at any time, despite the fact that she had
been living with the accused for several days and had
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travelled with him from one place to another. The
Court further held that it is not possible to apprehend
the circumstances in which a charge of deceit/rape
can be levelled against the accused.
22. Recently, this Court, in Shivashankar v. State of
Karnataka [Shivashankar v. State of Karnataka, (2019) 18
SCC 204] , disposed of on 6-4-2018, has observed that it is
difficult to hold that sexual intercourse in the course of a
relationship which has continued for eight years is “rape”,
especially in the face of the complainant’s own allegation
that they lived together as man and wife. It was held as
under : (Shivashankar case [Shivashankar v. State of
Karnataka, (2019) 18 SCC 204] , SCC p. 205, para 4)
“4. In the facts and circumstances of the
present case, it is difficult to sustain the charges
levelled against the appellant who may have possibly,
made a false promise of marriage to the complainant.
It is, however, difficult to hold sexual intercourse in the
course of a relationship which has continued for eight
years, as “rape” especially in the face of the
complainant’s own allegation that they lived together
as man and wife.”
23. Thus, there is a clear distinction between
rape and consensual sex. The court, in such cases,
must very carefully examine whether the
complainant had actually wanted to marry the victim
or had mala fide motives and had made a false
promise to this effect only to satisfy his lust, as the
latter falls within the ambit of cheating or deception.
There is also a distinction between mere breach of a
promise and not fulfilling a false promise. If the
accused has not made the promise with the sole
intention to seduce the prosecutrix to indulge in
sexual acts, such an act would not amount to rape.
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
the misconception created by 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. Such cases must be treated
differently. If the complainant had any mala fide
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intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual
physical relationship between the parties would not
constitute an offence under Section 376 IPC.
24. In the instant case, it is an admitted
position that the appellant was serving as a Medical
Officer in the Primary Health Centre and the
complainant was working as an Assistant Nurse in
the same health centre and that she is a widow. It
was alleged by her that the appellant informed her
that he is a married man and that he has differences
with his wife. Admittedly, they belong to different
communities. It is also alleged that the
accused/appellant needed a month’s time to get their
marriage registered. The complainant further states
that she had fallen in love with the appellant and that
she needed a companion as she was a widow. She
has specifically stated that “as I was also a widow
and I was also in need of a companion, I agreed to
his proposal and since then we were having love
affair and accordingly we started residing together.
We used to reside sometimes at my home whereas
sometimes at his home”. Thus, they were living
together, sometimes at her house and sometimes at
the residence of the appellant. They were in a
relationship with each other for quite some time and
enjoyed each other’s company. It is also clear that
they had been living as such for quite some time
together. When she came to know that the appellant
had married some other woman, she lodged the
complaint. It is not her case that the complainant has
forcibly raped her. She had taken a conscious
decision after active application of mind to the things
that had happened. It is not a case of a passive
submission in the face of any psychological pressure
exerted and there was a tacit consent and the tacit
consent given by her was not the result of a
misconception created in her mind. We are of the
view that, even if the allegations made in the
complaint are taken at their face value and accepted
in their entirety, they do not make out a case against
the appellant. We are also of the view that since the
complainant has failed to prima facie show the
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commission of rape, the complaint registered under
Section 376(2)(b) cannot be sustained.”
(Emphasis supplied)
The Apex Court again in the case of LALU YADAV v. STATE
OF UTTAR PRADESH2, has held as follows:
“…. …. ….
8. We have already taken note of the facts
revealed from the subject FIR itself that the time of
occurrence of offence is allegedly, from 05.01.2013
to 05.01.2018 and that it was registered only at
21.34 hrs. on 21.02.2018. That apart, it is evident
that even going by respondent No. 4, the complainant
herself and the appellant were living as husband and
wife. The complaint of respondent no. 4, as is
revealed therefrom, is that the appellant had
deceived her by promising to marry and then by
establishing physical relationship. At the risk of
repetition, we will have to refer to the FIR, carrying
the following recitals from her complaint:
“… Lalu Yadav S/o Seshnath Yadav R/o
Atarsuya P.S. Nandganj District-Ghazipur, used to
come to my house along with the brother-in-law
Ravindra Yadav of my elder sister, at that time about
five years back I was a student of High School, then
the said Lalu Yadav by way of deceiving myself
promise that he will marry me and established physical
relationship with me without my consent and started
living with me as the husband.”
(underline supplied)
9. At the very outset, it is to be noted that there is a
huge irregularity between the statements “established
physical relationship with me without my consent” and
“started living with me as the husband”. Be that as it may,
2
2024 SCC OnLine SC 2876
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bearing in mind the allegations raised by respondent No. 4
reflected in the subject FIR, we will refer to the relevant
decisions of this Court.
10. While dismissing the writ petition under the
impugned order, presumably taking note of the contentions
based on time lag of five years, the High Court relied on its
Full Bench decisions in Ajit Singh @ Muraha v. State of
U.P.2, and in Satya Pal v. State of U.P.3. as well as the
decision of this Court in State of Haryana v. Bhajan Lal4. It
observed and held that there could be no interference with
the investigation or order staying arrest unless cognizable
offence is not ex-facie discernible from the allegations
contained in the FIR or there exists any statutory restriction
operating against the power of the Police to investigate a
case. There can be no two views on the exposition of law
thus made relying on the said decisions. In the same breath
we will have to say that those decisions can be no bar for
the exercise of power under Section 482, Cr. P.C., in
various other situations dealt with, in detail, by this Court,
including in the decision in Bhajan Lal‘s case (supra).
11. To determine whether the case in hand
deserves to be quashed at the present stage we will
refer to some of the decisions. We have already taken
note of the fact that though there was an allegation
in the FIR regarding commission of offence under
Section 313, IPC, on completion of the investigation,
the investigating agency itself omitted the offence
under Section 313, IPC against the appellant-
accused. In paragraph 102 of the decision in Bhajan Lal’s
case (supra) this Court held thus:–
“102. In the backdrop of the interpretation of
the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated by
this Court in a series of decisions relating to the
exercise of the extraordinary power under Article 226
or the inherent powers under Section 482 of the Code
which we have extracted and reproduced above, we
give the following categories of cases by way of
illustration wherein such power could be exercised
either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly defined
and sufficiently channelised and inflexible guidelines or
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rigid formulae and to give an exhaustive list of myriad
kinds of cases wherein such power should be
exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a cognizable
offence, justifying an investigation by police officers
under Section 156(1) of the Code except under an
order of a Magistrate within the purview of Section
155(2) of the Code.
(3) Where the uncontroverted allegations made
in the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or the
concerned Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific provision
in the Code or the concerned Act, providing efficacious
redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding
is maliciously instituted with an ulterior motive for
wreaking vengeance on the accused and with a view to
spite him due to private and personal grudge.”
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12. In the decision in Shivashankar alias
Shiva v. State of Karnataka5, this Court held thus:–
“4. In the facts and circumstances of the
present case, it is difficult to sustain the charges
levelled against the appellant who may have possibly,
made a false promise of marriage to the complainant.
It is, however, difficult to hold sexual intercourse in the
course of a relationship which has continued for eight
years, as “rape” especially in the face of the
complainant’s own allegation that they lived together
as man and wife.”
13. The decision in “XXXX” v. State of Madhya
Pradesh6, also assumes relevance in the contextual
situation. This court took into consideration an earlier
decision of this Court in Naim Ahamed v. State (NCT
of Delhi)7, where the allegation was one of alleged
rape on false promise of marriage, made five years
after the complainant and the accused started having
relations and even got pregnant from the accused, of
course when she was having a subsisting marriage,
the Court found that there cannot be any stretch of
imagination that the prosecutrix had given her
consent for sexual relationship under misconception.
Having considered the said decision and finding
identity in facts, this court in the decision reported
in (2024) 3 SCC 496 reversed the order impugned
therein dismissing the petition filed under
Section 482, Cr. P.C. for quashment of FIR and
allowed the appeal by setting aside the impugned
order and quashing the subject FIR.
14. Now, having bestowed our anxious
consideration to the decisions referred supra with
reference to the factual situations obtained in the
case at hand, we are of the considered view that the
High Court has palpably gone wrong in not
considering the question whether the allegations in
the complaint reveals prima facie case that the
complainant had given her consent for the sexual
relationship with the appellant under misconception
of fact, as alleged, or whether it reveals a case of
consensual sex. Firstly, it is to be noted that the
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subject FIR itself would reveal that there occurred a
delay of more than 5 years for registering the FIR;
secondly, the very case of the complainant, as
revealed from the FIR, would go to show that they
lived for a long period as man and wife and thirdly,
the facts and circumstances obtained from the
subject FIR and other materials on record would
reveal absence of a prima facie case that the
complainant viz., respondent No. 4 had given her
consent for sexual relationship with the appellant
under misconception of fact. At any rate, the
allegations in the FIR would not constitute a prima
facie case of false promise to marry from the
inception with a view to establish sexual relationship
and instead they would reveal a prima facie case of
long consensual physical relationship, during which
the complainant addressed the appellant as her
husband. Moreover, it is also the case of the
complainant, revealed from the subject FIR and the
other materials on record that she went along with
the appellant to Varanasi with the knowledge of her
family and stayed with him in hotels during such
visits. The subsequent refusal to marry the
complainant would not be sufficient, in view of the
facts and circumstances obtained in the case at hand,
by any stretch of imagination to draw existence of
a prima facie case that the complainant had given
consent for the sexual relationship with the appellant
under misconception of fact, so as to accuse the
appellant guilty of having committed rape within the
meaning of Section 375, IPC.”
(Emphasis supplied)
The issue is again considered by the Apex Court in the
latest judgment rendered in the case of BISWAJYOTI
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CHATTERJEE vs. STATE OF WEST BENGAL & ANR3, wherein
it is held as follows:
“CONSIDERATION OF SUBMISSIONS:
13. We have carefully considered the submissions
made by the Learned Counsels for the parties and in the
present case, the question for consideration before the
High Court, and subsequently before this Hon’ble Court, is
that whether the allegations against the Appellant, as
they stand, constitute an offence, under Sections
376(2)(f), 417 and 506 IPC; and whether the case of the
Appellant is fit for discharge under Section 227 CrPC,
1973.
14. A bare perusal of the FIR dt. 14.12.2015, and
the statement of the Complainant under Section 164
CrPC, clearly establish that Appellant and the Complainant
had come in contact in the year 2014, during the
pendency of matrimonial disputes arising out of the
Complainant’s marriage. It is the own case of the
Complainant/Respondent No.2 that during the relevant
time, the Appellant had duly informed her that he was
separated from his wife. The Complainant who was well
aware of the personal as well as the professional
background of the Appellant, who had been receiving
financial help from the Appellant for herself and her son,
must have carefully weighed her decision before entering
into a relationship with the Appellant.
15. Even if we take the case of the Complainant at
the face value or consider that the relationship was based
on an offer of marriage, the Complainant cannot plead
‘misconception of fact’ or ‘rape on the false pretext to
marry’. It is from day one that she had knowledge and
was conscious of the fact, that the Appellant was in a
subsisting marriage, though separated. It is upon having
an active understanding of the circumstances, actions and
the consequences of the acts, that the Complainant made
a reasoned choice to sustain a relationship with the
Appellant. The conduct of the Complainant/Respondent
3
2025 SCC OnLine SC 741
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No. 2 ex-facie represents a reasoned deliberation, as
summarized by this Hon’ble Court in Pramod Suryabhan
Pawar vs State of Maharashtra3 as under:
“18. To summarise the legal position that
emerges from the above cases, the “consent” of
a woman with respect to Section 375 must
involve an active and reasoned deliberation
towards the proposed act. To establish whether
the “consent” was vitiated by a “misconception
of fact” arising out of a promise to marry, two
propositions must be established. The promise
of marriage must have been a false promise,
given in bad faith and with no intention of being
adhered to at the time it was given. The false
promise itself must be of immediate relevance,
or bear a direct nexus to the woman’s decision
to engage in the sexual act.”
16. In our considered view, even if the
allegations in the FIR and the charge-sheet are
taken at their face value, it is improbable that the
Complainant/Respondent No. 2 had engaged in a
physical relationship with the Appellant, only on
account of an assurance of marriage. As rightly
observed by this Hon’ble Court in the case of
Prashant Bharti Vs State of NCT of Delhi , that it is
inconceivable, that the complainant or any woman
would continue to meet the Appellant or maintain a
prolonged association or physical relationship with
him in the absence of voluntary consent on her
part.
17. In the case of Uday Vs State of Karnataka,
the Court had acquitted the accused on the basis
that she was a mature college student who had
consented to sexual intercourse with the accused of
her own free will. It is unlikely that her consent was
not based on any misconception of fact. In Uday
(supra), the Court noted that:
“21. It therefore appears that the
consensus of judicial opinion is in favour of
the view that the consent given by the
prosecutrix to sexual intercourse with a
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person with whom she is deeply in love on
a promise that he would marry her on a
later date, cannot be said to be given
under a misconception of fact. A false
promise is not a fact within the meaning of
the Code. We are inclined to agree with
this view, but we must add that there is no
straitjacket formula for determining
whether consent given by the prosecutrix
to sexual intercourse is voluntary, or
whether it is given under a misconception
of fact. 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 each case, consider the
evidence before it and the surrounding
circumstances, before reaching a
conclusion, because each case has its own
peculiar facts which may have a bearing on
the question whether the consent was
voluntary, or was given under a
misconception of fact. It must also weigh
the evidence keeping in view the fact that
the burden is on the prosecution to prove
each and every ingredient of the offence,
absence of consent being one of them.”
Xxx
19. On the other hand, we also find inconsistencies
in the statements of the prosecutrix insofar as it is
deposed by her in the statement under section 164 CrPC,
that it was only upon the insistence of the Appellant, that
she had handed over the cases to Advocate, Mr. Gopal
Chandra Dass; however, the challan/charge-sheet reveals
that Mr. Gopal Chandra Dass was well known to the
Complainant, as a senior in college and it was Mr. Gopal
Chandra Dass who had introduced the Complainant to the
Appellant, in respect of her pending cases. This, in no
manner can be a minor contradiction, and casts a
suspicion on the entire narrative of the Complainant.
Notwithstanding, this fact does not in any manner
buttress that the relationship interse between the
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Appellant and the Complainant, was not consensual in
nature.
20. We find that there is a growing tendency of
resorting to initiation of criminal proceedings when
relationships turn sour. Every consensual relationship,
where a possibility of marriage may exist, cannot be
given a colour of a false pretext to marry, in the event of
a fall out. It is such lis that amounts to an abuse of
process of law, and it is under such circumstances, that
we deem fit to terminate the proceedings at the stage of
charge itself.”
(Emphasis supplied)
In the afore-quoted judgment, the Apex Court was
considering relationship between the victim and the accused
therein, being for a period of one year. Even in those
circumstances, the Apex Court holds that the acts between the
victim and the accused, it is construed as consensual acts and
cannot become the offence of rape or repeated rape.
15. If the facts obtaining in the case at hand are
considered on the bedrock of the principles laid down by the
Apex Court in the judgments quoted hereinabove, what would
unmistakably emerge is that all the acts that the complainant
has now alleged against petitioner No.1 were all consensual.
In the light of the aforesaid facts and the judgments of the
Apex Court covering the subject issue on all its fours, the
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unmistakable inference would be the obliteration of the
proceedings against the petitioners. There is no warrant to
permit continuation of the trial proceedings against the
petitioners, as it would become an abuse of the process of the
law and result in miscarriage of justice.
16. For the aforesaid reasons, the following:
ORDER
a. The criminal petition is allowed.
b. The proceedings in S.C.No.46/2024, pending before
the Principal District and Sessions Judge, Udupi,
stands, stands quashed, qua the petitioners.
Sd/-
(M.NAGAPRASANNA)
JUDGENVJ
List No.: 1 Sl No.: 16
CT:SS
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