Karnataka High Court

Sri N Mallikarjuna vs State Of Karnataka By on 10 December, 2021

Bench: M.Nagaprasanna

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF DECEMBER, 2021

                        BEFORE

        THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

            CRIMINAL PETITION No.8865 OF 2018

                          C/W

            CRIMINAL PETITION No.8866 OF 2018

IN CRIMINAL PETITION No.8865 OF 2018

BETWEEN

1.   SRI N.MALLIKARJUNA
     S/O LATE NANJUNDAPPA
     AGED ABOUT 67 YEARS,
     R/AT HUNASAMARANAHALLI VILLAGE,
     JALA HOBLI
     BENGALURU NORTH TALUK
     PIN CODE - 562 157.

2.   SRI JAGADISH YANE JAGGA
     S/O VISHWANATH
     AGED ABOUT 27 YEARS,
     R/AT HUNASAMARANAHALLI VILLAGE,
     JALA HOBLI
     BENGALURU NORTH TALUK
     PIN CODE - 562 157.

3.   SRI BASAVARAJU YANE
     S/O LATE VASUDEVAPPA
     AGED ABOUT 72 YEARS,
     R/AT UTTANAHALLI VILLAGE
     JALA HOBLI, BENGALURU NORTH TALUK
     PIN CODE - 562 157.
                            2



4.    SRI H.P.NARAYANASWAMY
      S/O PILLANNA
      AGED ABOUT 56 YEARS,
      R/AT HUNASAMARANAHALLI VILLAGE,
      JALA HOBLI, BENGALURU NORTH TALUK,
      PIN CODE - 562 157.

5.    SRI SATHYANARAYANA V.,
      S/O VENKATARAMAIAH
      AGED ABOUT 50 YEARS,
      R/AT HUNASAMARANAHALLI VILLAGE,
      JALA HOBLI, BENGALURU NORTH TALUK
      PIN CODE - 562 157.

6.    SRI SUBRAMANI YANE
      KADIGANAHALLI SUBRAMANI
      AGED ABOUT 52 YEARS,
      R/AT KADIGANAHALLI VILLAGE,
      JALA HOBLI,
      BENGALURU NORTH TALUK
      PIN CODE - 562 157.
                                            ... PETITIONERS
(BY SRI MOHAMMED AKHIL NAZEER, ADVOCATE
    (VIDEO CONFERENCING))

AND

1.    STATE OF KARNATAKA BY
      MANGALURU EAST POLICE STATION
      MANGALURU - 570 001
      REP. BY ITS STATE PUBLIC PROSECUTOR
      HIGH COURT OF KARNATAKA
      BENGALURU - 01.

2.    KAVITHA @ KAVYA ACHARYA
      D/O LATE BALARAM
      AGED ABOUT 26 YEARS,
      RESIDING AT MILKERI
      THEERTHAHALLI
      PIN CODE - 577 432.             ... RESPONDENTS
                           3



(BY SRI R.D.RENUKARADHYA, HCGP FOR R1 (PHYSICAL HEARING)
    SRI M.SHASHIDHARA, ADVOCATE FOR R2 (PHYSICAL
    HEARING))

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
CODE OF CRIMINAL PROCEDURE PRAYING TO a. QUASH THE
ENTIRE PROCEEDINGS IN P.C.R.NO.135/2018 NOW REGISTERED
AS CR.NO.298/2018 WITH RESPONDENT MANGALURU EAST
POLICE FOR THE OFFENCE P/U/S 342, 347, 363, 368, 376, 420
AND 506 R/W 34 OF IPC PENDING ON THE FILE OF J.M.F.C.(II
COURT), MANGALURU VIDE ANNEXURE-A.

     b. QUASH THE FIR IN CR.NO.298/2018 DATED 17.11.2018
REGISTERED WITH MANGALURU EAST POLICE STATION FOR THE
OFFENCE P/U/S 342, 347, 363, 368, 376, 420 AND 506 R/W 34
PENDING ON THE FILE OF J.M.F.C.(II COURT), MANGALURU VIDE
ANNEXURE-B.

     c. QUASH THE PRIVATE COMPLAINT IN P.C.R.NO.135/2018
DATED 12.10.2018 NOW REGISTERED AS CR.NO.298/2018 WITH
RESPONDENT MANGALURU EAST POLICE FOR THE OFFENCE
P/U/S 342, 347, 363, 368, 376, 420 AND 506 R/W 34 OF IPC
PENDING ON THE FILE OF J.M.F.C.(II COURT), MANGALURU VIDE
ANNEXURE-B1.

IN CRIMINAL PETITION No.8866 OF 2018

BETWEEN

PATTADA SRI GURU NANJESHWARA
SHIVACHARYA SWAMIGALU
AND ALSO MATADHIPATHI
AGED ABOUT 34 YEARS,
RESIDING AT SAMSTHANA MUTT
HUNASAMARANAHALLI, JALA HOBLI
BENGALURU NORTH TALUK
BENGALURU - 562 157.
                                            ... PETITIONER
(BY SRI MOHAMMED AKHIL NAZEER, ADVOCATE A/W
    SRI NARAYANA SWAMY P.M.,(VIDEO CONFERENCING))
                            4



AND

1.    STATE OF KARNATAKA BY
      MANGALURU EAST KADRI POLICE STATION
      MANGALURU - 570 001.

2.    KAVITHA @ KAVYA ACHARYA
      D/O LATE BALARAM
      AGED ABOUT 26 YEARS,
      RESIDING AT MILKERI
      THEERTHAHALLI
      PINCODE NO - 577 432.
                                            ... RESPONDENTS

(BY SRI R.D.RENUKARADHYA, HCGP FOR R1 (PHYSICAL HEARING);
    SRI M.SHASHIDHARA, ADVOCATE FOR R2
    (PHYSICAL HEARING))

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE PRAYING TO a. QUASH THE
ENTIRE PROCEEDINGS IN P.C.R.NO.135/2018 NOW REGISTERED
AS CR.NO.298/2018 WITH RESPONDENT MANGALURU EAST
POLICE FOR THE OFFENCE P/U/S 342, 347, 363, 368, 376, 420
AND 506 R/W 34 OF IPC PENDING ON THE FILE OF J.M.F.C. (II
COURT), MANGALURU, VIDE ANNEXURE-A.

     b. QUASH THE FIR IN CR.NO.298/2018 DATED 17.11.2018
REGISTERED WITH MANGALORE EAST POLICE FOR THE OFFENCE
P/U/S 342, 347, 363, 368, 376, 420 AND 506 R/W 34 OF IPC
PENDING ON THE FILE OF J.M.F.C. (II COURT), MANGALURU, VIDE
ANNEXURE-B.

     c. QUASH THE PRIVATE COMPLAINT IN P.C.R.NO.135/2018
DATED 12.10.2018 NOW REGISTERED AS CR.NO.298/2018 WITH
RESPONDENT MANGALORE EAST POLICE FOR THE OFFENCE
P/U/S 342, 347, 363, 368, 376, 420 AND 506 R/W 34 OF IPC
PENDING ON THE FILE OF J.M.F.C. (II COURT), MANGALURU, VIDE
ANNEXURE-B1.
                                5



     THESE CRIMINAL PETITIONS COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:

                              ORDER

These petitions arise out of a private complaint registered

by the complainant one Kavitha @ Kavya Acharya against the

petitioners, pontiff in Crl.P.No.8866/2018 and other cohorts, in

Criminal Petition No.8865/2018.

2. Heard Sri.Mohammed Akhil Nazeer, learned counsel

along with Sri.Narayana Swamy.P.M., learned counsel appearing

for petitioners, Sri.R.D.Renukaradhya, learned High Court

Government Pleader for respondent No.1 and

Sri.M.Shashidhara, learned counsel appearing for respondent

No.2, in both the cases.

3. During the pendency of these proceedings, the

complainant who had registered the complaint against the

petitioners in both these cases, has filed an affidavit seeking to

withdraw the complaint. The affidavit of the complainant reads

as follows:

"AFFIDAVIT

I, Ms.Kavitha @ Kavya Acharya D/op Mr. Balaram, aged about 29 years, resident of Thirtahalli, Shimoga District, now at Bangalore do hereby solemnly affirm and state on oath as follows:

1. I state that I am the complainant/respondent in the above case and I know the facts of the case.

2. I say that I have filed the present complaint against the accused for the offences punishable under Sections 363, 368, 342, 376, 347, 506 and 420 r/w Section 34 of IPC.

3. I say that the complaint was filed by me on 18.11.2018, seems after the complaint was filed, the accused/respondent No.1 to 7 have filed Criminal petition before this Hon'ble Court and further investigation in the present suit has been stayed.

4. I say that I am now running 29 years of age. I want to settle in my family life. In 2018 under some misconception of facts I have filed the above complaint. In view of the changed circumstances, I have now decided to withdraw the above complaint.

5. I say that I have taken this decision to withdraw the complaint of my own free wish and will.

6. I say that I am praying the court to permit me to withdraw the complaint without having been yielding to any sort of influence, pressure or force.

7. I therefore pray that this Hon'ble Court may be pleased to pass an order to permit me to withdraw my complaint against the accused No.1 to 7 and

consequently the complaint filed by me may kindly be closed/rejected.

What is stated above are all true and correct to the best of my knowledge, information and belief.

Sd/- Deponent."

4. The offences are ones punishable under Sections 342,

347, 363, 368, 376, 420, 506 and 34 of the IPC. The main

offence is one of Section 376 of IPC against the petitioners in

Criminal Petition No.8865 of 2018. The issue with regard to

Section 376 of IPC ending in a compromise or withdrawal and

similar complaint filed by the complainant is considered by the

Apex Court in the case of THE STATE OF MADHYA PRADESH

V. LAXMI NARAYAN AND OTHERS1 wherein the Apex Court has

held as follows:

"15. Considering the law on the point and the other decisions of this Court on the point, referred to hereinabove, it is observed and held as under:

15.1. That the power conferred under Section 482 of the Code to quash the criminal proceedings for the non-

compoundable offences under Section 320 of the Code can be exercised having overwhelmingly and predominantly the civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes and when the

(2019)5 SCC 688

parties have resolved the entire dispute amongst themselves;

15.2. Such power is not to be exercised in those prosecutions which involved heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society;

15.3. Similarly, such power is not to be exercised for the offences under the special statutes like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender;

15.4. Offences under Section 307 IPC and the Arms Act, etc. would fall in the category of heinous and serious offences and therefore are to be treated as crime against the society and not against the individual alone, and therefore, the criminal proceedings for the offence under Section 307 IPC and/or the Arms Act, etc. which have a serious impact on the society cannot be quashed in exercise of powers under Section 482 of the Code, on the ground that the parties have resolved their entire dispute amongst themselves. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to framing the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. However, such an exercise by the High Court would be permissible only after the evidence is collected after investigation and the charge-sheet is filed/charge is framed and/or during the trial. Such

exercise is not permissible when the matter is still under investigation. Therefore, the ultimate conclusion in paras 29.6 and 29.7 of the decision of this Court in Narinder Singh [Narinder Singh v. State of Punjab, (2014) 6 SCC 466 : (2014) 3 SCC (Cri) 54] should be read harmoniously and to be read as a whole and in the circumstances stated hereinabove;

15.5 While exercising the power under Section 482 of the Code to quash the criminal proceedings in respect of non-compoundable offences, which are private in nature and do not have a serious impact on society, on the ground that there is a settlement/compromise between the victim and the offender, the High Court is required to consider the antecedents of the accused; the conduct of the accused, namely, whether the accused was absconding and why he was absconding, how he had managed with the complainant to enter into a compromise, etc."

(Emphasis supplied)

In a later judgment in the case of PRAMOD SURYABHAN

PAWAR V. THE STATE OF MAHARASHTRA AND OTHERS2,

the Apex Court has held as follows:

"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

(2019)9 SCC 608

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.

19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the Accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows: (i) The complainant and the Appellant knew each other since 1998 and were intimate since 2004; (ii) The complainant and the Appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant; and (iii) The Appellant expressed his reservations about marrying the complainant on 31 January 2014. This led to arguments between them. Despite this, the Appellant and the complainant continued to engage in sexual intercourse until March 2015.

20. The Appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax.

21. The allegations in the FIR do not on their face indicate that the promise by the Appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the Appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The Appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the Appellant since 2008,

and that she and the Appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the Appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the Appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence Under Section 375 of the Indian Penal Code has occurred."

(Emphasis supplied)

The Apex Court in the afore-extracted judgments has delineated

the issue of compromise being entered into between the parties

where allegation is for offences punishable under Sections 376 of

the IPC, particularly in the case of PRAMOD SURYABHAN

PAWAR. The facts narrated in the complaint, registered in the

case at hand, are identical to what is considered by the Apex

Court in PRAMOD SURYABHAN PAWAR (supra).

5. The Co-ordinate Bench of this Court also in the case of

JAMEEL JABBAR AND OTHERS V. STATE OF KARNATAKA

AND OTHERS in CRL.P.NO.3269/2017 disposed on

12.12.2017 and in the case of SHIVARAJ.S.P AND OTHERS V.