- 1 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 25TH DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE S RACHAIAH CRIMINAL PETITION NO. 201650 OF 2024 (482(Cr.PC)/528(BNSS)) BETWEEN: SAGAR S/O SHIVAKUMAR VADTHYA, AGE: 24 YEARS, OCC: STUDENT, R/O DAVANAGERI, TQ. AND DIST. DAVANAGERI -577001. …PETITIONER (BY SRI MAHANTESH PATIL, ADVOCATE) AND: 1. THE STATE OF KARNATAKA, REPRESENTED BY ADDL. SPP, HIGH COURT OF KARNATAKA, BENCH AT KALABURAGI, (THROUGH VIJAYAPURA WOMEN P.S., DIST VIJAYAPURA-586101). 2. SNEHA D/O SIDDARTH BABALESHWAR, AGE:27 YEARS, OCC: PRIVATE TEACHER, R/O. HANAMASAGAR, VENKATESHWAR METAL GUDDABAVI ONI, TQ. KUSTHAGI, DIST. KOPPAL-577126. …RESPONDENTS (BY SRI JAMADAR SHAHABUDDIN, HCGP FOR R1; R2 SERVED) THIS CRL.P IS FILED U/S 528 OF BNSS,2023 PRAYING TO QUASH THE ORDER OF COGNIZANCE DATED 11-12-2023 AND CHARGE SHEET IN CC NO.7528/2023 (CRIME NO.155/2023) Digitally signed by SREEDHARAN BANGALORE SUSHMA LAKSHMI Location: High Court of Karnataka - 2 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 VIJAYAPURA P.S AND FURTHER CRIMINAL PROCEEDINGS FOR THE OFFENCES PUNISHABLE U/SEC. 376(2), 417, 504, 506 OF IPC, PENDING ON THE FILE OF LEARNED IV ADDL. CIVIL JUDGE AND JMFC AT VIJAYAPUR. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S RACHAIAH ORAL ORDER (PER: HON'BLE MR. JUSTICE S RACHAIAH) 1. The petitioner is before this Court seeking to quash the order of cognizance dated 11.12.2023 and further proceedings in C.C No.7528/2023 (Crime No.155/2023 of Vijayapura Women Police Station) pending on the file of learned IV Additional Civil Judge and JMFC at Vijaypura. Brief facts of the case: 2. The case of the prosecution is that the victim had filed a complaint stating that she is a resident of Babaleshwara. She was staying along with her parents in the said place. However, her father recently reached the superannuation and there was a difference of opinion between her father and mother. It is further stated that when her family was staying at Mudhola, the accused was her neighbor. Both were known to each other. The accused was acquainted - 3 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 with her through Facebook and she spoke with him and continued their friendship. 3. It is further stated that after some time, she was told that the accused was loving her. Thereafter, on 06.04.2019, 07.04.2019 and 31.12.2019, he stated to have committed sexual intercourse on her on the pretext of marriage. 4. It is further stated that the accused gradually avoided her and was not interested to talk with her. Therefore, she approached the accused and asked him to marry her, but, he refused. Thereafter, she lodged a complaint on 28.07.2023. The respondent police have registered a case in Crime No.155/2023 for the offences punishable under Sections 376(2), 417, 504, 506 of IPC. After conducting the investigation, submitted the charge sheet. 5. Heard Mahantesh Patil, learned counsel for the petitioner and Sri.Jamadas Shahabuddin, learned High Court Government Pleader for the respondent No.1 – State. Respondent No.2 is served and unrepresented. 6. It is the submission of the learned counsel for the petitioner that the victim had stated in her statement - 4 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 made before the learned Magistrate under Section 164 of Cr.P.C that she is two years older than the petitioner. Though it is stated that she had been subjected to sexual intercourse on several occasions, the same may be a consensual love affair. As there was a difference of opinion between them and as he did not marry her, she lodges a complaint by giving colour to the consensual sex to rape. Therefore, the alleged provision cannot be applicable to the facts of the case. 7. It is further submitted that though she made allegations against the petitioner in respect of other offences, the fact remains that even assuming that the incident had occurred on 31.12.2019, the complaint came to be registered on 28.07.2023 after a lapse of four years. Such being the fact, asking the petitioner to face the trial would be abuse of process of law and therefore, the same has to be set aside. Making such submissions, the learned counsel for the petitioner prays to allow the petition. 8. Per contra, the learned High Court Government Pleader for the respondent No.1 - State vehemently justified in filing the charge sheet. He further submitted that the act - 5 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 of inducing the victim to have sexual intercourse and later refusing to marry definitely would amount to not only cheating but it is rape. 9. It is further submitted that obtaining the consent on deceiving the victim in a fraudulent manner, certainly, would amount to sexual intercourse taken place without valid consent. Such being the fact, the filing of the charge sheet is squarely applicable to the case and therefore, it is not appropriate to quash the charge sheet. 10. It is further submitted that the act of inducing the woman on the pretext of marriage and obtaining consent in a fraudulent manner and having sexual intercourse with her and thereafter refusing to marry her, certainly, would amount to rape. As such, there are materials to show that the petitioner had committed the offences stated in the charge sheet. Whether the said consent has been obtained by a fraudulent manner or by deceiving the victim has to be tested through trial. Therefore, at this stage, it is not appropriate to quash the proceedings. Making such submissions, the learned HCGP prays to dismiss the petition. - 6 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 11. Having heard the learned counsel for the respective parties and also perused the averments of the charge sheet, it appears from the record that the victim and the petitioner were known to each other since childhood. There were several changes that had taken place in their residence and job of their parents, they had to be separated. Again in Facebook, the victim came into contact with the petitioner and exchanged their mobile phone numbers and thereafter they developed intimacy. The said intimacy reached to the extent of having sexual intercourse. Thereafter, it is stated that he had refused to marry her. Therefore, she lodged a complaint. 12. Before adverting to the merits of the case, it is appropriate to refer to the judgment of the Hon’ble Supreme Court in the case of MAHESH DAMU KHARE v. THE STATE OF MAHARASHTRA AND ANOTHER1, paragraphs No.16 and 17, which reads as under: “16. Having underscored the power of the High Court to exercise inherent power under Section 482 CrPC for quashing of FIR, we need 1 2024 INSC 897 - 7 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 to understand the scope of the offence under Section 375 IPC which deals with rape, punishable under Section 376 IPC. While the said Section 375 deals with various aspects of rape, in the present case, the allegation against the appellant is that the appellant had forced himself on Respondent No. 2 without her consent and engaged in sexual intercourse. What amounts to rape without a consent has been mentioned under Section 375 as follows:- “375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or - 8 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions— First.—Against her will. Secondly.—Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. 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. Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent, when she is under eighteen years of age. - 9 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 Seventhly.—When she is unable to communicate consent.” 17. In this regard, one may also refer to Section 90 of the IPC which deals with consent given either under fear or misconception. Section 90 provides that a consent is not a consent under the IPC if such a 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 consequences of such fear or misconception. Section 90 IPC reads as follows: “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...” 13. To summarize the legal position, which emerges from the judgment of the Hon’ble Supreme Court stated supra, to establish whether the ‘consent’ was vitiated by a - 10 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 ‘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. 14. Be that as it may, in the present case, though it is stated that the petitioner induced her and obtained consent on the pretext of a false promise to marry and committed sexual intercourse, however, the said act stated to be done in the year 2019, whereas she lodges a complaint on 27.08.2023, i.e., after a lapse of 4 years. Such being the fact, even on beyond the stretch of imagination, cannot be said that the prosecution would prove the case beyond a reasonable doubt. Such being the fact, asking the petitioner to proceed with the case, certainly, would be an abuse of process of law. Therefore, the same is liable to be quashed. - 11 - NC: 2025:KHC-K:2493 CRL.P No. 201650 of 2024 15. Hence, I proceed to pass the following: ORDER i) The Criminal Petition is allowed. ii) The order of cognizance dated 11.12.2023 and further proceedings in C.C No.7528/2023 (Crime No.155/2023 of Vijayapura Women Police Station) pending on the file of learned IV Additional Civil Judge and JMFC at Vijaypura, are hereby quashed. Sd/- (S RACHAIAH) JUDGE RSP/UN List No.: 1 Sl No.: 23 CT:PK