Karnataka High Court
Sri Saurabh Kant vs The State Of Karnataka on 18 June, 2025
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
CRIMINAL PETITION NO. 12224 OF 2024 (482(Cr.PC) / 528(BNSS))
BETWEEN:
1. SRI. SAURABH KANT
S/O SRI. RAMAKANT SINGH
AGED ABOUT 31 YEARS
OCCUPATION: SENIOR QUALITY
ENGINEER IN
SIEMENS HEALTHINEERS
BANGALORE
R/AT FLAT NO.401,
BKVS SRI. GURU KRUPA
ANAND REDDY LAYOUT
BESIDE SRI. LAKSHMI SRINIVASA
P G FOR LADIES, 5TH CROSS
Digitally ELECTRONIC CITY PHASE 2
signed by BENGALURU, KARNATAKA-560 100.
GEETHA P G
Location: ...PETITIONER
HIGH (BY SRI. NACHIKET JOSHI, ADVOCATE)
COURT OF
KARNATAKA
AND:
1. THE STATE OF KARNATAKA
SOUTH EAST WOMEN POLICE STATION
MADIVALA SUB-DIVISION
ADUGODI POLICE QUARTERS, ADUGODI
BENGALURU, KARNATAKA 560 030.
REPRESENTED BY ITS
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
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HIGH COURT BUILDING
BENGALURU-560 001.
2. MS. SHREEPARNA
D/O SRI. SHYAMAL DEY
AGED ABOUT 30 YEARS
R/AT 202, 8TH MAIN ROAD
ELECTRONIC CITY PHASE-2
BENGALURU, KARNATAKA 560 100.
...RESPONDENTS
(BY SRI. CHANNAPPA ERAPPA, HCGP FOR R1;
NOTICE TO R2 IS HELD SUFFICIENT VIDE ORDER DATED
11.03.2025)
THIS CRLIMINAL PETITION FILED U/S 482 CR.P.C. (FILED U/S
528 OF THE BHARATHIYA NAGARIK SURAKSHA SAMHITHA (BNSS))
PRAYING TO QUASH THE FIR IN CR.NO.80/2024 (ANNEXURE-B)
REGISTERED BY RESPONDENT NO.1 I.E., SOUTH EAST WOMEN
POLICE STATION, BENGALURU WHICH IS PENDING ON THE FILE
OF THE LEARNED HON'BLE XXXIX ADDL. CMM COURT,
NRUPATUNGA ROAD AT BANGALORE, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 417 AND 376 OF IPC, 1860
AGAINST THE PETITIONER, IN THE ENDS OF JUSTICE AND TO
PREVENT THE ABUSE OF THE PROCESS OF THE COURT.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
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CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
ORAL ORDER
In this petition, the petitioner has sought for the following
relief:
“WHEREFORE it is prayed that, this Hon’ble court kindly be
pleased to:
a. This Hon’ble Court may be pleased to quash the FIR in
Crime No.0080/2024 (Annexure-B) registered by the
Respondent No.1 i.e., South East Women Police
Station, Bengaluru which is pending on the file of the
Learned HON’BLE XXXIX ADDL. CMM COURT,
NRUPATUNGA ROAD AT BANGALORE, for the
offences punishable U/s.417, 376 of the Indian Penal
Code, 1860 against the Petitioner, in the ends of justice
and to prevent the abuse of the process of the court.
b. Grant such other and further reliefs as this Hon’ble
court deems fit considering the facts and
circumstances of the case to meet the ends of justice.”
2. Heard the learned counsel for the petitioner, learned
HCGP for respondent No.1 and perused the material on record.
Respondent No.2/Defacto-complainant has remained absent and
has not contested the petition.
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3. A perusal of the material on record will indicate that
respondent No.2/defacto-complainant filed the instant complaint on
10.10.2024 which was registered against the petitioner/sole
accused for offences punishable under Sections 376 and 417 IPC.
In the complaint, it is specifically contended that the petitioner had
sexual intercourse with respondent No.2 on the false
pretext/promise of marriage and subsequently did not marry her
and thereby committed the aforesaid offences against respondent
No.2. In this context, a perusal of the impugned complaint will
indicate the same reads as under:
“Date: 16-10-2024
To,
Sub Inspector of police,
South East Women Police station,
Adugodi, Bangalore-560030From,
Shreeparna, D/o Shyamal Dey, 30 years/ Kayasthe by Caste
202, 8th main, Electronic city-phase-2
Bangalore- Ph:9304617615Sub: Complaint against Mr. Saurabh on cheating, fraud,
tortured and false promises about marriage.
Respected Sir,
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Thanks for making me feel comfortable and giving me
strength.
Myself Sriparna from basically from Asansol, Burdwan,
West Bengal, I came to Bangalore in 2019 to work in an IT
company Named Mphasis, Mahadevpura. I have mother,
father and a brother. My mother Name Is Pratima, Father’s Is
shyamal, Brother is Subhojeet.
I am the elder one. This is to inform you that I have been
into a relationship from 2018 with a guy named Saurabh Kant,
when I was studying MCA in TI, we met through common
friends in Kolkata. He was working in TCS, Kolkata. We fall in
love, we really liked each other and we were serious about
each other. He has assured me and committed to marriage
from starting only and specifically in the month of Dec 2023.
He told we both love each other and anyway we are going to
be together (In fact I told him that we should do it after
marriage) I feel he will definitely marry with me and so willingly
we got intimated. His brother and sister in law met my family
members as well. First time we got intimated in year April 2023
in Ananda Reddy layout with a commitment to marriage, he did
it. Last time we got intimated was July/August 2023. So I too
have a confidence on him. I was asking him to make me talk to
his family, he said his father is ill (he is suffering from blood
cancer) and his mother is not considering for marriage though I
am trying my best. In Fact I told him, to do registry marriage as
well, he mentioned that his father will get heart attack if
someday he came to know that. He was on my feet one day
sating that its better if my parents would have died earlier, I
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won’t not have to face these consequences. After seeing him
going through all this, I gave him time, to convince his family. I
went to my hometown by August 2023, I was doing WFH.
(Work From Home)Till Nov we were in contact, he sends me gifts, wishes me
Diwali and all. When I continuously started forcing him to talk
make his parents talk to me, he started pointing out finger on
my character, on my parents finances and said that his father
has certain demands to get fulfil in marriage. He humiliated me
to that extend that I drop him a message stating that you are
not in the mood of solving things between us and get married.
After seeing my message he again called me and talk and told
me I am going to my hometown will talk to my family, and will
solve everything. Infact he told me that I am so much irritated
from my family that think I should have make you pregnant so
that my family don’t left with an option and made me marry
you.
After going to his hometown he completely stop talking to
me I dropped messages, called him, no reply came. Suddenly
one day(Feb 2024) I came to know he is engaged.
Immediately I called him he said he has taken the decision,
when I asked him what you were doing with me, are you with
me to fulfil your desire, he again started pointing out fingers on
my character. I asked my mother to call him he mentioned I
have to do this for my family, because of my father, when my
mother questioning him, he again started doing the same. I
was into depression, anxiety, not able to sleep properly, work,
not sure what to do where to go.
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I called him text him multiple times, he blocked me from
everywhere. Finally when my father called him in the month of
May, and asked him for his flance’s family contacts, he said I
will not give to whatever you want to do. Sir, with a lot of hope
and expectations I came here, in seek of justice. I have
messages. photographs further I will submit that to you. Please
help me, my life and my happiness is in your hand sir. I have
full faith on you.
Request you to keep my identity confidential, as it can
hamper my future and my family.
Yours faithfully,
Sriparna Dey
Saurabh’s Details:-
Saurabh S/o Ramkant Singh, Age: 32
Address: 401, BKVS Sri Guru Krupa, Ananda Reddy layout,
Electronic city, Phase: 2, Bangalore
Contact: 9946141431/6299020247
His Mother (Anitha Singh)
Number-7004676099
Residential address: Flat no 303, Shivam Vihar Apartment,
Kankarbagh, main Road, Opposite SBI, Shekpura, Patna.
Company Name: Seimens Healthineers
Electronic City Phase 2
Team Name: AT
Manager’s Name: Anurag Sinha/Sumit Bhatnagar¢£ÁAPÀ: 10.10.2024 gÀAzÀÄ 19.30 UÀAmÉUÉ ¦üAiÀiÁðzÀÄzÁgÀgÀÄ ¤ÃrzÀ zÀÆgÀ£ÀÄß
¥ÀqÉzÀÄ oÁuÁ ªÉÆ.£ÀA:80/2024 PÀ®A:417, 376 L¦¹ CrAiÀÄ°è ¥ÀæPÀgÀt zÁR°¹zÉ.”
4. As can be seen from the aforesaid complaint,
respondent No.2 specifically contended that the petitioner is guilty
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of offences punishable under Sections 376 and 417 IPC inasmuch
as he had consensual sexual relationship with her for a long time
under the pretext / false promise of marriage during the period
2018 to 2024. Under identical circumstances, the Apex Court and
this Court in several judgments have come to the conclusion that
the breach of promise of marriage and having consensual sexual
relationship pursuance to the same would not amount to
commission of the aforesaid offences as held hereunder:
Amol Bhagwan Nehul Vs. The State of
Maharashtra and Another
(SLP(Crl.)No.10044/2024)“1. Leave granted.
2. This Appeal by special leave is directed against
the Impugned Order dt. 28.06.2024 passed by the
High Court of Judicature at Bombay in Crl. W.P. No.
3181 of 2023 whereby the Petition u/s 482 of the
Code of Criminal Procedure, 1973 (‘CrPC‘) seeking
quashing of the Criminal Case C.R.No.490/2023 dt.
31.07.2023 for offences punishable u/s 376,
376(2)(n), 377, 504 & 506 of the Indian Penal Code
(hereinafter “IPC“) registered at Karad Taluka Police
Station, Satara qua the Appellant was dismissed.
Vide an amendment to the Petition, the Appellant
also challenged the chargesheet filed on 26.09.2023
and the proceedings in RCC no. 378/2023 pending
before the Additional Sessions Judge, Karad.
3. The Criminal Case C.R. No. 490/2023 dt.
31.07.2023 at Police Station Karad Taluka, Dist.
Satara was registered at the behest of a Complaint
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filed by the Complainant/Respondent no. 2 alleging
that during the period 08.06.2022 till 08.07.2023,
the Appellant forcibly had sexual intercourse with
her on the false assurance of marriage. The
Complainant/Respondent no. 2 who had been
previously married, had obtained Khulanama from
her ex-husband and had been residing with her 4-
year-old son at her parental home in Kalegaon,
Karkad Dist since 2021; while the Appellant, a 23-
year-old student of Bachelor of Science (Agriculture)
at Krishna College of Agriculture, Rethre BK, Taluka
Karad District, Satara was residing as a tenant next
door, with three other men since 25.05.2022. The
sequence of events as recorded in the FIR 490/2023
dt. 31.07.2023 are as under:
3.1 The parties became acquainted on
08.06.2022, which turned into a friendship and
they soon began interacting more frequently. The
relationship blossomed into love, but it is stated
that the Complainant/Respondent no. 2
repeatedly denied to make physical relations with
the Appellant.
3.2 It is alleged the case of the Complainant that
in July 2022, the Appellant had entered the house
of the Complainant/Respondent no. 2 at night,
and said that once she obtains divorce from her
husband, the Appellant would instantly marry her
and on this pretext had sexual intercourse with
her, despite her denial. It is stated that since
then, the parties continued meeting outside and
having meals together; however later on
21.09.2022 on the occasion of the Appellant’s
birthday, when the Complainant/Respondent had
visited the Rajyog Lounge, Varunji Phata, Airport
Karad, the Appellant again had sexual intercourse
with her on the assurance of marriage.
Thereafter, the Appellant allegedly borrowed
money from the Complainant/Respondent no.2 on
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various occasions & used her car, Hyundai Verna
No. MH-12-HZ-9559 for his personal use.
3.3 In January 2023, the parties visited Pushkar
Lodge, Ogalewadi, Karad, where the Appellant
told the Complainant that he had not informed his
family about their relationship, however, he would
marry her once her divorce was finalized.
Allegedly, despite her objection, the Appellant on
this assurance of marriage, again had sexual
intercourse with the Complainant/Respondent no.
2 and there is a specific allegation that he
committed unnatural sex with her. It is alleged
that soon thereafter, the Appellant had reduced
his interactions with the Complainant/Respondent
no. 2, did not answer her phone calls and left for
his hometown at Ahmednagar.
3.4 On 08.07.2023, the Complainant/Respondent
no. 2 visited his native village in Ahmednagar and
met his parents and other relatives, who refused
to marry the Appellant with
Complainant/Respondent no. 2 as they belonged
to different religions. Allegedly, when the
Complainant refused to leave, the parents of the
Appellant, his brother and his uncle pushed her
aside by beating and abusing her. The Complaint
dt. 31.07.2023 was registered after 23 days of
the alleged incident at PS Taluka Karad, Dist.
Satara.
4. The Appellant on the other hand, has narrated
the sequence differently, stating that during the
alleged period of incidence, when he had been
assigned a program at Village Kalegaon, Tq. Karad.
Dist. Satara for five months, he became acquainted
with the Complainant/Respondent no. 2 as his
neighbor. The Appellant has denied the allegations
of having forced sexual intercourse with the
Complainant/Respondent no. 2 on the assurance of
marriage, and stated that it was in-fact the
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Complainant/Respondent no. 2 who had approached
him with proposals and would regularly visit his
college, which even led to grievances raised with the
college faculty. Vide a written Complaint dt.
24.07.2023 with the Police Inspector, Karad Taluka
PS Satara, the father of the Appellant has alleged
that the Complainant/Respondent no. 2 had been
harassing his son & had taken him to different
lodges against his will and had threatened to
implicate him in false rape cases, if he refused to
marry her. A Non-Cognizable Offence Information
Report (NCR) dt. 24.07.2023 had been registered
pursuant to a threatening phone call received on
22.07.2023 at 10:30 pm in the night, on the
Appellant’s mobile number from another mobile,
allegedly threatening that she will beat him by
entering his house and destroy his family.
5. Pursuant thereto that the FIR had been
maliciously registered against him and that no
prima-facie case u/s 376, 376(2)(n), 377, 504 &
506 IPC could be made out against him, the
Appellant sought anticipatory bail from the
Additional Sessions Judge, Karad, which was
granted vide Order dt. 23.08.2023. The Additional
Sessions Judge, while granting bail to the Appellant
made the following remarks:
“9. In this backdrop the point cannot be side lined
that the victim is matured to understand the
significance and morality to which she is
consenting. The prosecutrix who is major lady
gives consent even on any of the aforesaid
assumption and she had sexual intercourse with
applicant/accused, she will be under all
circumstances and in all respect considered to be a
consenting party. This coupled with the fact that
day after day, week after week and month after
month, this arrangement continued until the day
of reckoning when she complained that promise of
marriage is not fulfill or that all this while she was
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being fed up of this false assurance. Whatever be
the worth of promise or assurance, in law
informant is deemed to have given consent on her
own accord as far as sexual intercourse is
concerned. When two young male and female
having attained the age of discretion get attracted
to each other and due to emotional and passionate
attachment succumbed to temptation of sexual
relationship then such mental and voluntary
participation does not come in the way of granting
bail. Hence, accused is entitled for pre-arrest bail.
The apprehension shown by prosecution will be
safeguarded by imposing conditions…….”
6. The Appellant then preferred Crl. W.P. No. 3181
of 2023 seeking quashing of the C.R. No. 490/2023
dt. 31.07.2023 & the proceedings emanating
therefrom before the High Court of Judicature at
Bombay, and in the meanwhile, the investigation
culminated into a charge-sheet 26.09.2023 before
the Additional Sessions Judge, Karad.
7. The learned counsel for the Appellant contends
that the High Court has erred in dismissing the
Petition u/s 482 CrPC insofar as the criminal
proceedings in the present case constitute an abuse
of process of law, and is well within the categories
as contemplated by this Court in State of Haryana
Vs Bhajan Lal. It is argued that the allegations of
forcible sexual assault and unnatural sex are highly
improbable as there is no medical evidence to
adduce that forcible sexual assault and unnatural
sex had been committed upon the
Complainant/Respondent no. 2 and that allegations
of rape are unsustainable as the relationship
between the parties being two mature adults was
purely consensual in nature. It is argued that the
captioned FIR is registered after a delay of 13
months from the date of the alleged incident, which
is considerable to cast doubt on the veracity of the
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allegations made by the Complainant/Respondent
no. 2, especially when she sustained her
relationship with the Appellant since the alleged
incident.
8. Having heard both sides in this case and after
carefully considering the material on record, the
following attributes come to the fore:
(a) Even if the allegations in the FIR are taken as
a true and correct depiction of circumstances, it
does not appear 1992 Supp (1) SCC 335 from the
record that the consent of the
Complainant/Respondent no. 2 was obtained
against her will and merely on an assurance to
marry. The Appellant and the
Complainant/Respondent no. 2 were acquainted
since 08.06.2022, and she herself admits that
they interacted frequently and fell in love. The
Complainant/Respondent no. 2 engaged in a
physical relationship alleging that the Appellant
had done so without her consent, however she
not only sustained her relationship for over 12
months, but continued to visit him in lodges on
two separate occasions. The narrative of the
Complainant/Respondent no. 2 does not
corroborate with her conduct.
(b) The consent of the Complainant/Respondent
no. 2 as defined under section 90 IPC also cannot
be said to have been obtained under a
misconception of fact. There is no material to
substantiate “inducement or misrepresentation”
on the part of the Appellant to secure consent for
sexual relations without having any intention of
fulfilling said promise. Investigation has also
revealed that the Khulanama, was executed on
29.12.2022 which the Complainant/Respondent
no. 2 had obtained from her ex-husband. During
this time, the parties were already in a
relationship and the alleged incident had already
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taken place. It is inconceivable that the
Complainant had engaged in a physical
relationship with the Appellant, on the assurance
of marriage, while she was already married to
someone else. Even otherwise, such promise to
begin with was illegal and unenforceable qua the
Appellant.
(c) There is no evidence of coercion or threat of
injury to the Complainant/Respondent no. 2, to
attract an offence under section 506 IPC. It is
improbable that there was any threat caused to
the Complainant/Respondent no. 2 by the
Appellant when all along the relationship was
cordial, and it was only when the Appellant
graduated and left for his hometown to
Ahmednagar, the Complainant/Respondent no. 2
became agitated. We also cannot ignore the
conduct of the Complainant/Respondent no. 2 in
visiting the native village of the Appellant without
any intimation, which is also unacceptable and
reflects the agitated and unnerved state of mind
of the Complainant/Respondent no. 2. For the
same reason, the criminal prosecution against the
Appellant herein is probably with an underlying
motive and disgruntled state of mind.
(d) There is also no reasonable possibility that the
Complainant/Respondent no. 2 or any woman
being married before and having a child of four
years, would continue to be deceived by the
Appellant or maintain a prolonged association or
physical relationship with an individual who has
sexually assaulted and exploited her.
9. In our considered view, this is also not a case
where there was a false promise to marry to begin
with. A consensual relationship turning sour or
partners becoming distant cannot be a ground for
invoking criminal machinery of the State. Such
conduct not only burdens the Courts, but blots the
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identity of an individual accused of such a heinous
offence. This Court has time and again warned
against the misuse of the provisions, and has
termed it a folly to treat each breach of promise to
marry as a false promise and prosecute a person for
an offence under section 376 IPC.
10. As demonstrated hereinabove, the ingredients of
the offence under Sections 376 (2)(n) or 506 IPC
are not established. The present case squarely falls
under categories enumerated in Para 102(5) &
102(7) as identified by this Court in State of
Haryana Vs Bhajan Lal (supra) for the exercise
of powers u/s 482 CrPC by the High Court so as to
prevent the abuse of process of law. Para 102 reads
as under:
“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 have given
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 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.
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(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
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wreaking vengeance on the accused and
with a view to spite him due to private and
personal grudge.”
11. Taking into consideration that the Appellant is
just 25 years of age, and has a lifetime ahead of
him, it would be in the interest of justice that he
does not suffer an impending trial and, therefore,
the proceedings emanating from C.R. No. 490/2023
dt. 31.07.2023 are quashed at this stage itself.
12. Consequently, the Appeal is allowed and the
Impugned Order dt. 28.06.2024 passed by the High
Court of Judicature at Bombay in Crl. W.P. No. 3181
of 2023 is set aside. Accordingly, C.R. No. 490/2023
dt. 31.07.2023 registered at Karad Taluka Police
Station, Satara and proceedings emanating
therefrom in RCC no. 378/2023 pending before the
Additional Sessions Judge, Karad are quashed, and
Appellant is discharged. Bail bonds, if any, also
stand cancelled.
13. Pending applications, if any, stand disposed of.”
Shivadhanush & Ors. Vs. State of Karnataka & Anr.
(NC:2024:KHC:44797)
The petitioners are before this Court calling in
question the crime registered in Crime No.140 of
2023 and charge sheet bearing No.13 of 2024 for
offences punishable under Sections 376, 417 and
504 of the IPC.
2. Facts in brief, germane, are as follows:
Before embarking upon consideration of the
issue on its merit, I deem it appropriate to notice the
relationship between the protagonists in the alleged
episode of crime. The 1st petitioner and the 2nd
respondent are said to be in a relationship.
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Petitioners 2, 3, 4, 5, and 6 are accused 2 to 6, they
are the family members of the 1st petitioner/accused
No.1. The 2nd respondent is the complainant. The
1st petitioner is an employee working in the office of
the sub-registrar at Indiranagar, Bangalore. He gets
embroiled in a crime in Crime No.140 of 2023 for it
having been registered by the 2nd respondent. The
gist of the complaint is that, the 1st petitioner and
the complainant were known to each other for 7
years and they were also said to be in love. The
friendship blossomed into relationship and the
relationship led to engagement of the 1st petitioner
with the 2nd respondent/complainant on 28-
11-2021. Before and after the engagement, it is the
averment in the complaint that they have had
physical relationship as well. The engagement did
not result in marriage.
3. On the score that the 1st petitioner has had
physical relationship with the complainant on the
promise of marriage and the relationship was for
over 7 years, the 1st petitioner has breached the
promise of marriage, as the engagement did not
result in marriage, crime comes to be registered for
offence of rape and cheating in Crime No.140 of
2023. The police, after investigation, file a charge
sheet against all the petitioners, the 1st petitioner
and other members of the family. They are
arraigned as accused Nos.1 to 6. Filing of the charge
sheet is what has driven these petitioners to this
Court in the subject petition.
4. Heard Smt Sadhana S Desai, learned
counsel appearing for petitioners, Sri B N
Jagadeesha, learned Additional State Public
Prosecutor appearing for respondent No.1 and Sri
Avishkar, learned counsel appearing for respondent
No.2.
5. The learned counsel for the petitioner would
vehemently contend that the relationship between
– 19 –
NC: 2025:KHC:21007
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HC-KAR
the 1st petitioner and the 2nd respondent was
consensual, it was not for one year, but they knew
each other for 7 years, got engaged on 28-11-2021
and due to skirmishes between the members of the
family of the complainant and the 1st petitioner, the
engagement broke. But between the date of
engagement and its break, the complainant and the
petitioner have gone around to several places and
have had physical relationship. Therefore, the
learned counsel would submit that the consent of the
complainant for a consensual act is implicit
throughout. It is her submission that the consent
cannot be dubbed as, misconception of fact or
forcibly taken. She would contend that such acts
would not amount to an offence of rape and the
offence of cheating also cannot be laid on breach of
promise of marriage. She has placed reliance upon
several judgments of the Apex Court and that of High
Court of Kerala, all of which would bear consideration
qua their relevance in the course of the order.
6. Per-contra, the learned counsel appearing
for the 1st respondent/State and the 2nd
respondent/complainant in unison would contend
that consent is taken of the complainant to have
physical relationship on promise of marriage, which
was never the intention of the 1st petitioner.
Therefore, the two would submit that it is a false
promise of marriage and would submit that the
charge sheet is filed after investigation and it is for
the petitioners to come out clean in a full blown trial.
7. I have given my anxious consideration to
the submissions made by the respective learned
counsel and have perused the material on record.
8. The afore-narrated facts are not in dispute.
The 1st petitioner and the 2nd respondent are
admittedly known to each other since 2017 i.e., 7
years prior to the registration of the crime. The
relationship having gone wrong on alleged breach of
– 20 –
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CRL.P No. 12224 of 2024
HC-KAR
promise of marriage, the complainant registers a
complaint. Since the entire issue has now triggered
from the complaint, I deem it appropriate to notice
the gist of the complaint, as found in column No.10
of the FIR, it reads as follows:
“10. ಪ ಥಮ ವತ ಾನ ವರ ಯ ವರಗಳ
ಾಂಕ: 18-11-2023 ರಂದು ಾ ದು ಾರ ಾದ xxxxx, ರವರು ಾ ೆ ೆ
ಾಜ ಾ! “ೕ$ದ ದೂ&ನ ‘ಾ ಾಂಶ)ೇ ೆಂದ ೆ ಾನು *ೕಲ,ಂಡ .ಾಸದ0
)ಾಸ)ಾ!ದು1 ಾನು ಎಂ.ಎ. ಪದ ಯನು3 ಮು!4ರುvÉÛãÉ. ಾನು ಸು ಾರು 7
ವಷ ಗಳ 6ಂ ೆ ನಮ7 ಊ&ನ°è ನಮ7 ಮ ೆಯ09ರು)ಾಗ ನಮ7 ಮ ೆಯ ಪಕ, ಇರುವ
ಯಜ ಾ; <ಾಲು =ೆ>ೕ ೌಡ (ತಮ7ಯ@) A; ಅCಾDE ೌಡ ಎಂಬುವವರ ಮ ೆ ೆ
HವಧನುJ ಎಂKಾತನು <ಾಲು ಮು&ದು<ೊಂಡು Lಾತನ ಮ ೆ ೆ ಬಂ ದು1, HವಧನುJ
ನವರು ನನ ೆ ಪ&ಚಯ)ಾ!ದು1 HವಧನುJ ಎಂKಾತನು ನನ ೆ 17 ವಷ ರು)ಾಗ
ೕN ಾಡು ಎಂದು ನ ಂದ 6ಂ4ಸುNOದು1 ಆ ಷಯವನು3 ನನ3 ತಂ ೆ LಾQ ೆ
NR4ದು1 ನನ3 ತಂ ೆ LಾQಯವರು ಅವರ Lಾತನ SೊLೆ ಾತ ಾ$ ಅವ” ೆ
Kೈ ದ1ರು ತದನಂತರ ಾನು ಪದ ೆ ಚನ3ಪಟVಣ ಸ<ಾ & ಪ ಥಮ ದSೆ <ಾXೇEನ09
)ಾ@ಸಂಗ ಾಡುNOರುವ ಸಮಯದ09 ಪ ೇ ಪ ೇ ಬಂದು ೕNಸುವಂLೆ 6ಂ4ಸುNOದು1
ನಂತರ ಈ ಷಯ ನಮ7 ಕುಟುಂಬದವ& ೆ ಾಗೂ ಅವರ ಕುಟುಂಬದವ& ೆ ಷಯ
NRದು ನಂತರ ನಮ7 ತಂ ೆ LಾQಯನು3 ಅವರ ತಂ ೆ LಾQಯು ನನ3ನು3 ಮದು)ೆ
ಾ$<ೊ$ ಎಂದು <ೇR<ೊಂ$ದು1 ನನ3 ತಂ ೆ LಾQಯು ಅದ<ೆ, ಒ D : 28-11-
2021 ರಂದು “H>Lಾಥ ಾ$ರುLಾO ೆ. ನಂತರ ಾಂಕ: 27-11-2022 ರಂದು
Kೆಂಗಳ[&ನ *Sೆ4V\ ನ09 ರೂಂ ಬು\ ಾ$ದು1 ಆ ನ ಾN ಸಮಯದ09
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ಾ$ರುLಾO ೆ. ನಂತರ ನನ3ನು HವಧನುJ ಎಂKಾತನು ಊ] ೆ ಕ ೆದು<ೊಂಡು
ೋ! ಅ09 ರೂಂ ಬು\ ಾ$ದು1 ನನ ೆ ಇಷV ಲ9 ದ1ರೂ ಾ ೇ Lಾ ೆ “ನ3ನು
ಮದು)ೆ ಾಗುವ^ ೆಂದು ಬಲವಂತ)ಾ! ೈ6ಕ ಸಂಪಕ ಾ$ದು1 ಇ ಾದ ನಂತರ
ತುಂ_ಾ ಭಯ)ಾ! ನaಮ ಮ ೆ ೆ NR4 ಾಗ ನಮ7 ಮ ೆಯವರು Kೇಗ ಮದು)ೆ
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ಾನು 7 ವಷ ಂದ “ಮ7 ಮಗಳ ಬR ೕN ಾಡು ಎಂದು <ೇR<ೊಂಡರು ಅವಳ
ನನ3ನು3 ೕNಸುವ^ ಲ9)ೆಂದು Nರಸ,&4ದ1&ಂದ ಅವಳನು3 ಅLಾ@=ಾರ
ಾ$ರುLೆOೕ ೆ. ಾನು ಅವಳನು3 ಮದು)ೆ ಆಗುವ^ ಲ9)ೆಂದು Kೈ ರುLಾO ೆ. ನಂತರ
– 21 –
NC: 2025:KHC:21007
CRL.P No. 12224 of 2024HC-KAR
ಊ&ನ ಯಜ ಾನರು Nೕ ಾ ನ ಾ$ದು1 ಆ ಸಮಯದ09 ಮದು)ೆ ಾಗುLೆOೕ ೆಂದು
ಒ D<ೊಂ$ರುLಾO ೆ, : 26-11-2023 <ೆ, ಾಂಕವನು3 ೊತುO ಾಡಲು
ೋದಂತಹ ಸಮಯದ09, HವಧನುJ ನನ3ನು3 ಸೂ.ೆ ಮುಂeೆ, Kೆರ<ೆ ಎಂದು ಅ)ಾಚ@
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ಎ.ೆದು<ೊಂಡು ಬಂದು A’ಾ$ರುLಾO ೆ, ಾಗೂ ಅವರ ತಂ ೆ ಾಗ !&ೕf, LಾQ
ೋದ ರವರು ಾಗೂ ಅವತ LಾLಾ ಯಜ ಾ; <ಾಲು =ೆ>ೕ ೌಡ (ತಮ7ಯ@)
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ಾಗೂ ಅವರ ತಂ ೆ, LಾQ ರುದg <ಾನೂನು ಕ ಮ Lೆ ೆದು<ೊಂಡು ನನ ೆ ಾ@ಯ
ೊರh4<ೊಡKೇ<ೆಂದು ಇLಾ@ ಾ! “ೕ$ದ ದೂ&ನ ‘ಾ ಾಂಶ.”
What is discernible from the complaint is that the
complainant and the 1st petitioner are known for 7
years. They were in love. The love blossomed into
relationship; relationship blossomed into betrothal;
betrothal blossoms into a ceremony on 28-11-2021-
a betrothal ceremony. After the ceremony bouts of
physical relationship takes place, marriage is
breached on account of both the families not
agreeing on several terms and conditions. The
complainant then leaves the 1st petitioner and makes
effort to get married to someone else. The marriage
of the complainant did not fructify and therefore, a
complaint comes to be registered that the 1st
petitioner and his family members have cheated the
complainant, for having denied consent to marriage
and insofar as the 1st petitioner is concerned, the
allegation is that, he has had sexual relationship on
the score of promise of marriage and has breached
it, therefore, it amounts to ingredients of Section 375
of the IPC, for it to become an offence under Section
376 of the IPC – rape. The police, after
investigation, have filed a charge sheet. Summary of
the charge sheet, as obtaining in column No.17,
reads as follows:
“17. <ೇ4ನ ಸಂiಪO ‘ಾ ಾಂಶ
P˨A 376, 417, 504
– 22 –
NC: 2025:KHC:21007
CRL.P No. 12224 of 2024HC-KAR
ಾನ@ ಘನ ಾ@ ಾಲಯದ )ಾ@ O ೆ ‘ೇ&ದ ಾಮನಗರ EXೆ9 ಚನ3ಪಟVಣ Lಾಲೂ9ಕು.
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ತ D4<ೊಳ kವ^ದ<ಾ,! ಾಂಕ:-28/11/2021 ರಂದು ‘ಾi 01 ರವರ ಮ ೆಯ09
ಎ1 ಆ ೋ ಮತುO ‘ಾi 01 ರವ& ೆ ಮದು)ೆ “H>Lಾಥ ಾ$<ೊಂ$ದು1.
ಮದು)ೆಯ “H>Lಾಥ )ಾದ ನಂತರವu ಾಂಕ:-25/11/2022 ರಂದು Kೆಂಗಳ[&ನ
*Sೆ4V\ ಬRಯ ಾ@; pೕ ಕ£Éé£Àë£ï ‘ೆಂಟq Xಾbr ೆ ಮತುO ಾಂಕ:-
24/12/2022 ರಂದು ‘ಾi 01 ರವರನು3 ಎ1 ಆ ೋ ಾಗೂ ತನ3 ‘ೆ3ೕ6ತ ಾದ
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ಾಟಕ)ಾ$ ಮದು)ೆ ಾಗುLೆOೕ ೆಂದು ಆsಾtಸ ೆ “ೕ$ ‘ಾi 01 ರವ& ೆ
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ಸಲು)ಾ! ಎ1 ಆ ೋ ‘ಾi 01 ರವ& ೆ ೆಸರು ಬಲ ೊಂ ಾw<ೆ ಬರುNOಲ9, ‘ಾi
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Lೊಂದ ೆ ಾಗುLೆOಂದು ಸುಳ k ೇR ‘ಾi 01 ರವರನು3 ಮದು)ೆ ಾಗುವ
ಉ ೆ1ೕಶ ದ1ರು ‘ಾi 01 ರವರನು3 ೕN4 ಮದು)ೆ ಾಗುವ^ ಾ!ದ ಆsಾtಸ ೆ
“ೕ$ ‘ಾi 01 ರವ ೊಂ ೆ ಎ1 ಆ ೋ ಹಲವ^ Kಾ& ೈ6ಕ ಸಂಪಕ ನeೆ4
– 23 –
NC: 2025:KHC:21007
CRL.P No. 12224 of 2024
HC-KAR
Lೊಂದ ೆ “ೕ$ರುವ^ದು ‘ಾi 01 ರವರ ೇR<ೆQಂದಲೂ ಾಗೂ ‘ಾxಾyಾರಗಳ
ೇR<ೆQಂದಲೂ, ತ”{ೆQಂದಲೂ ಎ1 ಆ ೋ ಯ *ೕXೆ ಆ ೋಪ ಧೃಡಪ]VರುLೆO.”
What would unmistakably emerge from the reading
of the complaint and the charge sheet in
juxtaposition would be, that consensual acts between
the two, leads to a betrothal ceremony, the
engagement breaks and crime emerges, all of which
on consensual acts of both the 1st petitioner and the
complainant who are said to have known to each
other and in a relationship for 7 years. Whether this
would become a crime for the afore-quoted offences
or the consent was on a misconception of fact or the
promise of marriage was false, need not detain this
Court for long or delve deep into the matter. The
consent of a woman on a promise to marry is always
an enigma, apt it would be to refer, to a judgment of
a Division Bench of the High Court of Kerala in the
case of RAMACHANDRAN V. STATE OF KERALA.
The Division Bench has held as follows:
“…. …. ….
Understanding the ‘consent’ of a woman on a promise
to marry:
6. The consent of a woman on a promise to
marry is an enigma for the prosecution to prove.
Consent refers to the state of mind of both parties in
an act. In a sexual act, if both have understood the
nature of the sexual relationship, consent is implicit
in such a relationship. While considering the
relationship, the Court will have to weigh the position
of the accused to control the woman. It is to be
remembered that the statutory provisions of the
offence of rape as understood in the Penal Code,
1860, is not gender neutral. A woman, on a false
promise of marrying and having sexual
relationship with a man, with the consent of the
latter obtained on such false promise, cannot be
punished for rape. However, a man on a false
promise of marrying a woman and having
sexual relationship with the woman would lead
to the prosecution’s case of rape. The law,
therefore, creates a fictitious assumption that
– 24 –
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CRL.P No. 12224 of 2024
HC-KAR
the man is always in a position to dominate the
will of the woman. The understanding of
consent therefore, has to be related to the
dominant and subordinate relationship in a
sexual act.
7. Section 375 of the IPC states that a man is
said to commit rape if he has had any form of sexual
intercourse without the consent of a woman.
Explanation 2 to Section 375 refers to the form of
expression of ‘consent’. It is appropriate to refer to
explanation 2 which reads thus:
“Explanation 2 : Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically resist
to the act of penetration shall not by the reason only
of that fact, be regarded as consenting to the sexual
activity.”
8. There cannot be any room for doubt in
this case as to the consent of PW1 for having
sexual intercourse with the accused. PW1
referred to three incidents of sexual
intercourse. First of such incidents happened in
a lodge. She did not raise any complaint
immediately thereafter. Again, she had sexual
intercourse at the residence of the accused. The
third incident happened at her own house
where also, she did not raise any complaint.
According to her, she was promised by the
accused that he would marry her. She also
deposed about proposing the marriage at the
Manarcaud Temple. But no ceremonies were
conducted to establish legal marriage. She
approached the Chief Judicial Magistrate,
Kottayam, with a complaint. This was
forwarded to the police for investigation. The
police registered an FIR on 18/11/2014.
Consent on misconception of fact:
– 25 –
NC: 2025:KHC:21007
CRL.P No. 12224 of 2024HC-KAR
9. Section 90 of IPC refers to a consent as not
consent intended by any provisions of the Penal
Code, 1860. Section 90 reads thus:
“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;
or
Consent of insane person.–if the consent is given
by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and
consequence of that to which he gives his consent; or
Consent of child.–unless the contrary appears
from the context, if the consent is given by a person
who is under twelve years of age.”
10. We shall now advert to some of the
precedents before considering the point of guilt
of the accused in this case. In Pramod
Suryabhan Pawar v. State of
Maharashtra [(2019) 9 SCC 608], the Apex
Court distinguished sexual relationship based
on false promise to marry and a breach of
promise to marry. The Apex Court held that the
offence of rape is not constituted when it was
only a breach of promise to marry. The false
promise of marriage is explained as a promise
not given in good faith, with no intention of
being adhered to at the time it was given.
In Anurag Soni v. State of Chhattisgarh [(2019)
13 SCC 1] on a similar line, the Apex Court,
noting that the accused had no intention to
marry the prosecutrix, held that engaging in a
physical relationship on the pretext of marriage,
fell in the category of rape. In Deepak
Gulati v. State of Haryana [(2013) 7 SCC 675]
the Hon’ble Supreme Court distinguished rape
and consensual sex and held that “there is a
clear distinction between rape and consensual
sex and in a case like this, the Court must very
carefully examine whether the accused had
actually wanted to marry the victim or had mala
– 26 –
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fide motives and made a false promise to this
effect only to satisfy his lust. As the latter falls
within the ambit of cheating or deception.”
In Dhruvaram Murlidhar Sonar (Dr.) v. State of
Maharashtra [2019 (1) KHC 403], the Apex
Court held that if the accused had not made a
promise with the sole intention to seduce the
prosecutrix to indulge in sexual act, such an act
would not amount to rape. In State of Uttar
Pradesh v. Naushad [(2013) 16 SCC 651] again
the Hon’ble Supreme Court held that the
consent of the victim obtained by the accused
by giving false promise of marrying her would
amount to committing rape.
11. The false promise of marriage refers to
the state of mind of the accused. The point of
guilt is relatable to the state of mind of the
accused at the time of committing the act of
sex. If the accused had no real intention to
marry, it can be easily concluded that the
consent of the victim is a misconception of fact.
The accused might have had intention to marry
but he was not sure whether the marriage
would take place or not. If the accused had not
disclosed full information to the prosecutrix
regarding the factors which would hamper or
hinder the impending marriage with her, can
the Court hold that sexual autonomy had been
violated or not? Had the accused disclosed
information about the chances of marriage,
would she have consented? If there was no full
disclosure of factors that could have a bearing
on the consent of the woman, can we hold that
such cases fall in the category of breach of
promise? We need to discuss this in detail.”
(Emphasis supplied)
The Division Bench of the High Court of Kerala was
following the judgments rendered by the Apex Court,
on the issue, rendered from time to time and holds
that such acts on consensus would not amount to an
offence of rape.
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9. It now becomes germane to notice the
judgments of the Apex Court. The Apex Court has
delineated the inter-play between the offence of rape
and a consensual sexual relationship, both on the
false promise of marriage, and promise of marriage.
Therefore, a deeper delving into the issue becomes
unnecessary, suffice to quote the judgments of the
Apex Court rendered over the years. The Apex Court
in the case of PRAMOD SURYABHAN PAWAR v.
STATE OF MAHARASHTRA has drawn distinction
between rape and consensual sexual relationships.
While delineating inter-play between promise of
marriage and allegation of rape, the Apex Court has
held as follows:
“…. …. ….
14. In the present case, the “misconception of
fact” alleged by the complainant is the appellant’s
promise to marry her. Specifically in the context of a
promise to marry, this Court has observed that there
is a distinction between a false promise given on the
understanding by the maker that it will be broken, and
the breach of a promise which is made in good faith
but subsequently not fulfilled. In Anurag Soni v. State
of Chhattisgarh [Anurag Soni v. State of
Chhattisgarh, (2019) 13 SCC 1 : 2019 SCC OnLine SC
509], this Court held:
“12. The sum and substance of the
aforesaid decisions would be that if it is
established and proved that from the inception
the accused who gave the promise to the
prosecutrix to marry, did not have any intention
to marry and the prosecutrix gave the consent for
sexual intercourse on such an assurance by the
accused that he would marry her, such a consent
can be said to be a consent obtained on a
misconception of fact as per Section 90 IPC and,
in such a case, such a consent would not excuse
the offender and such an offender can be said to
have committed the rape as defined under
Sections 375 IPC and can be convicted for the
offence under Section 376 IPC.”
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Similar observations were made by this Court
in Deepak Gulati v. State of Haryana (2013) 7 SCC
675 : (2013) 3 SCC (Cri) 660] (Deepak Gulati):
“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;”
15. In Yedla Srinivasa Rao v. State of A.P. (2006)
11 SCC 615 : (2007) 1 SCC (Cri) 557] the accused
forcibly established sexual relations with the complainant.
When she asked the accused why he had spoiled her life,
he promised to marry her. On this premise, the accused
repeatedly had sexual intercourse with the complainant.
When the complainant became pregnant, the accused
refused to marry her. When the matter was brought to
the panchayat, the accused admitted to having had
sexual intercourse with the complainant but subsequently
absconded. Given this factual background, the Court
observed:
“10. It appears that the intention of the accused as
per the testimony of PW 1 was, right from the beginning,
not honest and he kept on promising that he will marry
her, till she became pregnant. This kind of consent
obtained by the accused cannot be said to be any consent
because she was under a misconception of fact that the
accused intends to marry her, therefore, she had
submitted to sexual intercourse with him. This fact is also
admitted by the accused that he had committed sexual
intercourse which is apparent from the testimony of PWs
1, 2 and 3 and before the panchayat of elders of the
village. It is more than clear that the accused made a
false promise that he would marry her. Therefore, the
intention of the accused right from the beginning was not
bona fide and the poor girl submitted to the lust of the
accused, completely being misled by the accused who
held out the promise for marriage. This kind of consent
taken by the accused with clear intention not to fulfill the
promise and persuading the girl to believe that he is
going to marry her and obtained her consent for the
sexual intercourse under total misconception, cannot be
treated to be a consent.”
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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 [Deepak
Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3
SCC (Cri) 660] this Court observed : (SCC pp. 682-84,
paras 21 & 24)
“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
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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)
17. In Uday v. State of Karnataka, (2003) 4 SCC
46: 2003 SCC (Cri) 775] the complainant was a
college-going student when the accused promised
to marry her. In the complainant’s statement, she
admitted that she was aware that there would be
significant opposition from both the complainant’s
and accused’s families to the proposed marriage.
She engaged in sexual intercourse with the accused
but nonetheless kept the relationship secret from
her family. The Court observed that in these
circumstances the accused’s promise to marry the
complainant was not of immediate relevance to the
complainant’s decision to engage in sexual
intercourse with the accused, which was motivated
by other factors : (SCC p.58, para 25)
“25. There is yet another difficulty which
faces the prosecution in this case. In a case of
this nature two conditions must be fulfilled for
the application of Section 90 IPC. Firstly, it must
be shown that the consent was given under a
misconception of fact. Secondly, it must be
proved that the person who obtained the consent
knew, or had reason to believe that the consent
was given in consequence of such misconception.
We have serious doubts that the promise to
marry induced the prosecutrix to consent to
having sexual intercourse with the appellant. She
knew, as we have observed earlier, that her
marriage with the appellant was difficult on
account of caste considerations. The proposal
was bound to meet with stiff opposition from
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members of both families. There was therefore a
distinct possibility, of which she was clearly
conscious, that the marriage may not take place
at all despite the promise of the appellant. The
question still remains whether even if it were so,
the appellant knew, or had reason to believe, that
the prosecutrix had consented to having sexual
intercourse with him only as a consequence of
her belief, based on his promise, that they will
get married in due course. There is hardly any
evidence to prove this fact. On the contrary, the
circumstances of the case tend to support the
conclusion that the appellant had reason to
believe that the consent given by the prosecutrix
was the result of their deep love for each other.
It is not disputed that they were deeply in love.
They met often, and it does appear that the
prosecutrix permitted him liberties which, if at
all, are permitted only to a person with whom
one is in deep love. It is also not without
significance that the prosecutrix stealthily went
out with the appellant to a lonely place at 12
o’clock in the night. It usually happens in such
cases, when two young persons are madly in
love, that they promise to each other several
times that come what may, they will get
married.”
(emphasis supplied)
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.”
10. The Apex Court, a little later in the case
of DHRUVARAM MURLIDHAR SONAR (supra), while
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following the earlier judgment of the Apex Court in the
case of UDAY v. STATE OF KARNATAKA reported
in (2003) 4 SCC 46 and DEELIP SINGH v. STATE OF
BIHAR reported in (2005) 1 SCC 88, has held as follows:
“18. In 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 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.
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***
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, (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?
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
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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 v. State
of Bihar, (2005) 1 SCC 8 : 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
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and others 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, (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
travelled with him from one place to another. The
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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.
****
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 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
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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 commission of
rape, the complaint registered under Section
376(2)(b) cannot be sustained.”
(Emphasis supplied)
The Apex Court, in the afore-quoted judgment, has
considered the entire spectrum of the law on the
issue while following the judgment in the case of
DR.DHRUVARAM MURALIDHAR SONAR V. STATE
OF MAHARASHTRA reported in (2019)18 SCC
191 and had obliterated the proceedings qua the
accused.
10. Later to the judgment so rendered by the
Apex Court in the case of PRAMOD SURYABHAN
PAWAR , the Apex Court in the case of SHAMBHU
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KHARWAR v. STATE OF UTTARPRADESH has held
as follows:
“…. …. ….
7. The parameters governing the exercise of the
jurisdiction of Section 482 of CrPC are well-settled
and have been reiterated in a consistent line of
decisions of this Court. In Neeharika
Infrastructure v. State of Maharashtra, a three
Judge Bench of this Court which one of us was a part
of (D.Y. Chandrachud J.), reiterated the parameters
laid down in R.P. Kapur v. State of Punjab and State
of Haryana v. Bhajan Lal and held that while the
Courts ought to be cautious in exercising powers
under Section 482, they do have the power to
quash. The test is whether or not the allegations in
the FIR disclose the commission of a cognizable
offence. The Court does not enter into the merits of
the allegations or trench upon the power of the
investigating agency to investigate into allegations
involving the commission of a cognizable offence.
8. In Bhajan Lal (supra) this Court formulated the
parameters in terms of which the powers in Section
482 of CrPC may be exercised. While it is not
necessary to revisit all these parameters again, a
few that are relevant to the present case may be set
out. The Court held that quashing may be
appropriate:
“102.(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).
[…]
(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
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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.”
9. In Dhruvaram Murlidhar Sonar v. State of
Maharashtra, a two Judge Bench of this Court while
dealing with similar facts as the present case
reiterated the parameters laid down in Bhajan
Lal (supra) held that:
“13. It is clear that for quashing the
proceedings, meticulous analysis of factum of
taking cognizance of an offence by the Magistrate
is not called for. Appreciation of evidence is also
not permissible in exercise of inherent powers. If
the allegations set out in the complaint do
not constitute the offence of which
cognizance has been taken, it is open to the
High Court to quash the same in exercise of
its inherent powers.”
(emphasis supplied)
10. An offence is punishable under Section 376 of
the IPC if the offence of rape is established in terms
of Section 375 which sets out the ingredients of the
offence. In the present case, the second description
of Section 375 along with Section 90 of the IPC is
relevant which is set out below.
“375. Rape – A man is said to commit “rape” if he
–
[…]
under the circumstances falling under any of the
following seven descriptions
Firstly …
Secondly. – Without her consent.
[…]
Explanation 2. – Consent means an unequivocal
voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal
communication, communicates willingness to
participate in the specific sexual act:
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Provided that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting
to the sexual activity.
xxx
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; or…”
11. In Pramod Suryabhan Pawar v. State of
Maharashtra,7 a two Judge Bench of this Court of
which one of us was a part (D.Y. Chandrachud J.),
held in Sonu @ Subhash Kumar v. State of Uttar
Pradesh,8 observed that:
“12. This Court has repeatedly held that
consent with respect to Section 375 of the IPC
involves an active understanding of the
circumstances, actions and consequences of the
proposed act. An individual who makes a
reasoned choice to act after evaluating various
alternative actions (or inaction) as well as the
various possible consequences flowing from such
action or inaction, consents to such action…
[…]
14. […] Specifically in the context of a
promise to marry, this Court has observed that
there is a distinction between a false promise
given on the understanding by the maker that it
will be broken, and the breach of a promise which
is made in good faith but subsequently not
fulfilled…
[…]
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
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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…
[…]
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.
(emphasis supplied)
12. In the present case, the issue which
had to be addressed by the High Court was
whether, assuming all the allegations in the
charge-sheet are correct as they stand, an
offence punishable under Section 376 IPC
was made out. Admittedly, the appellant and
the second respondent were in a consensual
relationship from 2013 until December 2017.
They are both educated adults. The second
respondent, during the course of this period,
got married on 12 June 2014 to someone
else. The marriage ended in a decree of
divorce by mutual consent on 17 September
2017. The allegations of the second
respondent indicate that her relationship
with the appellant continued prior to her
marriage, during the subsistence of the
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marriage and after the grant of divorce by
mutual consent.
13. In this backdrop and taking the
allegations in the complaint as they stand, it
is impossible to find in the FIR or in the
charge-sheet, the essential ingredients of an
offence under Section 376 IPC. The crucial
issue which is to be considered is whether
the allegations indicate that the appellant
had given a promise to the second
respondent to marry which at the inception
was false and on the basis of which the
second respondent was induced into a
sexual relationship. Taking the allegations in
the FIR and the charge-sheet as they stand,
the crucial ingredients of the offence under
Section 375 IPC are absent. The relationship
between the parties was purely of a
consensual nature. The relationship, as
noted above, was in existence prior to the
marriage of the second respondent and
continued to subsist during the term of the
marriage and after the second respondent
was granted a divorce by mutual consent.
14. The High Court, in the course of its
judgment, has merely observed that the
dispute raises a question of fact which
cannot be considered in an application under
Section 482 of CrPC. As demonstrated in the
above analysis, the facts as they stand,
which are not in dispute, would indicate that
the ingredients of the offence under Section
376 IPC were not established. The High
Court has, therefore, proceeded to dismiss
the application under Section 482 of CrPC on
a completely misconceived basis.
15. We, accordingly allow the appeal and set
aside the impugned judgment and order of the
High Court dated 5 October 2018 in application
u/s 482 No 33999 of 2018. The application under
Section 482 of CrPC shall accordingly stand
allowed. The Case Crime No 11 of 2018 registered
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at Police Station Rasra, District Ballia, charge-
sheet dated 23 April 2018 in the aforementioned
case and the order dated 24 May 2018 in Criminal
Case No 785 of 2018 in the Court of the Addl.
Chief Judicial Magistrate (First), Ballia taking
cognizance of the charge-sheet shall accordingly
stand quashed.”
(Emphasis supplied)
11. In yet another judgment, the Apex Court in
the case of MANDAR DEEPAK PAWAR V. STATE
OF MAHARASHTRA, has held as follows:
“…. …. ….
3. The parties chose to have physical
relationship without marriage for a
considerable period of time. For some
reason, the parties fell apart. It can happen
both before or after marriage. Thereafter
also three years passed when respondent
No.2 decided to register a FIR.
4. The facts are so glaring as set out
aforesaid by us that we have no hesitation in
quashing the FIR darted 16.12.2016 and bringing
the proceedings to a close. Permitting further
proceedings under the FIR would amount to
harassment to the appellant through the criminal
process itself.
5. We are fortified to adopt this course
of action by the judicial view in (2019) 9 SCC
608 titled “Pramod Suryabhan Pawar v.
State of Maharashtra & another” where in
the factual scenario where complainant was
aware that there existed obstacles in
marrying the accused and still continued to
engage in sexual relations, the Supreme
Court quashed the FIR. A distinction was
made between a false promise to marriage
which is given on understanding by the
maker that it will be broken and a breach of
promise which is made in good faith but
subsequently not fulfilled. This was in the
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context of Section 375 Explanation 2 and
Section 90 of the IPC, 1860.
(Emphasis supplied)
12. Further, the Apex Court, again in the case
of NAIM AHAMED v. STATE (NCT OF DELHI),
delineating what would be false promise of marriage
and a promise of marriage, has held as follows:
“…. …. ….
10. It would be germane to note that the
basic principles of criminal jurisprudence warrant
that the prosecution has to prove the guilt of the
accused beyond reasonable doubt by leading
cogent evidence, however, considering the ethos
and culture of the Indian Society, and considering
the rising graph of the commission of the social
crime – ‘Rape’, the courts have been permitted to
raise a legal presumption as contained in
Section 114A of the Indian Evidence Act. As per
Section 114A, a presumption could be raised as to
the absence of consent in certain cases pertaining
to Rape. As per the said provision, if sexual
intercourse by the accused is proved and the
question arises as to whether it was without the
consent of the woman alleged to have been
raped, and if she states in her evidence before
the court that she did not consent, the court shall
presume that she did not consent.
11. It cannot be gainsaid that a consent
given by a person would not be a consent as
intended by any Section of the Penal Code,
1860, if such consent was given by the
person under the fear of injury, or under a
misconception of fact as contemplated in
Section 90 IPC. Further, Section 375 also
describes certain acts which if committed by
the accused under the circumstances
mentioned therein, as the commission of
‘Rape’, even though committed with the
consent of the prosecutrix. In our opinion,
the expression “misconception of fact”
contained in Section 90 IPC is also required
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to be appreciated in the light of the Clauses –
contained in Section 375 IPC, more
particularly the Clauses – Thirdly, Fourthly
and Fifthly thereof, when the accused is
charged for the offence of ‘rape’. The
circumstances described in the said three
Clauses are wider than the expression
“misconception of fact”, as contemplated in
Section 90 of IPC. Section 375 describes
seven circumstances under which the ‘rape’
could be said to have been committed. As
per the Clause – Thirdly, a rape could be said
to have been committed, even with her
consent, when the consent of the
prosecutrix is obtained by putting her or any
person in whom she is interested in fear of
death or of hurt. As per the Clause –
Fourthly, with her consent, when the man
knows that he is not her husband and that
her consent is given because she believes
that he is another man to whom she is or
believes herself to be lawfully married; and
as per the Clause – Fifthly, with her consent
when at the time of giving the consent, the
prosecutrix by reason of unsoundness of
mind or intoxication or the administration of
stupefying or unwholesome substance by
the accused or through another, she is
unable to understand the nature and
consequences of that to which she gives
consent. Thus, apart from the prosecutrix
being under the misconception of fact as
contemplated in Section 90, her consent
would be treated as ‘no consent’ if she had
given her consent under any of the
circumstances mentioned in
Section 375 of IPC.
12. The exposition of law in this regard is
discernible in various decisions of this Court,
however the application of such law or of such
decisions would depend upon the proved facts in
each case, known as legal evidence. The ratio laid
down in the judgments or the law declared by this
Court do provide the guidelines to the judicial
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mind of the courts to decide the cases on hand,
but the courts while applying the law also have to
consider the evidence before them and the
surrounding circumstances under which the
alleged offences are committed by the accused.
13. A reference of some of the decisions of
this Court dealing with the different dimensions
and angles of the word ‘consent’ in the context of
Section 90 and Section 375 would be beneficial
for deciding this appeal.
14. In Uday v. State of Karnataka4, the
prosecutrix aged about 19 years had given her
consent for having a sexual intercourse with the
accused with whom she was deeply in love, and it
was alleged by the prosecution that the
prosecutrix continued to meet the accused as the
accused had given her a promise to marry her on
a later date. The prosecutrix became pregnant
and the complaint was lodged on failure of the
accused to marry her. This Court while holding
that under the circumstances, the consent could
not be said to have been given under a
misconception of fact under section 90 of IPC,
held in para 21 and 23 as under:–
“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
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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.
22. -xxx- xx –
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.”
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15. In Deelip Singh alias Dilip Kumar v. State
of Bihar (supra), this Court after discussing
various earlier decisions of this Court and other
High Courts, further explained the observations
made in Uday case (supra) and observed as
under:–
“28. The first two sentences in the above
passage need some explanation. While we
reiterate that a promise to marry without
anything more will not give rise to
“misconception of fact” within the meaning
of Section 90, it needs to be clarified that a
representation deliberately made by the
accused with a view to elicit the assent of
the victim without having the intention or
inclination to marry her, will vitiate the
consent. If on the facts it is established that
at the very inception of the making of
promise, the accused did not really
entertain the intention of marrying her and
the promise to marry held out by him was a
mere hoax, the consent ostensibly given by
the victim will be of no avail to the accused
to exculpate him from the ambit of Section
375 clause secondly. This is what in fact
was stressed by the Division Bench of the
Calcutta High Court in the case of Jayanti
Rani Panda [1984 Cri LJ 1535 : (1983) 2
CHN 290 (Cal)] which was approvingly
referred to in Uday case [(2003) 4 SCC
46 : 2003 SCC (Cri) 775 : (2003) 2 Scale
329]. The Calcutta High Court rightly
qualified the proposition which it stated
earlier by adding the qualification at the
end (Cri LJ p. 1538, para 7) — “unless the
court can be assured that from the very
inception the accused never really intended
to marry her”. (emphasis supplied) In the
next para, the High Court referred to the
vintage decision of the Chancery Court
which laid down that a misstatement of the
intention of the defendant in doing a
particular act would tantamount to a
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misstatement of fact and an action of deceit
can be founded on it. This is also the view
taken by the Division Bench of the Madras
High Court in Jaladu case [ILR (1913) 36
Mad 453 : 15 Cri LJ 24] (vide passage
quoted supra). By making the solitary
observation that “a false promise is not a
fact within the meaning of the Code”, it
cannot be said that this Court has laid down
the law differently. The observations
following the aforesaid sentence are also
equally important. The Court was cautious
enough to add a qualification that no
straitjacket formula could be evolved for
determining whether the consent was given
under a misconception of fact. Reading the
judgment in Uday case [(2003) 4 SCC
46 : 2003 SCC (Cri) 775 : (2003) 2 Scale
329] as a whole, we do not understand the
Court laying down a broad proposition that
a promise to marry could never amount to
a misconception of fact. That is not, in our
understanding, the ratio of the decision. In
fact, there was a specific finding in that
case that initially the accused’s intention to
marry cannot be ruled out.”
16. In Deepak Gulati v. State of Haryana5,
this Court gave one more dimension of the word
‘consent’ by distinguishing ‘Rape’ and ‘consensual
sex’ and observed as under:
“21. Consent may be express or
implied, coerced or misguided, obtained
willingly or through deceit. Consent is an
act of reason, accompanied by deliberation,
the mind weighing, as in a balance, the
good and evil on each side. There is a clear
distinction between rape and consensual
sex and in a case like this, the court must
very carefully examine whether the
accused 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
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ambit of cheating or deception. 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. An accused can be
convicted for rape only if the court reaches
a conclusion that the intention of the
accused was mala fide, and that he had
clandestine motives.
22. xxxxx
23. xxxxx
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
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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”.
17. Again in Dr. Dhruvaram Murlidhar
Sonar v. State of Maharashtra (supra), this Court
interpreting the Section 90 and the Clause –
Secondly in Section 375 of IPC, observed as
under:–
“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
intention and if he had clandestine
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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.”
18. Now, in the instant case, having
regard to the statutory provisions and their
interpretations by this Court in various
judgments, one may be tempted to hold the
appellant-accused guilty of the offence
under Section 376 IPC as has been done by
the Sessions Court and the High Court,
however, on the closer scrutiny of the
evidence on record, we find that it was
fallacy on the part of the courts below to
hold the appellant guilty under
Section 376 IPC.
19. After duly examining the record in the
light of the submissions made by the learned
counsels for the parties, following facts have
emerged:–
(i) Prosecutrix was a married woman having
three children.
(ii) Accused was staying in a tenanted
premises situated in front of the house of
the prosecutrix.
(iii) Though initially hesitant, the
prosecutrix developed liking for the
accused, and both started having sexual
relationship with each other.
(iv) The prosecutrix delivered a male
child on 28/10/2011 from the loin of the
accused.
(v) The prosecutrix went to the native place
of the accused in 2012 and came to know
that he was a married man having
children.
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(vi) The prosecutrix still continued to
live with the accused in separate premises.
(vii) The prosecutrix and her husband
took divorce by mutual consent in 2014
and thereafter prosecutrix permanently
left her three children with her husband.
(viii) The prosecutrix lodged the
complaint on 21st March, 2015 alleging
that she had consented for sexual
relationship with the accused as the
accused had promised her to marry and
subsequently did not marry.
20. The bone of contention raised on
behalf of the respondents is that the
prosecutrix had given her consent for sexual
relationship under the misconception of fact,
as the accused had given a false promise to
marry her and subsequently he did not
marry, and therefore such consent was no
consent in the eye of law and the case fell
under the Clause – Secondly of
Section 375 IPC. In this regard, it is
pertinent to note that there is a difference
between giving a false promise and
committing breach of promise by the
accused. In case of false promise, the
accused right from the beginning would not
have any intention to marry the prosecutrix
and would have cheated or deceited the
prosecutrix by giving a false promise to
marry her only with a view to satisfy his
lust, whereas in case of breach of promise,
one cannot deny a possibility that the
accused might have given a promise with all
seriousness to marry her, and subsequently
might have encountered certain
circumstances unforeseen by him or the
circumstances beyond his control, which
prevented him to fulfill his promise. So, it
would be a folly to treat each breach of
promise to marry as a false promise and to
prosecute a person for the offence under
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Section 376. As stated earlier, each case
would depend upon its proved facts before
the court.”
(Emphasis supplied)
13. The Apex Court, subsequently, in the case
of Ms. X V. Mr. A, has held as follows:
“…. …. ….
12. This Court, in the facts of the said case, set
aside the judgment of the High Court which refused to
exercise its jurisdiction under Section 482 of Cr. P.C.
to quash the proceedings. The Court found that this
was a fit case wherein the High Court ought to have
invoked its jurisdiction under Section 482 of Cr. P.C.
to quash the proceedings.
13. In the present case also, the facts are almost
similar. Even as per the version of the complainant,
the following facts have been emerged:
(i) 4 years prior to the FIR being lodged on 1st
October 2020, accused No. 1 followed the
prosecutrix and told her that he loved her and she
should also love him;
(ii) After a period of 2 years, she agreed to love him
and both were intimate with each other;
(iii) One year prior to the date of the incident,
accused No. 1 took the prosecutrix to his aunty’s
house in Chitradurga and they stayed there. On
that day at about 09.00 am, in his aunty’s house,
by giving trust and belief that he would marry her,
accused No. 1 forcibly made sexual contact with
the prosecutrix;
(iv) Thereafter, accused No. 1 took the prosecutrix
to various places including his own house and
committed sexual intercourse with her; and
(v) As per the version of the prosecutrix, the first
incident has taken place in the year 2019. As per
Karnataka Secondary Education Examination Board
Certificate, her date of birth is 12th September
1998. Even if it is assumed that the incident has
taken place in January 2019, she would have been
over the age of 18.
14. After the prosecutrix became pregnant,
accused No. 1 caused her abortion on 17th August
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2020. Though her initial version was that she was
admitted in the hospital for two days, it is falsified by
the statement of the doctor/Head of Krishna Nursing
Home. After this incident, she discussed the matter
with her elders in the family and decided to lodge the
complaint.
15. We find that, in the present case also like the
case of Pramod Suryabhan Pawar (supra), the
allegations in the FIR so also in the restatement
(Annexure P-6) made before the Dy. S.P., Challakere,
do not, on their face, indicate that the promise by
accused No. 1 was false or that the complainant
engaged in the sexual relationship on the basis of such
false promise. This apart from the fact that the
prosecutrix has changed her version. The version of
events given by the prosecutrix in the restatement
(Annexure P-6) made before the Dy. S.P., Challakere
is totally contrary to the one given in the FIR.
16. Similar facts arose for consideration
before this Court in the case of Shambhu
Kharwar (supra). In the said case, the
prosecutrix had filed a complaint that there was
love affair between her and the accused for a
period of three years. The accused had given an
assurance to her regarding solemnization of
marriage. They started living under the same
roof and also made sexual relationship.
Thereafter, the accused entered into a ring
ceremony with someone else. In this
background, the prosecutrix had lodged the
complaint that the accused had forcible sexual
intercourse with her on the false promise of
marriage. After considering the material placed
on record, the Court observed thus:
“13. …..Taking the allegations in the FIR and
the charge-sheet as they stand, the crucial
ingredients of the offence under Section 375 IPC
are absent. The relationship between the parties
was purely of a consensual nature. The
relationship, as noted above, was in existence
prior to the marriage of the second respondent
and continued to subsist during the term of the
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marriage and after the second respondent was
granted a divorce by mutual consent.”
17. This Court, in the case of State of Haryana v.
Bhajan Lal, has observed 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 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
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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.”
18. We find that the present case would
squarely fall under categories (1), (3) and (5) as
reproduced hereinabove for the reasons which
we have already recorded in the earlier
paragraphs. No doubt, that the power of
quashing the criminal proceedings should be
exercised very sparingly and with
circumspection and that too in the rarest of rare
cases, it is also equally settled that the Court will
not be justified in embarking upon an enquiry as
to the reliability or genuineness or otherwise of
the allegations made in the FIR or the complaint.
However, in the present case, even if the
allegations made in the FIR and the material on
which the prosecution relies, are taken at its
face value, we find that there are no sufficient
grounds for proceeding against the accused. We
find that no error has been committed by the
learned Single Judge of the High Court by
holding that permitting further proceedings to
continue would be an abuse of process of law
and result in miscarriage of justice. The High
Court has correctly applied the law on the issue
and come to a just finding warranting no
interference.”
(Emphasis supplied)
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14. The Apex Court, further in the case of
SHIV PRATAP SINGH RANA V.STATE OF
MADHYA PRADESH, has held as follows:
“…. …. ….
26. We have carefully gone through the
definition of “rape” provided under Section
375IPC. We have also gone through the
provisions of Section 376(2)(n)IPC, which deals
with the offence of rape committed repeatedly
on the same woman. Section 375IPC defines
“rape” by a man if he does any of the acts in
terms of clauses (a) to (d) under the seven
descriptions mentioned therein. As per the
second description, a man commits rape if he
does any of the acts as mentioned in clauses (a)
to (d) without the consent of the woman.
Consent has been defined in Explanation 2 to
mean an unequivocal voluntary agreement when
the woman by words, gestures or any form of
verbal or non-verbal communication,
communicates willingness to participate in the
specific sexual act. However, the proviso thereto
clarifies that a woman who does not physically
resist to the act of penetration shall not by the
reason only of that fact, be regarded as
consenting to the sexual activity.
27. Having regard to the above and in the overall
conspectus of the case, we are of the view that the
physical relationship between the prosecutrix and the
appellant cannot be said to be against her will and
without her consent. On the basis of the available
materials, no case of rape or of criminal intimidation is
made out.
28. The learned counsel for the respondents
had placed considerable reliance on the
provisions of Section 90IPC, particularly on the
expression “under a misconception of fact”.
Section 90IPC reads thus:
“90. Consent known to be given under
fear or misconception.–A consent is not such
a consent as it intended by any section of this
Code, if the consent is given by a person under
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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; orConsent of insane person.–if the consent is
given by a person who, from unsoundness of
mind, or intoxication, is unable to understand
the nature and consequence of that to which
he gives his consent; orConsent of child.–unless the contrary appears
from the context, if the consent is given by a
person who is under twelve years of age.”
29. Section 90 IPC says that a consent is not
such a consent as it is intended by any section of
IPC, if the consent is given by a person under
the fear of injury or under a misconception of
fact.
30. In Dhruvaram Murlidhar Sonar v. State of
Maharashtra [Dhruvaram Murlidhar Sonar v. State of
Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri)
672] , this Court after examining Section 90IPC held
as follows : (SCC p. 198, para 17)
“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.”
31. This Court also examined the interplay
between Section 375IPC and Section 90IPC in the
context of consent in Pramod Suryabhan Pawar v.
State of Maharashtra [Pramod Suryabhan Pawar v.
State of Maharashtra, (2019) 9 SCC 608 : (2019) 3
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SCC (Cri) 903] , and held that consent with respect to
Section 375IPC involves an active understanding of
the circumstances, actions and consequences of the
proposed act. An individual who makes a reasoned
choice to act after evaluating various alternative
actions (or inaction) as well as the various possible
consequences flowing from such action (or inaction),
consents to such action. After deliberating upon the
various case laws, this Court summed up the legal
position as under : (SCC p. 620, para 18)
“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.”
32. The learned counsel for the respondents
had relied heavily on the expression
“misconception of fact”. However, according to
us, there is no misconception of fact here. Right
from the inception, it is the case of the
prosecution that while the appellant was
insisting on having a relationship with the
prosecutrix, the later had turned down the same on
the ground that the appellant was the friend of her
younger brother and a distant relative of her jijaji.
That apart, according to the prosecutrix, the appellant
was younger to her. Nonetheless, the prosecutrix had
accompanied the appellant to a temple, where she had
voluntarily taken bath under a waterfall. Her allegation
that the appellant had surreptitiously taken
photographs of her while she was bathing and later on
changing clothes and was blackmailing her with such
photographs remain unfounded in the absence of
seizure of such photographs or the mobile phone on
which such photographs were taken by the appellant.
If, indeed, she was under some kind of threat from
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the appellant, it defies any logic, when the prosecutrix
accompanied the appellant to Gwalior from Dabra, a
journey which they had made together by train. On
reaching Gwalior, she accompanied the appellant on a
scooter to a rented premises at Anupam Nagar, where
she alleged that the appellant had forced himself upon
her. But she did not raise any alarm or hue and cry at
any point of time. Rather, she returned back to Dabra
along with the appellant. The relationship did not
terminate there. It continued even thereafter. It is the
case of the prosecutrix herself that at one point of
time the family members of the two had met to
discuss about their marriage but nothing final could be
reached regarding their marriage. It was only
thereafter that the FIR was lodged.
33. As already pointed out above, neither the
affidavit nor stamp papers have been recovered
or seized by the police; so also the jewellery.
The alleged cheque of the prosecutrix’s mother
given to the appellant or the bank statement to
indicate transfer of such money have not been
gathered by the police. In the absence of such
materials, the entire substratum of the
prosecutrix’s case collapses. Thus, there is
hardly any possibility of conviction of the
appellant. As a matter of fact, it is not even a
case which can stand trial. It appears to be a
case of a consensual relationship which had
gone sour leading to lodging of FIR. In the
circumstances, the Court is of the view that
compelling the appellant to face the criminal
trial on these materials would be nothing but an
abuse of the process of the court, result of the
trial being a foregone conclusion.
34. From the factual matrix of the case, the
following relevant features can be culled out:
(i) the relationship between the
appellant and the prosecutrix was of a
consensual nature;
(ii) the parties were in a relationship for
a period of almost two years; and
(iii) though there were talks between the
parties and their family members regarding
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marriage, the same did not fructify leading to
lodging of FIR.
35. That being the position and having regard
to the facts and circumstances of the case, we
are of the view that it would be in the interest of
justice if the proceedings are terminated at this
stage itself. Consequently, impugned order of
the High Court dated 3-10-2019 [Shivpratap
Singh Rana v. State of M.P., 2019 SCC OnLine MP
5836] and the order of the Sessions Judge dated
24-4-2019 are hereby set aside and quashed.
36. Resultantly, proceedings in Sessions Trial No.
505 of 2018, pending before the 10th Additional
Sessions Judge, Gwalior, are hereby quashed.”
(Emphasis supplied)
15. The Apex Court, in its recent judgment, in
the case of LALU YADAV V. STATE OF UTTAR
PRADESH has held as follows:
“…. …. ….
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.
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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 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
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appellant guilty of having committed rape within
the meaning of Section 375, IPC.
15. The long and short of the above
discussion is that the case at hand is a befitting
case where the High Court should have
exercised the power available under
Section 482, Cr. P.C. to prevent abuse of the
process of the Court. Now that the allegation of
offence under Section 313, IPC is omitted, there
is absolutely no prima facie case for proceeding
further against the appellant on the allegation of
commission of offence punishable under
Section 376, IPC. We are of the considered view
that the High Court should have exercised its
inherent power.”
(Emphasis supplied)
The Apex Court, in the afore-quoted judgments,
have considered the interplay between consensual
acts and rape, as also, the interplay between
promise of marriage and its breach qua cheating and
has delineated that, such acts would neither become
rape nor cheating, as obtaining under Sections 376,
417 and 420 of the IPC.
16. Insofar as the judgment that the learned
counsel appearing for the 2nd
respondent/complainant seeks to place reliance
upon, in the case of ANURAG SONI V. STATE OF
CHATTISGARH – (2019)13 SCC 1, the same has
been considered and the law has further been
elucidated by the Apex Court in the subsequent
judgments quoted hereinabove. Therefore, what
would become binding are the judgments that are
quoted in the course of the order. Wherefore, the
armory that has emerged from the arsenal of the
learned counsel for the petitioners, Smt. Sadhana S
Desai, are undoubtedly overwhelming to what is
projected by the learned counsel Sri Avishkar,
nd
appearing for the 2 respondent/complainant .
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17. In the light of the afore-quoted judgments
and the observations made during the course of the
order, if further proceedings against the petitioners
are not obliterated and the trial is continued, it
would, on the face of it, become an abuse of the
process of law and result in miscarriage of injustice.
18. For the aforesaid reasons, the following:
ORDER
(i) Criminal Petition is allowed.
(ii) FIR registered in Crime No.140 of 2023 and
charge sheet No.13 of 2024 pending on the file
of Principal Civil Judge (Jr.Dn.) & JMFC,
Channapatna, Ramanagara District stands
quashed qua the petitioners.”
5. A perusal of the material on record bearing in mind the
principles enunciated in the aforesaid judgments and the
allegations made in the complaint are sufficient to come to the
conclusion that the petitioner cannot be incriminated for the
aforesaid offences especially when the necessary ingredients in
this regard are conspicuously absent coupled with the fact that
having consensual sexual relationship for a long time on the false
pretext / promise of marriage cannot be construed or treated as
petitioner having committed the aforesaid offences. Under these
circumstances, I am of the view that continuation of the impugned
proceedings for the petitioner would amount to abuse of process of
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law warranting interference in the present petition. In the result, the
following:
ORDER
(i) Petition is hereby allowed.
(ii) The impugned proceedings in Crime No.80/2024
(Annexure-B) registered by respondent No.1-South East
Women Police Station, Bengaluru which is pending on
the file of XXXIX Addl. CMM Court, Bengaluru for the
offences punishable under Sections 417 and 376 of IPC
are hereby quashed.
Sd/-
(S.R.KRISHNA KUMAR)
JUDGE
PGG
List No.: 1 Sl No.: 32