- 1 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR CRIMINAL PETITION NO. 7603 OF 2024 (482(Cr.PC) / 528(BNSS) BETWEEN: 1. PRATHAPA MD S/O DEVARAJU, AGED ABOUT 30 YEARS, R/AT MALLIGERE VILLAGE, PANDAVAPURA TALUK, MANDYA – 571 401. 2. KUMARI ALIYAS KUMARAMMA W/O DEVARAJU, AGED ABOUT 50 YEARS, R/AT MALLIGERE VILLAGE, PANDAVAPURA TALUK, MANDYA – 571 401. 3. AVINASH M D S/O DEVARAJU, AGED ABOUT 29 YEARS, R/AT MALLIGERE VILLAGE, PANDAVAPURA TALUK, MANDYA – 571 401. 4. RAVI S M S/O MADEGOWDA, AGED ABOUT 36 YEARS, R/AT MALLIGERE VILLAGE, PANDAVAPURA TALUK, MANDYA – 571 401. …PETITIONERS (BY SRI. SUNIL S NARAYAN.,ADVOCATE) AND: 1. STATE OF KARNATAKA BY SALIGRAMA PS, MYSORE RURAL SUB DIVISION – 571 604. Digitally signed by CHANDANA B M Location: High Court of Karnataka - 2 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 REP. BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT COMPLEX, BENGALURU – 560 001. 2. THRIVENI M R D/O RAMAIHA, AGED ABOUT 27 YEARS, R/AT MUNJANAHALLI VILLAGE, SALIGRAMA TALUK, MYSORE DISTRICT – 571 604. …RESPONDENTS (BY SRI. .,ADVOCATE) THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 CR.P.C PRAYING TO ALLOW THE CRIMINAL PETITION AND QUASH THE ENTIRE PROCEEDINGS AGAINST THE PETITIONER THAT IS ACCUSED NO.1 TO 4 IN SPL.C.NO.542/2023 THAT IS CRIME NO.106/2023 REGISTERED BY THE SALIGRAMA P.S., FOR THE OFFENCE PUNISHABLE UNDER SECTION 376(2)(n), 417, 504, 506 R/W SEC.34 OF IPC AND SEC.3(1)(r)(s), 3(1)(w)(i), 3(2)(va) OF SC/ST (POA) AMENDMENT ACT 2015 PENDING BEFORE VI ADDITIONAL DISTRICT AND SPECIAL JUDGE MYSURU THAT IS ANNEXURE D AND ETC. THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE S.R.KRISHNA KUMAR ORAL ORDER In this petition, petitioners seek for the following reliefs:- A. To allow the criminal petition. B. To Quash the entire proceedings against the petitioners i.e., Accused No.1 to 4 in Spl.C.No.542/2023 i.e., Crime No.106/2023 registered by the Saligrama PS, for the offences punishable under Section 376(2)(n), 417, 504, 506 r/w 34 of IPC and under Section 3(1)(r)(s), 3(1)(w)(i), 3(2)(va) of the SC & ST (Prevention of Atrocities) Amendment Act 2015 pending before the VI - 3 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 Additional District and Special Judge, Mysore i.e., Annexure – D. C. To set aside the order dated 19.06.2024 in dismissing the discharge application filed by the petitioners i.e., Accused No.1 to 4 in Spl.C.No.542/2023 passed by the VI Additional District and Special Judge, Mysore i.e., Annexure – E and intern allow the application. D. And grant such other relief or reliefs as this Hon’ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity. 2. Heard learned counsel for the petitioners and learned HCGP for 1st respondent – State and learned counsel for 2nd respondent and perused the material on record. 3. A perusal of the material on record will indicate that the 2nd respondent – de facto complainant filed the impugned complaint which was registered as an FIR in Crime No.106/2023 against the petitioners – accused Nos.1 to 4 for alleged offences under Sections 417, 376, 504, 506, 420 r/w 34 IPC and Sections 3(1)(r)(s), 3(1)(w)(i) and 3(2)(va) of the SC/ST (Prevention of Atrocities) Amendment Act, 2015. It was alleged by the complainant that in addition to the fact that the 2nd respondent had been induced to have sexual intercourse with petitioner No.1 who - 4 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 promised to marry her, thereby attracting Section 376 of IPC, all the accused persons were guilty of the remaining offences alleged against them. In pursuance of the said complaint, the 1st respondent – Police conducted investigation and filed a charge sheet in Spl.C.No.542/2023 before the Sessions Court, in which, the petitioners filed an application under Section 227 Cr.P.C. seeking discharge, which came to be rejected vide impugned order dated 19.06.2024. Aggrieved by the said impugned order and seeking quashing of the impugned proceedings, petitioners are before this Court by way of the present petition. 4. The 2nd respondent has filed her statement of objections and has sought for dismissal of the petition. 5. In addition to reiterating the various contentions urged in the petition and referring to the material on record, learned counsel for the petitioners submits that in the light of the fact that there was consensual sexual relationship between petitioner No.1 and 2nd respondent, it could not be said that petitioner No.1 was guilty of the offence punishable under Section 376 IPC, since having consensual sexual relationship on the promise / pretext of marriage would not attract the alleged offence. It was also submitted that a - 5 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 perusal of the complaint, charge sheet material etc., would clearly indicate that the petitioners are also not guilty of the remaining offence alleged against them especially when the offences alleged under the SC/ST Act were not attracted to the facts of the instant case. It was therefore submitted that the impugned proceedings deserve to be quashed. In support of his submissions, learned counsel placed reliance upon the following judgments:- (i) Hitesh Varma vs. State of Uttarkhand – AIR 2020 SC 5584; (ii) Ritesh Pais vs. State of Karnataka – Crl.P.No.3597/2022 dated 10.06.2022; (iii) Danish Khan vs. State of Karnataka – Crl.P.No.7148/2022 dated 08.09.2023; (iv) Karthik and others vs. State of Karnataka – Crl.P.No.13031/2023 dated 19.12.2023; (v) Lokesh L.V. vs. State of Karnataka – Crl.P.No.4941/2023 dated 12.06.2024; (vi) Pavan H.M. Manohar @ Pavan @ Pavan Manohar H.M. vs. State of Karnataka – Crl.P.N.7739/2024 dated 05.11.2024; (vii) Akhil Thomas vs. State of Karnataka – Crl.P.no.5952/2024 dated 26.11.2024; (viii) Sudeep A. vs. State of Karnataka – Crl.P.no.6811/2024 dated 10.12.2024; (ix) Mehaboobali vs. State of Karnataka – Crl.P.no.103363/2023 dated 22.01.2025; - 6 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 6. Per contra, learned counsel for 2nd respondent would reiterate the various contentions urged in the statement of objections and submits that there is no merit in the petition and that the same is liable to be dismissed. 7. A perusal of the material on record comprising of complaint, FIR, charge sheet material, statements of witnesses, documents etc., would clearly indicate that necessary ingredients of commission of offences under Sections 3(1) (r)(s), 3(1)(w)(i) and 3(2)(va) of the SC/ST (Prevention of Atrocities) Amendment Act, 2015, are neither disclosed nor forthcoming in the same; in fact, there is no legal or acceptable material to indicate that the offences were committed in public view or in any place within public view as required so as to attract the aforesaid provisions relating to commission of the alleged offences; in Hitesh Varma’s case supra, the Apex Court held as under:- “8. Against the backdrop of these facts, it is pertinent to refer to the Statement of Objects and Reasons of enactment of the Act. It is provided as under: “Despite various measures to improve the socio- economic conditions of the Scheduled Castes and the Scheduled Tribes, they remain vulnerable. They are denied number of civil rights. They are subjected to various offences, indignities, humiliations and harassment. They have, in several brutal incidents, been deprived of - 7 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 their life and property. Serious crimes are committed against them for various historical, social and economic reasons. 2. Because of the awareness created amongst the Scheduled Castes and the Scheduled Tribes through spread of education, etc., they are trying to assert their rights and this is not being taken very kindly by the others. When they assert their rights and resist practices of untouchability against them or demand statutory minimum wages or refuse to do any bonded and forced labour, the vested interests try to cow them down and terrorise them. When the Scheduled Castes and the Scheduled Tribes try to preserve their self-respect or honour of their women, they become irritants for the dominant and the mighty. Occupation and cultivation of even the Government allotted land by the Scheduled Castes and the Scheduled Tribes is resented and more often these people become victims of attacks by the vested interests. Of late, there has bene an increase in the disturbing trend of commission of certain atrocities like making the Scheduled Caste persons eat inedible substances like human excreta and attacks on and mass killings of helpless Scheduled Castes and the Scheduled Tribes and rape of women belonging to the Scheduled Castes and the Scheduled Tribes. Under the circumstances, the existing laws like the Protection of Civil Rights Act, 1955 and the normal provisions of the Indian Penal Code have been found to be inadequate to check these crimes. A special Legislation to check and deter crimes against them committed by non-Scheduled Castes and non-Scheduled Tribes has, therefore, become necessary.” 9. The long title of the Act is to prevent the commission of offences of atrocities against the members of the Scheduled Castes and the Scheduled Tribes, to provide for Special Courts and Exclusive Special Courts for the trial of such offences and for the relief and rehabilitation of the victims of such offences and for matters connected therewith or incidental thereto. - 8 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 10. The Act was enacted to improve the social economic conditions of the vulnerable sections of the society as they have been subjected to various offences such as indignities, humiliations and harassment. They have been deprived of life and property as well. The object of the Act is thus to punish the violators who inflict indignities, humiliations and harassment and commit the offence as defined under Section 3 of the Act. The Act is thus intended to punish the acts of the upper caste against the vulnerable section of the society for the reason that they belong to a particular community. 11. It may be stated that the charge-sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act No. 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under: “3(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;” 12. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as “1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and 2) in any place within public view”. 13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or - 9 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the Society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that respondent No.2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that respondent No.2 is member of Scheduled Caste. 14. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh & Ors. v. State through Standing Counsel & Ors-(2008) 8 SCC 435. The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made - 10 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view. The Court held as under: “28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.” 15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered “in any place within public view” is not made out. In the list of witnesses appended to the charge- sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the - 11 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 judgment of this Court in Swaran Singh, it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet. 16. There is a dispute about the possession of the land which is the subject matter of civil dispute between the parties as per respondent No.2 herself. Due to dispute, appellant and others were not permitting respondent No.2 to cultivate the land for the last six months. Since the matter is regarding possession of property pending before the Civil Court, any dispute arising on account of possession of the said property would not disclose an offence under the Act unless the victim is abused, intimated or harassed only for the reason that she belongs to Scheduled Caste or Scheduled Tribe. 17. In another judgment reported as Khuman Singh v. State of Madhya Pradesh-2019 SCC OnLine SC 1104, this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment. This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under: “15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to “Khangar”-Scheduled Caste is not disputed. There is no - 12 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 evidence to show that the offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant- accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable.” 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out. 19. This Court in a judgment reported as Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr. – (2018) 6 SCC 454 issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported as Union of India v. State of Maharashtra & Ors.- (2020) 4 SCC 761 reviewed the directions issued by this Court and held that if there is a false and unsubstantiated FIR, the proceedings under Section 482 of the Code can be invoked. The Court held as under: “52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human - 13 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such misuse. In such a situation, it can be taken care of in proceeding under Section 482 CrPC.” 20. Later, while examining the constitutionality of the provisions of the Amending Act (Central Act No. 27 of 2018), this Court in a judgment reported as Prathvi Raj Chauhan v. Union of India & Ors.- (2020) 4 SCC 727 held that proceedings can be quashed under Section 482 of the Code. It was held as under: “12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised.” 21. In Gerige Pentaiah, one of the arguments raised was non-disclosure of the caste of the accused but the facts were almost similar as there was civil dispute between parties pending and the allegation was that the accused has called abuses in the name of the caste of the victim. The High Court herein has misread the judgment of this Court in Ashabai Machindra Adhagale as it was not a case about the caste of the victim but the fact that the accused was belonging to upper caste was not mentioned in the FIR. The High Court of Bombay had quashed the proceedings for the reason that the caste of the accused was not mentioned in - 14 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 the FIR, therefore, the offence under Section 3(1)(xi) of the Act is not made out. In an appeal against the decision of the Bombay High Court, this Court held that this will be the matter of investigation as to whether the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. Therefore, the High Court erred in law to dismiss the quashing petition relying upon later larger Bench judgment. 22. The appellant had sought quashing of the charge- sheet on the ground that the allegation does not make out an offence under the Act against the appellant merely because respondent No. 2 was a Scheduled Caste since the property dispute was not on account of the fact that respondent No. 2 was a Scheduled Caste. The property disputes between a vulnerable section of the society and a person of upper caste will not disclose any offence under the Act unless, the allegations are on account of the victim being a Scheduled Caste. Still further, the finding that the appellant was aware of the caste of the informant is wholly inconsequential as the knowledge does not bar, any person to protect is rights by way of a procedure established by law. 23. This Court in a judgment reported as Ishwar Pratap Singh & Ors. v. State of Uttar Pradesh & Anr.- (2018) 13 SCC 612 held that there is no prohibition under the law for quashing the charge-sheet in part. In a petition filed under Section 482 of the Code, the High Court is required to examine as to whether its intervention is required for prevention of abuse of process of law or otherwise to secure the ends of justice. The Court held as under: - 15 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “9. Having regard to the settled legal position on external interference in investigation and the specific facts of this case, we are of the view that the High Court ought to have exercised its jurisdiction under Section 482 CrPC to secure the ends of justice. There is no prohibition under law for quashing a charge-sheet in part. A person may be accused of several offences under different penal statutes, as in the instant case. He could be aggrieved of prosecution only on a particular charge or charges, on any ground available to him in law. Under Section 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the Criminal Procedure Code or for prevention of abuse of process, or otherwise to secure the ends of justice. A charge-sheet filed at the dictate of somebody other than the police would amount to abuse of the process of law and hence the High Court ought to have exercised its inherent powers under Section 482 to the extent of the abuse. There is no requirement that the charge-sheet has to be quashed as a whole and not in part. Accordingly, this appeal is allowed. The supplementary report filed by the police, at the direction of the Commission, is quashed.” 24. In view of the above facts, we find that the charges against the appellant under Section 3(1)(r) of the Act are not made out. Consequently, the charge-sheet to that extent is quashed. The appeal is disposed of in the above terms. 25. The FIR in respect of other offences will be tried by the competent Court in accordance with law along with the criminal case 11, though separately initiated, for the reason that it relates to interparty dispute and is in respect of same subject matter of property, despite of the fact that two different dates of the incident have been provided by the parties.” - 16 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 8. This Court in Ritesh Pais’s case supra, held as under:- “8. What is germane to be noticed is who is the complainant. The complainant/CW-1 is the employee of defendant No.8 in the suit Sri Jayakumjar R.Nair against whom an order of injunction is operating in a suit filed by the petitioner. This fact of the complainant being the employee of Sri Jayakumjar R.Nair is not in dispute as the complaint itself narrates this fact. What springs now to be considered is, whether hurling of abuses has taken place in a public place or a place of public view to attract Sections 3(1)(r) and 3(1)(s) of the Act. Sections 3(1)(r) and 3(1)(s) read as follows: “3. Punishments for offences of atrocities.- (1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe.- … … … … (r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view; (s) abuses any member of a Scheduled Caste or a Scheduled Tribe by caste name in any place within public view;’ In terms of Sections 3(1)(r) & 3(1)(s) what is necessary to drive home an offence that would become punishable under these Sections is that hurling of abuses must be either in a public place or a place of public view. The allegation against the petitioner is that he has hurled abuses on the complainant at the basement of the building and the witnesses to the said incident are CWs-2 to 6. The complainant is CW-1. It is again not in dispute that all the witnesses including the complainant are co-employees of Sri Jayakumjar R.Nair or fiends of CW-1/complainant. This is - 17 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 also an admitted fact. The Police, after investigation, have filed the charge sheet. Summary of the charge sheet reads as follows: “17. PÉÃ¹£À ¸ÀAQë¥ÀÛ «ªÀgÀ (CªÀ±ÀåPÀ«zÀÝ°è ¥ÀævÉåÃPÀ ºÁ¼É ®UÀwÛ¹):- F zÉÆÃµÁgÉÆÃ¥ÀuÁ ¥ÀvÀæzÀ CAPÀt £ÀA§æ 12 gÀ°è ºÉ¸ÀgÀÄ «¼Á¸À £ÀªÀÄÆ¢¹zÀ DgÉÆÃ¦vÀ£À ªÉÄÃ°£À D¥ÁzÀ£É K£ÉAzÀgÉ DgÉÆÃ¦vÀ£ÀÄ PÉæöÊ¸ÀÛ eÁwUÉ ¸ÉÃjzÀªÀ£ÁVzÀÄÝ ZÁ ¸Á 1 £ÉÃAiÀÄªÀgÀÄ ¥Àj²µÀÖ eÁwAiÀÄ ¨ÉÊgÀ eÁwUÉ ¸ÉÃjzÀªÀgÁVgÀÄvÁÛgÉ. ¢£ÁAPÀ 02.10.2020 gÀAzÀÄ ¨É½UÉÎ ¸ÀÄªÀiÁgÀÄ 10.30 UÀAmÉ ¸ÀªÀÄAiÀÄPÉÌ ZÁ ¸Á 1 £ÉÃAiÀÄªÀgÀÄ ZÁ ¸Á 7 £ÉÃAiÀÄªÀgÀÄ ¥ÀÄvÀÆÛgÀÄ vÁ®ÆPÀÄ ¥ÀÄvÀÆÛgÀÄ PÀ¸Áâ UÁæªÀÄzÀ K¼ÀÄär JA§°è ºÉÆ¸ÀzÁV ¤«Äð¸ÀÄwÛgÀÄªÀ PÀlÖqÀzÀ PÁªÀÄUÁj PÉ®¸ÀªÀ£ÀÄß ªÀiÁqÀÄwÛgÀÄªÁUÀ DgÉÆÃ¦vÀ£ÀÄ C°èUÉ ºÉÆÃV ZÁ ¸Á 1 £ÉÃAiÀÄªÀgÀ°è PÉ®¸À ªÀiÁqÀ¨ÁgÀzÀÄ PÉ®¸À ¤°è¸À¨ÉÃPÉAzÀÄ zÀ¥Àð¢AzÀ eÉÆÃgÁV UÀzÀj¹zÁUÀ ZÁ ¸Á 1 £ÉÃAiÀÄªÀgÀÄ £Á£ÀÄ zsÀ¤UÀ¼ÀÄ ºÉÃ½zÀÝµÀÄÖ PÉ®¸À ªÀiÁqÀÄªÀÅzÀÄ ¤ÃªÀÅ CªÀgÀ°è ªÀiÁvÁr JAzÀÄ ºÉÃ½zÁUÀ ZÁ ¸Á 2 jAzÀ ZÁ ¸Á 6 £ÉÃAiÀÄªÀgÀ JzÀÄj£À¯ÉèÃ ZÁ ¸Á 1 £ÉÃAiÀÄªÀgÀ£ÀÄß GzÉÝÃ²¹ ¨ÉÆÃ½ªÀÄUÀ£ÉÃ ¤Ã£ÀÄ ºÀjd£À ºÉÆ¯ÉAiÀÄ ¤£ÀUÉ EµÀÄÖ CºÀAPÁgÀ«zÀÝgÉ £À£ÀUÉµÀÄÖ EgÀ¨ÉÃqÀ PÉ®¸À ªÀÄÄAzÀÄªÀj¹zÀgÉ ¤£Àß PÉÊPÁ®Ä PÀrzÀÄ ºÁPÀÄªÉ£ÀÄ ¤ªÀÄä£Éß¯Áè fÃªÀ ¸À»vÀ ©qÀ°QÌ®è ¤£Àß eÁwAiÉÄÃ ºÁUÉÃ ¤£Àß£ÀÄß K£ÀÄ ªÀiÁqÀ¨ÉÃPÉAzÀÄ UÉÆwÛzÉ JAzÀÄ DgÉÆÃ¦vÀ£ÀÄ ZÁ ¸Á 1£ÉÃAiÀÄªÀgÀ ªÉÄÊUÉ PÉÊ ºÁQ CªÀgÀ CAVAiÀÄ£ÀÄß J¼ÉzÀÄ ºÀjzÀÄ ºÁQ zËdð£ÀåªÉ¸ÀVzÁÝVzÉ. ZÁ ¸Á 7 £ÉÃAiÀÄªÀgÀÄ PÀlÖqÀ ¤«Äð¸ÀÄªÀÅzÀPÉÌ DgÉÆÃ¦vÀ£ÀÄ DPÉëÃ¦¸ÀÄwÛzÀÄÝ C°è PÀlÖqÀ ¤«Äð¸À¨ÁgÀzÉA§ PÁgÀt¢AzÀ F UÀ¯ÁmÉ £ÀqÉ¹gÀÄªÀÅzÁVzÉ.” If the complaint, summary of charge sheet and the statement of witnesses, CW-2 in particular, are read in tandem, it would unmistakably reveal that hurling of abuses has happened at the basement where CWs-1 to 6 were working and in the basement, it is not indicated, any other person was even present. Two factors would emerge from a reading of the aforesaid statements – one being, the basement of the building was not a place of public view and two, only persons who claim to be present were the complainant/CW1 and other employees of Sri Jayakumjar R.Nair or friends of CW- 1. Therefore, hurling of abuses is clearly not in a place of public view or a public place for the aforesaid provisions of the Act to be get attracted in the case at hand. Reference - 18 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 being made to the judgment of the Apex Court in the case of HITESH VERMA v. STATE OF UTTARAKHAND1 in the circumstances becomes apposite. The Apex Court has interpreted the very provision that is now invoked against the petitioner and held what would it mean to be a place of public view or a public place. The Apex Court has held as follows: “11. It may be stated that the charge-sheet filed is for an offence under Section 3(1)(x) of the Act. The said section stands substituted by Act 1 of 2016 w.e.f. 26.1.2016. The substituted corresponding provision is Section 3(1)(r) which reads as under: “3.(1)(r) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;” 12. The basic ingredients of the offence under Section 3(1)(r) of the Act can be classified as “(1) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe and (2) in any place within public view”. 13. The offence under Section 3(1)(r) of the Act would indicate the ingredient of intentional insult and intimidation with an intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe. All insults or intimidations to a person will not be an offence under the Act unless such insult or intimidation is on account of victim belonging to Scheduled Caste or Scheduled Tribe. The object of the Act is to improve the socio-economic conditions of the Scheduled Castes and the Scheduled Tribes as they are denied number of civil rights. Thus, an offence under the Act would be made out when a member of the vulnerable section of the society is subjected to indignities, humiliations and harassment. The assertion of title over the land by either of the parties is not due to either the indignities, humiliations or harassment. Every citizen has a right to avail their remedies in accordance with law. Therefore, if the appellant or his family members have invoked jurisdiction of the civil court, or that 1 (2020)10 SCC 710 - 19 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 Respondent 2 has invoked the jurisdiction of the civil court, then the parties are availing their remedies in accordance with the procedure established by law. Such action is not for the reason that Respondent 2 is a member of Scheduled Caste. 14. Another key ingredient of the provision is insult or intimidation in “any place within public view”. What is to be regarded as “place in public view” had come up for consideration before this Court in the judgment reported as Swaran Singh v. State [Swaran Singh v. State, (2008) 8 SCC 435: (2008) 3 SCC (Cri) 527]. The Court had drawn distinction between the expression “public place” and “in any place within public view”. It was held that if an offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, then the lawn would certainly be a place within the public view. On the contrary, if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then it would not be an offence since it is not in the public view (sic) [Ed.: This sentence appears to be contrary to what is stated below in the extract from Swaran Singh, (2008) 8 SCC 435, at p. 736d-e, and in the application of this principle in para 15, below:“Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives or friends) then also it would be an offence since it is in the public view.”] . The Court held as under: (SCC pp. 443-44, para 28) “28. It has been alleged in the FIR that Vinod Nagar, the first informant, was insulted by Appellants 2 and 3 (by calling him a “chamar”) when he stood near the car which was parked at the gate of the premises. In our opinion, this was certainly a place within public view, since the gate of a house is certainly a place within public view. It could have been a different matter had the alleged offence been committed inside a building, and also was not in the public view. However, if the offence is committed outside the building e.g. in a lawn outside a house, and the lawn can be seen by someone from the road or lane outside the boundary wall, the lawn would certainly be a place within the public view. Also, even if the remark is made inside a building, but some members of the public are there (not merely relatives - 20 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 or friends) then also it would be an offence since it is in the public view. We must, therefore, not confuse the expression “place within public view” with the expression “public place”. A place can be a private place but yet within the public view. On the other hand, a public place would ordinarily mean a place which is owned or leased by the Government or the municipality (or other local body) or gaon sabha or an instrumentality of the State, and not by private persons or private bodies.” (emphasis in original) 15. As per the FIR, the allegations of abusing the informant were within the four walls of her building. It is not the case of the informant that there was any member of the public (not merely relatives or friends) at the time of the incident in the house. Therefore, the basic ingredient that the words were uttered “in any place within public view” is not made out. In the list of witnesses appended to the charge- sheet, certain witnesses are named but it could not be said that those were the persons present within the four walls of the building. The offence is alleged to have taken place within the four walls of the building. Therefore, in view of the judgment of this Court in Swaran Singh [Swaran Singh v. State, (2008) 8 SCC 435: (2008) 3 SCC (Cri) 527], it cannot be said to be a place within public view as none was said to be present within the four walls of the building as per the FIR and/or charge-sheet. … … … … 18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out. … … … … 21. In Gorige Pentaiah [Gorige Pentaiah v. State of A.P., (2008) 12 SCC 531: (2009) 1 SCC (Cri) 446] , one of the arguments raised was non-disclosure of the caste of the accused but the facts were almost similar as there was - 21 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 civil dispute between parties pending and the allegation was that the accused has called abuses in the name of the caste of the victim. The High Court herein has misread the judgment of this Court in Ashabai Machindra Adhagale [Ashabai Machindra Adhagale v. State of Maharashtra, (2009) 3 SCC 789: (2009) 2 SCC (Cri) 20] as it was not a case about the caste of the victim but the fact that the accused was belonging to upper caste was not mentioned in the FIR. The High Court of Bombay had quashed the proceedings for the reason that the caste of the accused was not mentioned in the FIR, therefore, the offence under Section 3(1)(xi) of the Act is not made out. In an appeal against the decision of the Bombay High Court, this Court held that this will be the matter of investigation as to whether the accused either belongs to or does not belong to Scheduled Caste or Scheduled Tribe. Therefore, the High Court erred in law to dismiss the quashing petition relying upon later larger Bench judgment.” (Emphasis supplied) The Apex Court, in the afore-quoted judgment, has also considered the squabble between the parties which could have led to registration of the crime. The facts therein are akin to the facts in the case at hand. Sri Jayakumar R.Nair wanting to shoot the shoulder of his employee – CW-1 for the act of the petitioner having registered a suit against Sri Jayakumar R.Nair and also secured an interim order of injunction leading to registration of the crime cannot be brushed aside as it demonstrates a clear link in the chain of events. Therefore, the registration of crime itself suffers from want of bona fides. 9. The aforementioned is the analysis of invocation of the provisions of the Act. Offences under the IPC are also invoked in the case at hand which would become punishable under Sections 504, 506 and 323 of the IPC. For an offence punishable under Section 323 IPC there should be hurt caused in the squabble. A perusal at the records would - 22 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 reveal that the wound certificate shows a simple scratch mark on the fore-arm and another scratch mark on the chest. Bleeding is not what is indicated. Therefore, simple scratch marks cannot become offence under Section 323 of the IPC. Insofar as Sections 504 and 506 of the IPC are concerned, they are clearly an offshoot of the allegations made under the Act. Therefore, none of the offences under Sections 3(1)(r), 3(1)(s) or Section 3(2)(va) can be driven home in the case at hand as they are all shrouded with the act of 8th defendant seeking to wreck vengeance against the petitioner for having registered the suit. Therefore, none of the offences alleged are sustainable in the peculiar facts of the case at hand. 10. Reference being made to another judgment of the Apex Court which bears consideration in Hitesh Verma’s case (supra) in the case of GORIGE PENTAIAH v. STATE OF A.P.2 is apposite wherein the Apex Court holds as under: “5. Learned counsel appearing for the appellant submitted that even if all the allegations incorporated in the complaint are taken as true, even then, no offence is made out under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the Act”) and under Sections 447, 427, 506 of the Penal Code, 1860. As far as Section 3(1)(x) of the Act is concerned, it reads as under: “3. Punishments for offences of atrocities.—(1) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,— (i)-(ix)*** (x) intentionally insults or intimidates with intent to humiliate a member of a Scheduled Caste or a Scheduled Tribe in any place within public view;” … …. 2 (2008) 12 SCC 531 - 23 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 7. Similarly, we find that the ingredients of Section 506 of the Penal Code are totally absent in the complaint. In the complaint it is not even mentioned that the accused had intimidated or threatened the complainant or anyone else. In absence of basic ingredients of the section in the complaint, no case under Section 506 IPC can be sustained. Section 506 reads as under: “506. Punishment for criminal intimidation.— Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both;” 8. “Criminal intimidation” has been defined in Section 503 which reads as under: “503. Criminal intimidation.— Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threats, commits criminal intimidation.” Scope and ambit of courts' powers under Section 482 CrPC 12. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority - 24 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases 13. Reference to the following cases would reveal that the courts have consistently taken the view that they must use this extraordinary power to prevent injustice and secure the ends of justice. The English courts have also used inherent power to achieve the same objective. It is generally agreed that the Crown Court has inherent power to protect its process from abuse. In Connelly v. Director of Public Prosecutions [1964 AC 1254: (1964) 2 WLR 1145: (1964) 2 All ER 401 (HL)] Lord Devlin stated that where particular criminal proceedings constitute an abuse of process, the court is empowered to refuse to allow the indictment to proceed to trial. Lord Salmon in Director of Public Prosecutions v. Humphrys [1977 AC 1: (1976) 2 WLR 857: (1976) 2 All ER 497 (HL)] stressed the importance of the inherent power when he observed that it is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the Judge has the power to intervene. He further mentioned that the courts' power to prevent such abuse is of great constitutional importance and should be jealously preserved.” (Emphasis supplied) The Apex Court, in the aforesaid judgment, had delineated the concept of abuses in public place or in a public view which is further amplified by a three Judge Bench in Hitesh Verma’s case (supra). 11. Insofar as the judgment relied on by the State in the case of State of Uttar Pradesh v. Naresh and others reported in (2011)4 SCC 324 to contend merely because the witnesses are the friends of the complainant, it would not vitiate the proceedings. The said judgment is distinguishable on the facts of the case at hand in juxtaposition to the facts obtaining in the said case, without much ado, as the case was concerning examination of witnesses in a trial for murder - 25 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 under Section 302 of the IPC and all the witnesses though were friends, had corroboration with other material. In the case at hand, neither the complaint nor the statements nor the finding in the charge sheet would be enough to drive home the offence so alleged under the Act. 12. In the light of the afore-quoted facts, when the basic ingredients of the offence are missing, then permitting such proceedings to continue and to compel the petitioner to face the rigmarole of criminal trial would be totally unjustified, leading to abuse of the process of law. In the teeth of the aforesaid facts and analysis, permitting further proceedings to continue would degenerate into harassment and result in miscarriage of justice. 13. For the aforesaid reasons, the following: ORDER (i) The Criminal Petition is allowed. (ii) The proceedings in Spl.C.No.5023/2021 (Crime No.72/2020 of Puttur Town P.S.) for offences punishable under Sections 504, 323, 506 of the IPC and Sec.3(1)(r)(s), 3(2)(va) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) (Amendment) Act, 2015, pending on the file of V Additional District & Sessions Judge, D.K. Mangaluru, Sitting at Puttur D.K., stand quashed.” 9. In the instant case, as stated supra, the material on record does not disclose the commission of the alleged offences by the petitioners as required in law and consequently, in the light of the - 26 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 law laid down by the Apex Court and this Court supra, I am of the view that the impugned proceedings qua the aforesaid provisions of Sections 3(1)(r)(s), 3(1)(w)(i) and 3(2)(va) of the SC/ST (Prevention of Atrocities) Amendment Act, 2015, deserve to be quashed. 10. Insofar as the allegations for the alleged offences under Section 376 IPC are concerned, it is needless to state that except petitioner No.1, his family members viz., petitioners 2 to 4 cannot be held to be liable for the said offence; in this context, it is relevant to state that except stating that the petitioner No.1 had sexual intercourse with the 2nd respondent on the pretext / promise of marriage which was breached by the 1st petitioner, who did not go ahead and marry the 2nd respondent despite having sexual relationship / intercourse with him, there is no other material to incriminate petitioner No.1 for the alleged offences under Section 376 IPC. Under identical circumstances, the Apex Court as well as this Court has repeatedly held that mere breach of promise to marry pursuant to consensual / voluntary sexual relationship cannot be said to constitute the offence of rape under Section 376 IPC; in Danish Khan’s case supra, this Court held as under:- - 27 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “6. A perusal of the complaint would indicate that the petitioner and the survivor were in live-in-relationship for six years and the relationship having turned sour, the FIR was lodged by the second respondent. 7. The Hon'ble Supreme Court in the case MANDAR DEEPAK PAWAR AND ANOTHER supra has held as follows: The appellant and respondent No.2 were undisputedly in a consensual relationship from 2009 to 2011 (or 2013 as stated by the respondent No.2). It is the say of the respondent No.2 that the consensual physical relationship was on an assurance of marriage by the appellant. The complaint has been filed only in 2016 after three years, pursuant whereto FIR dated 16.12.2016 was registered under Section 376 and 420, IPC. On hearing learned counsel for parties, we find ex facie the registration of FIR in the present case is abuse of the criminal process. 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. The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 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. We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled “Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr.” 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 - 28 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. The Criminal appeal is accordingly allowed. 8. The co-ordinate Bench of this Court in an identical circumstance in Crl.P.No.2189/2021 has held as follows: 9. The Apex Court, while delineating inter-play between promise of marriage and allegation of rape, in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA, 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 - 29 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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): “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;” 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 - 30 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil 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 “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. *** - 31 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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.” (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: (SCCp.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 - 32 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 33 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) 10. The petitioner and the second respondent were in a relationship for more than 6 years. After perusing the charge sheet materials, it can be inferred that the sexual intercourse between the accused and the survivor was a consensual one and there was no inducement by the accused from inception to have sexual intercourse by promising to marry with an intention to deceive. Engaging in sexual intercourse must be of a consequence of false promise made and must not be out of love and affection. Therefore, the continuation of criminal proceedings will be an abuse of the process of law. Accordingly, I pass the following: ORDER i. Criminal Petition is allowed. ii. The impugned proceedings in S.C.No.1246/2018 on the file of LIII Addl. City Civil and Sessions Judge, Bengaluru stands quashed. Pending IAs. does not survive for consideration.” - 34 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 11. In Lokesh’s case supra, this Court held as under:- “12. The complaint narrates that on 16.01.2017 at 11.00 a.m. engagement ceremony of the petitioner and the complainant takes place and all the happenings of the physical relationship between the two at Delhi is after the date of the engagement. On 09.04.2017, the marriage does not take place it breaks and therefore, later it becomes offence of rape of registration of the complaint on 13.02.2019 whether such instances could amount to an offence of rape is considered by this Court in Crl.P.No.13912/2023 dated 07.06.2024, wherein this Court has held as follows: "11. The issue now would be whether, trial should be permitted to be continued against the petitioners; 1st petitioner in particular, for offences punishable under Section 376 of the IPC and all members of the family for other offences? 12. The fateful day that had played upon the 1st petitioner is on 11-01-2023, the date on which the betrothal ceremony took place, with the complainant. Talks of marriage between the members of the family had also taken place, and the date of marriage is to be fixed on 08-09-2023, these happen on the day of betrothal ceremony. Therefore, one factum is clear that there was no false promise of marriage. It is a marriage that had been decided. In the considered view of the Court, it is not a false promise of marriage. It was a betrothal ceremony and ensuing was the marriage. The documents appended to the charge sheet or the statements would no where drive home the point that on the evening of the day of betrothal ceremony, the 1st petitioner had indulged in such acts that would become ingredients of Section 375 of the IPC for it to become an offence under Section 376 IPC for rape. 13. It becomes germane to notice the judgments of the Apex Court on the issue, as to indulging in consensual acts of sexual intercourse on the promise of marriage, would become an ingredient of offence under Section 376 of the IPC or otherwise. The Apex Court has delineated - 35 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 the inter-play between the offence of rape and a consensual sexual relationship, both on the false promise of marriage and breach of promise of marriage. Therefore, a deeper delving into the issue becomes unnecessary, suffice to quote the judgments of the Apex Court. The Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA3 has drawn distinction between rape and consensual sexual relationships. Delineating the 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): “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;” 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: 3(2019) 9 SCC 608 - 36 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “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 “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 - 37 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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.” (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 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 - 38 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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.” 10. The Apex Court, a little later in the case of DHRUVARAM MURLIDHAR SONAR (supra), 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) “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 - 39 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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.” 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 - 40 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 41 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 Kurukshetra with the accused, 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. 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 - 42 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) 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 reported in (2019) 18 SCC 191 and had obliterated the proceedings qua the accused. 14. 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 KARWAR v. STATE OF UTTARPRADESH AND ANOTHER4 has held as follows: 4 2022 SCC OnLine SC 1032 - 43 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “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 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 - 44 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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: 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 - 45 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “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… […] 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 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 - 46 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) 15. In yet another judgment, the Apex Court in the case of MANDAR DEEPAK PAWAR V. STATE OF MAHARASHTRA AND ANOTHER5 has held as follows: “1. The appellant and respondent No.2 were undisputedly in a consensual relationship from 2009 to 2011 (or 2013 as stated by the respondent No.2). It is the say of the respondent No.2 that the consensual physical relationship was on an assurance of marriage by the appellant. The complaint has been filed only in 2016 after three years, pursuant whereto FIR dated 16-12-2016 was registered. 2. On hearing learned counsel for parties, we find ex facie the registration of FIR in the present case is abuse of the criminal process. 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 5 2022 SCC OnLine SC 2110 - 47 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 6. The Criminal appeal is accordingly allowed. 7. Impugned judgment is set aside the proceedings in pursuance to FIR dated 16-12-2016 stands quashed, leaving parties to tear their own costs”. (Emphasis supplied) The afore-quoted were all cases where the relationship between the accused and the prosecutrix was consensual and the allegation was that of offence punishable under Section 376 of the IPC for rape. The Apex Court delineates inter-play between the offence of rape and a consensual sexual relationship, both on false promise of marriage and promise of marriage. In the case at hand, as observed hereinabove, there was no false promise of marriage. The intention was to get married, as betrothal ceremony takes place. Therefore, it cannot be brought under the ambit of false promise of marriage. 16. It becomes opposite to refer to the judgment of the Apex Court in the case of NAIM AHAMED v. STATE (NCT OF DELHI)6, again delineating what would be false promise of marriage and a promise of marriage, wherein the Apex Court 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 6 2023 SCC OnLine SC 89 - 48 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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. - 49 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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:— “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. -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 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 - 50 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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.” - 51 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 52 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 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. (vii) The prosecutrix and her husband took divorce by mutual consent in 2014 and thereafter prosecutrix permanently left her three children with her husband. - 53 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (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) The Apex Court holds that there is a vast difference between false promise of marriage and promise of marriage or breach of promise of marriage. One cannot deny possibility of the accused making promise with all seriousness to marry the complainant. The circumstances beyond the control would have prevented to fulfill the promise. It would be a folly to treat each breach of promise of marriage as a false promise, and to prosecute a person for offences punishable under Section 376 of the IPC. The observations of the Apex Court would clearly become applicable to the facts of the case at hand. The 1st petitioner also did not perform the alleged act on false promise of marriage, it is allegedly performed on the date of the betrothal ceremony. Therefore, it cannot be construed to be a false promise of marriage. It at best could be a breach of promise of marriage, which would not become an offence under Section 376 of the IPC. 17. The other side of the coin in the complaint is that consent of the complainant was taken out of deceit. It becomes apposite to refer to the judgment of the Division Bench of the High Court of Kerala which delineates the concept of consent and holds - 54 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 it to be an enigma. The High Court of Kerala in the case of RAMACHANDRA VS. STATE OF KERALA7, has held as follows: “Understanding the ‘consent’ of a woman on a promise to marry: 6. The consent of a woman on a promise to marry is an enigma for the prosecution to prove. Consent refers to the state of mind of both parties in an act. In a sexual act, if both have understood the nature of the sexual relationship, consent is implicit in such a relationship. While considering the relationship, the Court will have to weigh the position of the accused to control the woman. It is to be remembered that the statutory provisions of the offence of rape as understood in the Penal Code, 1860, is not gender neutral. A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution's case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman. The understanding of consent therefore, has to be related to the dominant and subordinate relationship in a sexual act. 7. Section 375 of the IPC states that a man is said to commit rape if he has had any form of sexual intercourse without the consent of a woman. Explanation 2 to Section 375 refers to the form of expression of ‘consent’. It is appropriate to refer to explanation 2 which reads thus: “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: 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.” 8. There cannot be any room for doubt in this case as to the consent of PW1 for having sexual intercourse with the accused. PW1 referred to three incidents of sexual intercourse. First of such incidents happened in a lodge. She did not raise any complaint immediately thereafter. Again, she had sexual intercourse at the residence of the accused. The third incident happened at her own house where also, she did not raise any complaint. According to her, she was promised by the accused that he would 7 2022 SCC Online Ker 1652 - 55 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 marry her. She also deposed about proposing the marriage at the Manarcaud Temple. But no ceremonies were conducted to establish legal marriage. She approached the Chief Judicial Magistrate, Kottayam, with a complaint. This was forwarded to the police for investigation. The police registered an FIR on 18/11/2014. Consent on misconception of fact: 9. Section 90 of IPC refers to a consent as not consent intended by any provisions of the Penal Code, 1860. Section 90 reads thus: “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 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.” 10. We shall now advert to some of the precedents before considering the point of guilt of the accused in this case. In Pramod Suryabhan Pawar v. State of Maharashtra [(2019) 9 SCC 608], the Apex Court distinguished sexual relationship based on false promise to marry and a breach of promise to marry. The Apex Court held that the offence of rape is not constituted when it was only a breach of promise to marry. The false promise of marriage is explained as a promise not given in good faith, with no intention of being adhered to at the time it was given. In Anurag Soni v. State of Chhattisgarh [(2019) 13 SCC 1] on a similar line, the Apex Court, noting that the accused had no intention to marry the prosecutrix, held that engaging in a physical relationship on the pretext of marriage, fell in the category of rape. In Deepak Gulati v. State of Haryana [(2013) 7 SCC 675] the Hon'ble Supreme Court distinguished rape and consensual sex and held that “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 made a false promise to this effect only to satisfy his lust. As the latter falls within the ambit of cheating or deception.” In Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra [2019 (1) KHC 403], the Apex Court held that if the accused had not made a promise with the sole intention to seduce the prosecutrix to indulge in sexual act, such an act would not amount to rape. In State of Uttar Pradesh v. Naushad [(2013) 16 SCC - 56 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 651] again the Hon'ble Supreme Court held that the consent of the victim obtained by the accused by giving false promise of marrying her would amount to committing rape. 11. The false promise of marriage refers to the state of mind of the accused. The point of guilt is relatable to the state of mind of the accused at the time of committing the act of sex. If the accused had no real intention to marry, it can be easily concluded that the consent of the victim is a misconception of fact. The accused might have had intention to marry but he was not sure whether the marriage would take place or not. If the accused had not disclosed full information to the prosecutrix regarding the factors which would hamper or hinder the impending marriage with her, can the Court hold that sexual autonomy had been violated or not? Had the accused disclosed information about the chances of marriage, would she have consented? If there was no full disclosure of factors that could have a bearing on the consent of the woman, can we hold that such cases fall in the category of breach of promise? We need to discuss this in detail.” (Emphasis supplied) The Division Bench of the High Court of Kerala was following the judgments rendered by the Apex Court, on the issue, from time to time. The finding rendered by the Division Bench of the High Court of Kerala would also become squarely applicable to the contention urged in the case at hand. Thus, falls the offence under Section 376 of the IPC against the 1st petitioner. 18. What remains is the offence of cheating as alleged under Sections 417 and 420 of the IPC. Talks between the family members for the date of marriage were also held fixing the date of the marriage. It is the submission that invitation cards were got printed for the marriage taking place on 08-09-2023. Marriage tumbles not on any act of the members of the 1st petitioner’s family or the complainant’s family. For manifold reasons, as averred in the petition, the marriage has tumbled down. It is not a case where the family of the 1st petitioner or the 1st petitioner had lured the complainant or her family members to get into the marriage. It was an agreement between both the families to perform the marriage of the 1st petitioner with the complainant. Merely because the engagement breaks, at a later date cannot amount to offence of cheating against the 1st petitioner or his family members. Therefore, there is no warrant to permit the trial to continue any further, as permitting it, would on the face - 57 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 of it, become an abuse of the process of law, resulting in patent injustice. It is in such cases, the Apex Court in plethora of cases directs this Court to step into exercise jurisdiction under Section 482 of the Cr.P.C., and obliterate the crime against the accused, failing which, it would become a misuse and abuse of the process of law, resulting in miscarriage of justice." 13. In the light of the law considered by this Court in the aforesaid judgment, a deeper delving into the issue in the case at hand, would not be required suffice it to state that the issue stands completely answered by this Court in the aforesaid judgment. Therefore, the petition deserves to be succeed. 14. For the aforesaid reasons, the following: ORDER (i) The petition is allowed. (ii) The proceedings in S.C.No.49/2022 pending before the II Additional District and Sessions Judge, Chikkaballapura, sitting at Chinthamani, stands quashed qua the petitioner.” 12. In Pavan’s case supra, this Court held as under:- “8. The afore narrated facts are not in dispute. The relationship between the two is close to 42 months, prior to the registration of the complaint, this is what could be gathered from the complaint itself. Since the entire issue has now sprung from the registration of the complaint, I deem it appropriate to notice the complaint, it reads as follows: "ಷಯ:- ಪವ ಎ ಎಂ ಮೋಹ ಎನುವವರು ನನನು ಮದುೆಾಗುೇೆಂದು ೈಕಾ ಬಳ#$ೊಂಡು &ೕಸ (ಾ)ರುವ ಬ*ೆ+, ದೂರು. - 58 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 ನನ ,ೆಸರು -ರೂಷ. ಎ. ಾನು ಈ ಂೆ 2021 ರ01 HSR Layout ನ01 ಇರುವ I Energiser Company ಯ01 $ೆಲಸ (ಾಡು4ರುಾಗ ಪವ H M ಎಂಬುವವರು ಪ5ಚಯಾ ನಂತರ 8ೇಹತ9ಾ ಒಬ;ರೊಬ;ರು <=ೕ4 (ಾಡು4ದ>ವ?. ಈ ಸಮಯದ01 ಾವ? ,ೊರಗ@ೆ ಸುಾ)ದು> ,ಾಗೂ ಪವ ನನನು ಮದುೆಾಗುವ?ಾ 4A# ನನ ಹುಟುC ಹಬ;ದ Dನ Olivia Oyo (ಮ)ಾಳ) Dಾಂಕ 09-09-2023 ರಂದು ,ಾಗೂ ಜನವ5 2024ರ &ದಲ. ಾರದ01 ಕ9ೆದು $ೊಂಡು ,ೋ ನೊಂD*ೆ ೈಕಾ ೈಕ ಸಂಪಕFವನು (ಾ)ರುಾೆ. ,ಾಗೂ 2022 ರ01 BTM 2nd ಹಂತದ 16ೇ Gೕ ನ01ರುವ Azamathulla residency ಯ01ರುವ ಮೆಯನು ಸು(ಾರು ಒಂದು 4ಂಗಳವ9ೆಗೂ Hಾ)*ೆ*ೆ ಪ@ೆದು ಈ ಸಮಯದಲೂ1 ನೊಂD*ೆ ಸಹHಾIೆJ (ಾ)$ೊಂಡು ಮದುೆಾಗುೇೆಂದು 4A# ನೊಂD*ೆ ೈಕ ಸಂಪಕFವನು ನ@ೆ#ರುಾೆ. ನಂತರ ಾನು 2023ರ01 ಗಭFವ4ಾ ದು> ಈ ಸಮಯದ01 ಪವ ರವರು ಮದುೆಾದ ನಂತರ ಮಗುವನು ಪ@ೆದು$ೊIೆLMೕಣ ಎಂದು -ಧF5# ನನ*ೆ ಬಲವಂತಾ ABORT (ಾೆ=ಯನು ೆ*ೆದು $ೊಳPMವಂೆ Qೆ=ೕ9ೇ<# ಮಗುವನು ೆ*ೆ#ರುಾೆ. ಈಾದ ನಂತರ ಾನು ಪವ *ೆ ನRSಬ;ರ Tಾರವನು ಅವನ ಮೆಯ01 4A# ಮದುೆ (ಾ)$ೊಳPMವ Tಾರದ01 ಅವನ ತಂೆ ಾV, ಾನು Hೇ9ೆ Wಾ4ಾ ರುವ?ದ5ಂದ ನRSಬ;ರ ಮದುೆ*ೆ XಕY5#ರುಾ9ೆ. ,ಾಗೂ ನನನು ದೂರ (ಾ)ರುಾ9ೆ. ಈ*ಾ ಪವ ರವರು ನನ*ೆ ಮದುೆ (ಾ)$ೊಳPMವ?ಾ ,ೇA ನನನು -9ಾಕ5# ಮದುೆಾಗುವ?Dಲ1ೆಂದು &ೕಸ (ಾ)ರುಾೆ. ಆದುದ5ಂದ ಪವ Gೕ\ೆ $ಾನೂನು ಕ=ಮ ಜರು # ನನ*ೆ ಾ]ಯ ೊರ^# $ೊಡHೇ$ೆಂದು -ಮS01 Hೇ)$ೊಳPM4ೆ>ೕೆ." 9. The complainant in the complaint clearly narrates that they had relationship on the pretext of marriage or promise of marriage and the promise is breached by the petitioner and therefore, she was forced to register the crime. The police after investigation filed a charge sheet. The summary of the charge sheet as obtained in column No.17, reads as follows: "17. PÉÃ¹£À ¸ÀAQë¥ÀÛ ¸ÁgÁA±À - 59 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 PÁ®A £ÀA.12 gÀ°è £ÀªÀÄÆ¢¹gÀÄªÀ DgÉÆÃ¦AiÀÄÄ ¸ÁQë-01 gÀªÀgÉUÉ 2021 £ÉÃ ¸Á°£À°è ºÉZï.J¸ï.Dgï ¯ÉÃOmï£À°ègÀÄªÀ L-J£Àfð¸Àgï ಕಂಪ-ಯ01 $ೆಲಸ (ಾಡುವ ಸಮಯದ01 ಪ5ಚಯಾ ನಂತರ ಇಬ;ರು 8ೇತ9ಾ ಒಬ;ರೊಬ;ರು <=ೕ4 (ಾಡುwzÀÄÝ, 2022ೇ 8ಾ0ನ ಏ<=` 4ಂಗAನ°è. Gೖ$ೋ \ೇಔb c0ೕ. dಾeಾ ಸರಹD>ನ01 ರುವ fgಎಂ 2ೇ ಹಂತ 16ೇ Gೖ 12ೇ ಎ $ಾ=., £ÀA-09 DdªÀÄvÀÄ¯Áè gÉ¹qÉ¤ìAiÀÄ 4£ÉÃ ªÀÄºÀrAiÀÄ ªÀÄ£É £ÀA.406 C£ÀÄß ¸ÁQë-04 gÀªÀgÀ PÀqÉ¬ÄAzÀ ¨ÁrUÉAiÀÄ£ÀÄß ¥ÀqÉzÀÄPÉÆAqÀÄ E§âgÀÄ MnÖUÉ ಗಂಡ ,ೆಂಡ4ಯಂೆ ಸಹ hೕವನ ನ@ೆ#ದು>, ಈ ಸಮಯದ0.. ಆ9ೋ<ಯು 8ಾi-01 ರವರನು ಮದುೆಾಗುವ?ಾ ನಂf# ೈಕ ¸ÀA¥ÀðPÀªÀ£ÀÄß ºÉÆA¢gÀÄvÁÛ£É. £ÀAvÀgÀ ¸ÁQë-01 gÀªÀgÀ ºÀÄlÄÖ ºÀ§âzÀ ¢£ÀªÁzÀ ¢£ÁAPÀ 09.09.2023 gÀAzÀÄ DgÉÆÃ¦AiÀÄÄ ¸ÁQÌ-01 ರವರನು ,ೊಸೂರು ರ8ೆ, ಮ)ಾಳದ 8ಾi-06 ರವ5*ೆ ಸಂಬಂX#ದ ಒ0ಾ ಇ ಸೂb ,ೋjೆ` *ೆ ಕ9ೆದು$ೊಂಡು ,ೋ ªÀÄzÀÄೆಾಗುvÉÛÃ£ÉAದು £ÀA©¹ ೈಕ ಸಂಪಕFವನು ,ೊಂDರುಾೆ. 2023 ೇ 8ಾ0ನ ನಂವಂಬ 4ಂಗAನ0.. 8ಾi-01 ರವರು ಆ9ೋ<Vಂದ ಗಭFವ4 ಾ ದು> ಈ §UÉÎ, 8ಾi-13 ಅವರ ಕ@ೆVಂದ k^ೆl ಪ@ೆದು$ೊಂ)ದು>, ಈ ಸಮಯದ°è ಆ9ೋ<AiÀÄÄ 8ಾi-01 ರವ5*ೆ ಮದುೆಾದ ನಂತರ ಮಗುವನು ಪ@ೆದು$ೊIೆLMೕಣೆಂದು ಬಲವಂತಾ ABORT (ಾೆ=ಯನು ೆ*ೆದು$ೊಳPMವಂೆ Qೆ=ೕ9ೇ<# ಮಗುವನು ೆ*ೆ#ರುಾೆ, ನಂತರ 8ಾi-01 ರವರು ಮದುೆ (ಾ)$ೊಳMಲು ಆ9ೋ< ಮೆಯ01 4ಳPಸುವಂೆ $ೇA$ೊಂ@ಾಗ ಆ9ೋ< -ೕನು ಎ. # ಜಾಂಗ$ೆY 8ೇ5ದವIಾ ರುವ?ದ5ಂದ ನಮS ಮೆಯ°è. ಮದುೆ*ೆ ಒ<m$ೊಂ)ರುವ?Dಲ1ೆಂದು 4A#, 8ಾi-01 ರವರನು ಮದುೆಾಗೆ -9ಾಕ5#, &ೕಸ (ಾ)ರುವ?ದು ತ-nೆVಂದ zÉÊqÀಪgC gÀÄvÀÛzÉ. DzÀÄzÀjAzÀ DgÉÆÃ¦AiÀÄÄ 417, 420, 313, 376 L.¦.¹ eÉÆvÉUÉ 3(2) (V) SC and ST (Prevention Attrocities) Act 1989 ಅ)ಯ0, ಅಪ9ಾಧೆಸ ರುವ?ದ5ಂದ ಆ9ೋ<ಯ ರುzÀÝ ೊ>ೕoಾ9ೋಪeೆ." - 60 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 10. Since the complainant was belonging to a scheduled caste, the offences under the Prevention of Atrocities Act are also brought in to be laid against the petitioner. The issue now would be whether the offences of Section 376 or 417 and 420 would be met in the case at hand qua the offences that are projected in the complaint. The answer would be an unequivocal and emphatic "no", as the Apex Court in plethora of judgments has considered this very issue as to whether the acts on consensus would amount to an offence under Section 376 of the IPC. The Court in every judgment would only become the bulk of this judgment, so I deem it appropriate to quote the one that is laid down in the case of LALU YADAV (supra) has held as follows: "5. Before delving into the rival contentions, it is relevant to note that though this Court stayed further proceedings in case Crime No. 28/2018 on 13.11.2018, this Court virtually modified the same on 18.08.2023 as under:— “It is made clear that the interim order passed by this Court staying further proceedings in Crime No. 28/2018 registered at P.S. Nandganj, District Ghazipur, U.P. dated 13.11.2018 will not stand in the way of investigation for investigating into the offence under Section 313 of IPC. List the matter after two months.” 6. Earlier, on behalf of respondent Nos. 1 to 3 counter affidavit was filed fully justifying the impugned order. On behalf of the respondent No. 4 also, a counter affidavit was filed, evidently, on the same line. Pursuant to the order dated 18.08.2023, virtually, permitting continuance of investigation in Crime No. 28/2018 in respect of the allegation of commission of offence under Section 313 IPC, investigation in that regard was continued and completed. Thereupon, an additional - 61 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 affidavit was filed on behalf of the first respondent - State with respect to the status of investigation and the same, insofar as it is relevant, reads thus:— “6. That pursuant to the direction, the investigating officer had conducted investigation with respect to offence u/s 313 IPC and after due investigation and material available on record, including her statement, medical reports etc. has concluded that there is no evidence/material available with respect to offence u/s 313 IPC i.e. no material substantiating abortion of the victim in the present offence and hence as on 02.02.2024 omitted offence u/s 313, IPC. 7. That the investigation u/s 376 is still pending as the same is stayed by this Hon'ble Court.” 7. In view of the statement in the afore-extracted paragraph 6 and 7, the undisputed position obtained that the allegation of commission of offence under Section 313, IPC stands omitted against the appellant. What survives for consideration is only the question whether the impugned order invites interference and the subject FIR be quashed invoking the inherent jurisdiction? 8. We have already taken note of the facts revealed from the subject FIR itself that the time of occurrence of offence is allegedly, from 05.01.2013 to 05.01.2018 and that it was registered only at 21.34 hrs. on 21.02.2018. That apart, it is evident that even going by respondent No. 4, the complainant herself and the appellant were living as husband and wife. The complaint of respondent no. 4, as is revealed therefrom, is that the appellant had deceived her by promising to marry and then by establishing physical relationship. At the risk of repetition, we will have to refer to the FIR, carrying the following recitals from her complaint: “… Lalu Yadav S/o Seshnath Yadav R/o Atarsuya P.S. Nandganj District-Ghazipur, used to come to my house along with the brother-in-law Ravindra Yadav of my elder sister, at that time about five years back I was a student of High School, then the said Lalu Yadav by way of deceiving myself promise that he will marry me and established physical relationship with me without my consent and started living with me as the husband.” - 62 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (underline supplied) 9. At the very outset, it is to be noted that there is a huge irregularity between the statements “established physical relationship with me without my consent” and “started living with me as the husband”. Be that as it may, bearing in mind the allegations raised by respondent No. 4 reflected in the subject FIR, we will refer to the relevant decisions of this Court. 10. While dismissing the writ petition under the impugned order, presumably taking note of the contentions based on time lag of five years, the High Court relied on its Full Bench decisions in Ajit Singh @ Muraha v. State of U.P.2, and in Satya Pal v. State of U.P.3. as well as the decision of this Court in State of Haryana v. Bhajan Lal4. It observed and held that there could be no interference with the investigation or order staying arrest unless cognizable offence is not ex-facie discernible from the allegations contained in the FIR or there exists any statutory restriction operating against the power of the Police to investigate a case. There can be no two views on the exposition of law thus made relying on the said decisions. In the same breath we will have to say that those decisions can be no bar for the exercise of power under Section 482, Cr. P.C., in various other situations dealt with, in detail, by this Court, including in the decision in Bhajan Lal's case (supra). 11. To determine whether the case in hand deserves to be quashed at the present stage we will refer to some of the decisions. We have already taken note of the fact that though there was an allegation in the FIR regarding commission of offence under Section 313, IPC, on completion of the investigation, the investigating agency itself omitted the offence under Section 313, IPC against the appellant-accused. In paragraph 102 of the decision in Bhajan Lal's case (supra) this Court held 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 - 63 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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-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 - 64 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (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.” 12. In the decision in Shivashankar alias Shiva v. State of Karnataka5, this Court held thus:— “4. In the facts and circumstances of the present case, it is difficult to sustain the charges levelled against the appellant who may have possibly, made a false promise of marriage to the complainant. It is, however, difficult to hold sexual intercourse in the course of a relationship which has continued for eight years, as “rape” especially in the face of the complainant's own allegation that they lived together as man and wife.” 13. The decision in “XXXX” v. State of Madhya Pradesh6, also assumes relevance in the contextual situation. This court took 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. - 65 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 66 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 16. For the reasons aforesaid, the impugned order dated 26.07.2018 of the High Court of Judicature at Allahabad in Criminal Miscellaneous Writ Petition No. 16825 of 2018 is set aside. FIR No. 28/2018 dated 21.02.2018 registered at Police Station - Nandganj, Ghazipur District of Uttar Pradesh and all further proceedings on its basis are quashed. The appeal is accordingly allowed." 11. The Apex Court observes at the afore quoted paragraphs that the couple lived as husband and wife for close to five years and therefore, all would not it amount to an offence of rape merely because there is breach of promise of marriage. The Apex Court was following its earlier judgment in the case of NAIM AHAMED Vs. STATE (NCT OF DELHI), reported in (2023) SCC Online SC 89, which considers the very aspect and holds that the offence of cheating on breach of promise of marriage also would not lie in a case of relationship between the prosecutrix therein and the accused. If the law that is laid down by the Apex Court is paraphrased to the facts obtained in the case at hand, it would unmistakably result in the quashment of the entire proceedings. 12. For the aforesaid reasons, the following ORDER 1. Criminal Petition is allowed. - 67 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 2. The proceedings in Spl.C.No.1338/2024 on the file of LXX Additional City Civil and Sessions Judge and Special Judge at Bengaluru stands quashed.” 13. In Raghavendra Reddy’s case supra, this Court held as under:- “9. Perusal of the charge sheet material indicates that, the accused No.1 and the victim were in love for the last four to five years from the date of lodging the FIR. The allegation that, the accused No.1 induced the victim to have sexual intercourse with an intention to cheat by promising to marry her, which is essential requirement to constitute the offence punishable under Section 420 of IPC, is conspicuously absent. Further perusal of the charge sheet indicated that the accused No.1 and the defacto complainant were in relationship since 4.11.2016. On 10.12.2017, the accused called the defacto complainant to his room, and the accused No.1 induced the victim to have sexual intercourse by promising to marry, and purportedly continued to have sexual intercourse on multiple occasions till 1.8.2022. The FIR was lodged on 10.9.2022. 10. The Hon'ble Supreme Court in the case of Sonu @ Subhah Kumar (supra) at para-11 has held as follows: "11. Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of Cr.PC, no offence has been established. There is no allegation to the effect that - 68 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 the promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of Cr.PC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established." 11. The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar (supra) at paras-16 and 18 has held as follows: "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 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 this Court observed: 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. - 69 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 … 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 Indian Penal Code 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." 18. To summarize 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." 12. The FIR was lodged by the respondent No.2 only when the relationship between the accused No.1 was strained, and with an intention to wreak vengeance and revengeful intent, and there is no material to establish that that the promise given was in bad faith with an intention to deceive when he had allegedly had sexual intercourse. Therefore, when essential elements to constitute the - 70 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 offences alleged against the Petitioner are conspicuously absent, the continuation of criminal proceedings will be an abuse of the process of law. Accordingly, I pass the following: ORDER i) The petition is allowed. ii) The impugned proceedings in SC No.180/2023 arising out of Crime No.92/2022 of Kalaburagi Women Police Station, pending on the file of the learned V Addl. District and Sessions Judge, Kalaburagi, insofar as it relates to the petitioner – accused No.1 is hereby quashed.” 14. In Akhil Thomas case supra, this Court held as under:- “9. The issue need not detain this Court for long or delve deep into the matter. This Court in Crl.P.No.9120 of 2024 disposed on 05-11-2024 has held as follows: “…. …. …. 9. It now becomes germane to notice the judgments of the Apex Court. The Apex Court has delineated the inter-play between the offence of rape and a consensual sexual relationship, both on the false promise of marriage, and promise of marriage. Therefore, a deeper delving into the issue becomes unnecessary, suffice to quote the judgments of the Apex Court rendered over the years. The Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA8 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: 8 (2019) 9 SCC 608 - 71 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “…. …. …. 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): “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;” 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 - 72 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 “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 that from the very beginning, the accused had never really intended to marry her.” (emphasis supplied) - 73 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 74 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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.” 10. The Apex Court, a little later in the case of DHRUVARAM MURLIDHAR SONAR (supra), 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) “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 - 75 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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.” 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 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) - 76 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “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, 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. **** - 77 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 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.” - 78 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (Emphasis supplied) The Apex Court, in the afore-quoted judgment, has considered the entire spectrum of the law on the issue while following the judgment in the case of DR.DHRUVARAM MURALIDHAR SONAR V. STATE OF MAHARASHTRA reported in (2019)18 SCC 191 and had obliterated the proceedings qua the accused. 10. 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 UTTARPRADESH9 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 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 2022 SCC OnLine SC 1032 - 79 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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: 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 - 80 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 81 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 respondent to marry which at the inception was false and 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) 11. In yet another judgment, the Apex Court in the case of MANDAR DEEPAK PAWAR V. STATE OF MAHARASHTRA10, 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 10 2022 SCC OnLine SC 2110 - 82 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) 12. Further, the Apex Court, again in the case of NAIM AHAMED v. STATE (NCT OF DELHI)11, delineating what would be 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 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 11 2023 SCC OnLine SC 89 - 83 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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:— “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 - 84 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. -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 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 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 - 85 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 86 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 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. (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 - 87 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) 13. The Apex Court, subsequently, in the case of Ms. X V. Mr. A12, 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 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. 12 2024 SCC OnLine SC 316 - 88 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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, 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. - 89 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (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-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 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.” - 90 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (Emphasis supplied) 14. The Apex Court, further in the case of SHIV PRATAP SINGH RANA V.STATE OF MADHYA PRADESH13, 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 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.” 13 (2024) 8 SCC 313 - 91 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 surreptitiously taken photographs of her while she was bathing and later on changing clothes and was blackmailing her with - 92 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 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. - 93 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 36. Resultantly, proceedings in Sessions Trial No. 505 of 2018, pending before the 10th Additional Sessions Judge, Gwalior, are hereby quashed.” (Emphasis supplied) 15. The Apex Court, in its recent judgment, in the case of LALU YADAV V. STATE OF UTTAR PRADESH14 has held as follows: “…. …. …. 13. The decision in “XXXX” v. State of Madhya Pradesh6, also assumes relevance in the contextual situation. This court took 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 14 2024 SCC OnLine SC 2876 - 94 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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, have 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. 16. Insofar as the judgment that the learned counsel appearing for the 2nd respondent/complainant seeks to place reliance upon, in the case of ANURAG SONI V. STATE OF CHATTISGARH - (2019)13 SCC 1, the same has been considered and the law has further been elucidated by the Apex Court in the subsequent judgments quoted hereinabove. Therefore, what would become binding are the judgments that are quoted in the course of the order. Wherefore, the armory that has emerged from the arsenal of the learned counsel for the petitioners, Smt. Sadhana S Desai, are undoubtedly overwhelming to what is projected by the learned counsel Sri Avishkar, appearing for the 2nd respondent/complainant . 17. In the light of the afore-quoted judgments and the observations made during the course of the order, if further proceedings against the petitioners are not obliterated and the trial is continued, it would, on the face - 95 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 of it, become an abuse of the process of law and result in miscarriage of injustice.” In the light of the judgment of this Court as afore-quoted and the observations made during the course of the order, if further proceedings against the petitioner are not obliterated, it would, on the face of it, become an abuse of the process of law and result in miscarriage of injustice. 10. For the aforesaid reasons, the following: ORDER (i) Criminal Petition is allowed. (ii) Proceedings in C.C.No.5946 of 2024 (Crime No.270 of 2023) pending on the file of XXX Additional Chief Metropolitan Magistrate, Bengaluru stands quashed qua the petitioner.” 15. In Sudeep’s case supra, this Court held as under:- 8. The issue now would be whether the petitioner should be permitted to be tried on such acts, which are consensual and on the promise of marriage or its breach. The issue need not detain this Court for long or delve deep into the matter. The Apex Court in plethora of judgments has considered the interplay between consensual sex and the offence of rape. All of which were consideration at the hands of this Court in Crl.P.No.9120/2024 disposed on 05.11.2024, wherein this Court has held as follows: "2. Facts in brief, germane, are as follows: Before embarking upon consideration of the issue on its merit, I deem it appropriate to notice the relationship between the protagonists in the alleged episode of crime. The 1st petitioner and the 2nd respondent are said to be in a - 96 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 relationship. Petitioners 2, 3, 4, 5, and 6 are accused 2 to 6, they are the family members of the 1st petitioner/accused No.1. The 2nd respondent is the complainant. The 1st petitioner is an employee working in the office of the sub- registrar at Indiranagar, Bangalore. He gets embroiled in a crime in Crime No.140 of 2023 for it having been registered by the 2nd respondent. The gist of the complaint is that, the 1st petitioner and the complainant were known to each other for 7 years and they were also said to be in love. The friendship blossomed into relationship and the relationship led to engagement of the 1st petitioner with the 2nd respondent/complainant on 28-11-2021. Before and after the engagement, it is the averment in the complaint that they have had physical relationship as well. The engagement did not result in marriage. 3. On the score that the 1st petitioner has had physical relationship with the complainant on the promise of marriage and the relationship was for over 7 years, the 1st petitioner has breached the promise of marriage, as the engagement did not result in marriage, crime comes to be registered for offence of rape and cheating in Crime No.140 of 2023. The police, after investigation, file a charge sheet against all the petitioners, the 1st petitioner and other members of the family. They are arraigned as accused Nos.1 to 6. Filing of the charge sheet is what has driven these petitioners to this Court in the subject petition. 4. Heard Smt Sadhana S Desai, learned counsel appearing for petitioners, Sri B N Jagadeesha, learned Additional State Public Prosecutor appearing for respondent No.1 and Sri Avishkar, learned counsel appearing for respondent No.2. 5. The learned counsel for the petitioner would vehemently contend that the relationship between the 1st petitioner and the 2nd respondent was consensual, it was not for one year, but they knew each other for 7 years, got engaged on 28-11-2021 and due to skirmishes between the members of the family of the complainant and the 1st petitioner, the engagement broke. But between the date of engagement and its break, the complainant and the petitioner have gone around to several places and have had physical relationship. Therefore, the learned counsel would submit that the consent of the complainant for a consensual act is implicit throughout. It is her submission that the consent cannot be dubbed as, misconception of fact or forcibly taken. She would contend that such acts would not amount to an offence of rape and the offence of cheating also cannot be laid on breach of promise - 97 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 of marriage. She has placed reliance upon several judgments of the Apex Court and that of High Court of Kerala, all of which would bear consideration qua their relevance in the course of the order. 6. Per-contra, the learned counsel appearing for the 1st respondent/State and the 2nd respondent/complainant in unison would contend that consent is taken of the complainant to have physical relationship on promise of marriage, which was never the intention of the 1st petitioner. Therefore, the two would submit that it is a false promise of marriage and would submit that the charge sheet is filed after investigation and it is for the petitioners to come out clean in a full blown trial. 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 not in dispute. The 1st petitioner and the 2nd respondent are admittedly known to each other since 2017 i.e., 7 years prior to the registration of the crime. The relationship having gone wrong on alleged breach of promise of marriage, the complainant registers a complaint. Since the entire issue has now triggered from the complaint, I deem it appropriate to notice the gist of the complaint, as found in column No.10 of the FIR, it reads as follows: “10. ಪ=ಥಮ ವತF(ಾನ ವರDಯ ವರಗಳP Dಾಂಕ: 18-11-2023 ರಂದು <ಾFದುಾರ9ಾದ xxxxx, ರವರು dಾeೆ*ೆ ,ಾಜ9ಾ -ೕ)ದ ದೂ5ನ 8ಾ9ಾಂಶೇೆಂದ9ೆ ಾನು GೕಲYಂಡ Iಾಸದ0 ಾಸಾ ದು> ಾನು ಎಂ.ಎ. ಪದಯನು ಮು #ರುvÉÛÃ£É. ಾನು ಸು(ಾರು 7 ವಷFಗಳ ಂೆ ನಮS ಊ5ನ°è ನಮS ಮೆಯ01ರುಾಗ ನಮS ಮೆಯ ಪಕY ಇರುವ ಯಜ(ಾ $ಾಲುFTೆsೕ*ೌಡ (ತಮSಯ]) f ಅQಾmh*ೌಡ ಎಂಬುವವರ ಮೆ*ೆ uವಧನುv ಎಂHಾತನು $ಾಲು ಮು5ದು$ೊಂಡು ಾತನ ಮೆ*ೆ ಬಂDದು>, uವಧನುv ನವರು ನನ*ೆ ಪ5ಚಯಾ ದು> uವಧನುv ಎಂHಾತನು ನನ*ೆ 17 ವಷFರುಾಗ <=ೕ4 (ಾಡು ಎಂದು DನDಂದ ಂ#ಸು4ದು> ಆ ಷಯವನು ನನ ತಂೆ ಾV*ೆ 4A#ದು> ನನ ತಂೆ ಾVಯವರು ಅವರ ಾತನ Wೊೆ (ಾತಾ) ಅವ-*ೆ HೈDದ>ರು ತದನಂತರ ಾನು ಪದ*ೆ ಚನಪಟCಣ ಸ$ಾF5 ಪ=ಥಮ ದWೆF $ಾ\ೇhನ01 ಾ]ಸಂಗ (ಾಡು4ರುವ ಸಮಯದ01 ಪೇ ಪೇ ಬಂದು <=ೕ4ಸುವಂೆ ಂ#ಸು4ದು> ನಂತರ ಈ ಷಯ ನಮS ಕುಟುಂಬದವ5*ೆ ,ಾಗೂ ಅವರ ಕುಟುಂಬದವ5*ೆ ಷಯ 4Aದು ನಂತರ ನಮS ತಂೆ ಾVಯನು ಅವರ ತಂೆ ಾVಯು ನನನು ಮದುೆ (ಾ)$ೊ) ಎಂದು $ೇA$ೊಂ)ದು> ನನ ತಂೆ ಾVಯು ಅದ$ೆY ಒ<m D: 28-11-2021 ರಂದು -usಾಥF (ಾ)ರುಾ9ೆ. ನಂತರ Dಾಂಕ: 27-11-2022 ರಂದು - 98 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 HೆಂಗಳL5ನ GWೆ#Cw ನ01 ರೂಂ ಬುw (ಾ)ದು> ಆ Dನ 9ಾ4= ಸಮಯದ01 ಕ9ೆದು$ೊಂಡು ,ೋ ನನ*ೆ ಇಷCಲ1ೆ ಇದ>ರೂ ನನನು ಬಲವಂತಾ ಅಾ]Tಾರ (ಾ)ರುಾೆ. ನಂತರ ನನನು uವಧನುv ಎಂHಾತನು ಊg*ೆ ಕ9ೆದು$ೊಂಡು ,ೋ ಅ01 ರೂಂ ಬುw (ಾ)ದು> ನನ*ೆ ಇಷCಲ1Dದ>ರೂ ಾೇ ಾೆ -ನನು ಮದುೆಾಗುವ?ೆಂದು ಬಲವಂತಾ ೈಕ ಸಂಪಕF (ಾ)ದು> ಇಾದ ನಂತರ ತುಂxಾ ಭಯಾ ನಮS ಮೆ*ೆ 4A#ಾಗ ನಮS ಮೆಯವರು Hೇಗ ಮದುೆ (ಾಡHೇ$ೆಂದು D:03-04-2023 $ೆY ಮದುೆ Dಾಂಕವನು -ಗDಪ)#ದು> ಮದುೆ $ಾyF ಅನು ,ೊರ)#ದು> ,ಾಗೂ ಮದುೆ ತಾ5 (ಾ)$ೊಂ)ದು> ಮದುೆ*ೆ ಬjೆCಗಳನು ಗಂ)*ೆ ೆ*ೆದು$ೊಡಲು ,ೋಾಗ ನನ*ೆ ಮತು ನಮS ತಂೆ ಾV*ೆ ಾನು 7 ವಷFDಂದ -ಮS ಮಗಳ ಬA <=ೕ4 (ಾಡು ಎಂದು $ೇA$ೊಂಡರು ಅವಳP ನನನು <=ೕ4ಸುವ?Dಲ1ೆಂದು 4ರಸY5#ದ>5ಂದ ಅವಳನು ಅಾ]Tಾರ (ಾ)ರುೇೆ. ಾನು ಅವಳನು ಮದುೆ ಆಗುವ?Dಲ1ೆಂದು HೈDರುಾೆ. ನಂತರ ಊ5ನ ಯಜ(ಾನರು 4ೕ(ಾFನ (ಾ)ದು> ಆ ಸಮಯದ01 ಮದುೆಾಗುೇೆಂದು ಒ<m$ೊಂ)ರುಾೆ, D: 26-11-2023 $ೆY Dಾಂಕವನು *ೊತು (ಾಡಲು ,ೋದಂತಹ ಸಮಯದ01, uವಧನುv ನನನು ಸೂIೆ ಮುಂ@ೆ, Hೆರ$ೆ ಎಂದು ಅಾಚ] ಶಬ>ಗAಂದ HೈDದು> ,ಾಗೂ ನನ ತ\ೆ ಕೂದಲು )ದು$ೊಂಡು ಮೆVಂದ fೕD*ೆ ಎIೆದು$ೊಂಡು ಬಂದು f8ಾ)ರುಾೆ, ,ಾಗೂ ಅವರ ತಂೆಾಗ 5ೕz, ಾV ೋದ ರವರು ,ಾಗೂ ಅವತ ಾಾ ಯಜ(ಾ $ಾಲುFTೆsೕ*ೌಡ (ತಮSಯ]) (ಾವ ಹುTೆsೕ*ೌಡ, ತಂ ಾದ ¥ÀæeÁÕ f ರವರುಗಳP ಕೂಡ ಅವನ Wೊೆ 8ೇ5$ೊಂಡು ಅಾಚ] ಶಬ>ಗAಂದ ,ಾಗೂ ಹ\ೆ1, (ಾ)ರುಾ9ೆ. ಆದ>5ಂದ uವಧನುv ,ಾಗೂ ಅವರ ತಂೆ, ಾV ರುದ{ $ಾನೂನು ಕ=ಮ ೆ*ೆದು$ೊಂಡು ನನ*ೆ ಾ]ಯ ೊರ^#$ೊಡHೇ$ೆಂದು ಇಾ]Dಾ -ೕ)ದ ದೂ5ನ 8ಾ9ಾಂಶ.” What is discernible from the complaint is that the complainant and the 1st petitioner are known for 7 years. They were in love. The love blossomed into relationship; relationship blossomed into betrothal; betrothal blossoms into a ceremony on 28-11-2021- a betrothal ceremony. After the ceremony bouts of physical relationship takes place, marriage is breached on account of both the families not agreeing on several terms and conditions. The complainant then leaves the 1st petitioner and makes effort to get married to someone else. The marriage of the complainant did not fructify and therefore, a complaint comes to be registered that the 1st petitioner and his family members have cheated the complainant, for having denied consent to marriage and insofar as the 1st petitioner is concerned, the allegation is that, he has had sexual relationship on the score of promise of marriage and has breached it, therefore, it amounts to ingredients of Section 375 of the IPC, for it to become an offence under Section 376 of the IPC – rape. The police, after investigation, have filed a charge sheet. Summary of the charge sheet, as obtaining in column No.17, reads as follows: “17. $ೇ#ನ ಸಂiಪ 8ಾ9ಾಂಶ - 99 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 PÀ®A 376, 417, 504 (ಾನ] ಘನ ಾ]ಾಲಯದ ಾ]<*ೆ 8ೇ5ದ 9ಾಮನಗರ h\ೆ1 ಚನಪಟCಣ ಾಲೂ1ಕು. $ೋಡಂಬAM *ಾ=ಮದ ಾ# ಈ ೋoಾ9ೋಪಣಪgC ಅಂಕಣ 14 ರ01, ಕಂಡ 8ಾi 7, 8 ರವರ ಮಗIಾದ 8ಾi 1 ರವರು ಮತು ಈ ೋoಾ9ೋಪಣಪgC ಅಂಕಣ 12 ರ01 ಕಂಡ ಎ1 ಆ9ೋ< ಮತು 8ಾi 01 ರವರು ಇಬ;ರು ಈ*ೆ+ 05 ವಷFಗAಂದ ಪರಸmರ <=ೕ4 (ಾಡು4ದು>, ಎ1 ಆ9ೋ< ಮತು 8ಾ^ 01 ರವರು <=ೕ4 (ಾಡು4ದ> ಸಮದಯ01 ಎ1 ಆ9ೋ< 8ಾi 01 ರವರನು ಮದುೆಾಗುವ ಉೆ>ೕಶಲ1Dದ>ರೂ 8ಾi 01 ರವರನು HೆಂಗಳL5ನ GWೆ#Cw ಬAಯ (ಾ] cೕ ಕ£Éé£Àë£ï 8ೆಂಟ \ಾy~ *ೆ ಕ9ೆದು$ೊಂಡು ,ೋ 8ಾi 01 ರವರನು ಮದುೆಾಗುೇೆಂದು ಎ1 ಆ9ೋ< ಆ•ಾJಸೆ -ೕ) ಬಲವಂತಾ 8ಾi 01 ರವ9ೊಂD*ೆ ೈಕ ಸಂಪಕF ನ@ೆ#ದ>5ಂದ 8ಾi 01 ರವರು ಮದುೆಾಗುವಂೆ ಎ1 ಆ9ೋ< ಬಲವಂತ ಪ)#ಾಗ ಎ1 ಆ9ೋ< 8ಾi 01 ರವರನು ಮದುೆಾಗುವ ಉೆ>ೕಶಲ1Dದ>ರು 8ಾi 01 ರವ9ೊಂD*ೆ ಮದುೆಾಗುೇೆಂದು ಆ•ಾJಸೆ -ೕ) ಬಲವಂತಾ ನ ೈಕ ಸಂಪಕF ನ@ೆ#ದ>5ಂದ ತನ ತಪmನು ಮ9ೆ(ಾಚುವ ಉೆ>ೕಶDಂದ 8ಾi 01 ರವರನು ಮದುೆಾಗುವ ಉೆ>ೕಶಲ1Dದ>ರೂ ತ-ಂಾ ರುವ ತಪmನು ತ<m#$ೊಳPMವ?ದ$ಾY Dಾಂಕ:-28/11/2021 ರಂದು 8ಾi 01 ರವರ ಮೆಯ01 ಎ1 ಆ9ೋ< ಮತು 8ಾi 01 ರವ5*ೆ ಮದುೆ -usಾಥF (ಾ)$ೊಂ)ದು>. ಮದುೆಯ -usಾಥFಾದ ನಂತರವ€ Dಾಂಕ:-25/11/2022 ರಂದು HೆಂಗಳL5ನ GWೆ#Cw ಬAಯ (ಾ] cೕ ಕ£Éé£Àë£ï 8ೆಂಟ \ಾy~ *ೆ ಮತು Dಾಂಕ:- 24/12/2022 ರಂದು 8ಾi 01 ರವರನು ಎ1 ಆ9ೋ< ,ಾಗೂ ತನ 8ೇತ9ಾದ 8ಾi - ರವ9ೊಂD*ೆ ಊg*ೆ ಪ=ಾಸ$ೆYಂದು ,ೋದ ಸಮಯದ01 ,ೋjೆ` UÉÊ\ಾyF \ಾy~ *ೆ ,ೋ ತಂ ದ ಸಮದಯ01 ಎ1 ಆ9ೋ< 8ಾi 01 ರವರನು ಮದುೆಾಗುವ ಉೆ>ೕಶಲ1Dದ>ರು ಮದುೆಾಗುೇೆಂದು ಆ•ಾJಸೆ -ೕ) 8ಾi 01 ರವ5*ೆ ಇಷCಲ1ದ>ರು ಬಲವಂತಾ ೈಕ ಸಂಪಕF ನ@ೆ#ದು>, ಆನಂತರ 8ಾi 01 ರವರು ಮತು 8ಾi - ರವರು ಮದುೆಯ Dಾಂಕವನು *ೊತುಪ)ಸುವಂೆ ಎ1 ಆ9ೋ<*ೆ ಬಲವಂತಪ)#ಾಗ ಎ1 ಆ9ೋ< 8ಾi 01 ರವ5*ೆ <=ೕ4ಸುವಂೆ ಾಟಕಾ) ಮದುೆಾಗುೇೆಂದು ಆ•ಾJಸೆ -ೕ) 8ಾi 01 ರವ5*ೆ ಬಲವಂತಾ ೈಕ ಸಂಪಕF ನ@ೆ#ದ>5ಂದ ಆ ತ<m-ಂದ ತ<m#$ೊಳPMವ ಸಲುಾ ಎ1 ಆ9ೋ< 8ಾi 01 ರವ5*ೆ ,ೆಸರು ಬಲ ,ೊಂಾ•$ೆ ಬರು4ಲ1, 8ಾi 01 ರವ5*ೆ ಕುಜೋಷೆ ಮದುೆ -usಾಥFಾದ Gೕ\ೆ ಎ1 ಆ9ೋ<ಯ ಮೆ*ೆ ಗೂHೆ ಬಂದು,ೋ ೆ 8ಾi 01 ರವರನು ಮದುೆಾದ9ೆ ನನ*ೆ ಮತು ನನ ಮೆ*ೆ ೊಂದ9ೆಾಗುೆಂದು ಸುಳPM ,ೇA 8ಾi 01 ರವರನು ಮದುೆಾಗುವ ಉೆ>ೕಶDದ>ರು 8ಾi 01 ರವರನು <=ೕ4# ಮದುೆಾಗುವ?ಾ ದ ಆ•ಾJಸೆ -ೕ) 8ಾi 01 ರವ9ೊಂD*ೆ ಎ1 ಆ9ೋ< ಹಲವ? Hಾ5 ೈಕ ಸಂಪಕF ನ@ೆ# ೊಂದ9ೆ -ೕ)ರುವ?ದು 8ಾi 01 ರವರ ,ೇA$ೆVಂದಲೂ ,ಾಗೂ 8ಾ‚ಾƒಾರಗಳ ,ೇA$ೆVಂದಲೂ, ತ-nೆVಂದಲೂ ಎ1 ಆ9ೋ<ಯ Gೕ\ೆ ಆ9ೋಪ ಧೃಡಪgCರುೆ.” What would unmistakably emerge from the reading of the complaint and the charge sheet in juxtaposition would be, that consensual acts between the two, leads to a betrothal - 100 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 ceremony, the engagement breaks and crime emerges, all of which on consensual acts of both the 1st petitioner and the complainant who are said to have known to each other and in a relationship for 7 years. Whether this would become a crime for the afore-quoted offences or the consent was on a misconception of fact or the promise of marriage was false, need not detain this Court for long or delve deep into the matter. The consent of a woman on a promise to marry is always an enigma, apt it would be to refer, to a judgment of a Division Bench of the High Court of Kerala in the case of RAMACHANDRAN V. STATE OF KERALA15. The Division Bench has held as follows: “…. …. …. Understanding the ‘consent’ of a woman on a promise to marry: 6. The consent of a woman on a promise to marry is an enigma for the prosecution to prove. Consent refers to the state of mind of both parties in an act. In a sexual act, if both have understood the nature of the sexual relationship, consent is implicit in such a relationship. While considering the relationship, the Court will have to weigh the position of the accused to control the woman. It is to be remembered that the statutory provisions of the offence of rape as understood in the Penal Code, 1860, is not gender neutral. A woman, on a false promise of marrying and having sexual relationship with a man, with the consent of the latter obtained on such false promise, cannot be punished for rape. However, a man on a false promise of marrying a woman and having sexual relationship with the woman would lead to the prosecution's case of rape. The law, therefore, creates a fictitious assumption that the man is always in a position to dominate the will of the woman. The understanding of consent therefore, has to be related to the dominant and subordinate relationship in a sexual act. 7. Section 375 of the IPC states that a man is said to commit rape if he has had any form of sexual intercourse without the consent of a woman. Explanation 2 to Section 375 refers to the form of expression of ‘consent’. It is appropriate to refer to explanation 2 which reads thus: “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: 15 2022 SCC OnLine Ker 1652 - 101 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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.” 8. There cannot be any room for doubt in this case as to the consent of PW1 for having sexual intercourse with the accused. PW1 referred to three incidents of sexual intercourse. First of such incidents happened in a lodge. She did not raise any complaint immediately thereafter. Again, she had sexual intercourse at the residence of the accused. The third incident happened at her own house where also, she did not raise any complaint. According to her, she was promised by the accused that he would marry her. She also deposed about proposing the marriage at the Manarcaud Temple. But no ceremonies were conducted to establish legal marriage. She approached the Chief Judicial Magistrate, Kottayam, with a complaint. This was forwarded to the police for investigation. The police registered an FIR on 18/11/2014. Consent on misconception of fact: 9. Section 90 of IPC refers to a consent as not consent intended by any provisions of the Penal Code, 1860. Section 90 reads thus: “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 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.” 10. We shall now advert to some of the precedents before considering the point of guilt of the accused in this case. In Pramod Suryabhan Pawar v. State of Maharashtra [(2019) 9 SCC 608], the Apex Court distinguished sexual relationship based on false promise to marry and a breach of promise to marry. The Apex Court held that the offence of rape is not constituted when it was only a breach of promise to marry. The false promise of marriage is explained as a promise not given in good faith, with no intention of being adhered to at the time it was given. In Anurag Soni v. State of - 102 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 Chhattisgarh [(2019) 13 SCC 1] on a similar line, the Apex Court, noting that the accused had no intention to marry the prosecutrix, held that engaging in a physical relationship on the pretext of marriage, fell in the category of rape. In Deepak Gulati v. State of Haryana [(2013) 7 SCC 675] the Hon'ble Supreme Court distinguished rape and consensual sex and held that “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 made a false promise to this effect only to satisfy his lust. As the latter falls within the ambit of cheating or deception.” In Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra [2019 (1) KHC 403], the Apex Court held that if the accused had not made a promise with the sole intention to seduce the prosecutrix to indulge in sexual act, such an act would not amount to rape. In State of Uttar Pradesh v. Naushad [(2013) 16 SCC 651] again the Hon'ble Supreme Court held that the consent of the victim obtained by the accused by giving false promise of marrying her would amount to committing rape. 11. The false promise of marriage refers to the state of mind of the accused. The point of guilt is relatable to the state of mind of the accused at the time of committing the act of sex. If the accused had no real intention to marry, it can be easily concluded that the consent of the victim is a misconception of fact. The accused might have had intention to marry but he was not sure whether the marriage would take place or not. If the accused had not disclosed full information to the prosecutrix regarding the factors which would hamper or hinder the impending marriage with her, can the Court hold that sexual autonomy had been violated or not? Had the accused disclosed information about the chances of marriage, would she have consented? If there was no full disclosure of factors that could have a bearing on the consent of the woman, can we hold that such cases fall in the category of breach of promise? We need to discuss this in detail.” (Emphasis supplied) The Division Bench of the High Court of Kerala was following the judgments rendered by the Apex Court, on the issue, rendered from time to time and holds that such acts on consensus would not amount to an offence of rape. 9. It now becomes germane to notice the judgments of the Apex Court. The Apex Court has delineated the inter-play between the offence of rape and a consensual sexual relationship, both on the false promise of marriage, and promise of marriage. Therefore, a deeper delving into the - 103 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 issue becomes unnecessary, suffice to quote the judgments of the Apex Court rendered over the years. The Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA16 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): “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;” 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 16 (2019) 9 SCC 608 - 104 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 “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 - 105 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 106 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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.” 10. The Apex Court, a little later in the case of DHRUVARAM MURLIDHAR SONAR (supra), 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 - 107 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) “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 - 108 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 the appellant, and her consent was not in consequence of any misconception of fact.” 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 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 - 109 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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, 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 - 110 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 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 - 111 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) The Apex Court, in the afore-quoted judgment, has considered the entire spectrum of the law on the issue while following the judgment in the case of DR.DHRUVARAM MURALIDHAR SONAR V. STATE OF MAHARASHTRA reported in (2019)18 SCC 191 and had obliterated the proceedings qua the accused. 10. 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 UTTARPRADESH17 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 17 2022 SCC OnLine SC 1032 - 112 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 113 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 communication, 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. 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 such misconception was the basis for her choosing to engage in the said act… […] - 114 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 115 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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) 11. In yet another judgment, the Apex Court in the case of MANDAR DEEPAK PAWAR V. STATE OF MAHARASHTRA18, 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) 18 2022 SCC OnLine SC 2110 - 116 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 12. Further, the Apex Court, again in the case of NAIM AHAMED v. STATE (NCT OF DELHI)19, delineating what would be 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 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 19 2023 SCC OnLine SC 89 - 117 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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:— “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 - 118 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. -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 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 - 119 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 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 - 120 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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. - 121 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (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. (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) - 122 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 13. The Apex Court, subsequently, in the case of Ms. X V. Mr. A20, 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 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., 20 2024 SCC OnLine SC 316 - 123 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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, 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. - 124 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 (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.” 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 - 125 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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) 14. The Apex Court, further in the case of SHIV PRATAP SINGH RANA V.STATE OF MADHYA PRADESH21, 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 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 21 (2024) 8 SCC 313 - 126 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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) - 127 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “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 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 - 128 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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. 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) 15. The Apex Court, in its recent judgment, in the case of LALU YADAV V. STATE OF UTTAR PRADESH22 has held as follows: “…. …. …. 13. The decision in “XXXX” v. State of Madhya Pradesh6, also assumes relevance in the contextual situation. This court took 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. 22 2024 SCC OnLine SC 2876 - 129 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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 - 130 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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, have 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. 16. Insofar as the judgment that the learned counsel appearing for the 2nd respondent/complainant seeks to place reliance upon, in the case of ANURAG SONI V. STATE OF CHATTISGARH - (2019)13 SCC 1, the same has been considered and the law has further been elucidated by the Apex Court in the subsequent judgments quoted hereinabove. Therefore, what would become binding are the judgments that are quoted in the course of the order. Wherefore, the armory that has emerged from the arsenal of the learned counsel for the petitioners, Smt. Sadhana S Desai, are undoubtedly overwhelming to what is projected by the learned counsel Sri Avishkar, appearing for the 2nd respondent/complainant . 17. In the light of the afore-quoted judgments and the observations made during the course of the order, if further proceedings against the petitioners are not obliterated and the trial is continued, it would, on the face of it, become an abuse of the process of law and result in miscarriage of injustice. 18. For the aforesaid reasons, the following: ORDER (i) Criminal Petition is allowed. (ii) FIR registered in Crime No.140 of 2023 and charge sheet No.13 of 2024 pending on the file of Principal Civil Judge (Jr.Dn.) & JMFC, Channapatna, Ramanagara District stands quashed qua the petitioners." 9. In the light of the issue standing answered by the Apex Court, all of which bear consideration at the hands - 131 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 of this Court in the aforesaid judgment, I deem it appropriate to obliterate the crime against the petitioner, failing which, it would become an abuse of the process of the law and result in miscarriage of justice. 10. For the aforesaid reasons, the following: ORDER i) The criminal petition is allowed; and ii) The proceedings in Spl.C.No.945/2024 pending on the file of the LXX Additional City Civil and Sessions Judge and Special Judge (CCH-71) at Bengaluru, stand quashed, qua the petitioner.” 16. In Mehaboobali’s case supra, this Court held as under:- “5. Perusal of the charge sheet indicated that the petitioner-accused and the survivor were allegedly in relationship from 2017 till June 2022. The charge sheet material indicated that except the allegation that the petitioner induced the survivor to have sexual intercourse by promising to marry, there is no allegation or substantive evidence that the petitioner fraudulently obtained consent of the survivor to have sexual intercourse, and mere breach of promise to marry does not satisfy the essential elements of cheating and rape. 6. The Hon'ble Supreme Court in the case MANDAR DEEPAK PAWAR AND ANOTHER supra has held as follows: - 132 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 The appellant and respondent No.2 were undisputedly in a consensual relationship from 2009 to 2011 (or 2013 as stated by the respondent No.2). It is the say of the respondent No.2 that the consensual physical relationship was on an assurance of marriage by the appellant. The complaint has been filed only in 2016 after three years, pursuant whereto FIR dated 16.12.2016 was registered under Section 376 and 420, IPC. On hearing learned counsel for parties, we find ex facie the registration of FIR in the present case is abuse of the criminal process. 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. The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 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. We are fortified to adopt this course of action by the judicial view in (2019) 9 SCC 608 titled “Pramod Suryabhan Pawar Vs. State of Maharashtra & Anr.” 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 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. The Criminal appeal is accordingly allowed. 7. The co-ordinate Bench of this Court in an identical circumstance in Crl.P.No.2189/2021 has held as follows: - 133 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 “The Apex Court, while delineating inter-play between promise of marriage and allegation of rape, in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA, 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): “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;” 15. In Yedla Srinivasa Rao v. State of A.P. (2006)11 SCC 615:(2007) 1 SCC (Cri) 557] the accused - 134 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 fulfil 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 “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 - 135 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 - 136 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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: (SCCp.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 - 137 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 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 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) 9. The petitioner and the second respondent were in a relationship for more than 6 years. After perusing the charge sheet materials, it can be inferred that the sexual intercourse between the accused and the survivor was a consensual one and there was no inducement by the accused from inception to have sexual intercourse by promising to marry with an intention to deceive. Engaging in sexual intercourse must be of a consequence of false - 138 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 promise made and must not be out of love and affection. Therefore, the continuation of criminal proceedings will be an abuse of the process of law. Accordingly, I pass the following: ORDER i. Criminal Petition is allowed. ii. The impugned proceedings in S.C.No.32/2023 on the file of II Addl. District and Sessions Judge, Ranebennur stands quashed. Pending IAs., if any, does not survive for consideration.” 17. In the case on hand, the material on record which clearly discloses that petitioner No.1 is alleged to have had voluntary / consensual sexual intercourse / relationship with the 2nd respondent cannot be held to be guilty for an offence punishable under Section 376 IPC and consequently, the impugned proceedings against the petitioners in this regard also deserve to be quashed. 18. Insofar as the alleged offences under Section 417, 504, 506, 420 r/w 34 IPC are concerned, in the absence of any material in this regard as is clear from the complaint, FIR, charge sheet material etc., I am of the view that the impugned proceedings in relation to these offences also deserve to be quashed. - 139 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 19. A perusal of the impugned order dated 19.06.2024 passed by the Sessions Court rejecting the discharge application filed by the petitioners under Section 227 of Cr.P.C. will indicate that the trial court fell in error in coming to the conclusion that there were sufficient materials to proceed against the petitioners; in this regard, the trial court failed to consider and appreciate the aforesaid facts and circumstances referred to supra obtaining in the instant case coupled with the law laid down by the Apex Court and this Court, all of which, cumulatively established that the petitioners were entitled to be discharged from the impugned proceedings and failure to appreciate this by the trial court has resulted in erroneous conclusion and consequently, the impugned order passed by the trial court deserves to be set aside and the application for discharge deserves to be allowed. 20. In view of the aforesaid facts and circumstances, I am of the considered opinion that continuation of the impugned proceedings would amount to abuse of process of law warranting interference by this Court in the present petition, which deserves to be allowed. - 140 - NC: 2025:KHC:18237 CRL.P No. 7603 of 2024 21. In the result, I pass the following:- ORDER (i) Petition is hereby allowed. (ii) The impugned order dated 19.06.2024 passed in Spl.C.No.542/2023 by the VI Addl.Prl.District and Spl.Judge, Mysuru, is hereby set aside and the application filed by the petitioners under Section 227 Cr.P.C. is hereby allowed and consequently, the petitioners are discharged from the said proceedings. (iii) The impugned proceedings in Spl.C.No.542/2023 arising out of Crime No.106/2023 registered by the 1st respondent – Police on the file of VI Addl.Prl.District and Spl.Judge, Mysuru, qua the petitioners are hereby quashed. Sd/- (S.R.KRISHNA KUMAR) JUDGE BMC/SRL List No.: 4 Sl No.: 9

PRATHAPA MD v. STATE OF KARNATAKA

Judgment text