ORDER : M.NAGAPRASANNA, J. The petitioners are before this Court calling in question proceedings in S.C.No.46/2024, pending before the Principal District and Sessions Judge, Udupi, for offences punishable under Sections 376 (2)(n), 354A(1)(i), 354A(2), 504, 506, 509, 417, 201, 109 r/w. 34 of the IPC . 2. Heard Sri Raghunatha K., learned counsel for petitioners and Sri B.N.Jagadeesha, learned Additional State Public Prosecutor for respondent No.1. 3. Facts in brief, germane, are as follows: The second respondent is the complaint. The petitioner - accused No.1 is said to have relationship with the complainant, on the score that they were known to each other since childhood. The friendship appears to have blossomed into relationship and the relationship getting physical as well, on the pretext of promise of marriage. The talks of marriage take place and on rejection of the marriage proposal, a crime then emerges in crime No.17/2023, on a complaint registered by the second respondent, for the allegations of repeated rape, as obtaining under Section 376 (2)(n) of the IPC , on the pretext of marriage. The police after investigation, file a charge sheet and maintained the afore-quoted offences that were alleged at the time of registration of the crime. The concerned Court commits the case to the Court of Sessions, in the light of the offence being rape. The matter is now pending before the Sessions Court, in S.C.No.46/2024, for the afore-quoted offences. The pendency or continuance of the proceedings is what has driven the petitioners to this Court in the subject petition. 4. The learned counsel for the petitioners would vehemently contend that the entire issue sprang out of a private complaint registered by the complainant in P.C.R.No.59 of 2023 and on its reference made under Section 156 (3) of the Cr.P.C. by the learned Magistrate, for it to become a crime in crime No.17/2023, for the afore-quoted offences. Learned counsel would submit that there is no promise of marriage ever meted out by petitioner No.1 and that petitioner No.1 and respondent No.2 were friends and having relationship. All acts in the relationship are consensual between petitioner No.1 and the complainant, which went on for a period of 2 years or more and when petitioner No.1 wanted to marry someone else, the complaint emerges from the hands of the second respondent. All acts in the relationship are consensual between petitioner No.1 and the complainant, which went on for a period of 2 years or more and when petitioner No.1 wanted to marry someone else, the complaint emerges from the hands of the second respondent. He would submit that none of the offences that are alleged against the petitioners can be laid as they are not on breach of promise of marriage or love but are consensual acts. Learned counsel would seek to place reliance upon plethora of judgements, all of which would bear consideration qua the relevance in the course of the order. 5. Insofar as the other accused are concerned, learned counsel for the petitioners submits that petitioner Nos.2 to 6 are the mother and friends of petitioner No.1 - accused No.1, who are also drawn into the web of crime for the aforesaid offences. He would submit that this is a clear case of abuse of the process of the law. 6. Per contra, learned Additional State Public Prosecutor Sri B.N.Jagadeesha, would vehemently refute the submissions to contend that petitioner No.1 - accused No.1 and the second respondent - complainant did have a relationship and it was on the pretext of marriage. Whether it was a false promise of marriage or a promise of marriage that had gone wrong, is a matter of trial and therefore, the petition should not be entertained at this juncture, as it is for the accused to come out clean in a full blown trial. Even with regard to other petitioners - accused Nos.2 to 6, learning Additional State Public Prosecutor would point that the summary of the charge sheet as obtaining in column No.17, contending that the allegations so alleged would clearly point at other accused, as well. He would seek dismissal of the petition. 7. I have given my anxious consideration to the submissions made by the learned counsel for the respective parties and have perused the material on record. 8. The complainant though served long ago, has chosen to remain unrepresented. Therefore, the learned counsel for petitioners and the learned Additional State Public Prosecutor are heard in the matter. 9. The afore-narrated facts are a matter of record. The two, i.e., petitioner No.1 and respondent No.2 were friends since childhood. Later, when they were in the college, the friendship blossomed into relationship and the relationship turned into physical relationship. Therefore, the learned counsel for petitioners and the learned Additional State Public Prosecutor are heard in the matter. 9. The afore-narrated facts are a matter of record. The two, i.e., petitioner No.1 and respondent No.2 were friends since childhood. Later, when they were in the college, the friendship blossomed into relationship and the relationship turned into physical relationship. The allegations are that, it was on account of a promise of marriage. The promise having been breached, leads the complainant to the concerned Court by way of filing a private complaint for the afore-quoted offences. The learned Magistrate refers the matter for investigation under Section 156 (3) of the Cr.P.C., which then becomes a crime in crime No.17/2023. 10. Since the entire issue is now triggered from the registration of the complaint, I deem it appropriate to notice the complaint so registered. It reads as follows: “SUBJECT MATTER OF COMPLAINT:- 1. That the complainant living along with her father, mother and brother. She is a MA Post Graduate in English Literature. Earlier she was working at Thenkabettu School, K.G Road as Teacher. Since from three month she is working at the office of Advocate at Bramavara. The accused no.1 is the resident of address mentioned in the cause title. He is a BCA Graduate, working at YUCCA IT Solution Company at Bangalore. Because of Corona pandemic for the last 2 to 3 years he is working from home. The complainant and accused belongs to Adi dravida caste. The accused and his parents were earlier resided near by the resident of complainant as she knows him from childhood. For the last few years they become friends in social media. The accused no.1 is having a car and recently purchased a new car. The accused no.1 is in contact with the complainant and he chatting with the complainant continuously in social media and their friendship turned in to love. It is the first time on 01-04- 2022 the accused no.1 called the complainant and invited her for a jolly ride of Udupi beach. There they had a discussion and the accused no.1 given an offer of marrying the complainant and promised her of marrying her within a short period Even he promised her to the extent of marrying her only. There they had a discussion and the accused no.1 given an offer of marrying the complainant and promised her of marrying her within a short period Even he promised her to the extent of marrying her only. Thereafter he started forcefully kissing her, had oral sex, touched her private parts and except the intercourse, he has done everything on that day inspite of her resistance. She was not a consenting party. It was continued for 2, 3 times. Later he went to Bangalore and he was in contact with the complainant through social media. 2. The complainant submits that, it is on 01-05- 2022 the accused no.1 came to the native place Bramavara. After one week i.e on 08-05-2022 the accused no.1 called the complainant and told her to come near by Bramavara Holy family church. He came there in his car at about 6.30 p.m and picked the complainant and came to Ajjarkad Bhujanga Park and parked the car in a corner lonely place. After parking he requested the complainant to move to the back seat of the car. Then he also moved to the back seat of the car and once again promised the complainant that he will going to marry her and without waiting for her consent and in spite of her protest he removed all her dress and later forcibly had sex with her. The complainant not disclosed these facts to her family members as he promised her of marrying her. Later he took her to various places. Though she advised him that it is not correct on her part to have sex before marriage, but he assured her of marrying at the earliest possible. Later the physical relationship was continued through out the year. In between one day he took the complainant to Agumbe and while coming back, near Hebri in a lonely remote place while having sex, the Police attached to Hebri Police Station observed the same and took both the complainant and accused no.1 to the station, warned him and released both the accused and the complainant later. 3. The complainant submits that, in the month of February 2023 when the complainant discussed about the marriage with the accused no.1, then he told her that he want some time to discuss the matter with his family members. 3. The complainant submits that, in the month of February 2023 when the complainant discussed about the marriage with the accused no.1, then he told her that he want some time to discuss the matter with his family members. The accused no.1 was sending obscene pictures and messages to the complainant through social media and she was also replying for the same. The complainant was continuously discussing the matter of marriage with the accused no.1 and requesting him for the solemnization of marriage. But unfortunately instead of procceding for the marriage the accused no.1 stopped calling the complainant and also not replying to her messages properly. It is on 01-05-2023 on the occasion of birthday of accused no.1 the complainant and accused no.1 met at a place and the complainant pressurized him for the marriage then the accused no.1 openly told that he is not going to marry her and if she wants she can marry any other boy and he will marry other girl. He threatened her and put her in fear of injury and death, further threatened her not to insist him for the marriage and by saying these words he said he is having contact with the criminal goondas and his family members are members of Dalitha Sangarsha Samithi. The complainant was shocked by hearing the same. Then without any option she discussed this matter with her family members. The family members told her to invite him to discuss the matter of marriage but he completely stopped to replying to her messages and also not picking her calls. 4. The complainant submits that, both the family members of complainant and accused no.1 decided to have a meeting at Ambedkar Bhavana Bramavara. Meeting was called on 06/08/2023 at 6.30 p.m in the evening. The family members of the complainant and accused and accused no.2 to 7 were present. Then the complainant and her parents proposed for the marriage, then the accused no.1 refused and accused no.2 to 7 formed an unlawfull assembly among them, 2,3 persons were holding wooden rods and hockey sticks surrounded the complainant and her family members by saying that “you enjoyed with accused no.1 at your own interest and not only enjoying with accused no.1 you are also enjoying with other boys, you are freely available to all". Further they demanded to have sex with them also and even they have gone to the extent of saying that she has to sleep with them and they will give full satisfaction. Further they threatened of kidnapping and committing murder. etc. further they said these are all common things now a days and you can continue the same and forget about the marriage etc. It is heard that accused no.6 collected money from accused no.1 and insisted accused no.2 to 5 to commit the crime. The accused no.1 said that she is having relationship with others and she being a prostitute enjoyed with other boys. Further he offered "whatever the amount she wants to leave him he is ready to give" and they together abused her by calling her 5. The complainant submits that, accused no.1 by promising the complainant of marriage, induced her for sex with him and he cheated her, committed breach of trust and by colluding with accused no.2 to 6 he put her in fear of death and abused her by saying her "prostitute" etc. Further said it is her mistake and these are all common things and advised her to have sex with other accused. Thereby the accused no.1 committed the offences punishable under section 376, 354B, 420, 406 of IPC and accused no.1 to 6 together have committed the offenses punishable under section 384, 506, 504, 143, 147, 148 r/w 149 of IPC . 6. The Complainant submits that, it is on 07/08/2023 she approached the Inspector Womens Police Station Udupi, but unfortunately they instead of registering the case issued a notice to the accused and they had discussion and there is a meeting between the parties on 09/08/2023, on that day the accused assured of marrying the complainant after consultation with his parents and he requested to give 8 days time. After laps of 8 days he once again turned hostile. Once again she approached the police and they refused to register the case by informing her to approach the court by filing the complaint and refer the same to them. Then she approached the Superintendent of Police Udupi District on 28/08/2023, there also no response till this date. Now therefore the complainant is having no other option except to approach this court by filing this complaint. Then she approached the Superintendent of Police Udupi District on 28/08/2023, there also no response till this date. Now therefore the complainant is having no other option except to approach this court by filing this complaint. Therefore it is prayed that the court may be pleased to take the offences into cognizance and for detailed investigation, the complaint may be referred to S.H.O Womens Police Station for investigation and to report, in the ends of justice.” (Emphasis added) The narration in the complaint is that, the friendship of petitioner No.1 and respondent No.2 – complainant and petitioner No.1 and respondent No.2 travelling to several places; the promise of marriage allegedly breached by petitioner No.1 and insofar as, other accused are concerned, the allegations are that, they have threatened the complainant that if she would insist upon marriage with petitioner No.1, they would kill. This is the purport of the complaint. The complaint as observed, is referred for investigation, which leads to filing of the charge sheet by respondent No.1 - police for the aforesaid offences. The summary of the charge sheet as obtaining in column No.17 reads as follows: (Emphasis added) The allegation is against accused No.1, who is said to have had physical relationship with the complainant on the promise of marriage. It narrates the breach of promise of marriage and also criminally intimidating the complainant by petitioner No.1 - accused No.1. Accused Nos.2 to 6 are the mother and the friends of petitioner No.1 - accused No.1. On filing of the charge sheet, the concerned Court commits the matter to the Court of Sessions and is now pending trial before the Court of Sessions. 11. The issue now would be, whether on the aforesaid facts, trial should be permitted to continue against the petitioners. 12. Before delving upon the allegations made against accused No.1, I deem it appropriate to notice the allegations made against accused Nos.2 to 6. Accused No.2 is the mother of accused No.1 and accused Nos.3 to 6 are said to be friends of accused No.1. The narration in the complaint is that, accused Nos.2 to 6 have threatened the complainant that if she would insist on marriage, they would kill her. There is no other corroborative material that is produced to demonstrate that there was any threat meted out by accused Nos.2 to 6. The narration in the complaint is that, accused Nos.2 to 6 have threatened the complainant that if she would insist on marriage, they would kill her. There is no other corroborative material that is produced to demonstrate that there was any threat meted out by accused Nos.2 to 6. The police appear to have drawn the charge sheet as obtaining in column No.17 supra only to assuage the complainant or her family, without there being any corroboration of the documents or statements, which are not appended to the petition. 13. Insofar as the allegation of repeated rape or sexual harassment against accused No.1 is concerned, what is the role of the mother is a mystery, as the mother is drawn into the web of crime without any rhyme or reason. Therefore, permitting further proceedings against accused Nos.2 to 6 would on the face of it, become an abuse of the process of the law and the proceedings against them are to be obliterated. 14. Insofar as the first petitioner is concerned, who is said to have had a relationship with the complainant on several bouts, as narrated in the complaint or in the summary of the charge sheet, they are indicative of the facts that they all are consensual acts between accused No.1 and respondent No.2. The offence of rape cannot spring, when there is consensual act, is the law laid down by the Apex Court right from the case of DR. DHRUVARAM MURLIDHAR SONAR v. STATE OF MAHARASHTRA , (2019) 18 SCC 191 wherein the Apex Court holds as follows: “…. …. …. 14. In the instant case, FIR was registered against the appellant and the co-accused under Sections 376 (2)(b), 420 read with Section 34 IPC and under Section 3(1)(x) of the SC/ST Act. Section 376 (2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. The said provision during the relevant point of time was as under: “ 376. Section 376 (2)(b) prescribes punishment for the offence of rape committed by a public servant taking advantage of his official position on a woman in his custody as such public servant or in the custody of a public servant subordinate to him. The said provision during the relevant point of time was as under: “ 376. Punishment for rape .— (1) * * * (2) Whoever,— (a)*** (b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or (c)-(g)*** shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine.” 15. Section 375 defines the offence of rape and enumerates six descriptions of the offence. The first clause operates where the woman is in possession of her senses and, therefore, capable of consenting but the act is done against her will and the second where it is done without her consent; the third, fourth and fifth when there is consent but it is not such a consent as excuses the offender, because it is obtained by putting her, or any person in whom she is interested, in fear of death or of hurt. The expression “against her ‘will’ ” means that the act must have been done in spite of the opposition of the woman. An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of. 16. Section 90 IPC defines “consent” known to be given under fear or misconception: “ 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;” 17. Thus, Section 90 though does not define “consent”, but describes what is not “consent”. 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. 18. In Uday v. State of Karnataka [ 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 [ 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 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 [ Deelip Singh v. State of Bihar , (2005) 1 SCC 88 : 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 [ 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. 22. Recently, this Court, in Shivashankar v. State of Karnataka [ Shivashankar v. State of Karnataka , (2019) 18 SCC 204 ] , disposed of on 6-4-2018, has observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is “rape”, especially in the face of the complainant's own allegation that they lived together as man and wife. It was held as under : (Shivashankar case [ Shivashankar v. State of Karnataka , (2019) 18 SCC 204 ] , SCC p. 205, para 4) “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.” 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 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 again in the case of LALU YADAV v. STATE OF UTTAR PRADESH , 2024 SCC OnLine SC 2876 , has held as follows: “…. …. …. 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. …. …. 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.” (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., and in Satya Pal v. State of U.P.. as well as the decision of this Court in State of Haryana v. Bhajan Lal 4 . 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. 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 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. (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.” 12. In the decision in Shivashankar alias Shiva v. State of Karnataka 5 , 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 Pradesh , also assumes relevance in the contextual situation. 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 Pradesh , 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) , 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 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 .” (Emphasis supplied) The issue is again considered by the Apex Court in the latest judgment rendered in the case of BISWAJYOTI CHATTERJEE vs. STATE OF WEST BENGAL & ANR , [2025 SCC OnLine SC 741] , wherein it is held as follows: “CONSIDERATION OF SUBMISSIONS: 13. We have carefully considered the submissions made by the Learned Counsels for the parties and in the present case, the question for consideration before the High Court, and subsequently before this Hon’ble Court, is that whether the allegations against the Appellant, as they stand, constitute an offence, under Sections 376 (2)(f), 417 and 506 IPC ; and whether the case of the Appellant is fit for discharge under Section 227 CrPC, 1973. 14. A bare perusal of the FIR dt. 14.12.2015, and the statement of the Complainant under Section 164 CrPC, clearly establish that Appellant and the Complainant had come in contact in the year 2014, during the pendency of matrimonial disputes arising out of the Complainant’s marriage. It is the own case of the Complainant/Respondent No.2 that during the relevant time, the Appellant had duly informed her that he was separated from his wife. It is the own case of the Complainant/Respondent No.2 that during the relevant time, the Appellant had duly informed her that he was separated from his wife. The Complainant who was well aware of the personal as well as the professional background of the Appellant, who had been receiving financial help from the Appellant for herself and her son, must have carefully weighed her decision before entering into a relationship with the Appellant. 15. Even if we take the case of the Complainant at the face value or consider that the relationship was based on an offer of marriage, the Complainant cannot plead ‘misconception of fact’ or ‘rape on the false pretext to marry’. It is from day one that she had knowledge and was conscious of the fact, that the Appellant was in a subsisting marriage, though separated. It is upon having an active understanding of the circumstances, actions and the consequences of the acts, that the Complainant made a reasoned choice to sustain a relationship with the Appellant. The conduct of the Complainant/Respondent No. 2 ex-facie represents a reasoned deliberation, as summarized by this Hon’ble Court in Pramod Suryabhan Pawar vs State of Maharashtra3 as under: “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.” 16. In our considered view, even if the allegations in the FIR and the charge-sheet are taken at their face value, it is improbable that the Complainant/Respondent No. 2 had engaged in a physical relationship with the Appellant, only on account of an assurance of marriage. In our considered view, even if the allegations in the FIR and the charge-sheet are taken at their face value, it is improbable that the Complainant/Respondent No. 2 had engaged in a physical relationship with the Appellant, only on account of an assurance of marriage. As rightly observed by this Hon’ble Court in the case of Prashant Bharti Vs State of NCT of Delhi , that it is inconceivable, that the complainant or any woman would continue to meet the Appellant or maintain a prolonged association or physical relationship with him in the absence of voluntary consent on her part. 17. In the case of Uday v. State of Karnataka , the Court had acquitted the accused on the basis that she was a mature college student who had consented to sexual intercourse with the accused of her own free will. It is unlikely that her consent was not based on any misconception of fact. In Uday (supra), the Court noted that: “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.” Xxx 19. 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.” Xxx 19. On the other hand, we also find inconsistencies in the statements of the prosecutrix insofar as it is deposed by her in the statement under section 164 CrPC, that it was only upon the insistence of the Appellant, that she had handed over the cases to Advocate, Mr. Gopal Chandra Dass; however, the challan/charge-sheet reveals that Mr. Gopal Chandra Dass was well known to the Complainant, as a senior in college and it was Mr. Gopal Chandra Dass who had introduced the Complainant to the Appellant, in respect of her pending cases. This, in no manner can be a minor contradiction, and casts a suspicion on the entire narrative of the Complainant. Notwithstanding, this fact does not in any manner buttress that the relationship interse between the Appellant and the Complainant, was not consensual in nature. 20. We find that there is a growing tendency of resorting to initiation of criminal proceedings when relationships turn sour. Every consensual relationship, where a possibility of marriage may exist, cannot be given a colour of a false pretext to marry, in the event of a fall out. It is such lis that amounts to an abuse of process of law, and it is under such circumstances, that we deem fit to terminate the proceedings at the stage of charge itself.” (Emphasis supplied) In the afore-quoted judgment, the Apex Court was considering relationship between the victim and the accused therein, being for a period of one year. Even in those circumstances, the Apex Court holds that the acts between the victim and the accused, it is construed as consensual acts and cannot become the offence of rape or repeated rape. 15. If the facts obtaining in the case at hand are considered on the bedrock of the principles laid down by the Apex Court in the judgments quoted hereinabove, what would unmistakably emerge is that all the acts that the complainant has now alleged against petitioner No.1 were all consensual. In the light of the aforesaid facts and the judgments of the Apex Court covering the subject issue on all its fours, the unmistakable inference would be the obliteration of the proceedings against the petitioners. In the light of the aforesaid facts and the judgments of the Apex Court covering the subject issue on all its fours, the unmistakable inference would be the obliteration of the proceedings against the petitioners. There is no warrant to permit continuation of the trial proceedings against the petitioners, as it would become an abuse of the process of the law and result in miscarriage of justice. 16. For the aforesaid reasons, the following: ORDER a. The criminal petition is allowed. b. The proceedings in S.C.No.46/2024, pending before the Principal District and Sessions Judge, Udupi, stands, stands quashed, qua the petitioners.