Kumari Chaithra G O vs The State Of Karnataka By
2022 Latest Caselaw 9545 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 24TH DAY OF JUNE, 2022

                          BEFORE

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

              CRIMINAL PETITION NO.3315/2022

BETWEEN:

KUMARI CHAITHRA G.O.,
D/O OMKAR MURTHY,
AGED ABOUT 25 YEARS,
OCC: ENGINEER,
R/AT NO.1223,.
6TH CROSS, ADARSHANGAR
HASSAN, HASSAN DIST 573201.                  ...PETITIONER

           (BY SRI BALAKRISHNA M.R., ADVOCATE)

AND:

1.     THE STATE OF KARNATAKA BY
       JEEVAN BHIMA NAGAR POLICE STATION,
       BENGALURU CITY,
       REP BY STATE PUBLIC PROSECUTOR,
       HIGH COURT BUILDING,
       BENGALURU 560001.

2.     MR. BHARATH KUMAR M,
       S/O MUNEGOWDA S,
       AGED ABOUT 28 YEARS,
       R/AT NO.83,
       BETTANAHALLI VILLAGE,
       KUNDANA HOBLI,
       BANGALORE RURAL DIST 562110.
                                            ...RESPONDENTS

         (BY SRI K.K. KRISHNA KUMAR, HCGP FOR R-1,
              MS. DEEPA J,ADVOCATE FOR R-2 )
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     THIS CRIMINAL PETITION IS FILED UNDER SECTION
439(2) OF CR.P.C. TO SET ASIDE THE ORDER DATED
28.03.2022 PASSED BY THE HONBLE LIII ADDL.CITY CIVIL AND
SESSIONS SPL.JUDGE AT BENGALURU IN CRL.MISC.NO.
2904/2022 FOR THE OFFENCE PUNISHABLE UNDER SECTIONS
376(n), 417, 420 AND 506 OF IPC GRANTING BAIL UNDER
SECTION 439 OF CODE OF CRIMINAL PROCEDURE IN
CR.NO.21/2022 REGISTERED BY THE RESPONDENT NO.1
POLICE AND CANCEL THE BAIL.

     THIS CRIMINAL PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 10.06.2022, THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:

                              ORDER

This petition is filed under Section 439(2) of Cr.P.C. by the

defacto complainant praying this Court to set aside the order

dated 28.03.2022 passed by the LIII Additional City Civil and

Sessions Special Judge at Bengaluru in Crl.Misc.No.2904/2022,

for the offence punishable under Sections 376(n), 417, 420 and

506 of IPC.

2. The factual matrix of the case is that the

complainant and respondent No.2 are Engineers by profession

working in the Company by name Enfotic Digital Engineering

Private Limited since 2019. In the month of February 2020,

respondent No.2 had proposed her when he called her to the

Orion Mall at Bangalore and the petitioner rejected the proposal

saying that she belongs to Lingayath Community and he belongs

to Vokkaliga Community and their family will not agree for the

marriage proposal. This being the scenario, gradually they

developed close relationship and on the pretext of marrying the

petitioner, respondent No.2 had committed forcible sexual

intercourse on different dates at various places against the

wishes of the petitioner and respondent No.2 had assured and

promised the petitioner that he would marry her in due course,

on this pretext, respondent No.2 had committed sexual

intercourse continuously. When the things stood thus, on

12.12.2020, respondent No.2 took the petitioner to Goa and

they stayed for three days in Goa. There he repeatedly

committed the sexual intercourse with her against her wish and

when the petitioner pressurized respondent No.2 for marriage,

he refused to marry her saying that caste will come in the way of

their marriage and further his parents will not agree for

intercaste marriage and when the petitioner further pressurized

respondent No.2, he had threatened her that he would take

away her life. Hence, the complaint is lodged.

3. The learned counsel for the petitioner submits that

respondent No.2 had approached the Sessions Court invoking

Section 438 of Cr.P.C. and the same was rejected and

subsequently on filing of the charge-sheet, approached this

Court in Crl.P.No.1376/2022 and this Court rejected the same.

Thereafter, he was arrested and he was in judicial custody and

filed the petition under Section 439 of Cr.P.C. and the Trial Court

was pleased to grant the bail. Hence, the present petition is

filed for setting aside the said order.

4. The learned counsel for the petitioner would

vehemently contend that the Trial Judge has failed to consider

the gravity, prima facie materials, specific overt-act against

respondent No.2 and the punishment stipulated for the offences

and granted bail in a mechanical manner. The Trial Court ought

not to have granted bail when the investigation is still under

progress. The Trial Court ought not to have relied upon the

whatsapp chats produced by respondent No.2 while granting bail

and no evidentiary value can be attached to the said whatsapp

chats. Relying upon the whatsapp chat, the Trial Court exercised

the discretion in favour of respondent No.2. The learned counsel

contend that at the earliest point of time, the Sessions Court as

well as this Court had rejected the bail petition when the

petitioner had approached the Court invoking Section 438 of

Cr.P.C. taking note of the priority of the offence.

5. The learned counsel for the petitioner in support of

his arguments relied upon the judgment of the Apex Court in the

case of KALYAN CHANDRA SARKAR v. RAJESH RANJAN

ALIAS PAPPU YADAV AND ANOTHER reported in (2004) 7

SCC 528, wherein the Apex Court held that in view of gravity of

offence and serious allegations of tampering of witnesses ought

not to have granted bail. Giving prima facie finding on all points

urged before the Court are permissible. While considering the

successive bail application without recording the fresh ground

and without considering the grounds on which the bail was

cancelled earlier by the Supreme Court is violative of principle of

binding nature of judgments of Superior Court. The learned

counsel referring this judgment would contend that inspite of the

Sessions Judge and this Court rejected bail considering the

gravity of the offences, failed to consider the same while passing

the order.

6. The learned counsel also relied upon the judgment of

the Apex Court in the case of KUMER SINGH v. STATE OF

RAJASTHAN reported in AIR ONLINE 2021 SC 398 and

brought to the notice of this Court paragraph Nos.15 and 16,

wherein the Apex Court discussed in detail and held that it is

well settled in law that cancellation of bail after it is granted

because the accused has misconducted himself or of some

supervening circumstances warranting such cancellation have

occurred is in a different compartment altogether than an order

granting bail which is unjustified, illegal and perverse. If in a

case, the relief factors which should have been taken into

consideration while dealing with the application for bail have not

been taken note of, or bail is founded on irrelevant

considerations, indisputably the superior Court can set aside the

order of such a grant of bail.

7. The learned counsel also relied upon the judgment of

the Apex Court in the case of IMRAN v. MR. MOHAMMED

BHAVA AND ANOTHER passed in CRL.A.NO.658/2022 and

brought to the notice of this Court paragraph No.26, wherein

discussed with regard to bail granted can always be revoked if

the relevant material on record, gravity of the offence or its

societal impact have not been considered by the lower Court. In

such instances, where bail is granted in a mechanical manner,

the order granting bail is liable to be set aside. Moreover, the

decisions cited hereinabove, enumerate certain basic principles

which must be borne in mind when deciding upon an application

for grant of bail. Thus, while each case has its own unique

factual matrix, which assumes a significant role in determination

of bail matters, grant of bail must also be exercised by having

regard to the above-mentioned well-settled principles.

8. The learned counsel also relied upon the judgment of

the Punjab and Harayna High Court at Chandigarh in the case of

RAKESH KUMAR SINGLA v. UNION OF INDIA passed in

CRM-M No.23220/2020 dated 14.01.2021, wherein in

paragraph No.11 it is held that certificate under Section 65B of

the India Evidence Act is available at the present moment to

authenticate the said messages, the answer is negative. The

recent judgment rendered by the Supreme Court in the matter

of Arjun Panditrao Khotkar v. Kailash Kushanrao

Gorantyal and others reported in (2020) 7 SCC 1, has held

that a certificate under Section 65B of the Indian Evidence Act is

required when reliance is being placed upon electronic record.

Therefore, the same message would be of no evidentiary value

as on date.

9. The learned counsel for the petitioner relying upon

these judgments would contend that the Court below has

committed an error in relying upon the electronic evidence i.e.,

whatsapp messages and committed an error.

10. Per contra, the learned counsel for respondent No.2

in her arguments would vehemently contend that the Trial Court

has taken note of the whatsapp messages between the

petitioner and respondent No.2 and also relied upon the

whatsapp chat which clearly discloses that sexual act is only a

consensual sex and consent is not obtained by making false

promise. The learned counsel submits that both of them had

been to different places and had sexual intercourse continuously

and there was no any promise and also the victim/petitioner is

aged about 25 years and know the consequences of the sexual

act before marriage and also in the whatsapp chats when the

marriage proposal was made by respondent No.2 himself, she

replied that no more talk with regard to marriage is concerned

and the same has been taken note of by the Trial Court while

passing the impugned order. Hence, no grounds are made out

to invoke Section 439(2) of Cr.P.C. and no perverse order has

been passed.

11. The learned counsel also placed on record several

whatsapp messages and brought to the notice of this Court that

the petitioner herself proposed before 14.02.2020 and whatsapp

chats discloses the same. The learned counsel also places on

record the whatsapp messages with regard to first physical

relationship and with consent both had sex. The learned counsel

also relied upon the document regarding visit made by both of

them to Mangalore, Udupi and Goa and planning and buying of

tickets and also for Mysore trip. The learned counsel contend

that he never promised to marry right from the beginning and

brought to the notice of this Court the whatsapp chats between

both of them, wherein she has stated that she is not interested

in marriage and she does not have any plans of getting married

and these documents clearly discloses that there was consensual

sex. The learned counsel produced the whatsapp chats

regarding the petitioner had finalized the groom and also

communicated the same to respondent No.2 before lodging the

complaint. These documents substantiates that there was no

any promise and it was only a consensual sex.

12. The learned counsel in support of her arguments

relied upon the judgment of this Court passed in

Crl.P.No.4598/2020 dated 05.11.2020, wherein discussed in

detail regarding scope of Section 439(2) of Cr.P.C. and formed

an opinion that in the absence of any cogent material on record,

the liberty of any person as envisaged under Article 21 of the

Constitution of India cannot be curtailed on the mere ground of

number of cases being pending against him and the powers has

to be invoked sparingly and not mere asking of the cancellation

of bail.

13. The learned counsel relied upon the judgment of this

Court passed in Crl.P.No.5865/2021 dated 13.01.2022, wherein

also this Court held that promise of marriage and breach of

contract will not attract the provisions of Sections 417 and 420

of IPC.

14. The learned counsel relied upon the judgment of the

Apex Court in the case of SONU v. STATE OF UTTAR

PRADESH AND OTHERS passed in Crl.A.No.233/2021, wherein

the Apex Court has held that 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.

15. The learned counsel also relied upon the judgment of

the Apex Court in the case of MAHESHWAR TIGGA v. THE

STATE OF JHARKHAND passed in Crl.A.No.635/2020 dated

28.09.2020, wherein the Apex Court discussed with regard to

physical relationship on the pretext of marriage. The appellant

alleged of conducting rape for four years. The prosecutrix

alleged fraudulent misrepresentation. The Courts below held

appellant guilty. Whether the prosecutrix consented to the

physical relationship under any misconception of fact with regard

to promise of marriage by the appellant. Whether consent was

based on a fraudulent misrepresentation of marriage which the

appellant never intended to keep since the very inception of the

relationship. In a criminal trial, the importance of the questions

put to an accused are basic to the principles of natural justice as

it provides him the opportunity not only to furnish his defence,

but also to explain the incriminating circumstances against him.

The appellant did not make any false promise or intentional

misrepresentation of marriage leading to establishment of

physical relationship between the parties. The prosecutrix was

herself aware of the obstacles in their relationship because of

different religious beliefs. Hence, it cannot be concluded that

consent is obtained based on misconception of fact.

16. The learned counsel also relied upon the judgment of

the Apex Court in the case of PRAMOD SURYABHAN PAWAR

v. THE STATE OF MAHARASTRA AND OTHERS passed in

Crl.A.No.1165/2019 dated 21.08.2019, wherein the Apex Court

held that where the promise to marry was 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 was a misconception of fact that

vitiates the woman's consent. On the other hand, a breach of a

promise could not 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.

17. The learned counsel also relied upon the judgment of

the Apex Court in the case of DHRUVARAM MURLIDHAR

SONAR v. THE STATE OF MAHARASHTRA AND OTHERS

passed in Crl.A.No.1443/2018 decided on 22.11.2018, wherein

also there was a clear distinction between rape and consensual

sex. The Court, in such cases, must very carefully examine

whether complainant had actually wanted to marry victim or had

malafide motives and had made a false promise to this effect

only to satisfy his lust, as later fell within ambit of cheating or

deception.

18. The learned counsel also relied upon the Apex Court

judgment in the case of UDAY v. STATE OF KARNATAKA

decided on 19.02.2003 passed in Crl.A.No.336/1996, wherein

the Apex Court held that 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 and there is no evidence to prove

conclusively that the appellant never intended to marry her and

hence acquitted the accused.

19. The learned counsel relying upon these judgments

and the principles laid down in the above judgments prays this

Court to dismiss the petition.

20. Having heard the learned counsel for the petitioner

and the learned counsel for respondent No.2, the points that

arise for the consideration of this Court are:

(i) Whether the Trial Court has committed an error in granting bail and whether such order amounts to a perverse order which requires interference of this Court by exercising the powers under Section 439(2) of Cr.P.C.?

(ii) What order?

Point No.(i):

21. Having considered the grounds urged by both the

learned counsel, admittedly both of them were working in same

Company. It is also stated in the petition that earlier she has

not given consent when proposal was made and later developed

the relationship. It is emerged in the records that both of them

had sexual intercourse in different places and also visited

different places like Mysore, Udupi, Mangalore and Goa, wherein

also they had sexual intercourse. The learned counsel for

respondent No.2 places on record the whatsapp chats dated

11.02.2020, wherein the petitioner herself made proposal and

also whatsapp chats are placed before the Court and the very

petitioner herself is not intending to marry respondent No.2 and

no doubt, the learned counsel for the petitioner brought to the

notice of this Court the judgment of the Punjab and Haryana

High Court in the case of Rakesh Kumar Singla (supra)

wherein in paragraph No.11 discussed with regard to messages

could be of no evidentiary value as on date relying upon the

judgment of the Supreme Court in the case of Arjun Panditrao

Khotkar. It has to be noted that while relying upon the

electronic evidence, certificate under Section 65B is mandatory.

But here is a case not considering the matter on merits and

considering the bail petition and factual aspects of the case. It is

settled law that while relying upon the electronic evidence, the

certificate is necessary while marking the document, but to

consider the material collected by the Investigating Officer

during the course of considering the bail application, the Court

can consider the whatsapp messages also since the allegation of

promising to marry is alleged. But in the whatsapp chats, she

herself has refused to marry him and also replied that no more

discussion with regard to the marriage.

22. The Trial Court also taken note of the whatsapp

messages while passing the order i.e., whatsapp messages

exchanged between them dated 09.02.2020 and 22.05.2020 and

enlarged respondent No.2 exercising the discretion and also

observation was made that the whatsapp chats clearly goes to

show that the complainant herself was in deep love with the

petitioner and she intended to spend intimate time with him and

they both had physical contact with consent and also taken note

of there is a delay in lodging the complaint. It has to be noted

that when the relief was sought under Section 438 of Cr.P.C.

before the Trial Court, the same was rejected and before this

Court also, when the relief was sought under Section 438 of

Cr.P.C. it was rejected on the ground that there are serious

allegations and the Trial Court exercised the discretion when the

accused was in custody and invoked the jurisdiction under

Section 439 of Cr.P.C. Having taken note of the whatsapp

exchanges between the parties, exercised the discretion. No

doubt, the principles laid down in the judgments referred (supra)

by both the counsel is with regard to the cancellation of bail as

well as invoking an offence of promise to marry and not

marrying the victim and having sexual intercourse. It is settled

law that while exercising the powers under Section 439(2) of

Cr.P.C., if the order suffers from any perversity, then the Court

can interfere or otherwise need not interfere with the findings

and exercise the powers to cancel the bail.

23. In the case on hand, the very contention of the

learned counsel for the petitioner is that the Trial Court has not

passed the reasoned order and failed to take note of the gravity

of the offence and accusations and exercised the powers under

Section 439 of Cr.P.C. and reason was also given why the Court

is exercising the discretion. Unless the reasons are not

capricious, the question of invoking Section 439(2) of Cr.P.C.

does not arise. The very contention of the learned counsel for

the petitioner is that in the absence of evidentiary value under

Section 65B of the Evidence Act i.e., certificate, the Trial Court

ought not to have considered the same. I have already made it

clear that when marking the document i.e., electronic evidence,

it is mandatory that certificate is required. The Apex Court in

the case of Arjun Panditrao Khotkar (supra) held the same

reiterating the principles laid down in the judgments of Anvar

P.V. v. P.K. Basheer case and also in the case of State of

Karnataka v. M.R. Hiremath held that need not necessarily file

the certificate while filing the charge-sheet and the same is

required while marking the documents. But now that is not the

stage in the case on hand. While exercising the powers under

Section 439(2) of Cr.P.C., the Court can also look into the

material and accordingly the Trial Court taken note of the

whatsapp chat between the petitioner and respondent No.2. The

learned counsel for respondent No.2 also placed the whatsapp

chat, wherein the petitioner has given consent to marry a doctor

and replied that other information is not respondent No.2

business. After that only, the present complaint is filed and the

Court has to take note of all these material into consideration.

When such being the case, it is not a fit case to exercise the

powers under Section 439(2) of Cr.P.C. Hence, I answer the

point No.(i) as negative.

Point No.(ii):

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

following:

ORDER The petition is dismissed.

Sd/-

JUDGE

MD