Karnataka High Court

Mr Fakirappa Hatti vs State Of Karnataka on 25 October, 2025

Author: M.Nagaprasanna

Bench: M.Nagaprasanna

Reserved on : 09.09.2025
Pronounced on : 25.10.2025 R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 25TH DAY OF OCTOBER, 2025

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.11014 OF 2024

BETWEEN:

MR.FAKIRAPPA HATTI
S/O MAHADEVAPPA HATTI
AGED ABOUT 29 YEARS
R/AT C/O MAHESWARAMMA'S HOUSE
3RD CROSS, MAHADESHWARI NAGAR
MAHADEVAPURA
BENGALURU - 560 048

ALSO AT
NEGINHAL VILLAGE AND POST
BAILAHONGALA TALUK
BELAGAVI DISTRICT - 591 102.
... PETITIONER
(BY SMT.ABHINAYA K., ADVOCATE)

AND:

1 . STATE OF KARNATAKA
BY MAHADEVPURA P.S
(REPRESENTED BY
STATE PUBLIC PROSECUTOR)
2

HIGH COURT COMPLEX
BENGALURU - 560 001.

2 . MS.XXXXX
D/O XXXXX
XXXXXXXXX
XXXXXXXXX
... RESPONDENTS

(BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1;
SRI MOHAN KUMAR D., ADVOCATE FOR R-2 )

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF

CR.P.C., PRAYING TO QUASH THE PROCEEDINGS INITIATED UPON

THE FILING OF THE CHARGE SHEET FOR P/U/S 376, 417, 323 AND

506 OF IPC IN CR.NO.80/2022 OF THE RESPONDENT P.S.,

PENDING BEFORE THE HON'BLE LIII ADDITIONAL CITY CIVIL AND

SESSIONS JUDGE BENGALURU CITY, AT BENGALURU IN

SC.NO.1316/2023.

THIS CRIMINAL PETITION HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 09.09.2025, COMING ON FOR

PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
3

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

CAV ORDER

The petitioner is before this Court calling in question

proceedings in S.C.No.1316 of 2023 pending before LIII Additional

City Civil and Sessions Judge, Bengaluru City arising out of charge

sheet in Crime No.80 of 2022 registered for offences punishable

under Sections 323, 376, 417 and 506 of the IPC.

2. Heard Smt. K. Abhinaya, learned counsel appearing for the

petitioner, Sri B.N. Jagadeesha, learned Additional State Public

Prosecutor appearing for respondent No.1 and Sri D. Mohan Kumar,

learned counsel appearing for respondent No.2.

3. Facts which lie in a narrow compass, but are

coloured with the hues of human relationships are briefly

set-forth:

It is the case of the prosecution that in the month of October,

2019 a dispute had arisen between the complainant/2nd respondent

and her house owner in respect of refund of advance amount paid
4

towards lease of the house. In that connection, the complainant

approaches the Police Station in which the petitioner was on duty.

When the complainant sought to register a complaint against the

house owner, the petitioner is said to have taken the number of

complainant's mobile on the score that it would be necessary to ask

her to come to the station if needed. Exchange of messages began

at that point in time and relationship between the two i.e., the

petitioner and the complainant goes on from October, 2019 till the

date of registration of complaint i.e., on 15-01-2022. The complaint

is not registered before the jurisdictional police station. A private

complaint comes to be registered invoking Section 200 of the

Cr.P.C. The matter was referred for investigation and on such

reference, a crime in Crime No.80 of 2022 comes to be registered.

The Police conduct investigation and file a charge sheet against the

petitioner in C.C.No.54482 of 2023, which then comes to be

committed to the Court of Session in the light of the offence being

punishable under Section 376 of the IPC also and the proceeding is

pending before the Court of Session in S.C.No.1316 of 2023. It is

the said proceeding that is challenged in the subject petition.
5

4. The learned counsel appearing for the petitioner

Smt. K. Abhinaya would vehemently contend that a pure

consensual relationship between the two is projected to become an

offence of rape. She would contend that the complainant, as on the

date of registration of complaint, was married and having three

children. There was no question of petitioner rendering promise to

marry the complainant who had already married and having three

children. The relationship between the two go on for three years

and when the complainant comes to know that the family members

of the petitioner are trying to get him married to another girl, the

complaint comes to be registered. Much harassment has been

meted out against the petitioner, who even today is languishing in

jail for the alleged offence of rape, which has come about only on

consensual acts.

5. Per contra, the learned counsel appearing for the

complainant Sri D. Mohan Kumar would vehemently refute the

submissions in contending that the petitioner had assured the

complainant that he would get married to her and take care of the

children as well. It is, therefore, the complainant yielded to sexual
6

intercourse with the petitioner. The learned counsel would submit

that the complaint and the charge sheet so filed by the Police would

necessarily require trial, in which the petitioner ought to come out

clean. He would seek dismissal of the petition.

6. The learned Additional State Public Prosecutor would also

toe the lines of the learned counsel for the complainant in

contending that the charge sheet so filed by the Police is in detail as

to what has transpired between the petitioner and the complainant

and, therefore, trial must ensue for the petitioner to come out

clean. He also seeks 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 a matter of record. The

complainant comes in contact with the petitioner in the month of

October, 2019 when she wanted to register a complaint against her

house owner who had refused to refund the amount that was paid
7

as advance by the complainant. Since then, the friendship began

between the petitioner and the complainant and the friendship

blossomed into relationship which became sexual as well. The

relationship goes on for three years. It appears that the members

of the family of the petitioner began to search for a girl to get him

married. It is then the complainant registers a complaint, not before

the jurisdictional Police on the score that the petitioner himself was

a policeman but registers a private complaint. Since the entire issue

is triggered by the complaint, it becomes necessary to notice the

complaint. It reads as follows:

".... .... ....

3. The Complainant submits that, there was a dispute
with the Complainant's house owner in refunding the advance
amount and was causing trouble to Complainant, at that time
the accused was on duty and he had intervene and tried to
resolve the matter and thereafter the Complainant had
approached the police station to lodge a complaint against her
house owner. At that time the accused had taken the
Complainant's mobile number under the guise that he will help
in the matter, thereafter he used to call her regularly to her
mobile number and talk with the Complainant and also chat with
her in the night time. During such chats the accused had
promised the Complainant that he will perform the marriage
with the Complainant and take care of her, believing his version
the Complainant had trusted him that he will take care of her,
since she being a poor lady and having no support from any
one.

4. The Complainant submits that, the accused by making
false promises and assurance to the Complainant, he used to
8

have forcible inter course with the Complainant since the month
of October 2019 till 15th January 2022, due to the forcible
intercourse she had become pregnant for three times, even
during her pregnancy the Complainant had requested the
accused to perform the marriage so that, both could have a
child and lead a happy marital life, but the accused had
assaulted the Complainant and forced to undergo abortions for
three time which was very painful, even the medical expenses
was borne by the Complainant only. The abortions which the
Complainant has undergone due to the threats posed by the
accused and also assured her that he will marry her after
aborting the pregnancy, but he never kept to his promises and
also had forcible intercourse with her and when she avoided him
at that time he used to assault her causing injury by taking the
advantage that there is no one to question him. The accused
started to reside with the Complainant and he has not informed
anything about her to his parents. But the Complainant was
under the impression that the accused will marry her and be a
life partner, but he was only utilizing the Complainant and
satisfying his sexual desire with her and made her to undergone
painful abortions.

5. The Complainant submits that, though on several
occasions the Complainant had requested the accused to marry
her, but he refused and used to assault her saying that the
Complainant should not demand him to perform the marriage
with him, failing which if the Complainant persists him, the
accused will eliminate her since he his having the support of anti
social elements and also support of rowdy element and further
informed that he is a police official and he can do things in his
favour. Believing the same the Complainant had tolerated all the
assaults of the accused with her fond hope that he will marry
her and lead a happy marital life with her, but later the accused
has shown in his real colour to the Complainant and started
acting detrimental towards her.

6. The Complainant submits that, on 15.01.2022 the
accused has forced the Complainant to shift her residence in
order to hide his relationship with the Complainant, but the
Complainant had refused to change and requested him to
perform the marriage in order to avoid such talks from the
neighbours, in this regard there was a heated arguments and he
has picked up unwanted quarrel with the Complainant and
9

during the quarrel the accused had assaulted the Complainant
by causing injuries and thereafter he has voluntarily left the
house. The Complainant was under the impression that he
would return back home, but he has not turned up, thereafter
through source the Complainant has come to know that he and
his family members are trying to perform the marriage with a
girl and later the Complainant has come to know the intention of
the accused to cheat her. Due to the said act of the accused the
Complainant's life has being ruined and she has been subjected
to painful abortions.

7. The Complainant submits that, the accused has made
false promise and assurance to the Complainant and had sexual
intercourse with her and satisfy his desire, since the
Complainant has come to know the intention of the accused and
his family members to cheat her, in this regard the Complainant
has lodged a complaint before the jurisdictional Mahadevapura
police station, but the police have refused to register the
complaint since the accused is working in the same police
station. Since the Complainant was unable to get any justice
from Mahadevapura police station as such she has lodged
complaint before the Police Commissioner and Deputy
Commissioner of Police, even after lodging the complaint before
the higher officials the Complainant is unable to get justice.

8. The Complainant submits that, the Complainant being
a destitute lady having no support from any one the accused
taking the advantage of the same has utilized her for sexual
desire and subjected her to painful abortions, but the accused
has refused to marry her. The Complainant always intending to
live with the accused, but the intention of the accused is to
cheat her and perform the marriage with another girl. The
Complainant has no support from any one and also under
financial constraints, taking the undue advantage of the same
the accused has entered in her life and she has been cheated by
the accused, due to the said act of the accused, the
Complainant has been put to mental agony and depression.

9. The Complainant submits that, the Complainant has
approached the jurisdictional Mahadevpura police station to
lodge a complaint against the accused person, but the same was
refused, having no other alternative she has approached the
higher police officers, but they have not taken any action
10

against the accused, being the accused is a police personal and
the police authorities have been indirectly supporting the
accused. As such the complainant is approaching this Hon'ble
court for necessary redressals.

10. The Complainant submits that, due to the threat
posed by the accused to the life and limbs of the Complainant,
she is not able to move freely outside, as there is a danger to
her life from the hands of the accused.

11. From the above reading the accused have committed
the offence under section 420, 376, 323, 506, of IPC.

12. This Hon'ble Court has jurisdiction to entertain the
complaint and try the offence.

WHEREFORE, the Complainant humbly prays that this
Hon'ble Court be pleased to refer the matter for Investigation to
the jurisdictional Mahadevapura police station under section
156(3) of Code of Criminal Procedure, for the offences under
section 420, 376, 323, 506, of IPC committed by the accused, in
the interest of justice and equity."

The complainant sought reference for investigation under Section

156(3) of the Cr.P.C. The complaint is vivid with regard to the

relationship between the two for three years and offence of

cheating, as there was breach of promise of marriage, assault and

criminal intimidation. The matter is referred for investigation which

becomes a crime in Crime No.80 of 2022 for the afore-quoted

offences. The Police conduct investigation and file a charge sheet.

The summary of charge sheet reads as follows:
11

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ಆದ02ಂದ ಆ ೋ ಯ Hರುದ\ ಕಲಂ: 376, 417, 323, 506 ಐ 2ೕ'ಾ: ೋ ಾ ೋಪ ೆ."

Statements of the complainant are recorded by the Police and the

learned Magistrate under Section 164 of the Cr.P.C., prior to filing

of the charge sheet. Several incidents between filing of the present

petition and the complaint registered have taken place in the case

at hand, all of which would not become necessary to be considered

for a resolution of the subject lis. What is necessary to be noticed

is, whether admitted consensual acts between the petitioner and

the complainant should be permitted to be tried further in the

subject sessions case for offence of rape and cheating.

9. Jurisprudence is replete with the judgments rendered by

the Apex Court and that of this Court in identical circumstances.

The Apex Court has delineated the inter-play between the offence

of rape and a consensual sexual relationship, both on the false
13

promise of marriage, and promise of marriage and has clearly held

that breach of promise of marriage cannot lead to an offence of

rape, particularly when the acts between the two are consensual.

Therefore, a deeper delving into the issue becomes unnecessary,

suffice to quote the judgments of the Apex Court rendered over the

years.

9.1. The Apex Court, in the case of DHRUVARAM

MURLIDHAR SONAR1, while following the earlier judgment of the

Apex Court in the case of UDAY v. STATE OF

KARNATAKA reported in (2003) 4 SCC 46 and DEELIP

SINGH v. STATE OF BIHAR reported in (2005)1 SCC 88, has

held as follows:

"18. In Uday v. State of Karnataka (2003) 4 SCC
46 : 2003 SCC (Cri) 775, this Court was considering a case
where the prosecutrix, aged about 19 years, had given consent
to sexual intercourse with the accused with whom she was
deeply in love, on a promise that he would marry her on a later
date. The prosecutrix continued to meet the accused and often
had sexual intercourse and became pregnant. A complaint was
lodged on failure of the accused to marry her. It was held that
consent cannot be said to be given under a misconception of
fact. It was held thus : (SCC pp. 56-57, paras 21 & 23)

1
(2019)18 SCC 191
14

"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 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.

***
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 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

19. In Deelip Singh v. State of Bihar, (2005) 1 SCC
88 : 2005 SCC (Cri) 253], the Court framed the following two
questions relating to consent : (SCC p. 104, para 30)

(1) Is it a case of passive submission in the face of
psychological pressure exerted or allurements made by
the accused or was it a conscious decision on the part of
the prosecutrix knowing fully the nature and
consequences of the act she was asked to indulge in?

(2) Whether the tacit consent given by the
prosecutrix was the result of a misconception created in
her mind as to the intention of the accused to marry her?

In this case, the girl lodged a complaint with the
police stating that she and the accused were neighbours
and they fell in love with each other. One day in February
1988, the accused forcibly raped her and later consoled
her by saying that he would marry her. She succumbed to
the entreaties of the accused to have sexual relations
with him, on account of the promise made by him to
marry her, and therefore continued to have sex on
several occasions. After she became pregnant, she
revealed the matter to her parents. Even thereafter, the
intimacy continued to the knowledge of the parents and
other relations who were under the impression that the
accused would marry the girl, but the accused avoided
marrying her and his father took him out of the village to
thwart the bid to marry. The efforts made by the father of
the girl to establish the marital tie failed. Therefore, she
was constrained to file the complaint after waiting for
some time.

20. With this factual background, the Court held
that the girl had taken a conscious decision, after active
application of mind to the events that had transpired. It
was further held that at best, it is a case of breach of
promise to marry rather than a case of false promise to
marry, for which the accused is prima facie accountable
16

for damages under civil law. It was held thus: (Deelip
Singh v. State of Bihar, (2005) 1 SCC 8 : 2005 SCC (Cri) 253],
SCC p. 106, para 35)

"35. The remaining question is whether on the basis
of the evidence on record, it is reasonably possible to hold
that the accused with the fraudulent intention of inducing
her to sexual intercourse, made a false promise to marry.
We have no doubt that the accused did hold out the promise
to marry her and that was the predominant reason for the
victim girl to agree to the sexual intimacy with him. PW 12
was also too keen to marry him as she said so specifically.
But we find no evidence which gives rise to an inference
beyond reasonable doubt that the accused had no intention
to marry her at all from the inception and that the promise
he made was false to his knowledge. No circumstances
emerging from the prosecution evidence establish this fact.
On the other hand, the statement of PW 12 that "later on",
the accused became ready to marry her but his father and
others took him away from the village would indicate that
the accused might have been prompted by a genuine
intention to marry which did not materialise on account of
the pressure exerted by his family elders. It seems to be a
case of breach of promise to marry rather than a case of
false promise to marry. On this aspect also, the
observations of this Court in Uday case [Uday v. State of
Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] at para
24 come to the aid of the appellant."

21. In Deepak Gulati v. State of Haryana, (2013) 7 SCC
675 : (2013) 3 SCC (Cri) 660], the Court has drawn a
distinction between rape and consensual sex. This is a case of a
prosecutrix aged 19 years at the time of the incident. She had
an inclination towards the accused. The accused had been giving
her assurances of the fact that he would get married to her. The
prosecutrix, therefore, left her home voluntarily and of her own
free will to go with the accused to get married to him. She
called the accused on a phone number given to her by him, to
ask him why he had not met her at the place that had been pre-
decided by them. She also waited for him for a long time, and
when he finally arrived, she went with him to a place called
Karna Lake where they indulged in sexual intercourse. She did
not raise any objection at that stage and made no complaints to
anyone. Thereafter, she went to Kurukshetra with the accused,
17

where she lived with his relatives. Here too, the prosecutrix
voluntarily became intimate with the accused. She then, for
some reason, went to live in the hostel at Kurukshetra
University illegally, and once again came into contact with the
accused at Birla Mandir there. Thereafter, she even proceeded
with the accused to the old bus-stand in Kurukshetra, to leave
for Ambala so that the two of them could get married at the
court in Ambala. At the bus station, the accused was arrested by
the police. The Court held that the physical relationship between
the parties had clearly developed with the consent of the
prosecutrix as there was neither a case of any resistance nor
had she raised any complaint anywhere at any time, despite the
fact that she had been living with the accused for several days
and had travelled with him from one place to another. The Court
further held that it is not possible to apprehend the
circumstances in which a charge of deceit/rape can be levelled
against the accused.
****
23. Thus, there is a clear distinction between rape
and consensual sex. The court, in such cases, must very
carefully examine 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

24. In the instant case, it is an admitted position that the
appellant was serving as a Medical Officer in the Primary Health
Centre and the complainant was working as an Assistant Nurse
in the same health centre and that she is a widow. It was
alleged by her that the appellant informed her that he is a
married man and that he has differences with his wife.
Admittedly, they belong to different communities. It is also
alleged that the accused/appellant needed a month's time to get
their marriage registered. The complainant further states that
she had fallen in love with the appellant and that she needed a
companion as she was a widow. She has specifically stated
that "as I was also a widow and I was also in need of a
companion, I agreed to his proposal and since then we
were having love affair and accordingly we started
residing together. We used to reside sometimes at my
home whereas sometimes at his home". Thus, they were
living together, sometimes at her house and sometimes
at the residence of the appellant. They were in a
relationship with each other for quite some time and
enjoyed each other's company. It is also clear that they
had been living as such for quite some time together.
When she came to know that the appellant had married
some other woman, she lodged the complaint. It is not
her case that the complainant has forcibly raped her. She
had taken a conscious decision after active application of
mind to the things that had happened. It is not a case of
a passive submission in the face of any psychological
pressure exerted and there was a tacit consent and the
tacit consent given by her was not the result of a
misconception created in her mind. We are of the view
that, even if the allegations made in the complaint are
taken at their face value and accepted in their entirety,
they do not make out a case against the appellant. We
are also of the view that since the complainant has failed
to prima facie show the commission of rape, the
complaint registered under Section 376(2)(b) cannot be
sustained."
(Emphasis supplied)
19

9.2. The Apex Court, a little later, in the case of PRAMOD

SURYABHAN PAWAR v. STATE OF MAHARASHTRA2, has drawn

distinction between rape and consensual sexual relationships. While

delineating inter-play between promise of marriage and allegation

of rape, the Apex Court has held as follows:

".... .... ....
14. In the present case, the "misconception of fact"
alleged by the complainant is the appellant's promise to marry
her. 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. In Anurag Soni v. State of
Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13
SCC 1 : 2019 SCC OnLine SC 509], this Court held:

"12. The sum and substance of the aforesaid
decisions would be that if it is established and proved that
from the inception the accused who gave the promise to the
prosecutrix to marry, did not have any intention to marry
and the prosecutrix gave the consent for sexual intercourse
on such an assurance by the accused that he would marry
her, such a consent can be said to be a consent obtained on
a misconception of fact as per Section 90 IPC and, in such a
case, such a consent would not excuse the offender and
such an offender can be said to have committed the rape as
defined under Sections 375 IPC and can be convicted for the
offence under Section 376 IPC."

Similar observations were made by this Court in Deepak
Gulati v. State of Haryana (2013) 7 SCC 675 : (2013) 3 SCC
(Cri) 660] (Deepak Gulati):

2
(2019) 9 SCC 608
20

15. In Yedla Srinivasa Rao v. State of A.P. (2006) 11 SCC
615 : (2007) 1 SCC (Cri) 557] the accused forcibly established
sexual relations with the complainant. When she asked the
accused why he had spoiled her life, he promised to marry her.
On this premise, the accused repeatedly had sexual intercourse
with the complainant. When the complainant became pregnant,
the accused refused to marry her. When the matter was brought
to the panchayat, the accused admitted to having had sexual
intercourse with the complainant but subsequently absconded.
Given this factual background, the Court observed:

"10. It appears that the intention of the accused as
per the testimony of PW 1 was, right from the beginning,
not honest and he kept on promising that he will marry
her, till she became pregnant. This kind of consent
obtained by the accused cannot be said to be any consent
because she was under a misconception of fact that the
accused intends to marry her, therefore, she had
submitted to sexual intercourse with him. This fact is also
admitted by the accused that he had committed sexual
intercourse which is apparent from the testimony of PWs
1, 2 and 3 and before the panchayat of elders of the
village. It is more than clear that the accused made a
false promise that he would marry her. Therefore, the
intention of the accused right from the beginning was not
bona fide and the poor girl submitted to the lust of the
accused, completely being misled by the accused who held
out the promise for marriage. This kind of consent taken
by the accused with clear intention not to fulfill the
promise and persuading the girl to believe that he is going
to marry her and obtained her consent for the sexual
intercourse under total misconception, cannot be treated
to be a consent."

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
21

"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. In Deepak Gulati [Deepak Gulati v. State of
Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] this
Court observed : (SCC pp. 682-84, paras 21 & 24)

"21. ... 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 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.

***
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
22

that from the very beginning, the accused had never really
intended to marry her."

(emphasis supplied)
17. In Uday v. State of Karnataka, (2003) 4 SCC
46: 2003 SCC (Cri) 775] the complainant was a college-
going student when the accused promised to marry her.
In the complainant's statement, she admitted that she
was aware that there would be significant opposition
from both the complainant's and accused's families to the
proposed marriage. She engaged in sexual intercourse
with the accused but nonetheless kept the relationship
secret from her family. The Court observed that in these
circumstances the accused's promise to marry the
complainant was not of immediate relevance to the
complainant's decision to engage in sexual intercourse
with the accused, which was motivated by other factors :
(SCC p.58, para 25)

"25. There is yet another difficulty which faces
the prosecution in this case. In a case of this nature
two conditions must be fulfilled for the application of
Section 90 IPC. Firstly, it must be shown that the
consent was given under a misconception of fact.
Secondly, it must be proved that the person who
obtained the consent knew, or had reason to believe
that the consent was given in consequence of such
misconception. We have serious doubts that the
promise to marry induced the prosecutrix to consent
to having sexual intercourse with the appellant. She
knew, as we have observed earlier, that her marriage
with the appellant was difficult on account of caste
considerations. The proposal was bound to meet with
stiff opposition from members of both families. There
was therefore a distinct possibility, of which she was
clearly conscious, that the marriage may not take
place at all despite the promise of the appellant. The
question still remains whether even if it were so, the
appellant knew, or had reason to believe, that the
prosecutrix had consented to having sexual
intercourse with him only as a consequence of her
belief, based on his promise, that they will get
married in due course. There is hardly any evidence
to prove this fact. On the contrary, the circumstances
23

of the case tend to support the conclusion that the
appellant had reason to believe that the consent
given by the prosecutrix was the result of their deep
love for each other. It is not disputed that they were
deeply in love. They met often, and it does appear
that the prosecutrix permitted him liberties which, if
at all, are permitted only to a person with whom one
is in deep love. It is also not without significance that
the prosecutrix stealthily went out with the appellant
to a lonely place at 12 o'clock in the night. It usually
happens in such cases, when two young persons are
madly in love, that they promise to each other several
times that come what may, they will get married."

(emphasis supplied)
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."
(Emphasis supplied)

The Apex Court, in the afore-quoted judgment, has considered the

entire spectrum of law on the issue while following the judgment in

the case of DR.DHRUVARAM MURALIDHAR SONAR V. STATE

OF MAHARASHTRA supra and had obliterated the proceedings qua

the accused.
24

9.3. Later to the judgment so rendered by the Apex Court in

the case of PRAMOD SURYABHAN PAWAR , the Apex Court in

the case of SHAMBHU KHARWAR v. STATE OF

UTTARPRADESH3 has held as follows:

".... .... ....

7. The parameters governing the exercise of the
jurisdiction of Section 482 of CrPC are well-settled and have
been reiterated in a consistent line of decisions of this Court.
In Neeharika Infrastructure v. State of Maharashtra, a three
Judge Bench of this Court which one of us was a part of (D.Y.
Chandrachud J.), reiterated the parameters laid down in R.P.
Kapur v. State of Punjab and State of Haryana v. Bhajan Lal and
held that while the Courts ought to be cautious in exercising
powers under Section 482, they do have the power to quash.
The test is whether or not the allegations in the FIR disclose the
commission of a cognizable offence. The Court does not enter
into the merits of the allegations or trench upon the power of
the investigating agency to investigate into allegations involving
the commission of a cognizable offence.

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

3
2022 SCC OnLine SC 1032
25

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:

"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:
26

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,7 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:

"12. This Court has repeatedly held that consent with
respect to Section 375 of the IPC involves an active
understanding of the 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
27

such misconception was the basis for her choosing to
engage in the said act...

[...]

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.

(emphasis supplied)

12. In the present case, the issue which had to be
addressed by the High Court was whether, assuming all
the allegations in the charge-sheet are correct as they
stand, an offence punishable under Section 376 IPC was
made out. Admittedly, the appellant and the second
respondent were in a consensual relationship from 2013
until December 2017. They are both educated adults. The
second respondent, during the course of this period, got
married on 12 June 2014 to someone else. The marriage
ended in a decree of divorce by mutual consent on 17
September 2017. The allegations of the second
respondent indicate that her relationship with the
appellant continued prior to her marriage, during the
subsistence of the marriage and after the grant of divorce
by mutual consent.

13. In this backdrop and taking the allegations in
the complaint as they stand, it is impossible to find in the
FIR or in the charge-sheet, the essential ingredients of an
offence under Section 376 IPC. The crucial issue which is
to be considered is whether the allegations indicate that
the appellant had given a promise to the second
respondent to marry which at the inception was false and
28

on the basis of which the second respondent was induced
into a sexual relationship. Taking the allegations in the
FIR and the charge-sheet as they stand, the crucial
ingredients of the offence under Section 375 IPC are
absent. The relationship between the parties was purely
of a consensual nature. The relationship, as noted above,
was in existence prior to the marriage of the second
respondent and continued to subsist during the term of
the marriage and after the second respondent was
granted a divorce by mutual consent.

14. The High Court, in the course of its judgment,
has merely observed that the dispute raises a question of
fact which cannot be considered in an application under
Section 482 of CrPC. As demonstrated in the above
analysis, the facts as they stand, which are not in
dispute, would indicate that the ingredients of the
offence under Section 376 IPC were not established. The
High Court has, therefore, proceeded to dismiss the
application under Section 482 of CrPC on a completely
misconceived basis.

15. We, accordingly allow the appeal and set aside the
impugned judgment and order of the High Court dated 5
October 2018 in application u/s 482 No 33999 of 2018. The
application under Section 482 of CrPC shall accordingly stand
allowed. The Case Crime No 11 of 2018 registered at Police
Station Rasra, District Ballia, charge-sheet dated 23 April 2018
in the aforementioned case and the order dated 24 May 2018 in
Criminal Case No 785 of 2018 in the Court of the Addl. Chief
Judicial Magistrate (First), Ballia taking cognizance of the
charge-sheet shall accordingly stand quashed."

(Emphasis supplied)
29

9.4. In yet another judgment, the Apex Court in the case of

MANDAR DEEPAK PAWAR V. STATE OF MAHARASHTRA4, has

held as follows:

".... .... ....

3. 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.

4. The facts are so glaring as set out aforesaid by us that
we have no hesitation in quashing the FIR darted 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.

5. We are fortified to adopt this course of action by
the judicial view in (2019) 9 SCC 608 titled "Pramod
Suryabhan Pawar v. State of Maharashtra & another"
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 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.

(Emphasis supplied)

9.5. Further, the Apex Court, again in the case of NAIM

AHAMED v. STATE (NCT OF DELHI)5, delineating what would be
4
2022 SCC OnLine SC 2110
30

false promise of marriage and a promise of marriage, 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 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

5
2023 SCC OnLine SC 89
31

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 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
32

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:--

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
33

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 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 the Division Bench of the Madras High Court in Jaladu
case [ILR (1913) 36 Mad 453 : 15 Cri LJ 24] (vide passage
34

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 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
35

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 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
36

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.

(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.
37

(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 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)
38

9.6. The Apex Court, subsequently, in the case of Ms. X V.

Mr.A6, has held as follows:

".... .... ....

12. This Court, in the facts of the said case, set aside
the judgment of the High Court which refused to exercise its
jurisdiction under Section 482 of Cr. P.C. to quash the
proceedings. The Court found that this was a fit case wherein
the High Court ought to have invoked its jurisdiction under
Section 482 of Cr. P.C. to quash the proceedings.

13. In the present case also, the facts are almost
similar. Even as per the version of the complainant, the
following facts have been emerged:

(i) 4 years prior to the FIR being lodged on 1st
October 2020, accused No. 1 followed the
prosecutrix and told her that he loved her and she
should also love him;

(ii) After a period of 2 years, she agreed to love him
and both were intimate with each other;

(iii) One year prior to the date of the incident, accused
No. 1 took the prosecutrix to his aunty's house in
Chitradurga and they stayed there. On that day at
about 09.00 am, in his aunty's house, by giving
trust and belief that he would marry her, accused
No. 1 forcibly made sexual contact with the
prosecutrix;

(iv) Thereafter, accused No. 1 took the prosecutrix to
various places including his own house and
committed sexual intercourse with her; and

(v) As per the version of the prosecutrix, the first
incident has taken place in the year 2019. As per
Karnataka Secondary Education Examination
Board Certificate, her date of birth is 12th

6
2024 SCC OnLine SC 316
39

September 1998. Even if it is assumed that the
incident has taken place in January 2019, she
would have been over the age of 18.

14. After the prosecutrix became pregnant, accused
No. 1 caused her abortion on 17th August 2020. Though her
initial version was that she was admitted in the hospital for
two days, it is falsified by the statement of the doctor/Head of
Krishna Nursing Home. After this incident, she discussed the
matter with her elders in the family and decided to lodge the
complaint.

15. We find that, in the present case also like the case
of Pramod Suryabhan Pawar (supra), the allegations in the
FIR so also in the restatement (Annexure P-6) made before
the Dy. S.P., Challakere, do not, on their face, indicate that
the promise by accused No. 1 was false or that the
complainant engaged in the sexual relationship on the basis
of such false promise. This apart from the fact that the
prosecutrix has changed her version. The version of events
given by the prosecutrix in the restatement (Annexure P-6)
made before the Dy. S.P., Challakere is totally contrary to the
one given in the FIR.

16. Similar facts arose for consideration before
this Court in the case of Shambhu Kharwar (supra). In
the said case, the prosecutrix had filed a complaint that
there was love affair between her and the accused for a
period of three years. The accused had given an
assurance to her regarding solemnization of marriage.
They started living under the same roof and also made
sexual relationship. Thereafter, the accused entered
into a ring ceremony with someone else. In this
background, the prosecutrix had lodged the complaint
that the accused had forcible sexual intercourse with
her on the false promise of marriage. After considering
the material placed on record, the Court observed thus:

"13. .....Taking the allegations in the FIR and
the charge-sheet as they stand, the crucial
ingredients of the offence under Section 375 IPC
are absent. The relationship between the parties
was purely of a consensual nature. The relationship,
40

as noted above, was in existence prior to the
marriage of the second respondent and continued to
subsist during the term of the marriage and after
the second respondent was granted a divorce by
mutual consent."

17. This Court, in the case of State of Haryana v.
Bhajan Lal4, has observed 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
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-
41

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 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."

18. We find that the present case would squarely
fall under categories (1), (3) and (5) as reproduced
hereinabove for the reasons which we have already
recorded in the earlier paragraphs. No doubt, that the
power of quashing the criminal proceedings should be
exercised very sparingly and with circumspection and
that too in the rarest of rare cases, it is also equally
settled that the Court will not be justified in embarking
upon an enquiry as to the reliability or genuineness or
otherwise of the allegations made in the FIR or the
complaint. However, in the present case, even if the
allegations made in the FIR and the material on which
the prosecution relies, are taken at its face value, we
find that there are no sufficient grounds for proceeding
against the accused. We find that no error has been
committed by the learned Single Judge of the High
Court by holding that permitting further proceedings to
42

continue would be an abuse of process of law and
result in miscarriage of justice. The High Court has
correctly applied the law on the issue and come to a
just finding warranting no interference."

(Emphasis supplied)

9.7. The Apex Court, further in the case of SHIV PRATAP

SINGH RANA V.STATE OF MADHYA PRADESH7, has held as

follows:

".... .... ....
26. We have carefully gone through the definition
of "rape" provided under Section 375IPC. We have also
gone through the provisions of Section 376(2)(n)IPC,
which deals with the offence of rape committed
repeatedly on the same woman. Section 375IPC defines
"rape" by a man if he does any of the acts in terms of
clauses (a) to (d) under the seven descriptions
mentioned therein. As per the second description, a
man commits rape if he does any of the acts as
mentioned in clauses (a) to (d) without the consent of
the woman. Consent has been defined in Explanation 2
to mean 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. However, the
proviso thereto clarifies 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.

27. Having regard to the above and in the overall
conspectus of the case, we are of the view that the physical
relationship between the prosecutrix and the appellant cannot
be said to be against her will and without her consent. On the

7
(2024) 8 SCC 313
43

basis of the available materials, no case of rape or of criminal
intimidation is made out.

28. The learned counsel for the respondents had
placed considerable reliance on the provisions of
Section 90IPC, particularly on the expression "under a
misconception of fact". Section 90IPC reads thus:

"90. Consent known to be given under fear
or misconception.--A consent is not such a consent
as it 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

Consent of insane person.--if the consent is
given by a person who, from unsoundness of mind,
or intoxication, is unable to understand the nature
and consequence of that to which he gives his
consent; or

Consent of child.--unless the contrary
appears from the context, if the consent is given by
a person who is under twelve years of age."

29. Section 90 IPC says that a consent is not such
a consent as it is intended by any section of IPC, if the
consent is given by a person under the fear of injury or
under a misconception of fact.

30. In Dhruvaram Murlidhar Sonar v. State of
Maharashtra [Dhruvaram Murlidhar Sonar v. State of
Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] ,
this Court after examining Section 90IPC held as follows :
(SCC p. 198, para 17)

"17. Thus, Section 90 though does not define
"consent", but describes what is not "consent".
Consent may be express or implied, coerced or
misguided, obtained willingly or through deceit. If
the consent is given by the complainant under
misconception of fact, it is vitiated. Consent for the
44

purpose of Section 375 requires voluntary
participation not only after the exercise of
intelligence based on the knowledge of the
significance and moral quality of the act, but also
after having fully exercised the choice between
resistance and assent. Whether there was any
consent or not is to be ascertained only on a careful
study of all relevant circumstances."

31. This Court also examined the interplay between
Section 375IPC and Section 90IPC in the context of consent in
Pramod Suryabhan Pawar v. State of Maharashtra [Pramod
Suryabhan Pawar v. State of Maharashtra, (2019) 9 SCC 608 :
(2019) 3 SCC (Cri) 903] , and held that consent with respect
to Section 375IPC involves an active understanding of the
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. After deliberating upon
the various case laws, this Court summed up the legal position
as under : (SCC p. 620, para 18)

"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."

32. The learned counsel for the respondents had
relied heavily on the expression "misconception of
fact". However, according to us, there is no
misconception of fact here. Right from the inception, it
is the case of the prosecution that while the appellant
was insisting on having a relationship with the
prosecutrix, the later had turned down the same on the
ground that the appellant was the friend of her younger
45

brother and a distant relative of her jijaji. That apart,
according to the prosecutrix, the appellant was younger to
her. Nonetheless, the prosecutrix had accompanied the
appellant to a temple, where she had voluntarily taken bath
under a waterfall. Her allegation that the appellant had
surreptitiously taken photographs of her while she was bathing
and later on changing clothes and was blackmailing her with
such photographs remain unfounded in the absence of seizure
of such photographs or the mobile phone on which such
photographs were taken by the appellant. If, indeed, she was
under some kind of threat from the appellant, it defies any
logic, when the prosecutrix accompanied the appellant to
Gwalior from Dabra, a journey which they had made together
by train. On reaching Gwalior, she accompanied the appellant
on a scooter to a rented premises at Anupam Nagar, where
she alleged that the appellant had forced himself upon her.
But she did not raise any alarm or hue and cry at any point of
time. Rather, she returned back to Dabra along with the
appellant. The relationship did not terminate there. It
continued even thereafter. It is the case of the prosecutrix
herself that at one point of time the family members of the
two had met to discuss about their marriage but nothing final
could be reached regarding their marriage. It was only
thereafter that the FIR was lodged.

33. As already pointed out above, neither the
affidavit nor stamp papers have been recovered or
seized by the police; so also the jewellery. The alleged
cheque of the prosecutrix's mother given to the
appellant or the bank statement to indicate transfer of
such money have not been gathered by the police. In
the absence of such materials, the entire substratum of
the prosecutrix's case collapses. Thus, there is hardly
any possibility of conviction of the appellant. As a
matter of fact, it is not even a case which can stand
trial. It appears to be a case of a consensual
relationship which had gone sour leading to lodging of
FIR. In the circumstances, the Court is of the view that
compelling the appellant to face the criminal trial on
these materials would be nothing but an abuse of the
process of the court, result of the trial being a foregone
conclusion.
46

34. From the factual matrix of the case, the
following relevant features can be culled out:

(i) the relationship between the
appellant and the prosecutrix was of a
consensual nature;

(ii) the parties were in a relationship for
a period of almost two years; and

(iii) though there were talks between
the parties and their family members regarding
marriage, the same did not fructify leading to
lodging of FIR.

35. That being the position and having regard to
the facts and circumstances of the case, we are of the
view that it would be in the interest of justice if the
proceedings are terminated at this stage itself.
Consequently, impugned order of the High Court dated
3-10-2019 [Shivpratap Singh Rana v. State of M.P.,
2019 SCC OnLine MP 5836] and the order of the
Sessions Judge dated 24-4-2019 are hereby set aside
and quashed.

36. Resultantly, proceedings in Sessions Trial No. 505 of
2018, pending before the 10th Additional Sessions Judge,
Gwalior, are hereby quashed."

(Emphasis supplied)

9.8. The Apex Court, in the case of LALU YADAV V. STATE

OF UTTAR PRADESH8 has held as follows:

".... .... ....
13. The decision in "XXXX" v. State of Madhya Pradesh6, also
assumes relevance in the contextual situation. This court took

8
2024 SCC OnLine SC 2876
47

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
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
48

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
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."

(Emphasis supplied)

The Apex Court, in the afore-quoted judgments, has considered the

interplay between consensual acts and rape, as also, the interplay

between promise of marriage and its breach qua cheating and has

delineated that, such acts would neither become rape nor cheating,

as obtaining under Sections 376, 417 and 420 of the IPC.
49

10. The learned counsel for the 2ndrespondent/complainant

has projected a plea, which is also found in the complaint, that the

complainant had become pregnant thrice and had to be aborted.

10.1. This issue also is considered by the Apex Court in the

case of NAIM AHAMED supra. Further, the Apex Court in the case

of AMOL BHAGWAN NEHUL v. STATE OF MAHARASHTRA9, has

held as follows:

".... .... ....

8. Having heard both sides in this case and after
carefully considering the material on record, the
following attributes come to the fore:

(a) Even if the allegations in the FIR are taken as a true
and correct depiction of circumstances, it does not
appear from the record that the consent of the
Complainant/Respondent no. 2 was obtained
against her will and merely on an assurance to
marry. The Appellant and the
Complainant/Respondent no. 2 were acquainted
since 08.06.2022, and she herself admits that they
interacted frequently and fell in love. The
Complainant/Respondent no. 2 engaged in a
physical relationship alleging that the Appellant had
done so without her consent, however she not only
sustained her relationship for over 12 months, but
continued to visit him in lodges on two separate
occasions. The narrative of the
Complainant/Respondent no. 2 does not
corroborate with her conduct.

9
2025 SCC OnLine SC 1230
50

(b) The consent of the Complainant/Respondent no. 2
as defined under section 90 IPC also cannot be said
to have been obtained under a misconception of
fact. There is no material to substantiate
"inducement or misrepresentation" on the part of
the Appellant to secure consent for sexual relations
without having any intention of fulfilling said
promise. Investigation has also revealed that
the Khulanama, was executed on 29.12.2022 which
the Complainant/Respondent no. 2 had obtained
from her ex-husband. During this time, the parties
were already in a relationship and the alleged
incident had already taken place. It is inconceivable
that the Complainant had engaged in a physical
relationship with the Appellant, on the assurance of
marriage, while she was already married to
someone else. Even otherwise, such promise to
begin with was illegal and unenforceable qua the
Appellant.

(c) There is no evidence of coercion or threat of injury to the
Complainant/Respondent no. 2, to attract an offence
under section 506 IPC. It is improbable that there was
any threat caused to the Complainant/Respondent no. 2
by the Appellant when all along the relationship was
cordial, and it was only when the Appellant graduated and
left for his hometown to Ahmednagar, the
Complainant/Respondent no. 2 became agitated. We also
cannot ignore the conduct of the
Complainant/Respondent no. 2 in visiting the native
village of the Appellant without any intimation, which is
also unacceptable and reflects the agitated and unnerved
state of mind of the Complainant/Respondent no. 2. For
the same reason, the criminal prosecution against the
Appellant herein is probably with an underlying motive
and disgruntled state of mind.

(d) There is also no reasonable possibility that the
Complainant/Respondent no. 2 or any woman being
married before and having a child of four years, would
continue to be deceived by the Appellant or maintain a
51

prolonged association or physical relationship with an
individual who has sexually assaulted and exploited her.

9. In our considered view, this is also not a case
where there was a false promise to marry to begin with.
A consensual relationship turning sour or partners
becoming distant cannot be a ground for invoking
criminal machinery of the State. Such conduct not only
burdens the Courts, but blots the identity of an individual
accused of such a heinous offence. This Court has time
and again warned against the misuse of the provisions,
and has termed it a folly3 to treat each breach of promise
to marry as a false promise and prosecute a person for an
offence under section 376 IPC.

10. As demonstrated hereinabove, the ingredients of the
offence under Sections 376 (2)(n) or 506 IPC are not
established. The present case squarely falls under categories
enumerated in Para 102(5) & 102(7) as identified by this Court
in State of Haryana v. Bhajan Lal (supra) for the exercise of
powers u/s 482 CrPC by the High Court so as to prevent the
abuse of process of law. Para 102 reads as under:

"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 have given 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.
52

(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 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."
(Emphasis supplied)

If the facts obtaining in the case at hand are considered on

the bedrock of the principles laid down by the Apex court in

the afore-quoted judgments what would unmistakably
53

emerge is, permitting further proceedings against the

petitioner would become an abuse of the process of the law,

for the reason that the record itself bears testimony of 3

years of association, sustained companionship, admitted

bond of affection and consensual sexual relationship. The

jurisprudence as held by the Apex Court either in NAIM AHAMED

or AMOL BHAGWAN NEHUL rings with clarity that not every

broken promise is a false promise, nor every failed

relationship be criminalized as rape, as consent rendered