Karnataka High Court

Santosh Haravi S/O. Haravi ... vs The State Of Karnatak on 16 February, 2022

Bench: M.Nagaprasannapresided Bymnpj

               IN THE HIGH COURT OF KARNATAKA
                       DHARWAD BENCH

           DATED THIS THE 16TH DAY OF FEBRUARY 2022

                            BEFORE

           THE HON'BLE MR. JUSTICE M.NAGAPRASANNA

              CRIMINAL PETITION NO.102493/2021

BETWEEN:

SANTOSH HARAVI S/O. HARAVI CHANDRAPPA
AGE. 26 YEARS, OCC. POLICE CONSTABLE,
GUDEKOTE POLICE STATION
R/O. HYARADE VILLAGE,
TQ. HUVINHADAGALI, DIST. BALLARI-583219.

                                                 ...PETITIONER.

(BY SHRI K L PATIL, ADVOCATE.)

AND:

1.   THE STATE OF KARNATAK
     THROUGH BALLARI WOMEN
     POLICE STATION
     REP. BY STATE PUBLIC PROSECUTOR,
     HIGH COURT OF KARNATAKA
     DHARWAD BENCH-580011

2.   M. SHIVALEELA D/O. KOTRESH
     AGE. 26 YEARS,
     OCC. WORKING AS A NARSE
     R/O. HYARADE VILLAGE
     TQ. HUVINHADAGALI,
     DIST. BALLARI-583219.

                                              ...RESPONDENTS.

(BY SHRI RAMESH CHIGARI, HCGP, FOR R.1;
R.2 - NOTICE SERVED.)
                                    2




     THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO QUASH THE
ENTIRE PROCEEDINGS AGAINST THE PETITIONER IN BALLARI
WOMEN POLICE STATION CRIME NO.103/2020, WHICH IS
REGISTERED AS S.C.NO.81/2021, ON THE FILE OF II ADDITIONAL
DISTRICT AND SESSIONS JUDGE, BALLARI, FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 504, 376(2)(A)(I), 376(2)(N) AND
SECTION 417 OF THE INDIAN PENAL CODE, 1860, ETC.,.

     THIS PETITION COMING ON FOR ADMISSION THIS DAY, THE
COURT PASSED THE FOLLOWING:


                                 ORDER

Heard Shri K.L.Patil, the learned counsel appearing for the

petitioner and Shri Ramesh Chigari, the learned HCGP appearing

for the 1st respondent State.

2. The petitioner is before this Court calling in question

the proceedings instituted in Sessions Case No.81/2021,

registered for the offences punishable under Sections 376(2)(a),

376(2)(n), 504, 417 of the Indian Penal Code, on the file of

II Addl. District and Sessions Judge, Ballari.

3. Brief facts of the case as projected by the

prosecution are as follows:

The petitioner and the complainant-2nd respondent claim

to be acquainted to each other for a long time and also had

physical relationship with each other. The said physical

relationship went on for almost 2½ years. When the day of

marriage had to come about between the complainant and the

petitioner, it transpires that the petitioner made an effort to

convince the parents with regard to marriage with the 2nd

respondent and on their denial, the same is communicated to

the 2nd respondent, after which on 23.7.2020 the 2nd respondent

registers a complaint for the offences punishable under Sections

376(2)(a), 376(2)(n) and 417 of the Indian Penal Code, 1860.

4. The afore-narrated facts are not in dispute. The

petitioner and the 2nd respondent being in love and having

physical relationship is also not in dispute. The same cannot but

be held to be consensual. Since the relationship went on for

about 2½ years and only on the ground that the petitioner

declined marriage with the 2nd respondent, the complaint is

registered. Therefore, the allegation for the offences punishable

under Section 376(2)(n) of the IPC, on the instances narrated in

the complaint or the charge sheet cannot link the petitioner. The

view of mine in this regard is fortified by the judgment of the

Apex Court in the case of Dhruvaram Murlidhar Sonar vs.

The State of Maharashtra and others, reported in (2019)18

SCC 191, wherein the Apex Court holds as follows:

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 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.

25. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 IPC or under Section 3(1)(x) of the SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 CrPC.

5. The Apex Court in the judgment has delineated the

interplay between the offence of rape and a consensual act. The

facts before the Apex Court were also identical to the one that is

obtaining in the case at hand. Therefore, in the light of the

aforesaid undisputed facts and the judgment of the Apex Court

(supra), the following:

ORDER

i) The criminal petition is allowed.

ii) The proceedings in Sessions Case No.81/2021,

on the file of II Addl. District and Sessions

Judge, Ballari, stands quashed against the

petitioner.