Mr Bharath Kumar M vs State Of Karnataka
2022 Latest Caselaw 3292 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 25TH DAY OF FEBRUARY, 2022

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

            CRIMINAL PETITION NO.1376/2022

BETWEEN:

MR BHARATH KUMAR M
S/O SRI. MUNEGOWDA S
AGED ABOUT 28 YEARS
NO. 83,
BETTENAHALLI VILLAGE
KUNDANA HOBLI,
DEVANAHALLI TALUK
BENGALURU RURAL DISTRICT - 562 110
                                             ...PETITIONER

(BY SRI. LAKAMAPURMATH CHIDANANDAYYA , ADVOCATE)

AND:

STATE OF KARNATAKA,
REP: BY SUB INSPECTOR OF POLICE
J.B NAGARA POLICE STATION
BENGALURU - 560 075.
REPRESENTATED BY S.P.P, HIGH COURT OF KARANTAKA.

                                           ... RESPONDENT
(BY SRI.VINAYAKA V.S, HCGP)

     THIS CRIMINAL PETITION IS FILED UNDER SECTION 438
OF CR.P.C PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
THE EVENT OF HIS ARREST IN CR.NO.21/2022 OF JEEVAN
BHEEMANAGAR P.S., BENGALURU CITY FOR THE OFFENCE
P/U/S.376(2)(N), 506, 420, 417 OF IPC AND ETC.
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     THIS CRIMINAL PETITION COMING ON FOR ORDERS
THROUGH VIDEO CONFERENCE THIS DAY, THE COURT MADE
THE FOLLOWING:

                          ORDER

This petition is filed under Section 438 of Cr.P.C. seeking

anticipatory bail of the petitioner in Cr.No.21/2022 of Jeevan

Bheemanagar P.S., Bengaluru City for the offence punishable

under Sections 376(2)(N), 506, 420, 417 of IPC on the file of the

X Addl. Chief Metropolitan Magistrate, Bengaluru.

2. Heard learned counsel for the petitioner and also

learned counsel appearing for the respondent - State.

3. The factual matrix of the case of the prosecution is

that in the complaint, the victim has stated that both the

petitioner as well as the victim were working in the same

company from January 2019. The petitioner proposed her in the

month of February 2020 when he called her to the Orion Mall

and the victim resisted saying that she belongs to Veerashaiva

community and the petitioner belongs to Vokkaliga community

and their family will not agree for the marriage. However, she

took time to give consent for love affair. It is specifically

mentioned in the complaint that on 15.02.2020, this petitioner

informed the victim that he got job at Chennai and he has to

vacate the room and hence, he called her to help him in vacating

the room and on at that day, he had forcible sexual intercourse

with her and even though she refused that after marriage only

they can have such relationship, as against her wish in the said

room forcibly he committed rape on her and thereafter, he

promised that he would marry her and not to worry about the

same. After vacating the room, he went to Chennai and

thereafter also while coming to Bengaluru he informed her and

called her to different places and both of them had sexual

intercourse in different places and he continued the said act by

agreeing to marry her and he had promised her that even if their

parents do not agree to such marriage, he will take her to

Maharashtra and marry her and he also had promised and

assured her that he will not leave her and in the month of

January 2021 when he along with his parents and relatives came

to her home, they refused to give consent for marriage and

caused life threat to her. Hence, she registered the case and

matter is under investigation.

4. Learned counsel for the petitioner would vehemently

contend that the said act was taken place in January 2020 and

this complaint is given on 31.01.2022 that is after lapse of two

years and apart from that, it is a consensual sex and not forcible

sex as they had sex on different occasions in different places and

when such being the factual aspect, it will not attract Section

376 of IPC. The counsel for the petitioner in support of his

argument has relied upon the judgment of the Hon'ble Apex

Court in the case of UDAY Vs. STATE OF KARNATAKA

reported in (2003) 4 SCC 46, wherein the Apex Court has come

to the conclusion that it does not attract Section 376 of IPC and

at the most it attracts Section 417 of IPC; he also relied upon

the judgment of the Hon'ble Supreme Court in K.P.THIMMAPPA

GOWDA Vs. STATE OF KARNATAKA reported in (2011) 14

SCC 475, wherein the Apex Court has discussed with regard to

Sections 376 and 417 of IPC wherein it is found that "a view is

reasonably possible that prosecutrix had sex with appellant with

her consent and hence, there was no offence under Section 376

because sex with a woman above 16 years of age with her

consent is not rape." Further, he relies upon the judgment of

the Apex Court in the case of DR. DHRUVARAM MURLIDHAR

SONAR Vs. STATE OF MAHARASHTRA AND OTHERS

reported in (2019) 18 SCC 191, wherein it is held that

"Conscious decision of victim to be involved in sexual

relationship with accused without pressure or misconception on

part of accused and relationship not involving passive submission

of victim - Offence of rape not made out." The learned counsel

relying upon another judgment of the Apex Court in the case of

SONU ALIAS SUBHASH KUMAR VS. STATE OF UTTAR

PRADESH AND ANOTHER reported in 2021 SCC Online SC

181 brought notice of this Court particularly to Paragraphs 3 and

also 11 regarding factual aspect of the case and also referred to

para 11 regarding exercising of the powers under Section 482 of

Cr.P.C., wherein the Apex Court has held that no offence has

been established and that there is no allegation to the effect that

the promise to marry given to the second respondent was false

at the inception and hence, invoked Section 482 of Cr.P.C.

5. The counsel further brought to the notice of this

Court the judgment of the Bombay High Court and contended

that in identical case, referring to the judgment of the Apex

Court in Sonu's case, the Bombay High Court has allowed the

application. Further, he has brought to the notice of this Court,

the order passed by this Court at Dharwad Bench in

Crl.P.No.100391/2019 wherein for the offence under Section 376

of IPC, this Court while granting bail in favour of the petitioner in

para 7 has held that "victim is aged about 24 years and the

complaint also discloses that they were having affair and also it

appears, the said fact came to the knowledge of the family

members and the family members also given consent for

marriage and she was subjected to sexual intercourse and

thereafter, he has turned hostile" and hence, discretion is

exercised.

6. Per contra, learned counsel for the respondent -

State would submit that the Court has to look into the factual

aspect of different cases and consider the ratio laid down by the

Apex Court and also this Court. The counsel would vehemently

contend that in the complaint it is very specific that he

committed rape against her wish i.e., on 15.02.2020 and

thereafter, he has promised her that he would marry her and

thereafter, both of them visited different places and had sex and

in her 164 statement also, the victim has narrated under what

circumstance she gave consent i.e., after committing rape

against her wish. She was coerced to give consent for sexual

intercourse since he had forcible intercourse and thereafter

promised and only on the promise, she was subjected to sexual

act with the petitioner and hence, it is not a fit case to exercise

powers under Section 438 Cr.P.C.

7. Having heard learned counsel for the petitioner and

learned counsel for the respondent - State and also looking into

the factual aspect of each case and the ratio laid down in the

judgment referred to supra by the petitioner, it is not in dispute

that the principle laid down in the judgment relied supra is with

regard to invoking of Sections 376 and 417 of IPC. The case

before this Court is petition under Section 438 Cr.P.C. and while

invoking the said jurisdiction, it is settled principle that the Court

has to look into the nature of offence, gravity of offence as well

as the seriousness of the allegations made in the complaint.

Now coming to the contents of the complaint, particularly in

paragraph No.1, it is contended that the complainant and the

petitioner both have worked in the same company and this

petitioner proposed her and she took time to give consent and

when the petitioner got job at Chennai he called her to his room

to help him to vacate the room and in paragraph 2, specific

allegation is made that on that day he had sexual intercourse

against her wish and committed forcible sexual act and

thereafter, he had promised her to marry her. After his visit to

Chennai, frequently he used to call her and take her to different

places and convinced her and subjected her to sexual act and

thereafter, he has turned hostile. Such being the factual aspect

of the case and even when specific allegation is made that he

had sexual intercourse against her wish forcibly and thereafter,

promised her that he would marry her and continuously with

that promise had sexual intercourse with her and subsequently,

turned hostile and as such, Court has to take notice of the

seriousness of the allegation and when such being the factual

aspect, the principles laid down in the judgment referred to

supra is not applicable to the facts of the case. The Apex Court

in the judgment of Sonu's case while exercising powers under

Section 482 of Cr.P.C. has come to the conclusion that no

offence has been established and furthermore, observed that

there is no allegation to effect that promise to marry given to the

second respondent was false at the inception, but here is the

case where specific allegation is made that he committed rape

on her forcibly against her wish and thereafter, he had promised

her to marry and hence, whether it attracts Section 376 of IPC

or 417 of IPC or not is a matter of trial and not a fit case to

exercise jurisdiction under Section 438 of Cr.P.C.

8. In view of the discussions made above, I pass the

following:

ORDER

The bail petition is rejected.

Sd/-

JUDGE

SV