Karnataka High Court
Prakash vs The State Of Karnataka on 14 July, 2022
Bench: M.Nagaprasanna
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CRL.P No. 2189 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 2189 OF 2021
BETWEEN:
1. PRAKASH
S/O MADEVA M
AGED 29 YEARS
R/AT NO.111
MARUTHINAGAR
MAHADESHWARANAGAR
MAIN ROAD
OX BRIDGE COLLEGE
HEROHALLI
BENGALURU-560 091
...PETITIONER
(BY SRI. S V PRAKASH.,ADVOCATE)
AND:
Digitally signed by
PADMAVATHI B K 1. THE STATE OF KARNATAKA
Location: HIGH
COURT OF REP BY KEMPAPURA AGRAHARA
KARNATAKA
POLICE STATION
VIJAYANAGAR SUB DIVISION
BENGALURU - 560040
REPRESENTED BY
STATE PUBLIC PROSECUTOR
HIGH COURT BUILDING
HON'BLE HIGH COURT OF KARNATAKA
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CRL.P No. 2189 of 2021
BENGALURU-560 001
2. SHRUTHI G
D/O SRI GOVINDARAJU
AGED ABOUT 28 YEARS
RA/T NO.U-73
17TH CROSS
K P AGRAHARA
MARIYAPPA COMPLEX
BHUVANESHWARINAGARA
MAGADI ROAD
BENGALURU-560 023
...RESPONDENTS
[BY SRI. K.S. ABHJITH, HCGP FOR R1;
SRI. D.S. MALIPATIL DODDAPPA, ADVOCATE FOR R2
(ABSENT)]
CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE FOR
THE PETITIONER PRAYING THAT THIS HONBLE COURT
MAY BE PLEASED TO QUASH THE ENTIRE PROCEEDINGS
IN S.C.NO.1987/2019 PENDING ON THE FILE OF THE
LEARNED LIII ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE, BANGALORE PRODUCED AT ANNEXURE-W,
AWARD THE COST OF THEIR PROCEEDINGS.
THIS CRIMINAL PETITION COMING ON FOR FURTHER
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
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CRL.P No. 2189 of 2021
ORDER
The petitioner is before this Court calling in question
the proceedings in S.C.No.1987/2019 registered for
offences punishable under Sections 376, 420 read with
Section 34 of the IPC.
2. Heard the learned counsel, Sri. S.V. Prakash
appearing for the petitioner and the learned HCGP,
Sri. K.S. Abhijith appearing for respondent No.1. Learned
counsel appearing for respondent No.2 has remained
absent throughout. Owing to his absence, this Court has
passed the following orders:
On 13.04.2022:
"Heard the learned counsel for the
petitioner.
Awaiting appearance of the learned counsel
for respondent No.2, list this matter on
21.04.2022, for further hearing."
On 21.04.2022:
"Heard the learned counsel for the
petitioner.
CRL.P No. 2189 of 2021
Learned counsel representing respondent
No.2 has been absent throughout. On
13.04.2022 and even today, there is no
representation on behalf of respondent No.2.
The issue stands covered by the judgment
of the Apex Court in the case of DHRUVARAM
MURLIDHAR SONAR V. STATE OF
MAHARASHTRA reported in (2019) 18 SC
181.
Therefore, there shall be an interim order
of stay of further proceedings in
S.C.No.1987/2019, pending on the file of LXXX
Additional City Civil and Sessions Judge,
Bengaluru, till the next date of hearing, qua the
petitioner.
List this matter on 02.06.2022".
On 10.06.2022:
"Heard the learned counsel for the
petitioner.
Learned counsel for respondent No.2 has
remained absent intermittently right from
inception. This Court on 13.04.2022 had posted
CRL.P No. 2189 of 2021
the matter for further hearing the learned
counsel for the petitioner.
On 21.04.2022, this Court had passed the
following order:
"Heard the learned counsel for the
petitioner.
Learned counsel representing
respondent No.2 has been absent
throughout. On 13.04.2022 and even
today, there is no representation on behalf
of respondent No.2.
The issue stands covered by the
judgment of the Apex Court in the case of
DHRUVARAM MURLIDHAR SONAR V.
STATE OF MAHARASHTRA reported in
(2019) 18 SC 181.
Therefore, there shall be an interim
order of stay of further proceedings in
S.C.No.1987/2019, pending on the file of
LXXX Additional City Civil and Sessions
Judge, Bengaluru, till the next date of
hearing, qua the petitioner.
List this matter on 02.06.2022."
CRL.P No. 2189 of 2021
Even today, there is no representation on
behalf of respondent No.2. Awaiting appearance
of the learned counsel for respondent No.2, list
the matter on 17.06.2022.
In the event, there is no representation
on behalf of respondent No.2, the matter would
be taken and considered in his absence.
Interim order granted earlier, is extended till
the next date of hearing."
3. On every occasion, when the matter is listed,
the learned counsel for respondent No.2 remains absent.
Even today, when the matter was listed for further
hearing, there is no representation on behalf of the
learned counsel appearing for respondent No.2.
4. Brief facts that leads to filing of the present
petition by the petitioner is that:
The petitioner and respondent No.2 were
schoolmates and the petitioner claims that they were in
love with each other from the year 2009 and continued to
be in the said relationship for 10 years. After about 10
CRL.P No. 2189 of 2021
years, the complainant registers a complaint on
29.06.2019 alleging offences punishable under Sections
376 and 420 read with Section 34 of the IPC.
5. On registration of the crime, the police conduct
investigation and file a charge sheet against the petitioner
for the aforesaid offences. It is filing of the charge sheet
before the concerned Court that drives the petitioner to
this Court in the subject petition calling in question the
entire proceedings in S.C.No.1987/2019.
6. Learned counsel appearing for the petitioner
would vehemently contend that the entire allegation
against the petitioner is untenable as the petitioner and
respondent No.2 were in love for the last 10 years and
have had physical relationship with each other for more
than 5 years and the complainant registers a complaint
notwithstanding such relationship and would submit that a
consensual act can neither become offence under Section
376 of the IPC nor breach of promise of marriage would
CRL.P No. 2189 of 2021
become an offence of cheating under Section 420 of the
IPC.
7. Learned HCGP appearing for respondent No.1
would refute the submission to contend that the complaint
does narrate allegations which would touch upon the
offences under Sections 376 or 420 of the IPC as the case
would be and the police having filed the charge sheet, the
petitioner has to face trial and come out clean. He would
seek dismissal of the petition.
8. The afore-narrated facts are not in dispute. The
entire issue springs from the complaint so registered by
the complainant, it is germane to notice the preamble of
the complaint itself:
«µÀAiÀÄ:- £À£ÀߣÀÄß ¦æÃw¹ £À£ÀUÉ EµÀÖ«®è¢zÀÝgÀÄ £À£Àß C£ÀĪÀÄw
E®è¢zÀÝgÀÄ £À£Àß eÉÆvÉ PÀÆægÀªÁV £À£ÀߣÀÄß vÀÄA¨Á »A¹¸ÀÄvÀÛ, zÉÊ»PÀ
¸ÀA¥ÀPÀð ªÀiÁr ªÀÄzÀĪÉAiÀiÁUÀÄvÉãÉAzÀÄ £À£ÀߣÀÄß £ÀA©¹ ªÉÆøÀ ªÀiÁrgÀĪÀ
¥ÀæPÁ±ï JA. vÀAzÉ ªÀĺÀzÉêÀ, vÁ¬Ä gÀvÀߪÀÄä, vÀªÀÄä ²ªÀªÀÄzsÀÄ «gÀÄzÀÞ
zÀÆgÀÄ."
(Emphasis added)
9. The narration in the preamble of the complaint
depicts the petitioner and respondent No.2 being in love
CRL.P No. 2189 of 2021
since 2009 close to 10 years prior to registration of the
complaint and have had such physical relationship, which
according to the complainant would become offence
punishable under Section 376 of the IPC. The relationship
between the petitioner and respondent No.2 is not in
dispute as even the charge sheet filed after investigation
also narrates that the petitioner and respondent No.2 were
in love with each other for 10 years. Having been together
for 10 years and having indulged in consensual sex, would
not amount to an offence of rape under Section 376 of the
IPC, is what is held by the Apex Court.
10. The Apex Court, while delineating inter-play
between promise of marriage and allegation of rape, in the
case of PRAMOD SURYABHAN PAWAR v. STATE OF
MAHARASHTRA1, 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
(2019) 9 SCC 608
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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."
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
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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 fulfil 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.
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***
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
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
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comp l ain an t' s d ecis ion to en g a ge in s ex u al
intercourse with the accused, which was motivated
by other factors: (SCCp.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 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
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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."
(emphasis supplied)
In the light of the undisputed facts obtaining in the
case at hand and the judgments rendered by the Apex
Court in the case of PRAMOD SURYABHAN PAWAR
(supra) and DHRUVARAM MURLIDHAR SONAR V. THE
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STATE OF MAHARASHTRA2, if further proceedings are
permitted to continue against the petitioner, it would
become an abuse of the process of law and result in
miscarriage of justice.
11. For the aforesaid reasons, the following:
ORDER
i. Criminal Petition is allowed.
ii. Proceedings pending in S.C.No.1987/2019
before the LIII Additional City Civil and Sessions
Judge, Bengaluru, stands quashed qua the
petitioner.
Sd/-
JUDGE
SJK
(2019) 18 SCC 181
