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2023 DIGILAW 935 (KAR)

Girinath B. , S/o Basavaraj v. State Of Karnataka

2023-07-28

M.NAGAPRASANNA

body2023
ORDER : Criminal Petition No.6863 of 2022 raises a challenge to the proceedings in C.C.No.54359 of 2021 registered for offences punishable under Sections 417 and 420 of the IPC. Criminal Petition No.6485 of 2022 raises a challenge to the proceedings in C.C.No.247 of 2022 registered for offences punishable under Sections 376(2)(n), 506, 504, 323, 114, 417 r/w 34 of the IPC. Petitioner/Girinath B in Crl.P.6863 of 2022 and 1st petitioner in Crl.P.6485 of 2022 are common in both these petitions; so is the complainant and the cause of action is also common. Therefore, both these petitions are taken up together and considered by this order. For the sake of convenience, petitioners will be hereinafter referred to as the petitioner and the 2nd petitioner as such. 2. Heard Mr. T.I. Abdulla, learned counsel appearing for the petitioners, Smt. K.P. Yashodha, learned High Court Government Pleader for respondents 1 to 3 in Crl.P.No.6485 of 2022 and respondents 1 and 2 in Crl.P.No.6863 of 2022 and Sri T.Nataraju, learned counsel appearing for respondent No.4 in Cri.P.No.6485 of 2022 and respondent No.3 in Crl.P.No.6863 of 2022. 3. Facts, as projected by the prosecution are as follows: The complainant is the same in both these petitions, it is the 3rd and 4th respondent respectively. The complainant comes in contact with the petitioner – Girinath B. in the year 2013 through face book – the social media. They become friends, it transpires that the petitioner was staying close to the complainant’s house. It is the narrative of the complainant, that she was always taken to the house of the petitioner, on the score that he was a very good chef and would prepare delicious food and every time she used to go to his house, drink beer and have sexual intercourse. This story goes on up to 2019, for about 6 years. Later the complainant alleges that the petitioner has used her on the promise of marriage and after 2019 has lost all intimacy. 4. The complainant on the ground that the petitioner has breached promise of marriage and has had physical relationship with her, seeks to register a complaint before the Indiranagar Police Station, Bengaluru on 08-03-2021. This becomes a crime in Crime No.55 of 2021 for offences punishable under Sections 417, 420, 504, 506 r/w 34 of the IPC. 4. The complainant on the ground that the petitioner has breached promise of marriage and has had physical relationship with her, seeks to register a complaint before the Indiranagar Police Station, Bengaluru on 08-03-2021. This becomes a crime in Crime No.55 of 2021 for offences punishable under Sections 417, 420, 504, 506 r/w 34 of the IPC. Based upon the said complaint, it appears that the petitioner was arrested, taken to judicial custody and was enlarged on bail. The complainant then comes to know that the petitioner is residing at Davangere after being enlarged on bail. She travels to Davangere and registers another complaint verbatim similar to what was registered before the jurisdictional police at Bengaluru. The 2nd complaint was registered before the Women’s Police Station at Davangere. The said complaint becomes a crime in Crime No.103 of 2021 for offences punishable under Sections 376(2)(n), 506, 504, 323, 114, 417 r/w 34 of the IPC. The Police conduct investigation and file a charge sheet in both the cases. In Crime No.55 of 2021 charge sheet is filed in C.C.No.54359 of 2021 and in Crime No.103 of 2021 charge sheet is filed in C.C.No.247 of 2022, both arising out of the very same narration of facts. It is the filing of charge sheets in both these cases that drives the petitioner to this Court in the subject petitions. 5. The learned counsel for the petitioners would vehemently contend that the complainant is in the habit of making friends with the affluent, extract money and blackmail them by registering crimes. The petitioner and the complainant meet on face book, were in a live in relationship for 6 years, up to 2019 and then the complainant comes up with a story that she was all the six years used physically on the promise of marriage and on breach of promise of marriage, the allegations are made. The learned counsel would further contend that the petitioner has been maliciously prosecuted not in one forum but before two separate jurisdictions for the same facts which is an abuse of the process of law, all for a consensual live in relationship for 6 years. He would seek quashment of entire proceedings in both these cases. 6. The learned counsel would further contend that the petitioner has been maliciously prosecuted not in one forum but before two separate jurisdictions for the same facts which is an abuse of the process of law, all for a consensual live in relationship for 6 years. He would seek quashment of entire proceedings in both these cases. 6. On the other hand, the learned counsel appearing for the complainant would seek to refute the submissions to contend that the petitioner has in fact used the complainant for close to 6 years on the ground of promise of marriage and has breached such promise from 2019 onwards, as he has shown no interest to have any relationship with the complainant. He would submit that no fault can be found with the crimes being registered and charge sheets being filed by the Police. He would submit that since charge sheets are already filed by the Police, trial should be permitted to be continued. 7. The learned counsel for the petitioners would in his rejoinder to the said submission contends that the complainant is in the habit of luring people on social media and indulging in physical relationship with them. He would quote an illustration of a crime in Crime No.33 of 2014 registered against one Dhanush with whom the complainant had physical relationship and had tortured him, took money and settled the issue. He would reiterate his submission that the entire proceedings be quashed. 8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record. 9. Certain undisputed facts are that the petitioner and the complainant met on social media platform – face book, began to chat and befriend each other in the year 2013. This is the narration in the complaint right from the outset. Certain financial transactions are also narrated in the complaint. It is the allegation in the complaint that on and from 27-12-2019 the petitioner who had promised her that she would be taken to Davangere which is his native and introduce her to the family members for the purpose of marriage breached such promise. Based upon this, she seeks to register a complaint on 08-03-2021 before Indiranagar Police Station, Bengaluru. It is the allegation in the complaint that on and from 27-12-2019 the petitioner who had promised her that she would be taken to Davangere which is his native and introduce her to the family members for the purpose of marriage breached such promise. Based upon this, she seeks to register a complaint on 08-03-2021 before Indiranagar Police Station, Bengaluru. The complaint so registered reads as follows: The afore-quoted complaint then becomes a crime in Crime No.55 of 2021 for offences punishable under Sections 417, 420, 504, 506 r/w 34 of the IPC. There was no allegation made for offences punishable under Section 376 of the IPC in the said complaint. Pursuant to the registration of the crime, he was taken to judicial custody on 09-03-2021 and was enlarged on bail on 08-04-2021. Therefore, on the aforesaid offences, the petitioner was in judicial custody for a month. 10. The aftermath of release of petitioner is quite shocking. After registration of the said crime and the petitioner being enlarged on bail, the complainant moves to Davangere and registers a complaint before the Women’s Police Station at Davangere on 27-07-2021 which becomes a crime in Crime No.103 of 2021. The complaint so registered before the Women’s Police Station at Davangere reads as follows: On a perusal of the complaint would indicate that on the very narration that was made in the complaint registered at Bengaluru which becomes crime in Crime No.55 of 2021, the 2nd complaint is registered. Though there is no suppression of the earlier complaint, what the complainant would allege is that the petitioner after securing bail has moved to Davangere and he and another lady by name Geetha have assaulted the complainant when she goes to meet the petitioner at Davangere. Except this extra incident, every other narration in the complaint is verbatim similar to the earlier complaint. Therefore, there are two crimes registered on the same narration of facts with a sprinkling difference of an incident of 16-04-2021, after the petitioner was enlarged on bail. The Police in Crime No.55 of 2021 filed a charge sheet on 04-06-2021 for offences punishable under Section 417 and 420 of the IPC. Column No.7 in the charge sheet so filed in Crime No.55 of 2021 reads as follows: The jurisdictional police at Davangere also conduct investigation and file a charge sheet against the petitioner. The Police in Crime No.55 of 2021 filed a charge sheet on 04-06-2021 for offences punishable under Section 417 and 420 of the IPC. Column No.7 in the charge sheet so filed in Crime No.55 of 2021 reads as follows: The jurisdictional police at Davangere also conduct investigation and file a charge sheet against the petitioner. Column No.17 of the charge sheet reads as follows: Therefore, based upon same set of facts there are two charge sheets filed against the petitioner, one for offences punishable under Sections 417 and 420 of the IPC and the other for offences punishable under Sections 376(2)(n), 323, 417, 506 and other offences against the parents of the petitioner, all for what is required to be noticed a live in relationship of 6 years between the petitioner and the complainant. If further proceedings are permitted to be continued on such consensual acts of the complainant with the petitioner, contending that it would attract ingredients of Section 375 of the IPC and become an offence punishable under Section 376 of the IPC, it would, on the face of it, become an abuse of the process of law, as the length of relationship is what determines ingredients of Section 375 of the IPC. 11. It is not one, two, three, four or five, but six years of consensual physical/sexual relationship between the petitioner and the complainant after having met through social media platform. The complaint narrates in minute details as to what has transpired between the two, for all the six years. The allegation that is made later is, from 27-12-2019 intimacy between the two waned away or faded away. Fading away of the intimacy after six years of consensual acts of sexual intercourse cannot mean that it would become ingredients of Section 375 of the IPC. They were consensual acts from day one and consensual acts till 27-12-2019. The period is six long years. Therefore, it cannot but be construed that it would not be a rape for it to become punishable under Section 376 of the IPC. If further proceedings are permitted to continue as observed hereinabove, it would run foul of plethora of judgments rendered by the Apex Court on the issue. I deem it appropriate to notice a few of them. Therefore, it cannot but be construed that it would not be a rape for it to become punishable under Section 376 of the IPC. If further proceedings are permitted to continue as observed hereinabove, it would run foul of plethora of judgments rendered by the Apex Court on the issue. I deem it appropriate to notice a few of them. The Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA, (2019) 9 SCC 608 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, (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. … 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 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”. 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 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. 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. 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 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 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 8 8 , 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. 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 the appellant, and her consent was not in consequence of any misconception of fact.” 19. 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 8 8 : 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 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. 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. **** 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. 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. 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 DHRUVARAM MURALIDHAR SONAR V. STATE OF MAHARASHTRA reported in (2019)18 SCC 191 and had obliterated the proceedings qua the accused. 12. 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 ANOTHER, 2022 SCC OnLine SC 1032, 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 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 which sets out the ingredients of the offence. 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, 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, 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. […] 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. 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 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. 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) In yet another judgment the Apex Court in the case of MANDAR DEEPAK PAWAR V. STATE OF MAHARASHTRA AND ANOTHER, Criminal Appeal No.442 of 2022 decided on 27th July 2022 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. 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 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. 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. 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. The Criminal appeal is accordingly allowed. 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. If the afore-narrated facts are considered on the bedrock of elucidation by the Apex Court, it becomes a case where this Court has to step in, exercise its jurisdiction, under Section 482 of the Cr.P.C., to obliterate the crime registered against the petitioner for the offence of rape under Section 376 of the IPC inter alia, failing which, it would become an abuse of the process of law. 13. In the light of the afore-narrated facts and the law laid down by the Apex Court what would unmistakably emerge is that the complainant after having consensual relationship with the petitioner has sought to register repeated crimes on the very same set of facts with the same allegations – one at Bengaluru and another at Davengere. This case becomes a classic illustration of an abuse of the process of law. What is required to be further taken note of is the submission of the learned counsel for the petitioners, that the complainant is in the habit of registering crimes against several people. He has quoted one such instance. This case becomes a classic illustration of an abuse of the process of law. What is required to be further taken note of is the submission of the learned counsel for the petitioners, that the complainant is in the habit of registering crimes against several people. He has quoted one such instance. The complainant through face book befriends, one Dhanush and had physical relationship with him and registers a complaint against the said person before the Airport Police, Bengaluru for the very same offence as is alleged against the petitioner i.e., having sexual intercourse on the promise of marriage and its breach. This had become a crime in Crime No.33 of 2014 which was registered on 19-02-2014. The Police therein had investigated the matter and filed a charge sheet against the said accused Dhanush for offences punishable under Sections 420 and 376 of the IPC and the matter was pending in S.C.No.164 of 2015. It ends in acquittal of Dhanush in terms of the order of the concerned Court on 20-09-2016. The reason for acquittal is that she had turned hostile by reversing her stand. The order of acquittal of the said accused Dhanush is appended to the petition. 14. The drawable inference from the said order is that on the very same allegation of promise of marriage there was sexual intercourse. When was the allegation is necessary to be noticed; at the same time when she had live in relationship with the petitioner, as the judgment itself narrates that Dhanush and the complainant had physical relationship from 2013 and she had lodged a complaint on 12-12-2013 against the said accused Dhanush. Therefore, it becomes a classic case where the complainant is seeking relationships with people on social media platforms and later register crimes against them, on the same allegations. If trial, in the cases at hand, is permitted to continue, it would be putting a premium on the activities of the complainant and her effort to abuse the process of law over and over. 15. For the aforesaid reasons, I pass the following: ORDER : (i) Criminal petitions are allowed. If trial, in the cases at hand, is permitted to continue, it would be putting a premium on the activities of the complainant and her effort to abuse the process of law over and over. 15. For the aforesaid reasons, I pass the following: ORDER : (i) Criminal petitions are allowed. (ii) Proceedings in C.C.No.54359 of 2021 pending before the 10th Additional Chief Metropolitan Magistrate at Mayo Hall, Bengaluru concerning FIR in Crime No.55 of 2021 of Indiranagar Police Station as also proceedings in C.C.No.247 of 2022 pending before the II Additional Civil Judge (Senior Division) and JMFC, Davangere arising out of FIR in Crime No.103 of 2021 of Women’s Police Station, Davangere stand quashed. Consequently, pending applications, if any, also stand disposed.