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Karnataka High Court
Vinayak vs The State Of Karnataka on 12 February, 2026
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CRL.P No. 202048 of 2025
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL PETITION NO. 202048 OF 2025
(482(Cr.PC)/528(BNSS))
BETWEEN:
VINAYAK S/O MALLAPPA TAKKALAKI,
AGE: 29 YEARS, OCC: POLICE OFFICER,
R/O. KUMATHE, TQ. BABALESHWAR,
DIST. VIJAYAPURA -586113.
...PETITIONER
(BY SRI SHIVANAND V. PATTANSHETTI, ADVOCATE)
AND:
Digitally signed by 1. THE STATE OF KARNATAKA THROUGH,
SHIVALEELA
DATTATRAYA VIJAYAPURA WOMAN POLICE STATION,
UDAGI
Location: HIGH DIST. VIJAYAPURA-586101,
COURT OF R/BY ADDL. SPP HIGH COURT OF KARNATAKA,
KARNATAKA
KALABURAGI BENCH - 585107.
2. LAXMI D/O MUDAKAPPA TOTAD,
AGE: 32 YEARS, OCC: HOUSEWIFE
R/O BASAVAN BAGEWADI,
DIST. VIJAYAPURA - 586203.
...RESPONDENTS
(BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1;
SRI SYED MASTAN, ADVOCATE FOR R2)
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CRL.P No. 202048 of 2025
HC-KAR
THIS CRIMINAL PETITION IS FILED UNDER SECTION 528
OF BNSS (NEW), U/S.482 OF CR.P.C.(OLD), PRAYING TO
QUASH THE COMPLAINT FIR AND FILING OF CHARGE SHEET IN
SC NO.8/2025 (VIJAYAPURA WOMAN PS CRIME NO.2/2024)
PENDING ON THE FILE OF III ADDL .DISTRICT AND SESSIONS
JUDGE, VIJAYAPURA, DISTRICT VIJAYAPURA FOR THE
OFFENCES PUNISHABLE UNDER SECTION 376(2)(n) 417, OF
IPC AND CONSEQUENTLY QUASH FURTHER PROCEEDINGS
AGAINST THE PETITIONER.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
ORAL ORDER
This petition is filed under Section 528 of Bharatiya
Nagarik Suraksha Sanhita, 2023, to quash the proceedings
against the petitioner/accused in S.C.No.8/2025, arising
out of Crime No.2/2024 of Women Police Station,
Vijayapur, for the offences punishable under Sections
376(2)(n), 417 of Indian Penal Code, 1860, pending on
the file of III Additional District and Sessions Judge,
Vijayapura.
2. The abridged facts of the case are that,
respondent No.2 lodged a complaint before respondent
No.1-Police on 23.01.2024 alleging that she is the resident
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of Basavana Bagewadi Taluk, Vijayapur District. Eight
months prior to the date of incident, respondent
No.2/complainant came in contact with the petitioner
through Instagram and they both became intimate friends
and fell in love. Thereafter, they both were sexually active
for a period of eight months and traveled to Shivagere
temple, Vijayapur, Sindagi, Belagavi and stayed in several
hotels.
3. On 25.12.2023, the petitioner promised
respondent No.2 that he would marry her. Thereafter, on
30.12.2023, he blocked her mobile number. As such, she
lodged a complaint against the petitioner before
respondent No.1-Police. Based on the same, respondent
No.1-Police registered the case in Crime No.2/2024 dated
23.01.2024 for the offences punishable under Sections
376 and 417 of IPC. Later respondent No.1-Police laid
charge sheet against the petitioner for the offences
punishable under Sections 376(2)(n) and 417 of IPC and
the learned Sessions Judge took cognizance of the
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offences. Aggrieved by the same, the petitioner preferred
this petition.
4. Heard learned counsel for the petitioner,
learned High Court Government Pleader for respondent
No.1 - State and learned counsel for respondent No.2.
5. Apart from urging several contentions, learned
counsel for the petitioner contended that respondent No.2
aged about 31 years, divorced her first husband in the
year 2015 in M.C.No.44/2014. Subsequently, she was in
live-in relationship with one Lagmanna and she filed a
Crl.Misc.No.369/2021 for maintenance under Section 125
of Cr.P.C. before the Family Court at Vijayapur. In such
circumstances, for illegal gain, a false complaint has been
lodged by her against the petitioner. According to the
learned counsel, even if the consensual sexual act
performed between the two adults, the same does not
attract the provisions of Section 376 or 417 of IPC. In such
circumstances, he prays to allow the petition.
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6. Per contra, learned High Court Government
Pleader appearing for respondent No.1-State opposed the
petition on the ground that now the charge sheet has been
filed against the petitioner and in 164 statement,
respondent No.2/victim has categorically stated that by
inducing her on the promise of marriage, he committed
sexual intercourse with her. Accordingly, he prays to
dismiss the petition.
7. I have given my anxious consideration both on
the submissions made by the learned counsel for the
respective parties and the documents made available on
record.
8. As could be gathered from records, respondent
No.2 and the petitioner were introduced together through
Instagram and thereafter they became intimate friends
and both were sexually active for a period of eight months.
Admittedly, respondent No.2 is aged about 31 years. The
documents placed by the learned counsel for the petitioner
reveals that respondent No.2 had already married one
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Kallappa and got divorced before the Senior Civil Judge
and JMFC Court at Basavana Bagewadi in M.C.No.44/2014
dated 27.02.2015. Thereafter, she also filed a
maintenance petition under Section 125 of Cr.P.C., against
one Lagmanna in Criminal Misc.No.369/2021 before the
Family Court at Vijayapura. Subsequently, this complaint
came to be filed against the petitioner. The entire charge
sheet material discloses that the alleged sexual act
committed by the petitioner and respondent No.2 is totally
consensual one on the guise of promise of marriage.
9. The Hon'ble Apex Court in the case of Shiva
Prathap Singh Rana V/s State of Madhya Pradesh
and Another reported in (2024) 8 SCC 313, held that
the consensual sexual act of a major without any force or
inducement does not attract the provisions of Sections 376
or 417 of IPC. The Hon'ble Apex in the said judgment held
in paragraphs No.26 to 33 as under.
"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
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with the offence of rape committed repeatedly on
the same woman. Section 375 IPC 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 nonverbal
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 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
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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 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
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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
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later had turned down the same on the ground
that the appellant was the friend of her younger
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
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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."
10. Applying the above findings of the Hon'ble Apex
Court in the above judgment to the facts and
circumstances of this case, I am of the considered view
that, even if the entire charge sheet materials and other
documents taken into consideration on its face value, no
case has been made out against the petitioner/accused for
the offences he had been charge sheeted. Accordingly, I
proceed to pass the following
ORDER
i. The petition is allowed.
ii. The proceedings against the
petitioner/accused in S.C.No.8/2025,
arising out of Crime No.2/2024 of Women
Police Station, Vijayapur, for the offences
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punishable under Sections 376(2)(n), 417
of Indian Penal Code, pending on the file
III Additional District and Sessions Judge,
Vijayapura, 1860, is hereby quashed.
Sd/-
(RAJESH RAI K)
JUDGE
SWK,MSR
List No.: 1 Sl No.: 6
CT:PK
