Karnataka High Court
Pavan H.M. Manohar @ Pavan @ Pavan ... vs The State Of Karnataka By on 5 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:44321
CRL.P No. 7739 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 7739 OF 2024
BETWEEN:
PAVAN H.M. MANOHAR @ PAVAN
@ PAVAN MANOHAR H.M,
AGED ABOUT 26 YEARS,
S/O MANOHAR
R/AT BANIGAR JENTS P.G.,
LAKE ROAD, BTM 2ND STAGE,
BENGALURU - 560 076.
PERMANENTLY R/AT
PAVAN MANOHAR H.M,
AGED ABOUT 27 YEARS,
S/O MANOHARA,
R/AT HEBBULSE VILLAGE,
HANDLI POST, KODAGU - 571 235.
Digitally signed (AS PER AADHAR CARD)
by NAGAVENI
...PETITIONER
Location: HIGH
COURT OF (BY SRI. HEMANTH KUMAR K, ADVOCATE)
KARNATAKA
AND:
1. THE STATE OF KARNATAKA BY
MICO LAYOUT POLICE, BENGALURU,
REPRESENTED BY STATE PUBLIC PROSECUTOR,
HIGH COURT BUILDING,
BENGALURU - 560 001.
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CRL.P No. 7739 of 2024
2. NIRUSHA S,
AGED ABOUT 27 YEARS,
D/O SHIVANNA,
RIYA LADIES P.G., BTM 2ND STAGE,
BENGALURU - 560 076.
...RESPONDENTS
(BY SRI. RANGASWAMY R, HCGP FOR R1;
SRI. K.A. PRATHAP, ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN SPL.C.NO.1338/2024 OF
RESPONDENT NO.1 MICO LAYOUT P.S., FOR THE OFFENSES
P/U/S 3(2)(v) OF SC/ST (POA) ACT, PENDING ON THE FILE OF
THE LXX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
SPECIAL JUDGE AT BENGALURU.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner - accused is before this Court calling in
question proceedings in Spl.C.No.1338/2024 registered for
offences punishable under Sections 417, 420 and 313 of the
Indian Penal Code, 1860 (the 'IPC' for short).
NC: 2024:KHC:44321
2. Heard Sri. Hemanth Kumar K., learned counsel
appearing for the petitioner, Sri. R. Rangaswamy, learned
HCGP appearing for respondent No.1 and Sri. K.A. Prathap,
learned counsel appearing for respondent No.2.
3. Facts adumbrated are as follows:
The second respondent is the complainant, registers a
complaint on 28.03.2024 for the afore quoted offences. The
crux of the complaint is that the complainant and the petitioner
get acquainted to each other in the year 2021, while they were
working together. The narration in the complaint that the
friendship blossomed into relationship and the relationship was
physical as well. Further allegation in the complaint is that the
petitioner had physical relationship with the complainant on the
pretext of marriage or on the promise of marriage. The
promise having been broken is what leads the complainant to
register a complaint with the jurisdictional police for the
aforesaid offences. The police after investigation filed a charge
sheet and the matter is presently pending as a special case in
1338/2024 for the afore quoted offences.
NC: 2024:KHC:44321
4. The learned counsel appearing for the petitioner
would submit that the petitioner and the respondent were close
to three and a half years and had physical relationship on
consensus, they were all consensual acts and there was no
promise of marriage at any point in time. Even if it be so, the
learned counsel would submit that it would not amount to an
offence of rape under Section 376 of the IPC or breach of
promise of marriage would not amount to offence of cheating
under Section 417 and 420 of the IPC. He would seek to place
reliance upon judgment of the Apex Court in the case of LALU
YADAV Vs. STATE OF U.P., reported in (2024) SCC Online
SC 2876.
5. Per contra, the learned counsel appearing for the
complainant would submit that the issue has been settled
between the parties and would leave the decision to the Court.
6. The learned HCGP would put up vehement
opposition to the closing of the petition on account of the
settlement or on the merit of the matter even on the score that
the offences alleged are the one punishable under Sections 376
and 313 of the IPC and Sections 3(2)(v) of the Scheduled
NC: 2024:KHC:44321
Castes and Scheduled Tribes (Prevention of Atrocities) Act,
1989, both of which are heinous offences. The learned HCGP
would submit that the charge sheet has been filed by the police
and it is for the petitioner to come out clean in a full bloom trial
and would seek dismissal of the petition.
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material on record.
8. The afore narrated facts are not in dispute. The
relationship between the two is close to 42 months, prior to the
registration of the complaint, this is what could be gathered
from the complaint itself. Since the entire issue has now
sprung from the registration of the complaint, I deem it
appropriate to notice the complaint, it reads as follows:
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9. The complainant in the complaint clearly narrates
that they had relationship on the pretext of marriage or
promise of marriage and the promise is breached by the
petitioner and therefore, she was forced to register the crime.
The police after investigation filed a charge sheet. The
summary of the charge sheet as obtained in column No.17,
reads as follows:
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10. Since the complainant was belonging to a scheduled
caste, the offences under the Prevention of Atrocities Act are
also brought in to be laid against the petitioner. The issue now
would be whether the offences of Section 376 or 417 and 420
would be met in the case at hand qua the offences that are
NC: 2024:KHC:44321
projected in the complaint. The answer would be an
unequivocal and emphatic "no", as the Apex Court in plethora
of judgments has considered this very issue as to whether the
acts on consensus would amount to an offence under Section
376 of the IPC. The Court in every judgment would only
become the bulk of this judgment, so I deem it appropriate to
quote the one that is laid down in the case of LALU YADAV
(supra) has held as follows:
"5. Before delving into the rival contentions, it is
relevant to note that though this Court stayed further
proceedings in case Crime No. 28/2018 on 13.11.2018, this
Court virtually modified the same on 18.08.2023 as
under:--
"It is made clear that the interim order passed by this
Court staying further proceedings in Crime No. 28/2018
registered at P.S. Nandganj, District Ghazipur, U.P.
dated 13.11.2018 will not stand in the way of
investigation for investigating into the offence under
Section 313 of IPC.
List the matter after two months."
6. Earlier, on behalf of respondent Nos. 1 to 3 counter
affidavit was filed fully justifying the impugned order. On
behalf of the respondent No. 4 also, a counter affidavit was
filed, evidently, on the same line. Pursuant to the order
dated 18.08.2023, virtually, permitting continuance of
investigation in Crime No. 28/2018 in respect of the
allegation of commission of offence under Section 313 IPC,
investigation in that regard was continued and completed.
Thereupon, an additional affidavit was filed on behalf of the
first respondent - State with respect to the status of
investigation and the same, insofar as it is relevant, reads
thus:--
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"6. That pursuant to the direction, the investigating
officer had conducted investigation with respect to
offence u/s 313 IPC and after due investigation and
material available on record, including her statement,
medical reports etc. has concluded that there is no
evidence/material available with respect to offence
u/s 313 IPC i.e. no material substantiating abortion of
the victim in the present offence and hence as on
02.02.2024 omitted offence u/s 313, IPC.
7. That the investigation u/s 376 is still pending as
the same is stayed by this Hon'ble Court."
7. In view of the statement in the afore-extracted
paragraph 6 and 7, the undisputed position obtained that
the allegation of commission of offence under
Section 313, IPC stands omitted against the appellant. What
survives for consideration is only the question whether the
impugned order invites interference and the subject FIR be
quashed invoking the inherent jurisdiction?
8. We have already taken note of the facts revealed from
the subject FIR itself that the time of occurrence of offence
is allegedly, from 05.01.2013 to 05.01.2018 and that it was
registered only at 21.34 hrs. on 21.02.2018. That apart, it
is evident that even going by respondent No. 4, the
complainant herself and the appellant were living as
husband and wife. The complaint of respondent no. 4, as is
revealed therefrom, is that the appellant had deceived her
by promising to marry and then by establishing physical
relationship. At the risk of repetition, we will have to refer to
the FIR, carrying the following recitals from her complaint:
"... Lalu Yadav S/o Seshnath Yadav R/o Atarsuya P.S.
Nandganj District-Ghazipur, used to come to my house
along with the brother-in-law Ravindra Yadav of my
elder sister, at that time about five years back I was a
student of High School, then the said Lalu Yadav by way
of deceiving myself promise that he will marry me and
established physical relationship with me without my
consent and started living with me as the husband."
(underline supplied)
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9. At the very outset, it is to be noted that there is a
huge irregularity between the statements "established
physical relationship with me without my consent" and
"started living with me as the husband". Be that as it may,
bearing in mind the allegations raised by respondent No. 4
reflected in the subject FIR, we will refer to the relevant
decisions of this Court.
10. While dismissing the writ petition under the
impugned order, presumably taking note of the contentions
based on time lag of five years, the High Court relied on its
Full Bench decisions in Ajit Singh @ Muraha v. State of
U.P.2, and in Satya Pal v. State of U.P.3. as well as the
decision of this Court in State of Haryana v. Bhajan Lal4. It
observed and held that there could be no interference with
the investigation or order staying arrest unless cognizable
offence is not ex-facie discernible from the allegations
contained in the FIR or there exists any statutory restriction
operating against the power of the Police to investigate a
case. There can be no two views on the exposition of law
thus made relying on the said decisions. In the same breath
we will have to say that those decisions can be no bar for
the exercise of power under Section 482, Cr. P.C., in various
other situations dealt with, in detail, by this Court, including
in the decision in Bhajan Lal's case (supra).
11. To determine whether the case in hand deserves to
be quashed at the present stage we will refer to some of the
decisions. We have already taken note of the fact that
though there was an allegation in the FIR regarding
commission of offence under Section 313, IPC, on
completion of the investigation, the investigating agency
itself omitted the offence under Section 313, IPC against the
appellant-accused. In paragraph 102 of the decision
in Bhajan Lal's case (supra) this Court held thus:--
"102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
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extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(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) of the Code.
(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission of
any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a non-
cognizable offence, no investigation is permitted by a
police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no prudent person can ever reach a
just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned Act
(under which a criminal proceeding is instituted) to the
institution and continuance of the proceedings and/or
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where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the
grievance of the aggrieved party.
(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."
12. In the decision in Shivashankar alias Shiva v. State
of Karnataka5, this Court held thus:--
"4. In the facts and circumstances of the present
case, it is difficult to sustain the charges levelled against
the appellant who may have possibly, made a false
promise of marriage to the complainant. It is, however,
difficult to hold sexual intercourse in the course of a
relationship which has continued for eight years, as
"rape" especially in the face of the complainant's own
allegation that they lived together as man and wife."
13. The decision in "XXXX" v. State of Madhya Pradesh6,
also assumes relevance in the contextual situation. This
court took into consideration an earlier decision of this Court
in Naim Ahamed v. State (NCT of Delhi)7, where the
allegation was one of alleged rape on false promise of
marriage, made five years after the complainant and the
accused started having relations and even got pregnant
from the accused, of course when she was having a
subsisting marriage, the Court found that there cannot be
any stretch of imagination that the prosecutrix had given
her consent for sexual relationship under misconception.
Having considered the said decision and finding identity in
facts, this court in the decision reported in (2024) 3 SCC
496 reversed the order impugned therein dismissing the
petition filed under Section 482, Cr. P.C. for quashment of
FIR and allowed the appeal by setting aside the impugned
order and quashing the subject FIR.
14. Now, having bestowed our anxious consideration to
the decisions referred supra with reference to the factual
situations obtained in the case at hand, we are of the
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considered view that the High Court has palpably gone
wrong in not considering the question whether the
allegations in the complaint reveals prima facie case that
the complainant had given her consent for the sexual
relationship with the appellant under misconception of fact,
as alleged, or whether it reveals a case of consensual sex.
Firstly, it is to be noted that the subject FIR itself would
reveal that there occurred a delay of more than 5 years for
registering the FIR; secondly, the very case of the
complainant, as revealed from the FIR, would go to show
that they lived for a long period as man and wife and
thirdly, the facts and circumstances obtained from the
subject FIR and other materials on record would reveal
absence of a prima facie case that the complainant viz.,
respondent No. 4 had given her consent for sexual
relationship with the appellant under misconception of fact.
At any rate, the allegations in the FIR would not constitute
a prima facie case of false promise to marry from the
inception with a view to establish sexual relationship and
instead they would reveal a prima facie case of long
consensual physical relationship, during which the
complainant addressed the appellant as her husband.
Moreover, it is also the case of the complainant, revealed
from the subject FIR and the other materials on record that
she went along with the appellant to Varanasi with the
knowledge of her family and stayed with him in hotels
during such visits. The subsequent refusal to marry the
complainant would not be sufficient, in view of the facts and
circumstances obtained in the case at hand, by any stretch
of imagination to draw existence of a prima facie case that
the complainant had given consent for the sexual
relationship with the appellant under misconception of fact,
so as to accuse the appellant guilty of having committed
rape within the meaning of Section 375, IPC.
15. The long and short of the above discussion is that
the case at hand is a befitting case where the High Court
should have exercised the power available under
Section 482, Cr. P.C. to prevent abuse of the process of the
Court. Now that the allegation of offence under
Section 313, IPC is omitted, there is absolutely no prima
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facie case for proceeding further against the appellant on
the allegation of commission of offence punishable under
Section 376, IPC. We are of the considered view that the
High Court should have exercised its inherent power.
16. For the reasons aforesaid, the impugned order dated
26.07.2018 of the High Court of Judicature at Allahabad in
Criminal Miscellaneous Writ Petition No. 16825 of 2018 is
set aside. FIR No. 28/2018 dated 21.02.2018 registered at
Police Station - Nandganj, Ghazipur District of Uttar Pradesh
and all further proceedings on its basis are quashed. The
appeal is accordingly allowed."
11. The Apex Court observes at the afore quoted
paragraphs that the couple lived as husband and wife for close
to five years and therefore, all would not it amount to an
offence of rape merely because there is breach of promise of
marriage. The Apex Court was following its earlier judgment in
the case of NAIM AHAMED Vs. STATE (NCT OF DELHI),
reported in (2023) SCC Online SC 89, which considers the
very aspect and holds that the offence of cheating on breach of
promise of marriage also would not lie in a case of relationship
between the prosecutrix therein and the accused. If the law
that is laid down by the Apex Court is paraphrased to the facts
obtained in the case at hand, it would unmistakably result in
the quashment of the entire proceedings.
12. For the aforesaid reasons, the following
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ORDER
1. Criminal Petition is allowed.
2. The proceedings in Spl.C.No.1338/2024 on the
file of LXX Additional City Civil and Sessions
Judge and Special Judge at Bengaluru stands
quashed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
JY
CT: BHK
