1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL, 2025 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.10568 OF 2023 BETWEEN: 1 . SRI HARSHA C.T., S/O THIMMAIAH AGED ABOUT 26 YEARS PC 195, CHANNARAYAPATNA RURAL POLICE STATION HASSAN – 573 116. ALSO R/AT. CHIKKABYAGATHAVALLI PADUVALAHIPPE KASABA HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT – 573 116. 2 . SRI THIMMAIAH S/O DASABOVI AGED ABOUT 52 YEARS R/AT. KUVEMPU NAGARA CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116. 3 . CHANDRAMMA(MOTHER OF HARSHA) W/O THIMMAIAH AGED ABOUT 55 YEARS R/AT. KUVEMPU NAGARA CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116. 2 4 . KAVITHA W/O KUMAR V.C., AGED ABOUT 30 YEARS R/AT. KUVEMPU NAGARA CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116. 5 . DEEPA C/O V.C.MANJUNATHA AGED ABOUT 28 YEARS R/AT. KUVEMPU NAGARA CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116. 6 . ASHA C/O RAVI H.P., AGED ABOUT 38 YEARS R/AT. KUVEMPU NAGARA CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116. 7 . PUSHPALATHA D/O SHANKARAPPA AGED ABOUT 26 YEARS R/AT. KUVEMPU NAGARA CHANNARAYAPATNA TOWN HASSAN DISTRICT – 573 116. ... PETITIONERS (BY SRI SATHISHA D.J., ADVOCATE) AND: 1 . STATE OF KARNATAKA BY CHANNARAYAPATNA TOWN POLICE STATION CHANNARAYAPATNA SUB-DIVISION HASSAN DISTRICT – 573 116 3 REPRESENTED BY STATE PUBLIC PROSECUTOR HIGH COURT OF KARNATAKA BENGALURU – 560 001. 2 . XXXXXX D/O XXXXXXXX AGED ABOUT XXX YEARS WPC 22429 WHITEFIELD POLICE STATION BENGALURU CITY BENGALURU – 560 066. ... RESPONDENTS (BY SRI B.N.JAGADEESHA, ADDL.SPP FOR R-1; SRI M.V.VEDACHALA, ADVOCATE FOR R-2 ) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C., PRAYING TO ALLOW THIS PETITION AND QUASH THE IMPUGNED REGISTRATION OF FIR IN CR.NO.222/2023 DATED 11.09.2023 AT ANNEXURE-A, REGISTERED BY THE CHANNARAYAPATNA TOWN P.S., FOR THE ALLEGED OFFENCE P/U/S 504, 376, 506 AND 417 OF IPC AND CASE IS PENDING BEFORE THE PRL.CIVIL JUDGE (JR.DN) AND J.M.F.C COURT AT CHANNARAYAPATNA, HASSAN DISTRICT AGAINST THE PETITIONERS ARE CONCERNED. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:- 4 CAV ORDER The petitioners/accused 1 to 5, 7 and 8 are knocking at the doors of this Court calling in question registration of a crime in Crime No. 222 of 2023 registered for offences punishable under Sections 376, 417, 504 and 506 of the IPC and pending before the Principal Civil Judge (Jr. Dn.) and JMFC, Channarayapatna. 2. Heard the learned counsel Sri Sathisha D.J., appearing for petitioners, learned Additional Sate Public Prosecutor Sri B.N.Jagadeesha appearing for respondent No.1 and learned counsel Sri M.V.Vedachala appearing for respondent No.2. 3. Facts, in brief, germane are as follows:- The 2nd respondent is the complainant. A complaint comes to be registered by the 2nd respondent on 11-09-2023 alleging that petitioner No.1/accused No.1 had a relationship with the complainant which was physical as well for over four years on the CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA 5 promise of marriage and when it came to marriage, petitioner No.1 breaches the promise of marriage which led the complainant consuming poison and other accused coming together with accused No.1 in hurling abuses against the complainant or intimidating her. It is, therefore, the complaint emerges for the aforesaid offences. The registration of crime drives the petitioners to this Court in the subject petition. A co-ordinate Bench of this Court on 19-10-2023 grants an interim order of stay of further investigation till the next date of hearing and reserving liberty to seek modification of the said order. 4. The learned counsel appearing for the petitioners would vehemently contend that the acts between the 1st petitioner and the complainant were all consensual. Petitioner No.1 has never promised marriage with the complainant for it to become a breach of promise of marriage. No offence of rape and cheating can be alleged on the acts allegedly committed by petitioner No.1. All other accused are without rhyme or reason drawn into the web of crime. He would contend that acts which are consensual would not amount 6 to offence under Section 376 of the IPC is now settled principle of law in terms of judgments rendered by the Apex Court. 5. Per contra, the learned counsel for the 2nd respondent/complainant would refute the submissions contending that all the acts were on the promise of marriage and that has been breached. Petitioner No.1 gets married to someone else. The complainant’s marriage is fixed. But, accused No.1 comes to the marriage hall and divulges that he has had a relationship with the complainant and on that score the marriage breaks. The learned counsel submits that petitioner No.1 had no intention to marry the complainant nor is he permitting the complainant to marry someone else. Therefore, he has exploited the complainant and has left her in the lurch today. No person, because of the act of accused No.1, is now coming forward to marry the complainant. Therefore, the learned counsel would submit that it is a matter for investigation. The crime is registered on 11-09-2023 and the interim order is granted on 19-10-2023. The learned counsel would seek dismissal of the petition. 7 6. The learned High Court Government Pleader would vehemently refute the submissions of the learned counsel for the petitioner and toe the lines of the learned counsel for the 2nd respondent No.2/complainant. He would contend that the matter requires investigation, as the offence of cheating is made, offence of rape is alleged prima facie on the false promise of marriage and, therefore, the proceedings should not be quashed at this threshold particularly, for the aforesaid offences. He would seek dismissal of the petition as is sought by the learned counsel for the complainant. 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 all a matter of record. The issue at this juncture lies in a narrow compass, as barely after a month of registration of crime the interim order is granted. Therefore, there is no investigation conducted. Since the issue is triggered from registration of the complaint, I deem it appropriate 8 to notice the complaint registered by the 2nd respondent. It reads as follows: UÉ, ಆರಕ ಉಪೕಕರು. ಚನ ಾಯಪಟಣ ನಗರ ಾೆ, ºÁ¸À£À f¯Éè. ಇಂದ. XXXXXX. ಾಟ ಆ XXXXXX ವಯಸು! XX ಡಬೂ%& ' (.22469 )ೈmï¦üÃ+, -.ೕ/ ಾೆ ಕತ1ವ2 3ೆಂಗಳ5ರು 63ೈ+ ನಂಬ, XXXXXX 7ಷಯ:- PC 195 ಹಷ1 C.T ಅವರ ತಂ?ೆ @ಮBಯ2 ಮತುC DಾE Fಾಗೂ ಅಕGಂHಾದ ಕ7Dಾ, Hೕಪ Fಾಗೂ JಾವಂHರು ಮತುC ಅವರ KಕGಮB ಆLಾ Fಾಗೂ ಹಷ1 ಮದು)ೆMಾNರುವ ಹುಡುN ಪOಷPಲತ ಅವರ ಕುಮBRGಂದ ಹಷ1 ನನSೆ 6ೕಸ TಾUರುವ ಬSೆV, ದೂರು. 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F «µÀAiÀĪÀ£ÀÄß ¥ÉÆ°Ã¸ï £À«Ã£À£ÉÆA¢UÉ ªÀiÁvÀ£ÁrzÉ, ಏcೆ ನನSೆ Tಾತುcೊಟು ನನSೆ 9 ಅXಾ2ಯ TಾUH, ನಂkcೆ ?ೊYೕಹ TಾUHfೕ ಎಂದು cೇZದcೆG ನ7ೕನ Fಾಗೂ ಹಷ1ನ ತಂ?ೆ cಾನೂನ 6ೆ Fೋಗಬಹುದು ಮದು)ೆMಾದ lೕ`ೆ K£ÀÄ Tಾಡಲುgಾಧ27ಲ%)ೆಂದು @Z(ದರು. ನಂತರ HXಾಂಕ 30.8.2023 ರಂದು Xಾನು SಾಬSೊಂಡು ಹಷ1 )ಾಸ Tಾಡು@Yದf ಕು)ೆಂಪO ನಗರದ SಾE@Y ಬಡವuÉSೆ Fೋ?ೆ ಅ.%, ಹಷ1ನ ತಂ?ೆ DಾE ಹಷ1 ಇದfರೂ ಸಮಯ 8.30 cೆG ಅವರ ಮXೆSೆ vÉgÀ½ cೇZ?ಾಗ ಹಷ1ನ DಾE ನನSೆ ನೂRದರು ಹಷ1ನ ತಂ?ೆ 3ಾESೆ ಬಂದ FಾSೆ 3ೈದರು. ನನSೆ 6ೕಸ TಾUHfೕ ಎಂದು cೇZದfcೆG ೕನು ಎ`ಾ%ದರೂ FೋN gಾE ಎಂದು ನನSೆ ಮನ¹ìSೆ Xೋ)ಾಗುವಂDೆ cೆಟ ಪದಗZಂದ 3ೈದರು, ನನSೆ 3ೇnಾಾN ಅವರ 'ಮXೆಯ.ದf PÀ¼ÉXಾಶಕ ಔಷqಯನು ಅವರ ಮXೆಯ )ಾµïgÀÆAನ°è gೇವXೆ TಾU?ೆ. ನಂತರ Xಾನು ತ`ೆಸು@C ©zÁÝUÀ ಹಷ1 ಮತುC ಅವರ ತಂ?ೆ ^ೆನ ಾಯಪಟಣದ ಸcಾ1 ಆಸPDೆYSೆ gೇ(ದರು. ನಂತರ FೆKrನ KRDೆ!Sೆ 108 ಅಂಬು`ೆi! )ಾಹನದ.% ನನ ನು Fಾಸನದ HIMS ಆಸPDೆYSೆ ?ಾಖಲು TಾU ನನSೆ KRDೆ! cೊU(ರುDಾCೆ, ನನ ನು ?ಾಖಲು TಾUದ ನಂತರ Xಾನು KRDೆ!ಯ°èzÁÝUÀ HXಾಂಕ 31. 08,2023ರಂದು ಹಷ1 Fಾಗೂ ಅವರ ತಂ?ೆ ಇಬtರು ಸಹ ನನSೆ ಔಷq TಾDೆYಗಳನು ಸಹ ತಂದು cೊಡ?ೆ ನನ ನು kಟು ಕದುf FೋNರುDಾCೆ. ಈ lೕಲGಂಡವರ lೕ`ೆ cಾನೂನು ೕ@ ಕYಮ ಜರುNಸ3ೇcಾN cಾನೂನ Xಾ2ಯ ?ೊರRಸ3ೇcೆಂದು HXಾಂಕ 11.09. 2023 ರಂದು ತಡ)ಾN ದೂರು ೕUರುDೆCೕXೆ. ಧನ2)ಾದಗ¼ÉÆAHSೆ, HXಾಂಕ:- 11.09.2023 ಇಂ@ ಮB 7Lಾv(. ಸhಳ:- ಚನ ಾಯಪಟಣ, ¸À»/-” The complaint becomes a crime in Crime No.222 of 2023 for the afore-quoted offences. The allegation in the complaint is of sexual acts of petitioner No.1 with the complainant on the promise of marriage and the relationship stretches to four years prior to registration of the complaint. Elaborate statement of objections is filed by the complainant pointing at the sexual acts committed the 1st petitioner on the alleged promise of marriage. It is not that talks 10 of marriage with the complainant did not take place. It went up to the point of the parents and relatives of petitioner No.1 involved in the talks of marriage. The talks fail and petitioner No.1 gets married to some other lady. 9. The mother of girl who has married petitioner No.1 registers a complaint on 12-09-2023 for offences punishable under Sections 323, 448 and 506 of the IPC alleging that the complainant has barged into her house on 10-09-2023 and enquired about her daughter and son-in-law i.e., the 1st petitioner, and when they were not there in the house, threatened that if her daughter does not take divorce from petitioner No.1, she and other family members would face dire consequences. If all these facts that are narrated hereinabove are considered on the touchstone of the principles laid down by the Apex Court from time to time, what would unmistakably emerge is that, accused Nos.2 to 5, 7 and 8 are drawn into the web of proceedings without any rhyme or reason. All acts alleged by the complainant are qua accused no.1. Accused Nos. 2 to 5, 7 and 8 are his mother, father and other relatives. 11 Permitting further investigation even against those accused would become an abuse of the process of law. 10. Insofar as accused No.1/1st petitioner is concerned, the narration in the complaint clearly indicates that the 1st petitioner and the complainant were in love with each other for over 4 years. The complaint alleges that the 1st petitioner has had sexual intercourse with the complainant on the promise of marriage and has beached the said promise. Therefore, it has become an offence of rape. It is not that the 1st petitioner did not make efforts to carry the promise of marriage to its logical conclusion. He did. All efforts were made to get the marriage fructified. Invitation cards were also printed. Differences arose between the family members of the complainant and the 1st petitioner. The marriage breaks. Complaints galore against the 1st petitioner and his family members and by the 1st petitioner and his family members against the complainant and her family. Therefore, the relationship between the complainant and the 1st petitioner throughout has been consensual, albeit on the promise of marriage. Whether the ingredients of the complaint or the facts as narrated hereinabove 12 would amount to an offence of rape under Section 376 of the IPC need not detain this Court for long and delve deep into the matter. 11. The Apex Court, in the case of NAIM AHAMED v. STATE (NCT OF DELHI)1, has held as follows: “…. …. …. 9. For the better appreciation of the submissions made by the learned counsel for the parties, the relevant provisions contained in Section 90 and Section 375IPC, are reproduced below: “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. *** 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 1 2023 SCC OnLine SC 89 13 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 (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. Seventhly.—When she is unable to communicate consent. Explanation 1.—For the purposes of this section, “vagina” shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, 14 communicates willingness to participate in the specific sexual act: 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. Exception 1.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape.” 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 114-A of the Evidence Act, 1872. As per Section 114-A, 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, if such consent was given by the person under the fear of injury, or under a misconception of fact as contemplated in Section 90IPC. 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 90IPC is also required to be appreciated in the light of the Clauses contained in Section 375IPC, more particularly Clauses — Thirdly, Fourthly and Fifthly thereof, when the 15 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 IPC. 12. Section 375 describes seven circumstances under which the “rape” could be said to have been committed. As per 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 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 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 IPC. 13. 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. 14. 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. 16 15. In Uday v. State of Karnataka [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] , the prosecutrix aged about 19 years had given her consent for having a sexual intercourse with the accused with whom she was deeply in love, and it was alleged by the prosecution that the prosecutrix continued to meet the accused as the accused had given her a promise to marry her on a later date. The prosecutrix became pregnant and the complaint was lodged on failure of the accused to marry her. This Court while holding that under the circumstances, the consent could not be said to have been given under a misconception of fact under Section 90IPC, held in paras 21 and 23 as under : (SCC pp. 56-57) “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. 22. *** 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 17 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.” 16. In Deelip Singh v. State of Bihar [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , this Court after discussing various earlier decisions of this Court and other High Courts, further explained the observations made in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] and observed as under : (Deelip Singh case [Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p. 104, para 28) “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 Jayanti Rani Panda [Jayanti Rani Panda v. State of W.B., 1983 SCC OnLine Cal 98 : (1983) 2 CHN 290 : 1984 Cri LJ 1535] which was approvingly referred to in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] . The Calcutta High Court rightly qualified the proposition which it stated earlier by adding the 18 qualification at the end (SCC OnLine Cal para 7) — ‘unless the court can be assured that from the very inception the accused never really intended to marry her.’ 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 [N. Jaladu, In re, 1911 SCC OnLine Mad 3 : ILR (1913) 36 Mad 453 : 1914 Cri LJ 24] (vide passage quoted supra). By making the solitary observation that “a false promise is not a fact within the meaning of the Code”, it cannot be said that this Court has laid down the law differently. The observations following the aforesaid sentence are also equally important. The Court was cautious enough to add a qualification that no straitjacket formula could be evolved for determining whether the consent was given under a misconception of fact. Reading the judgment in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] 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.” (emphasis in original) 17. In Deepak Gulati v. State of Haryana [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660] , this Court gave one more dimension of the word “consent” by distinguishing “rape” and “consensual sex” and observed as under : (SCC pp. 682-84, paras 21 & 24) “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 19 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 the accused was mala fide, and that he had clandestine motives. 22.-23. *** 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 90IPC 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.” (emphasis in original) 18. Again in DhruvaramMurlidhar Sonar v. State of Maharashtra [DhruvaramMurlidhar Sonar v. State of Maharashtra, (2019) 18 SCC 191 : (2020) 3 SCC (Cri) 672] , this Court interpreting the Section 90 and Clause Secondly in Section 375IPC, observed as under : (SCC p. 202, para 23) “23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, 20 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 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. 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.” 19. 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. 20. After duly examining the record in the light of the submissions made by the learned counsel for the parties, the following facts have emerged. 20.1. The prosecutrix was a married woman having three children. 20.2. The accused was staying in a tenanted premises situated in front of the house of the prosecutrix. 21 20.3. Though initially hesitant, the prosecutrix developed liking for the accused, and both started having sexual relationship with each other. 20.4. The prosecutrix delivered a male child on 28-10- 2011 from the loin of the accused. 20.5. The prosecutrix went to the native place of the accused in 2012 and came to know that he was a married man having children. 20.6. The prosecutrix still continued to live with the accused in separate premises. 20.7. The prosecutrix and her husband took divorce by mutual consent in 2014 and thereafter the prosecutrix permanently left her three children with her husband. 20.8. The prosecutrix lodged the complaint on 21-3-2015 alleging that she had consented for sexual relationship with the accused as the accused had promised her to marry and subsequently did not marry. 21. 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 the law and the case fell under Clause Secondly of Section 375IPC. 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 fulfil his promise. So, it 22 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. 22. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the court, are taken on their face value, then also to construe such allegations as “rape” by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, if her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also, still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she filed the present complaint. The accused in his further statement recorded under Section 313CrPC had stated that she had filed the complaint as he refused to fulfil her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold 23 the appellant guilty of having committed rape within the meaning of Section 375 IPC.” (Emphasis supplied) The Apex Court, in the later judgment, in the case of LALU YADAV v. STATE OF UTTAR PRADESH2 has held as follows: “…. …. …. 14. Now, having bestowed our anxious consideration to the decisions referred supra with reference to the factual situations obtained in the case at hand, we are of the considered view that the High Court has palpably gone wrong in not considering the question whether the allegations in the complaint reveals prima facie case that the complainant had given her consent for the sexual relationship with the appellant under misconception of fact, as alleged, or whether it reveals a case of consensual sex. Firstly, it is to be noted that the subject FIR itself would reveal that there occurred a delay of more than 5 years for registering the FIR; secondly, the very case of the complainant, as revealed from the FIR, would go to show that they lived for a long period as man and wife and thirdly, the facts and circumstances obtained from the subject FIR and other materials on record would reveal absence of a prima facie case that the complainant viz., respondent No. 4 had given her consent for sexual relationship with the appellant under misconception of fact. At any rate, the allegations in the FIR would not constitute a prima facie case of false promise to marry from the inception with a view to establish sexual relationship and instead they would reveal a prima facie case of long consensual physical relationship, during which the complainant addressed the appellant as her husband. Moreover, it is also the case of the complainant, revealed from the subject FIR and the other materials on record that she went along with the appellant to Varanasi with the knowledge of her family and stayed with him in hotels during 2 2024 SCC OnLine SC 2876 24 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) If the facts obtaining in the case at hand are considered on the bedrock of the principles laid down by the Apex Court, what would unmistakably emerge is that the offence under Section 376 of the IPC against the 1st petitioner is untenable and unsustainable, as the relationship between the complainant and the 1st petitioner for more than 4 years was purely consensual. Permitting further investigation into the offence under Section 376 of the IPC would become an abuse of the process of law. 25 12. The crime so registered is not restricted to the offence punishable under Section 376 of the IPC only. It is the amalgam of offences punishable under Sections 504, 506 and 417 of the IPC. To allege other offences there is copious evidence. It is the complaint averment along with documents that are appended to the statement of objections that the 1st petitioner has received ₹3,64,000/- from the hands of the complainant at intermittent intervals on the promise of marriage. He has hurled abuses and has threatened the complainant that he would upload nude pictures of the complainant as also the video that he has captured during sexual acts in the social media, if the complainant would not stop interfering with his wife. These factors would require investigation in the least. Therefore, investigation for all offences, except the offence under Section 376 of the IPC, shall continue. 13. For the aforesaid reasons, the following: O R D E R (i) Criminal Petition is allowed in part. 26 (ii) FIR in Crime No.222 of 2023 registered on 11-09-2023 before the Channarayapatna Town Police Station against the 1st petitioner only for the offence punishable under Section 376 of the IPC stands obliterated. Insofar as other offences alleged against the 1st petitioner in the FIR are concerned they are sustained. (iii) Insofar as petitioners 2 to 5, 7 and 8 are concerned, the FIR stands quashed. Pending applications if any, also stand disposed. Sd/- (M. NAGAPRASANNA) JUDGE Bkp CT:MJ