Sampath Kumar S/O Nagaraj vs The State Of Karnataka
2023 Latest Caselaw 2471 Kant

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                                                                     CRL.P No. 100172 of 2023




                                     IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                            DATED THIS THE 23RD DAY OF MAY, 2023

                                                            BEFORE

                                           THE HON'BLE MR JUSTICE V.SRISHANANDA

                                         CRIMINAL PETITION NO. 100172 OF 2023 (482)


                                    BETWEEN:

                                    SAMPATH KUMAR S/O. NAGARAJ,
                                    AGE: 29 YEARS, OCC: EMPLOYED IN
                                    PRIVATE FIRMS, R/O: AMAR BHAGAT
                                    SINGH NAGAR, GANGAVATI,
                                    DIST: KOPPAL-583227.
                                                                                 ...PETITIONER

                                    (BY SRI. NAMADEV SEETARAM BADIGER, ADVOCATE)


                                    AND:

                                    1.   THE STATE OF KARNATAKA,
                                         GANGAVATHI TOWN POLICE STATION,
                                         REPRESENTED BY THE PUBLIC PROSECUTOR,
              Digitally signed by
              CHANDRASHEKAR
CHANDRASHEKAR LAXMAN
                                         DHARWAD BENCH.
LAXMAN        KATTIMANI
KATTIMANI
              Date: 2023.05.26
              14:54:17 -0700
                                    2.   HULIGEMMA
                                         AGE: 27 YEARS, OCC: HOUSEHOLD,
                                         R/O: AMAR BHAGAT SING NAGAR,
                                         GANGAVATI,
                                         DIST: KOPPAL,
                                         PIN: 583227.
                                                                              ...RESPONDENTS
                                    (BY SMT. GIRIJA S. HIREMATH, HCGP FOR R1,
                                        SMT. SOUMYA S. GUJAMAGODI, ADVOCATE FOR
                                        SRI. RAJA RAGHAVENDRA NAIK, ADVOCATE FOR R2)
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                                       CRL.P No. 100172 of 2023




    THIS CRIMINAL PETITION IS FILED U/SEC. 482 OF
CR.P.C. SEEKING TO QUASH THE F.I.R. REGISTERED AT
INSTANCE   OF     HULIGEMMA      BY    TOWN   POLICE      STATION
GANGAVATI IN CRIME NO. 29/2019 ON DATED 17.02.2019
FOR THE OFFENCES 376, 417 OF IPC WHICH IS MARKED AS
ANNEXURE-A      AND     QUASH    THE   CHARGE     SHEET    DATED
29.04.2019 IN CRIME NO. 29/2019          OF GANGAVATHI TWON
POLICE STATION AND CRIMINAL PROCEEDINGS AGAINST THE
PETITIONERS IN S.C.NO. 43/2019 ON RECORD OF I ADDL.
DISTRICT   AND    SESSIONS      JUDGE    KOPPAL    (SITTING    AT
GANGAVATHI) FOR OFFENCES OF 376, 417 OF IPC WHICH IS
MARKED AS ANNEXURE-B.


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


                           ORDER

Heard Sri. Namadev Seetaram Badiger,

learned counsel for the petitioner, learned High

Court Government Pleader for respondent No.1-

State and Miss. Soumya S. Gujamagadi, counsel

for Sri. Raja Raghavendra Naik, for respondent

No.2. Perused the records on admission.

CRL.P No. 100172 of 2023

2. The present petition is filed under Section

482 of Cr.P.C. with the following prayer :-

"Wherefore, the petitioner/accused most respectfully prays that this Hon'ble Court may kind ly be and graciously be pleased to

1) To quash the F.I.R. registered at instance of Huligemma by Town Police Station Gangavati in Crime No.29/2019 on dated 17.02.2019 for the offences 376, 417 of IPC which is marked as Annexure-A.

2) To quash the charge sheet dated 29.04.2019 in Crime No.29/2019 of Gangavathi Twon Police Station and criminal proceedings against the petitioners in S.C. no.43/2019 on record of Hon'ble I Additional District and Sessions Judge, Koppal (sitting at Gangavathi) for offences of 376, 417 of IPC which is marked as Annexure-B."

3. The brief facts of the case are as under :-

Victim lady lodged the complaint, Gangavathi

Town Police Station on 17.02.2019 which was

CRL.P No. 100172 of 2023

registered in Crime No.29/2019 for the offences

punishable under Sections 376 and 417 of IPC.

4. Gist of the complaint averment reveals

that the complainant developed intimacy with the

petitioner and they agreed to marry each other.

In view of the marriage proposal, the petitioner

had physical relationship with the complainant

several times. Thereafter petitioner cunningly

contracted a marriage with someone else. On

noticing the said fact, complainant enquired the

petitioner and his family members. They agreed to

marry the complainant with the petitioner.

However, when the said promise was turned futile,

complainant entertaining doubt about the

intentions of the petitioner and went to the police

station. In the police station, the petitioner and

his family members were summoned and at that

juncture, the petitioner executed a bond that he

would marry the complainant and took the

CRL.P No. 100172 of 2023

complainant along with him in bus from Sindhnur

to Bengaluru. At Jalahalli Cross in Bengaluru,

when the complainant was in the bus and the

petitioner got down from the bus in the guise of

attending nature call and did not return. Left with

no alternative, complainant approached the police

and gave a complaint.

5. Based on the complaint, police registered

the case under Sections 376 and 417 of IPC and

thoroughly investigated the matter and filed

charge sheet.

6. The cognizance of offence is taken and

the matter is committed to the Sessions Court and

now the case is pending in S.C. No.43/2019.

7. In the meantime, accused has filed the

present petition with the aforesaid prayer on the

following grounds:

CRL.P No. 100172 of 2023

• That, the petitioners accused has been the victim suffers and affected, wounded from the Conspiracy by the complainant in collusion. In fact, the petitioner/accused is innocent there was no reasons to believe involvement in crime as alleged by complainant.

• Upon concluded investigation the investigation officer has sub mitted final report before Hon'ble Court of Civil judge and J M F C Gangavati and pleased to take cognizance in the above case on 29/12/2022 The learned sessions judge not applied judicial mind to the material on record and allegation made in complaint. Frame the charges in grave abuse process of law and contrary to the principle expressed by apex court in union of India v/s prafula kumar samal and others AND Ob served honble high court of Karnataka bench at dharwad in veeraiah v/s C B I in Criminal Revision petition No. 831 of 2013.

• That, the allegation made in the First Information Rep ort accompanying with the original complaint even if they are

CRL.P No. 100172 of 2023

taken at their face value are accepted in their entirely do not prima facie constitute any offence or make out a case against the accused. The allegation mad e in the FIR and complaint of the complainant are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is a sufficient ground for proceedings against the accused .

• The Criminal Case is manifastially attended with a malafide and case is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge instant case falls in the sp ecific category and circumstance stated in the case the State of Haryana Vs. Bhajnlal reported in 1992 SCC 426 and of Preeti Gupta Vs. the State Jarkhand reported in 2010(7) SCC 667.

• It is submitted that the learned Magistrate has committed a grave error in taking cognizance and framing the

CRL.P No. 100172 of 2023

charges the criminal the learned not with widen eye just if learned jud ge applies judicial mind to the allegations made in complaint it does not disclose the ingredients of offences and rise that whether the crime actually committed or not because there was no absolutely allegation with regards to offence.

• It is submitted that the statement of the witnesses furnished along with the charge sheet does not disclose any of the offences alleged against the accused . More particularly the statements further disclose the fact that the same have been made in animosity for revenge against petitioner/accused is poor and innocents always obey the law Hence the proceedings against the accused groundless and it not need the learned session judge to frame charge hence the further proceedings may unwarranted under these circumstances it is just and to meet out the ends of justice quash or set aside the top noted criminal case.

CRL.P No. 100172 of 2023

8. Reiterating the aforesaid grounds, Shri.

Namdev Seetaram Badiger, learned counsel for the

petitioner vehemently contended that a breach of

promise of marriage would not per-se amount of

cheating nor it would be a case for proceeding

against the petitioner for the offence punishable

under Sections 376 and 417 of IPC. Since the

victim lady is aged 27 years, the physical

relationship petitioner had with the victim lady is

consensual in nature therefore, continuation of the

criminal proceedings as against the petitioner

would result in abuse of process of Court and

sought for quashing of the entire proceedings. In

support of his contention, he has relied upon the

judgment passed by the Hon'ble Supreme Court in

the case of Mandar Deepak Pawar Vs. The State of

Maharashtra and another , in Criminal Appeal

No.422/2022, wherein, the Hon'ble Supreme Court

has held a under:

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CRL.P No. 100172 of 2023

"The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage.

Thereafter also three years passed when respondent No.2 decided to register a FIR.

The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 16.12.2016 and bringing the proceedings to a close. Permitting further proceedings under the FIR would amount to harassment to the appellant through the criminal process itself.

We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled " Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr" where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed

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CRL.P No. 100172 of 2023

the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860.

The Criminal appeal is accordingly allowed."

9. Per contra, learned High Court

Government Pleader opposes the grounds urged in

the petition contending that the petitioner has

failed to establish that there was no intention to

marry the victim lady and in the guise of marrying

the victim lady had physical relationship several

times and therefore, the consent is not a free

consent in the eye of law and therefore,

ingredients to attract the offence under Sections

417 and 376 of IPC is made out. It is also

contended that such intention of petitioner the

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CRL.P No. 100172 of 2023

matter could be decided only after holding full-

fledged of trial. Therefore, sought for rejection of

petition.

10. On behalf of the de-facto complainant

Miss. Soumya S. Gujamagadi learned counsel

representing Sri. Raja Raghavendra Naik, adopted

the arguments put forth by learned High Court

Government Pleader.

11. She further contended that the consent

for physical relationship by the complainant is on

the promise to marry and it was not a free

consent. After having physical relationship

number of times, petitioner cunningly contracted a

marriage with some other lady. Moment the

complainant came to know about it, she raised

objection and contacted the petitioner and his

family members and also approached the

jurisdictional police. A panchayat was also

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CRL.P No. 100172 of 2023

convened in this regard wherein petitioner and

family members were told to marry the

complainant with petitioner. Even in the police

station, petitioner and his family members agreed

to marry the complainant and petitioner executed

a bond in that regard. Thereafter, the petitioner

and complainant went to Bengaluru and in the mid

way, petitioner got down from the bus in the guise

of attending nature call and did not return.

Ultimately the complainant was the constrained to

file the present complaint and sought for rejection

of the petition.

12. In view of the rival contentions, this

Court perused the material on record meticulously.

13. On perusal of the said material on record,

it is contended on behalf of the prosecution and on

behalf of the de-facto complaint that physical

relationship petitioner had with the complainant

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CRL.P No. 100172 of 2023

though consensual is not a free consent. The

consent if any is based on the promise to marry

the complainant by the petitioner.

14. Prima facie materials on record also

indicate that in the police station when the

petitioner and his family members were

summoned, petitioner expressed his intention to

marry the complainant in order to avoid the

criminal action and executed a bond that he would

marry the complainant. Whether the complainant

and petitioner had physical relationship on their

own volition without there being any condition

what so ever cannot be decided by this Court at

this stage. The fact of executing bond by the

petitioner to marry the complainant would belie

theory of free consent prima facie. The material

on record also discloses that a panchayat was

convened before approaching the police and

panchayatdars directed the petitioner to marry the

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CRL.P No. 100172 of 2023

victim lady. In fact panchayat was convened by

the father of the petitioner and all these attempts

failed, left with no alternative, complainant was

constrained to approach the jurisdictional police as

a last resort.

15. The material on record also discloses that

the factual aspect involved in the present case is

all together different from the material facts

involved in the case relied by the counsel for the

petitioner in the case of Mand ar Deepak

Pawar(Supra) and therefore, the said decision is of

no avail for the petitioner seeking an order of

quashing the pending criminal proceedings. On

the other hand facts in the case on hand would

certainly warrant a full-fledged trial to find out

whether the consent given by the victim lady for

the physical relationship was a free consent or not.

This Court at this stage having regard to the

peculiar facts and circumstances case on hand as

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CRL.P No. 100172 of 2023

discussed supra cannot formed a definite opinion

that the consent of victim lady to have physical

relationship with her by the petitioner is a free

consent.

16. Hence, in view of the forgoing discussion

the invariable conclusion that this Court can reach

is to hold that the grounds urged in the petition

are hardly sufficient to exercise inherent power

vested to this Court under Section 482 of Cr.P.C.

in accepting the prayer of the petitioner seeking

quashing of pending criminal proceedings against

the petitioner.

17. Accordingly, the following order is

passed:

ORDER

Criminal petition is devoid of merits and

accordingly rejected.

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CRL.P No. 100172 of 2023

However, the observations made by this Court

in this order is only for the disposal of present

petition and shall not affect the rights of the

parties in any manner in the pending trial.

Sd/-

JUDGE

SMM