Shivendra Kumar vs The State Of Karnataka
2022 Latest Caselaw 5513 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 28TH DAY OF MARCH, 2022

                         BEFORE

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

          CRIMINAL REVISION PETITION NO.486/2022

BETWEEN

SHIVENDRA KUMAR
AGED ABOUT 48 YEARS
S/O SATYENDRA NARAYAN SINGH
R/AT NO.106, D-BLOCK
RAHEJA RESIDENCY APARTMENT
KORAMANGALA 3RD BLOCK
BENGALURU-560 034
PRESENTLY R/T NO.248
GROUND FLOOR, 3RD MAIN
S T BED LAYOUT
KORAMANGALA 4TH BLOCK
BENGALURU-560 034
                                            ...PETITIONER
(BY SRI MRC MANOHAR, ADVOCATE)

AND

THE STATE OF KARNATAKA
BY H S R LAYOUT POLICE
BENGALURU
REP. BY STATE PUBLIC PROSECUTOR
HIGH COURT COMPLEX
BENGALURU-560 001
                                           ... RESPONDENT
(BY SMT. RASHMI JADHAV, HCGP)

     THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W 401 CR.P.C PRAYING TO SET ASIDE THE
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IMPUGNED     ORDER    DATED   23.12.2021    PASSED     IN
S.C.NO.448/2016   (C.C.NO.5864/2016)    (CR.NO.956/2014)
REGISTERED BY H.S.R.LAYOUT POLICE STATION, BENGALURU
FOR THE OFFENCE P/U/S 376, 406, 420, 417, 506 OF IPC AND
ETC.


    THIS CRIMINAL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:


                           ORDER

Heard the learned counsel appearing for the petitioner and

the learned High Court Government Pleader appearing for the

State.

2. The present petition is filed before this Court praying

to set aside the order dated 23.12.2021 passed by the Court

below rejecting the application filed under Section 227 of Cr.P.C

to discharge the petitioner/accused for the offences punishable

under Sections 376, 406, 420, 417, 506 of IPC.

3. The factual matrix of the case is that the

complainant made an allegation in the complaint that she met

the petitioner in the month of January 2013 in a social

engagement and thereafter, they were frequently used to meet

and after that contacted over phone and hence, developed their

friendship and the said friendship turned to love affair and

thereafter, engagement was also performed at Orissa on

02.03.2014. It is an allegation against the petitioner that in the

month of March 2014, when she was in the house of the

petitioner, he committed sexual act against her wish and

thereafter with a promise to marry her, he continued the said act

and thereafter, the petitioner refused to marry her and hence,

the complaint was filed with the police and the police have

registered the case for the aforesaid offences and filed the

charge-sheet after completion of the investigation.

4. The petitioner filed an application before the Trial

Court seeking an order of discharge for the charges leveled

against him on the ground that there is no material to show that

the engagement ceremony was performed at Bhuvaneshwar and

not specifically stated in the complaint that when was the first

and last date and how many dates, accused had physical contact

with the complainant. It is contended that in the e-mail dated

13.07.2014 sent by the informant, it is mentioned about her

love affair and having taken note of the fact that the accused

was a married person and had a daughter of 9 years old and she

very well knew about the entire family background of the

petitioner/accused. The statement under Section 164 are

contrary with the complaint averments. Hence, sought for

discharge of the petitioner/accused for the charges leveled

against him. The said application was resisted by the prosecution

contending that the offences invoked against the petitioner is

heinous in nature and he is facing the charge of committing

sexual act against her wish and continued the same with a

promise to marry her and there are sufficient materials against

the petitioner and it requires trial.

5. The Trial Court after having heard the respective

counsel, came to the conclusion that there are serious

allegations against the petitioner and the same cannot be looked

into at this stage and only during the trial, as a defence, the

petitioner can put forth all these defence and unless the trial is

conducted, the Court also cannot give any finding with regard to

the allegations made in the charge-sheet and if accused is

discharged on merely considering the ground urged in the

application, it amounts to great injustice and amounts to denial

of opportunity for the prosecutrix to prove her charge in the trial

and hence, rejected the application and being aggrieved by the

said order, the present revision petition is filed before this Court.

6. The learned counsel for the petitioner would mainly

contend that the very order passed by the Trial Court is not

considered the material on record and failed to take note of the

fact that the petitioner is a married person and having 9 years

old daughter and also the counsel contended that e-mail dated

26.10.2013 which was sent much prior to the alleged

engagement ceremony clearly discloses that the complainant

was fell in love with the petitioner and material collected by the

prosecution particularly, CW4, 5, 6 are the hearsay witnesses

and they are the resident of Orissa and other official witnesses,

their evidence is formal in nature and these aspects not

considered by the Trial Court.

7. The learned counsel for the petitioner in support of

his arguments relied upon the judgment of the Apex Court

reported in (2003) 4 SCC 46 between UDAY vs STATE OF

KARNATAKA wherein the Apex Court discussed with regard to

the misconception of fact and consent under misconception of

fact, twin conditions for the applicability of Section 90, a false

promise, held is not a fact within the meaning of the penal code.

The counsel also relied upon the judgment of the Apex Court

reported in (2019) 9 SCC 608 between PROMOD

SURYABHAN PAWAR vs STATE OF MAHARASHTRA AND

ANOTHER wherein also the Apex Court discussed with regard to

Section 90 of IPC which does not define term 'consent' and also

discussed with regard to the misconception of fact amounts to

absence of consent under Section 375 and the counsel also

brought to notice the paragraphs 14, 16 and 17 wherein a

detailed discussion was made and exercised the powers under

Section 482 of Cr.P.C. The counsel also relied upon the

judgment reported in AIR ONLINE 2019 SC 68 between

DHRUVARAM MURLIDHAR SONAR vs STATE OF

MAHARASHTRA AND OTHERS wherein also the Apex Court

discussed with regard to the rape and consensual sex, promise

to marry, there is distinction between mere breach of promise

and not fulfilling false promise. Referring all these judgments,

the counsel for the petitioner vehemently contend that in the

case on hand, the specific allegation is that with a promise to

marry her, sexual act was done and when such being the

allegation in the complaint and charge-sheet allegation is also

that he did not keep up his promise and with that promise only

he had sexual act with the complainant and these judgments are

comes to the aid of the petitioner.

8. Per contra, the learned High Court Government

Pleader appearing for the State would submit that the very

judgments relied upon by the petitioner's counsel particularly in

the case of Pramod Suryabhan Pawar referring paragraph

14, the Apex Court referred the case of Anurag Soni VS State

of Chhattisgarh and discussed with regard to 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 of IPC and

hence, in the case on hand, the factual aspect is different and

same does not amounts to misconception of fact. Hence, the

aforesaid judgments are not applicable to the facts of the case

on hand.

9. Having heard the respective counsel appearing for

the parties, this Court has to look into the factual aspects of the

case and then decide whether the Trial Court has committed an

error in dismissing the application filed under Section 227 of

Cr.P.C in discharging the petitioner. Having considered the

submission of the respective counsel and also on perusal of the

material available on record particularly, in the complaint, a

specific allegation is made against the petitioner is that both of

them fell in love and earlier they were friends and both the

family members accepted their love and engagement ceremony

was also performed at Orissa in a hotel. It is an allegation that

in the month of March 2014, when the complainant was in the

house of this petitioner, this petitioner taking the advantage of

loneness of the complainant, committed the sexual act against

her wish and thereafter promised her stating that he would

marry her and continued the same. Hence, this Court has to

take note of the said fact and also the very judgments relied

upon by the counsel for the petitioner with regard to the consent

and misconception of facts which cannot be accepted in the case

on hand since the specific allegation is that the petitioner had

committed sexual act against her wish and thereafter he

continued the same with a promise to marry her. When such

being the facts, the allegation against the petitioner has to be

proved in a trial as held by the Apex Court. It is an offence

under Section 376 of IPC of serious in nature invoked against the

petitioner apart from that other offences are also invoked under

Section 406, 420, 417, 504 of IPC. When such being the

material on record and also when the prosecutrix made an

allegation that the petitioner committed the sexual act against

her wish and whether this petitioner committed the sexual act

with consent or misconception of facts has to be proved as

contended by the counsel for the petitioner. Unless the trial is

conducted, the very contention of the counsel for the petitioner

cannot be accepted. No doubt, in the case of Pramod

Suryabhan Pawar, the Apex Court discussed with regard to the

misconception of fact. But the case on hand, the question of

misconception does not arise. I have already pointed out that it

is not misconception of fact when there is a specific allegation

that the petitioner committed sexual act against her wish and

thereafter he continued with the said act with a promise to

marry her. When such being the facts and circumstances, it is

not a fit case to set aside the order of the Trial Court and

consequently, application filed by the petitioner under Section

227 of Cr.P.C rejected by the Trial Court is confirmed since it is a

matter of trial and trial has to be conducted with regard to the

serious offence of Section 376 and other offences.

10. The counsel for the petitioner submit that the said

application was dismissed with cost of Rs.10,000/- and it

requires interference by this Court.

11. The Trial Court while imposing the cost has given the

reason that already five years time is elapsed after filing the

charge sheet and accused unnecessarily dragged on the matter

all these years and made the victim to wait for all these years to

began the trial, which greatly affected the case of the

prosecution due to inordinate delay in securing the witnesses

and other prosecution witnesses. The accused is responsible for

all such delays and liable to be imposed heavy cost.

12. Having perused the contention raised by the counsel

for the petitioner and also the reasoning given by the Trial Court

it is clear that it is a matter of the year 2016 and this application

was rejected in the year 2021 i.e., almost after five years of

filing of the case and same is also taken note by the Trial Court

that almost five years has been elapsed and unnecessarily, the

petitioner is dragging the matter and not assisting the Court in

commencing the trial. When such reasoning is given by the Trial

Court, I do not find any grounds to set aside the order of

imposing the cost since the Trial Court has given well reasons to

impost the cost. Hence, it does not require interference of this

Court in respect of the imposing of the cost. Accordingly, the

revision petition is dismissed.

Sd/-

JUDGE

SN