Karnataka High Court

Jitu Thankachan vs The State Of Karnataka on 13 February, 2024

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                                    CRL.RP No. 672 of 2022


  IN THE HIGH COURT OF KARNATAKA AT BENGALURU
     DATED THIS THE 13TH DAY OF FEBRUARY, 2024
                        BEFORE
        THE HON'BLE MR. JUSTICE S RACHAIAH
    CRIMINAL REVISION PETITION NO. 672 OF 2022


BETWEEN:
   JITU THANKACHAN
   S/O THANKACHAN
   NOW AGED ABOUT 31 YEARS
   R/AT NO.48, GANGADEVI NIVAS
   4TH FLOOR, 5TH MAIN, 7TH CROSS
   D.T.STREET, CHAMARAJPET
   BENGALURU - 560 018.

    PERMANENT RESIDENT OF
    NO.2090, B.D.GLOBE VILLAGE
    KEMPADIPADI, COCHIN
    ERNAKOLAM DISTRICT
    KERALA - 682 001.
                                               ...PETITIONER

(BY SRI. RAJU.S AND SRI. CHANDRASHEKAR K.A, ADVOCATES)

AND:
   THE STATE OF KARNATAKA
   BY THE POLICE OF
   KEMPEGOWDA NAGAR POLICE STATION
   BENGALURU - 560 019

    REPRESENTED BY SPP
    HIGH COURT OF KARNATAKA
    BENGALURU - 560 001.
                                             ...RESPONDENT

(BY SRI. JAIRAM SIDDI, HCGP)

     THIS CRL.RP IS FILED U/S. 397 R/W 401 CR.P.C
PRAYING TO SET ASIDE THE ORDER DATED 11/04/2022
PASSED BY THE LIII ADDITIONAL CITY CIVIL AND SESSIONS
SPECIAL JUDGE, BENGALURU IN SC NO.402/2020 AND ETC.,
                                   -2-
                                          CRL.RP No. 672 of 2022


     THIS CRIMINAL REVISION PETITION HAVING BEEN
HEARD AND RESERVED ON 12.01.2024, COMING ON FOR
PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE
THE FOLLOWING:


                              ORDER

1. This Criminal Revision Petition is filed by the

petitioner, being aggrieved by the order dated 11.04.2022 in

S.C.No.402/2020 on the file of the Court of the LIII Additional

City Civil and Sessions Special Judge, Bengaluru, dismissing the

application filed by the petitioner / accused for discharge under

Section 227 of the Code of Criminal Procedure, 1973 (for short

'Cr.P.C.'), for the offences under Sections 376, 420 and 506 of

Indian Penal Code, 1860 (for short 'IPC').

2. The rank of the parties in the Trial Court will be

considered henceforth for convenience

Brief facts of the case are as under:

3. It is the case of the prosecution that, the

complainant / victim joined as a Customer Care Executive at

TOKO RX LAB, situated at Chamarajpet, Bengaluru in the year

2015. The accused was working as a Manager in the said Lab.

It is stated in the complaint that both were loving each other

and the accused said to have promised for marriage with her.

It is further stated that on the pretext of promise to marriage,

the accused said to have committed rape/sexual intercourse.

The victim had brought to the knowledge of her mother

regarding the promise which the petitioner has made about the

marriage. The mother of the complainant / victim said to have

spoken with the accused over the phone and the accused had

agreed for marriage with the victim.

4. It is further submitted that such being the fact, the

petitioner was not showing any interest in the marriage with

the victim and the victim was trying to convince the petitioner

for her marriage. Whenever she tried to ask about the

marriage, the petitioner was not showing any interest in the

marriage and he was avoiding about the marriage. The victim

has learnt that it is a false promise and the said promise has

been made only for the purpose of committing sexual

intercourse and decided to lodge a complaint against the

petitioner. Accordingly, on 12.04.2019, she has approached

the jurisdictional police regarding the incident and lodged a

complaint. The jurisdictional police registered a case in Crime

No.43/2019 for offence punishable under sections 376, 420,

506 of IPC, after conducting the investigation, submitted the

charge sheet. Being aggrieved by the filing of the charge

sheet, the petitioner had preferred an application for discharge

before the Trial Court. The said application came to be

rejected. Hence this revision petition.

5. Heard Shri Raju S. and Sri.Chandrashekar K.A.,

learned counsels for the petitioner and Shri Jairam Siddi,

learned High Court Government Pleader for the respondent -

State.

6. It is the submission of learned counsel for the

petitioner that the order passed by the Trial Court in rejecting

the application filed under Section 227 of the Code of Criminal

Procedure (for short 'Cr.P.C.') is contrary to the material on

record and also contrary to the settled principles on the

subject. Therefore, the order dated 11.04.2022 has to be set

aside.

7. It is further submitted that the complainant / victim

made allegation against the petitioner stating that she has been

subjected to rape on several occasions by the petitioner on the

pretext of promise of marriage however, the petitioner did not

marry her. It is further submitted that the victim has not

mentioned the date and timings of the said alleged rape in the

complaint. Mere making allegations regarding rape are not

sufficient to frame the charge against the petitioner.

8. It is further submitted that, as per averments of the

complaint and the statement made before the learned

Magistrate under Section 164 of Cr.P.C., the complainant /

victim joined TOKO RX LAB in the year 2015, immediately

within a period of three months, both the petitioner and the

complainant / victim developed intimacy. Thereafter, till 2019,

she is alleged to have been subjected to rape on several

occasions. In the year 2017, the mother of the complainant /

victim had spoken with the petitioner regarding the intimacy

and sexual assault, however, no complaint has been registered

against the petitioner regarding the alleged offence. All the

allegations made against the petitioner are baseless, bald and

absurd. Even if the petitioner is subjected to face the trial, the

possibility of conviction is very bleak and remote and therefore,

the petitioner is liable to be discharged from the case. Making

such submissions, learned counsel for the petitioner seeks to

allow the revision petition.

9. In support of his contention, learned counsel for the

petitioner relied on the judgment of the Hon'ble Supreme Court

in the case of SHAMBHU KHARWAR v. STATE OF UTTAR

PRADESH & Another1.

AIR 2022 SC 3901

10. Per contra, learned High Court Government Pleader

(for short 'HCGP') vehemently justified the order of rejection

passed by the Trial Court and submitted that, the complainant /

victim was working as a Customer Care Executive in the TOKO

RX LAB wherein the petitioner was working as a Manager. The

petitioner, on the pretext of false promise to marry her,

committed sexual assault on several occasions. The petitioner,

on one or other pretext, was dodging the matter and he was

not showing any interest in the marriage. Being frustrated, the

victim has informed the incident to her mother and also his

friends. The friends of the petitioner and also the petitioner

have threatened her with dire consequences and asked her to

forget about the sexual assaults and lead happy life, which

really triggered her and she has decided to lodge a complaint.

Accordingly, a complaint came to be registered against the

petitioner. The jurisdictional police have conducted

investigation and submitted charge sheet. Several materials

have been collected to substantiate the contention of the

victim. Therefore, at this stage, without being subjected for

examination in the trial, it is not appropriate to allow the

revision petition. Making such submissions, learned HCGP

prays to dismiss the petition.

11. Having heard the rival contentions urged by the

learned counsels for the respective parties and also perused the

averments made in the charge sheet, now, it is relevant to

refer the proposition of law on the subject.

12. In the case of SHAMBHU KHARWAR stated supra,

the Hon'ble Supreme Court has held in paragraph Nos.8, 9, 10

and 11 as under:-

"8. In Bhajan Lal (supra) this Court formulated the parameters in terms of which the powers in Section 482 of CrPC may be exercised. While it is not necessary to revisit all these parameters again, a few that are relevant to the present case may be set out. The Court held that quashing may be appropriate:

"102.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2).

[...] (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an

ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra, a two Judge Bench of this Court while dealing with similar facts as the present case reiterated the parameters laid down in Bhajan Lal (supra) held that:

6. 2019(18) SCC 191: (AIR 2019 SC 327).

"13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."

(emphasis supplied)

10. An offence is punishable under Section 376 of the IPC if the offence of rape is established in terms of Section 375 which sets out the ingredients of the offence. In the present case, the second description of Section 375 along with Section 90 of the IPC is relevant which is set out below.

"375. Rape - A man is said to commit "rape" if he -

[...] under the circumstances falling under any of the following seven descriptions Firstly ...

Secondly. - Without her consent. [...] Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non- verbal communication, communicates willingness to participate in the specific sexual act:

Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. xxx

90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception;

or..."

11. In Pramod Suryabhan Pawar v. State of

Maharashtra, a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh,8 observed that:

7. 2019 (9) SCC 608 : (AIR 2019 SC 4010).

8. 2021 SCC Online SC 181 : (AIR 2021 SC 1405).

"12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the

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circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action...

[...]

14. [...] Specifically in the context of a promise to marry, this Court has observed that there is a 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...

[...]

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...

[...]

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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."

13. On careful reading of the dictum of the Hon'ble

Supreme Court, it makes it clear that, the word 'consent' of a

woman with respect to Section 375 of IPC 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

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act. In this backdrop of legal proposition, now, it is relevant to

advert to the facts of the case.

14. As per the averments of the complaint, the

complainant / victim was working in the TOKO RX LAB where

the petitioner was working as a Manager. Admittedly, she

joined as a Customer Care Executive in the year 2015. A

complaint came to be registered on 12.04.2019. Her statement

under Section 164 of Cr.P.C. was recorded on 13.04.2019.

Even though it is mentioned in the complaint that the petitioner

had committed sexual assault on several occasions on the

pretext of promise to marry, no dates and events have been

mentioned in the said complaint.

15. On careful reading of the entire material produced

with the charge sheet, except the FSL report regarding the

examination conducted by the Doctor, nothing is forthcoming.

In the report, it is opined that, on physical and genital

examination of the victim, the evidence of signs of previous

sexual intercourse is present.

16. Whether the sexual assault or act is voluntarily

done or it has been done on the false promise of marriage,

although it is a matter of fact, it has to be dealt with other

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circumstances of the case. It is not the case of the victim that

immediately after the incident, she has lodged a complaint.

Instead of filing the complaint at the earliest, the victim has

lodged this complaint after lapse of four to five years. When

the victim voluntarily indulging in sexual act with the petitioner,

subsequently, she cannot raise a plea that it was rape.

Therefore, considering the averments of the complaint and the

charge sheet and also facts and circumstances of the case, it

may be construed that the alleged sexual assault may be

considered as a consensual sexual assault and not amounts to

rape.

17. The complainant being an educated woman, she

should have understood the consequences of the sexual act. If

any such favour was asked by the petitioner before marriage,

she should have brought to the notice of the elders and well-

wishers and made necessary arrangements for deliberation for

marriage. Instead of bringing such fact to the knowledge of the

elders, she stated to have been indulged in such sexual assault

and thereafter, she was claiming that she has been subjected

to rape, certainly such act would not be considered as rape. On

this account, the petition deserves to be allowed. Therefore, I

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am of the considered opinion that it is a fit case to discharge

the petitioner.

18. Hence, I proceed to pass the following:-

ORDER

(i) The Criminal Revision Petition is allowed.

(ii) The order dated 11.04.2022 in S.C.No.402/2020

on the file of the LIII Additional City Civil and

Sessions Special Judge, Bengaluru, is set aside.