Karnataka High Court
Sri. Mahesh vs State Of Karnataka on 5 January, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
-1-
NC: 2024:KHC:549
CRL.P No. 12061 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
CRIMINAL PETITION NO. 12061 OF 2023
BETWEEN:
SRI. MAHESH
S/O SUBRAMANIYAM,
AGED ABOUT 34 YEARS,
R/AT NO 1/105,
ARULAVADI VILLAGE,
THALAVADI TALUK,
ERODE, SATHYAMANGALAM,
TAMIL NADU 638461.
...PETITIONER
(BY SRI. PRAVEEN S.,ADVOCATE)
AND:
Digitally
signed by
NARASIMHA
MURTHY STATE OF KARNATAKA
VANAMALA
Location: BY WOMEN PS
HIGH
COURT OF
KARNATAKA
CHAMARAJANAGARA,
REPRESENTED BY SPP,
HIGH COURT OF KARNATAKA
BENGALURU - 560001.
...RESPONDENT
(BY SRI.RAJATH SUBRAMANYA., HCGP)
-2-
NC: 2024:KHC:549
CRL.P No. 12061 of 2023
THIS CRL.P IS FILED U/S.438 OF CR.P.C PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS
ARREST IN CR.NO.45/2023 REGISTERED BY WOMEN P.S.,
CHAMARAJANAGARA FOR THE OFFENCE P/U/S 417, 376,
376(2)(n), 504, 114 R/W 34 OF IPC AND SECTION 4 OF
DOWRY PROHIBITION ACT PENDING ON TEH FILE OF
ADDITIONAL CIVIL JUDGE (SR.DN.) AND C.J.M.,
CHAMARAJANAGARA; THE ADDITIONAL DISTRICT AND
SESSIONS JUDGE, FTSC-1, CHAMARAJANAGARA HAS
REJECTED THE BAIL PETITION ON 16.10.2023 IN
CRL.MISC.NO.438/2023.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner/accused No.1 has preferred this petition
under Section 438 of the Cr.P.C. to release him on anticipatory
bail in Crime No.45/2023 of Chamarajanagar Women Police
Station registered for the offence punishable under Sections
417, 376, 376(2)(n) and 114 read with Section 34 of Dowry
Prohibition Act.
2. Heard the learned counsel for the petitioner, the
learned High Court Government Pleader for the
respondent/State and perused the material on record.
3. In the complaint lodged by the victim with the
respondent - police, it is alleged that her marriage was fixed
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with the petitioner and on 14.06.2023 engagement ceremony
took place in the presence of the elders. After her engagement
with the petitioner, both of them started moving together and
visited various places. On 03.07.2023, the petitioner took her
to his sister's house in Chamarajanagar and against her will
committed sexual intercourse with her and again on
25.07.2023 he committed sexual intercourse with her in her
house. Thereafter, on 05.08.2023 during marriage talks, his
parents and other relatives demanded ½ kg gold and Rs.25
lakhs cash for performing the marriage. Again on 17.08.2023
the accused persons demanded huge dowry and as her parents
were unable to arrange such huge dowry, the accused persons
cancelled the marriage proposal.
4. The learned counsel for the petitioner contends that
even if the entire case of the prosecution is accepted as true,
ingredients of the offence alleged against the petitioner are not
made out. He contends that the engagement ceremony was
held after the petitioner agreed for the marriage and later due
to some dispute in respect of matrimonial alliance, the
marriage was cancelled and due to the said reason, a false
complaint has been lodged against the petitioner and his family
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members. He submits that the petitioner is ready and willing to
abide by any conditions which may be imposed by this Court
and he will cooperate with the investigation. Therefore, he
seeks to allow the petition and enlarge the petitioner on
anticipatory bail, imposing conditions.
5. Per contra, the learned High Court Government
Pleader opposed the bail petition contending that the victim has
categorically stated in her complaint as well as in her statement
under Section 164 of Cr.P.C. that the petitioner with a false
promise of marriage committed sexual intercourse with her and
later demanded huge dowry and refused to marry her.
Therefore, he contends that the ingredients of the offence
under Section 376 and other offences are made out. He
contends that the offence committed by the petitioner being
serious in nature, he is not entitled for the relief of anticipatory
bail. Accordingly, he has sought for dismissal of the petition.
6. A perusal of the complaint averment discloses that
there was an engagement ceremony held on 14.03.2023 in the
presence of the elders and thereafter, the petitioner and the
victim have visited places like Nanjangud, Bannari,
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Satyamanagala and Suvarnavathi dam etc. It is alleged that on
03.07.2023 and 25.07.2023, on two occasions, the petitioner
by force and without the consent of the victim committed
sexual intercourse with her. Thereafter, the parents of the
petitioner started demanding huge dowry, on account of which,
the marriage was cancelled.
7. The learned High Court Government Pleader has
contended that even if there was consent on the part of the
victim, the said consent was given under misconception of fact
and therefore, the act committed by the accused amounts to
rape as defined.
8. The learned counsel for the petitioner contends that
the petitioner has agreed to marry the victim and subsequent
participation of the petitioner in the engagement ceremony
itself would show that he had intended to marry the victim and
therefore it cannot be said that such promise is false from the
very beginning. His contention is that subsequently the
marriage was cancelled due to some unavoidable circumstances
and therefore, it cannot be said that ingredients of the offences
alleged against the petitioner are made out.
NC: 2024:KHC:549
9. A careful perusal of the complaint averments itself
discloses that there was an engagement ceremony fixing the
marriage of the victim with the petitioner. Subsequently, the
marriage was cancelled, since the victim's parents were not in a
position to meet the demands of dowry. As per complaint, the
petitioner had not participated in the marriage talks where the
allegation of dowry demand was made. It was his parents and
other relatives who participated in the marriage talks . There is
no allegation that it was the petitioner who demanded dowry
and refused to marry the victim. At this stage, prima facie
there is no material to show that the petitioner made false
promise to the victim and based on such false assurance, he
committed sexual intercourse with her. The prosecution has to
establish that the petitioner had dubious intention from the
beginning to cheat the victim and then committed sexual
intercourse with her.
10. It is relevant to refer to the judgment of the Hon'ble
Apex Court in the case of Dr. Druvaram Murali v. State of
Maharashtra and Others reported in (2019) 18 SCC 191.
The para 23 of the judgment is extracted hereunder:
NC: 2024:KHC:549
"Thus, there is a clear distinction between rape and
consensual sex. The court, in such cases, must very
carefully examine whether the accused had actually
wanted to marry the victim or had mala fide
motives and had made a false promise to this effect
only to satisfy his lust, as the latter falls within the
ambit of cheating or deception. There is also a
distinction between mere breach of a promise and
not fulfilling a false promise. If the accused has not
made the promise with the sole intention to seduce
the prosecutrix to indulge in sexual acts, such an
act would not amount to rape. 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 the
misconception created by 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. Such cases must be treated
differently. If the complainant had any mala fide
intention and if he had clandestine motives, it is a
clear case of rape. The acknowledged consensual
physical relationship between the parties would not
constitute an offence under Section 376 IPC."
11. FIR is registered against the petitioner and 7 others
namely the parents and other relatives of the petitioner. It is
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submitted that accused Nos.2 to 8 are already enlarged on bail.
Considering the entire facts and circumstances, the relief
sought for by the petitioner can be granted, without expressing
any view on the merits of the case, by imposing necessary
conditions. Accordingly the following:
ORDER
i) Petition is allowed. In the event of arrest of
the petitioner/accused in Crime No.45/2023 of
Chamarajanagar Women Police Station, he shall be
enlarged on bail subject to following conditions:
a) He shall appear before the
Investigating Officer within a period of one week
from the date of receipt of a certified copy of this
order and he shall execute a bond in a sum of
Rs.1,00,000/-(Rupees One Lakh only) with two
sureties for the likesum, out of which, one shall
be a local surety.
NC: 2024:KHC:549
b) He shall furnish proof of his
residential address and shall inform the
Investigation Officer/Court, if there is change in
the address.
c) He shall be available for the purpose
of investigation whenever necessary.
d) He shall not tamper with the
prosecution witnesses either directly or
indirectly and he shall not try to induce or
influence the complainant/victim in any manner.
e) He shall be regular in attending the
Court proceedings.
Sd/-
JUDGE
SA
