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Karnataka High Court
Vinod vs The State Of Karnataka on 9 February, 2026
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CRL.P No. 200180 of 2026
HC-KAR
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF FEBRUARY, 2026
BEFORE
THE HON'BLE MR. JUSTICE RAJESH RAI K
CRIMINAL PETITION NO. 200180 OF 2026
(439(Cr.PC)/483(BNSS)
BETWEEN:
VINOD S/O. NOOR CHAVHAN
AGE 25 YEARS, OCC. STUDENT,
R/O BHARAT NAGAR TANDA,
KALABURAGI-585 105.
...PETITIONER
(BY SRI MAHANTESH H. DESAI., ADVOCATE)
AND:
THE STATE OF KARNATAKA
THROUGH BRAHMPUS PS
KALABURAGI.
Digitally signed by REPRESENTED THROUGH
SHIVALEELA ADDL STATE PUBLIC PROSECUTOR OF
DATTATRAYA UDAGI
Location: HIGH HON'BLE HIGH COURT OF KARNATAKA
COURT OF
KARNATAKA BENCH KALABURAGI-585 104.
...RESPONDENT
(BY SRI JAMADAR SHAHABUDDIN, HCGP)
THIS CRL.P. IS FILED U/S. 439 OF CR.P.C (OLD) U/S 483
OF BNSS (NEW), PRAYING TO RELEASE THE ACCUSED
PETITIONER ON BAIL IN CRIME NO.203/2025 OF BRAHMPUR
P.S KALABURAGI IN OFFENCE U/SEC 64(1) OF BNSS, PENDING
BEFORE HONOURABLE COURT OF IV ADDL JMFC AT
KALABURAGI IN THE INTEREST OF JUSTICE .
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CRL.P No. 200180 of 2026
HC-KAR
THIS PETITION COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE RAJESH RAI K
ORAL ORDER
This petition is filed under Section 483 of BNSS,
2023, by the petitioner/accused for grant of bail in Crime
No.203/2025 dated 28.12.2025, registered by the
Brahmapur Police, Kalaburagi, for the offence punishable
under Sections 64(1) of Bharatiya Nyaya Sanhita, 2023.
2. The factual matrix of the case is that, the
complainant's daughter-prosecutrix was working as a sales
girl in a textile shop. The petitioner-accused is the
neighbour of the complainant. As such, the petitioner and
the prosecutrix were became friends. On 25.12.2025 at
about 04.00 p.m., when the prosecutrix was in the textile
shop, where she was working, the accused called and
informed her to meet near the Chowk Circle, Kalaburagi
with regard to some matter. Accordingly, the prosecutrix
went to the said place. Thereafter, the accused took her to
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a lodge situated near Prakash Mall at Kalaburagi and
committed sexual intercourse on her. Subsequently, on
26.12.2025 at about 2:30 p.m., due to the said incident,
she was disturbed and made an attempt to commit
suicide. However, the neighbours rescued her and taken
her to the Hospital. After recovery, i.e., on 27.12.2025 she
disclosed her parents about the incident. Thereafter, her
father lodged the complaint against the petitioner on
28.12.2025. Hence, the FIR came to be registered against
the petitioner for the aforementioned offence. The accused
was arrested on 29.12.2025, since then, he is in custody.
Aggrieved by the same, the petitioner preferred bail
application before the V Additional District and Sessions
Judge, Kalaburagi, in Criminal Miscellaneous No.24/2026,
which came to be dismissed vide order dated 31.01.2026.
Hence, this petition.
3. Heard learned counsel for the petitioner and
learned HCGP for the respondent-State.
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4. Apart from urging several contentions, learned
counsel for the petitioner contended that, the complainant
has categorically stated in the complaint that his daughter
and the accused were in love. The petitioner has given
assurance of marrying her and hence they both were
sexually active. As such, it is a consensual act. According
to him, the victim was aged about 22 years at the time of
incident, as such, the offence under Section 64(1) of BNS
does not attract against him. Accordingly, he prays to
allow the petition.
5. Per contra, learned HCGP for the respondent-
State by supporting the impugned order of rejection of bail
by learned Sessions Judge, vehemently opposed the bail
petition and prays to dismiss the same.
6. I have given my anxious consideration both on
the submissions made by the learned counsel for the
respective parties and the materials available on record.
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7. As could be gathered from the complaint
averments, the victim has categorically stated that the
petitioner and herself both belong to the same place and
they were known to each other. The petitioner committed
sexual intercourse on her on the promise of marrying her.
Subsequently, her father lodged the complaint. In such
circumstances, 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
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
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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
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
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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
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
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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
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
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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
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abuse of the process of the court, result of the
trial being a foregone conclusion."
8. In view of the above findings of the Hon'ble
Apex Court, when a sexual act is committed with the
assurance of promise to marriage by majors, the offence
under Section 64(1) of BNS prima facie may not attract. In
such circumstances, the custodial incarceration of the
petitioner does not call for. As such, without expressing
any opinion on the merits of the case, it is suffice, to hold
that the custodial incarceration of the petitioner does not
call for.
9. Accordingly, the petition is allowed.
The petitioner/accused is directed to be enlarged on
bail in Crime No.203/2025, registered by the Brahmapur
Police, Kalaburagi, for the offence punishable under
Section 64(1) of BNS, 2023 subject to the following
conditions:
a) Petitioner shall execute a personal bond for
a sum of Rs.1,00,000/- with two sureties for
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the likesum, to the satisfaction of the
jurisdictional Court;
b) The petitioner shall appear regularly on all
the dates of hearing before the Trial Court
unless the Trial Court exempts his appearance
for valid reasons;
c) The petitioner shall not directly or
indirectly threaten or tamper with the
prosecution witnesses;
d) The petitioner shall not involve in similar
offences in future;
e) The petitioner shall not leave the
jurisdiction of the Trial Court without
permission of the said Court until the case
registered against him is disposed off.
f) The petitioner shall mark his attendance
before the Station House Officer, Brahmapur
Police Station, on first Sunday of every month
between 10.00 a.m. and 01.00 p.m. till the
case registered against him is disposed off
before the Trial Court.
Sd/-
(RAJESH RAI K)
JUDGE
MSR
List No.: 1 Sl No.: 3
