Karnataka High Court
Shashikumar. R vs The State Of Karnataka on 13 November, 2024
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2024:KHC:45950
CRL.P No. 11439 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 11439 OF 2023
BETWEEN:
SHASHIKUMAR R.,
S/O RANGASWAMYIAH,
AGED ABOUT 35 YEARS,
R/AT NO. 01, 2ND CROSS,
MUNIKONDAPPA LAYOUT,
NAGASANDRA POST,
BENGALURU 560 057
...PETITIONER
(BY SRI. PRAVEEN KUMAR R., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
BY BAGALAGUNTE POLICE STATION,
Digitally signed by REP. BY STATE PUBLIC PROSECUTOR,
NAGAVENI
HIGH COURT OF KARNATAKA,
Location: HIGH
COURT OF BANGALORE 560 001
KARNATAKA
2. MS. BHOOMIKA,
DAUGHTER OF ASHWATHNARAYAN,
AGED ABOUT 21 YEARS,
NO. 148, 1ST CROSS,
NEAR BANGALORE ONE,
MALLASANDRA, DASARAHALLI,
BANGALORE 560 057
...RESPONDENTS
(BY SRI. HARISH GANAPATHY, LEARNED HCGP FOR R1;
SRI. HANUMANTHARAYA K.C., ADVOCATE FOR R2)
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NC: 2024:KHC:45950
CRL.P No. 11439 of 2023
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO
QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.20537/2023 IN
CR.NO.110/2023 FOR AN OFFENCE P/U/S.376,420,504,506 OF
IPC WHICH IS PENDING BEFORE THE XXXI ACMM BENGALURU
AGAINST THE PETITIONER.
THIS PETITION, COMING ON FOR HEARING, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE M.NAGAPRASANNA
ORAL ORDER
The petitioner is before this Court calling in question
proceedings in C.C.No.20537/2023 registered for offences
punishable under Sections 376, 420, 504, 506 and 34 of the
Indian Penal Code, 1860 (the 'IPC' for short).
2. Heard Sri. Praveen Kumar R. learned counsel
appearing for the petitioner, Sri. Harish Ganapathy, learned
HCGP appearing for respondent No.1 and learned counsel,
Sri. Hanumantharaya K.C., appearing for respondent No.2.
3. The facts in brief germane are as follows:
The second respondent is the complainant. The
complaint is registered on 24.04.2023, which becomes a crime
NC: 2024:KHC:45950
in crime No.110/2023 for the afore quoted offences. The gist
of the complaint is that the petitioner and the second
respondent - complainant were in a relationship for close to
four years between 2019 to 2023 and during the said period
have also had physical relationship on the pretext of marriage.
The petitioner is alleged to have breached the promise of
marriage and therefore, the crime has sprung for the offences
of rape, cheating, intimidation, inter alia. The police after
investigation filed a charge sheet against the petitioner for the
afore quoted offences. The filing of the charge sheet is what
has driven the petitioner to this Court in the subject petition.
4. The learned counsel appearing for the petitioner by
taking this Court through the documents appended to the
petition submit that the acts between the petitioner and the
second respondent - complainant were all consensual for four
years albeit it was on a promise of marriage. The marriage did
not take place, that would not mean that the offence of rape
would spring on consensual acts between the two. He would
submit that this Court or even the Co-ordinate Bench of this
Court have held that the breach of promise of marriage would
NC: 2024:KHC:45950
not become an offence for punishable under Section 420 of the
IPC. He would therefore, seek quashment of the proceedings.
5. Learned counsel appearing for the second
respondent would submit that she is not interested in
prosecuting the petition on the ground that she has secured
employment outside the shores of the nation and the present
crime is becoming an impediment for her to travel abroad for
the purpose of education and would leave the decision at the
hands of the Court.
6. Learned HCGP would however refute the
submissions of the petitioner to contend that the charge sheet
has been filed by the police after investigation for offences
punishable under Sections 376 and 420 of the IPC and
therefore, there should be no question of quashment of the
proceedings. It is for the petitioner to come out clean in a full
bloom trial. The learned HCGP would submit that a direction
can be given to the concerned Court to conclude the trial,
within a time frame and crime should not be quashed.
NC: 2024:KHC:45950
7. I have given my anxious consideration to the
submissions made by the respective learned counsel and have
perused the material available on record.
8. The relationship between the protagonist of the
petition is an admitted fact, as the petitioner and the
complainant were in love for close to four years between 2019
to 2023. The relationship had blossomed into getting physical
as well and therefore, the allegation is that on the pretext of
marriage, the petitioner has indulged in sexual activities with
the second respondent. As observed hereinabove, the breach of
promise of marriage has resulted in registration of the crime.
Since the entire issue has now sprung from the complaint so
registered by the petitioner, I deem it appropriate to notice
column No.10 of the FIR, which captures the gist of the crime,
it reads as follows:
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NC: 2024:KHC:45950
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9. The police after investigation have filed a charge
sheet. The summary of the charge sheet as obtaining in
column 17, reads as follows:
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GzÉÝò¹ E£ÀÄß MAzÀÄ ªÀµÀðUÀ¼À PÁ® ¸ÀĪÀÄä¤gÀÄ D ªÉÄÃ¯É ªÀÄzÀĪÉ
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DUÀ DgÉÆævÀ£ÀÄ ¢£ÁAPÀ: 17/04/2023 gÀAzÀÄ ¨É½UÀ, 9-00 UÀAmÉAiÀÄ°è ¸ÁQë 1
NC: 2024:KHC:45950
gÀªÀgÀ ªÀÄ£ÉAiÀÄ §½ ºÉÆÃV ¸ÁQë 1 gÀªÀgÀ£ÀÄß GzÉÝò¹ ¸ÀÆ¼É ªÀÄÄAqÉ, ¨ÉÆý
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ºÁQ ªÉÆøÀ ªÀiÁrgÀĪÀÅzÀÄ vÀ¤SÁ PÁ®zÀ°è zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ.
DzÀÝjAzÀ PÀ®A:420, 376, 504, 506 L¦¹UÀ¼À CrAiÀÄ°è DgÉÆæAiÀÄÄ
²PÁëºÀð£ÁVgÀÄvÁÛ£ÉAzÀÄ F zÉÆõÁgÉÆÃ¥Àt ¥ÀnÖ."
10. If the gist of the complaint and the summary of the
charge sheet are read in tandem, what would unmistakably
emerge is a relationship between the petitioner and the
complainant for over a four years and all acts during the said
period of such relationship being consensual cannot be dumped
to become an offence of rape or offence of cheating only
because the talks for marriage did not fructified into a
marriage. The issue need not detain this Court for long or delve
deep into the matter. The Apex Court in the case of NAIM
AHAMED Vs. STATE (NCT OF DELHI), reported in (2023)
SCC Online SC 89 considering the very aspect has held as
follows:
"10. It would be germane to note that the basic
principles of criminal jurisprudence warrant that the
prosecution has to prove the guilt of the accused beyond
reasonable doubt by leading cogent evidence, however,
considering the ethos and culture of the Indian Society,
and considering the rising graph of the commission of
NC: 2024:KHC:45950
the social crime - 'Rape', the courts have been permitted
to raise a legal presumption as contained in
Section 114A of the Indian Evidence Act. As per Section
114A, a presumption could be raised as to the absence
of consent in certain cases pertaining to Rape. As per the
said provision, if sexual intercourse by the accused is
proved and the question arises as to whether it was
without the consent of the woman alleged to have been
raped, and if she states in her evidence before the court
that she did not consent, the court shall presume that
she did not consent.
11. It cannot be gainsaid that a consent
given by a person would not be a consent as
intended by any Section of the Penal Code, 1860, if
such consent was given by the person under the
fear of injury, or under a misconception of fact as
contemplated in Section 90 IPC. Further, Section
375 also describes certain acts which if committed
by the accused under the circumstances mentioned
therein, as the commission of 'Rape', even though
committed with the consent of the prosecutrix. In
our opinion, the expression "misconception of fact"
contained in Section 90 IPC is also required to be
appreciated in the light of the Clauses - contained
in Section 375 IPC, more particularly the Clauses -
Thirdly, Fourthly and Fifthly thereof, when the
accused is charged for the offence of 'rape'. The
circumstances described in the said three Clauses
are wider than the expression "misconception of
fact", as contemplated in Section 90 of IPC.
Section 375 describes seven circumstances under
which the 'rape' could be said to have been
committed. As per the Clause - Thirdly, a rape
could be said to have been committed, even with
her consent, when the consent of the prosecutrix is
obtained by putting her or any person in whom she
is interested in fear of death or of hurt. As per the
Clause - Fourthly, with her consent, when the man
knows that he is not her husband and that her
consent is given because she believes that he is
another man to whom she is or believes herself to
be lawfully married; and as per the Clause - Fifthly,
with her consent when at the time of giving the
consent, the prosecutrix by reason of unsoundness
of mind or intoxication or the administration of
NC: 2024:KHC:45950
stupefying or unwholesome substance by the
accused or through another, she is unable to
understand the nature and consequences of that to
which she gives consent. Thus, apart from the
prosecutrix being under the misconception of fact
as contemplated in Section 90, her consent would
be treated as 'no consent' if she had given her
consent under any of the circumstances mentioned
in Section 375 of IPC.
12. The exposition of law in this regard is
discernible in various decisions of this Court, however
the application of such law or of such decisions would
depend upon the proved facts in each case, known as
legal evidence. The ratio laid down in the judgments or
the law declared by this Court do provide the guidelines
to the judicial mind of the courts to decide the cases on
hand, but the courts while applying the law also have to
consider the evidence before them and the surrounding
circumstances under which the alleged offences are
committed by the accused.
13. A reference of some of the decisions of this
Court dealing with the different dimensions and angles of
the word 'consent' in the context of Section 90 and
Section 375 would be beneficial for deciding this appeal.
14. In Uday v. State of Karnataka4, the
prosecutrix aged about 19 years had given her consent
for having a sexual intercourse with the accused with
whom she was deeply in love, and it was alleged by the
prosecution that the prosecutrix continued to meet the
accused as the accused had given her a promise to
marry her on a later date. The prosecutrix became
pregnant and the complaint was lodged on failure of the
accused to marry her. This Court while holding that
under the circumstances, the consent could not be said
to have been given under a misconception of fact under
section 90 of IPC, held in para 21 and 23 as under:--
"21. It therefore appears that the consensus of
judicial opinion is in favour of the view that the
consent given by the prosecutrix to sexual
intercourse with a person with whom she is deeply
in love on a promise that he would marry her on a
later date, cannot be said to be given under a
- 10 -
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misconception of fact. A false promise is not a fact
within the meaning of the Code. We are inclined to
agree with this view, but we must add that there
is no straitjacket formula for determining whether
consent given by the prosecutrix to sexual
intercourse is voluntary, or whether it is given
under a misconception of fact. In the ultimate
analysis, the tests laid down by the courts provide
at best guidance to the judicial mind while
considering a question of consent, but the court
must, in each case, consider the evidence before it
and the surrounding circumstances, before
reaching a conclusion, because each case has its
own peculiar facts which may have a bearing on
the question whether the consent was voluntary,
or was given under a misconception of fact. It
must also weigh the evidence keeping in view the
fact that the burden is on the prosecution to prove
each and every ingredient of the offence, absence
of consent being one of them.
22. -xxx- xx -
23. Keeping in view the approach that the court
must adopt in such cases, we shall now proceed to
consider the evidence on record. In the instant
case, the prosecutrix was a grown-up girl studying
in a college. She was deeply in love with the
appellant. She was, however, aware of the fact
that since they belonged to different castes,
marriage was not possible. In any event the
proposal for their marriage was bound to be
seriously opposed by their family members. She
admits having told so to the appellant when he
proposed to her the first time. She had sufficient
intelligence to understand the significance and
moral quality of the act she was consenting to.
That is why she kept it a secret as long as she
could. Despite this, she did not resist the
overtures of the appellant, and in fact succumbed
to them. She thus freely exercised a choice
between resistance and assent. She must have
known the consequences of the act, particularly
when she was conscious of the fact that their
marriage may not take place at all on account of
caste considerations. All these circumstances lead
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us to the conclusion that she freely, voluntarily
and consciously consented to having sexual
intercourse with the appellant, and her consent
was not in consequence of any misconception of
fact."
15. In Deelip Singh alias Dilip Kumar v. State of
Bihar (supra), this Court after discussing various earlier
decisions of this Court and other High Courts, further
explained the observations made in Uday case (supra)
and observed as under:--
"28. The first two sentences in the above passage
need some explanation. While we reiterate that a
promise to marry without anything more will not
give rise to "misconception of fact" within the
meaning of Section 90, it needs to be clarified that
a representation deliberately made by the accused
with a view to elicit the assent of the victim
without having the intention or inclination to
marry her, will vitiate the consent. If on the facts
it is established that at the very inception of the
making of promise, the accused did not really
entertain the intention of marrying her and the
promise to marry held out by him was a mere
hoax, the consent ostensibly given by the victim
will be of no avail to the accused to exculpate him
from the ambit of Section 375 clause secondly.
This is what in fact was stressed by the Division
Bench of the Calcutta High Court in the case
of Jayanti Rani Panda [1984 Cri LJ 1535 : (1983)
2 CHN 290 (Cal)] which was approvingly referred
to in Uday case [(2003) 4 SCC 46 : 2003 SCC
(Cri) 775 : (2003) 2 Scale 329]. The Calcutta High
Court rightly qualified the proposition which it
stated earlier by adding the qualification at the
end (Cri LJ p. 1538, para 7) -- "unless the court
can be assured that from the very inception the
accused never really intended to marry her".
(emphasis supplied) In the next para, the High
Court referred to the vintage decision of the
Chancery Court which laid down that a
misstatement of the intention of the defendant in
doing a particular act would tantamount to a
misstatement of fact and an action of deceit can
be founded on it. This is also the view taken by
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the Division Bench of the Madras High Court
in Jaladu case [ILR (1913) 36 Mad 453 : 15 Cri LJ
24] (vide passage quoted supra). By making the
solitary observation that "a false promise is not a
fact within the meaning of the Code", it cannot be
said that this Court has laid down the law
differently. The observations following the
aforesaid sentence are also equally important. The
Court was cautious enough to add a qualification
that no straitjacket formula could be evolved for
determining whether the consent was given under
a misconception of fact. Reading the judgment
in Uday case [(2003) 4 SCC 46 : 2003 SCC (Cri)
775 : (2003) 2 Scale 329] as a whole, we do not
understand the Court laying down a broad
proposition that a promise to marry could never
amount to a misconception of fact. That is not, in
our understanding, the ratio of the decision. In
fact, there was a specific finding in that case that
initially the accused's intention to marry cannot be
ruled out."
16. In Deepak Gulati v. State of Haryana5, this
Court gave one more dimension of the word 'consent' by
distinguishing 'Rape' and 'consensual sex' and observed
as under:
"21. Consent may be express or implied, coerced
or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by
deliberation, the mind weighing, as in a balance,
the good and evil on each side. There is a clear
distinction between rape and consensual sex and
in a case like this, the court 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 a distinction
between the mere breach of a promise, and not
fulfilling a false promise. Thus, the court must
examine whether there was made, at an early
stage a false promise of marriage by the accused;
and whether the consent involved was given after
wholly understanding the nature and
consequences of sexual indulgence. There may be
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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 misrepresentation made to her by the 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 so. Such
cases must be treated differently. An accused can
be convicted for rape only if the court reaches a
conclusion that the intention of the accused was
mala fide, and that he had clandestine motives.
22. xxxxx
23. xxxxx
24. Hence, it is evident that there must be
adequate evidence to show that at the relevant
time i.e. at the initial stage itself, the accused had
no intention whatsoever, of keeping his promise to
marry the victim. There may, of course, be
circumstances, when a person having the best of
intentions is unable to marry the victim owing to
various unavoidable circumstances. The "failure to
keep a promise made with respect to a future
uncertain date, due to reasons that are not very
clear from the evidence available, does not always
amount to misconception of fact. In order to come
within the meaning of the term "misconception of
fact", the fact must have an immediate
relevance". Section 90 IPC cannot be called into
aid in such a situation, to pardon the act of a girl
in entirety, and fasten criminal liability on the
other, unless the court is assured of the fact that
from the very beginning, the accused had never
really intended to marry her".
17. Again in Dr. Dhruvaram Murlidhar
Sonar v. State of Maharashtra (supra), this Court
interpreting the Section 90 and the Clause - Secondly in
Section 375 of IPC, observed as under:--
"23. Thus, there is a clear distinction
between rape and consensual sex. The court,
in such cases, must very carefully examine
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whether the complainant 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."
18. Now, in the instant case, having regard to
the statutory provisions and their interpretations
by this Court in various judgments, one may be
tempted to hold the appellant-accused guilty of the
offence under Section 376 IPC as has been done by
the Sessions Court and the High Court, however,
on the closer scrutiny of the evidence on record,
we find that it was fallacy on the part of the courts
below to hold the appellant guilty under
Section 376 IPC.
19. After duly examining the record in the light of
the submissions made by the learned counsels for the
parties, following facts have emerged:--
(i) Prosecutrix was a married woman having
three children.
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(ii) Accused was staying in a tenanted premises
situated in front of the house of the prosecutrix.
(iii) Though initially hesitant, the prosecutrix
developed liking for the accused, and both started
having sexual relationship with each other.
(iv) The prosecutrix delivered a male child on
28/10/2011 from the loin of the accused.
(v) The prosecutrix went to the native place of
the accused in 2012 and came to know that he
was a married man having children.
(vi) The prosecutrix still continued to live with
the accused in separate premises.
(vii) The prosecutrix and her husband took
divorce by mutual consent in 2014 and thereafter
prosecutrix permanently left her three children
with her husband.
(viii) The prosecutrix lodged the complaint on
21st March, 2015 alleging that she had consented
for sexual relationship with the accused as the
accused had promised her to marry and
subsequently did not marry.
20. The bone of contention raised on behalf
of the respondents is that the prosecutrix had
given her consent for sexual relationship under the
misconception of fact, as the accused had given a
false promise to marry her and subsequently he
did not marry, and therefore such consent was no
consent in the eye of law and the case fell under
the Clause - Secondly of Section 375 IPC. In this
regard, it is pertinent to note that there is a
difference between giving a false promise and
committing breach of promise by the accused. In
case of false promise, the accused right from the
beginning would not have any intention to marry
the prosecutrix and would have cheated or
deceited the prosecutrix by giving a false promise
to marry her only with a view to satisfy his lust,
whereas in case of breach of promise, one cannot
deny a possibility that the accused might have
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given a promise with all seriousness to marry her,
and subsequently might have encountered certain
circumstances unforeseen by him or the
circumstances beyond his control, which prevented
him to fulfill his promise. So, it would be a folly to
treat each breach of promise to marry as a false
promise and to prosecute a person for the offence
under Section 376. As stated earlier, each case
would depend upon its proved facts before the
court."
(Emphasis supplied)
11. The same is reiterated by the Apex Court in its
latest judgment in the case of LALU YADAV Vs. STATE OF
U.P., reported in (2024) SCC Online SC 2876.
""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
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first respondent - State with respect to the status of
investigation and the same, insofar as it is relevant, reads
thus:--
"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
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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)
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:--
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"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
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
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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
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
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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
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,
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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
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."
12. The Apex Court answers the interplay between,
consensual acts and offence of rape in the aforesaid judgments
and holds that all acts of consensus for over a certain period of
time cannot become an offence of rape. Insofar as the offence
of cheating is concerned, as obtaining under Section 420 of the
IPC, the Apex Court in the aforesaid judgment i.e. in the case
NAIM AHAMED (supra) considered this very aspect and holds
that the breach of promise of marriage would also not amount
to cheating.
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13. In the light of the hallucination by the Apex Court in
the aforesaid judgments and the facts being unequivocal as
narrated hereinabove, the petition deserves to succeed, failing
which, it would become an abuse of process of the law and
result in miscarriage of justice.
14. For the aforesaid reasons, the following:
ORDER
1. The criminal petition is allowed.
2. The proceedings in C.C.No.20537/2023 pending
before the XXXI Additional Chief Metropolitan
Magistrate, Bangalore stands quashed.
Sd/-
(M.NAGAPRASANNA)
JUDGE
JY
CT:SNN
