The High Court quashed the order adding Section 376 IPC and committing the case to Sessions Court, ruling that consensual acts between long-term partners involving breach of marriage promise do not constitute rape.
Orders altering charge and committing trial to Sessions Court are quashed; trial continues with earlier charges before Magistrate.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
WP No. 4118 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 4118 OF 2022 (GM-RES)
BETWEEN:
DR RAVISHANKAR BHAT S/O RAMAKRISHNA BHAT, AGED 56 YEARS, R/AT NO.231, 2ND D CROSS ROAD, 2ND B MAIN ROAD, 1ST STAGE, GIRINAGAR, BENGALURU-560085.
…PETITIONER
(BY SRI. MANMOHAN P N.,ADVOCATE)
AND:
ITS STATION HOUSE OFFICER,
Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA
…RESPONDENTS
(BY SMT. K.P.YASHODHA, HCGP FOR R1; SRI. SANJAY YADAV B., ADV. FOR SRI. S.MAHESH, ADV. FOR R2)
WP No. 4118 of 2022
THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA READ WITH SECTION 482 OF CR.P.C., PRAYING TO QUASH COMPLAINT DATED 11.02.2011 REGISTERED AS FIR IN CRIME NO.61/2011 BY THE R1 AND CHARGE SHEET DATED 30.11.2012 FILED BY THE R1 AND THE ORDER DATED 24.09.2013 PASSED BY THE COURT OF IV ADDITIONAL CHIEF METROPOLITAN MAGISTRATE, BENGALURU IN C.C.NO.24142/2012 ON THE APPLICATION FOR DISCHARGE INSOFAR AS REJECTING THE APPLICATION IN RESPECT OF THE PETITIONER AND THE ORDER DATED 01.12.2014 PASSED IN CRL.REV PETITION NO.359/2013 PASSED BY THE COURT OF IV ACMM, BENGALURU AND THE ORDER DATED 01.10.2019 PASSED BY THE COURT OF 13TH FAST TRACK COURT, BENGALURU URBAN AND ORDER DATED 07.10.2021 PASSED IN REVISION PETITION NO.832/2019 PASSED BY THE COURT OF THE LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU ORDER DATED 07.11.2019 PASSED BY THE COURT OF 13TH FAST TRACT COURT, BENGALURU URBAN AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS IN S.C.NO.297/2020 PENDING BEFORE 54TH ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AT BENGALURU PRODUCED AS ANNEXURE - A, B, C, D, E ,E1, R AND T.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question several orders right from registration of the complaint on 11.02.2011 and all subsequent orders passed by the concerned court. The petition is filed on 16.02.2022. What drives the
petitioner to this Court after ten years of pendency of the proceedings is an order passed by the learned Magistrate on 07.11.2019 committing the case to the Sessions Court on inclusion of the offence punishable under Section 376 of the IPC in terms of his order dated 01.10.2019. Therefore, only the
WP No. 4118 of 2022
orders dated 01.10.2019 and 07.11.2019 merit consideration for the present as all other orders that are now challenged proceedings of which are at advanced stage of trial before the trial Court.
The 2nd respondent is the complainant and at the relevant
point in time, she was housed at the first floor of the premises in which the petitioner and his wife were residing on the ground floor. A complaint was registered by the 2nd respondent on 11.02.2021 in Crime No.61 of 2011 for offences punishable under Sections 354, 406 and 420 of the IPC. The allegation in the complaint was that from 03-03-2007 to 26.04.2010 the petitioner had physical relationship with the complainant on the promise of marriage and had breached the said promise of marriage and had certain financial transactions between them.
WP No. 4118 of 2022
Certain proceedings were also taken up by the 2nd respondent before the concerned Court invoking Section 12 of the Domestic Violence Act as well on the ground that the petitioner and the 2nd respondent had in fact lived like husband and wife though they were not. These issues are not the concern in the case at hand.
WP No. 4118 of 2022
that both the petitioner and the complainant had sexual intercourse on several occasions on consensus. Based upon this the application is filed. The learned Magistrate considering the application passed an order altering the charge on 1-10-2019 and posted the matter for passing committal order on 7-10-2021 and on 7-11-2019 commits the matter to the learned Sessions Judge in view of the cognizance being taken against the petitioner for offences punishable under Section 376 of the IPC. It is challenging this order passed under Section 323 of the Cr.P.C. in C.C.No.24142 of 2012 and the order of committal dated 7-11-2019 is what is called in question in the subject writ petition.
WP No. 4118 of 2022
without even considering the law with regard to such consensual acts vis-à-vis the offence of rape permits alteration of charge and also commits the matter to the learned Sessions Judge. In identical circumstances where the offence of rape is alleged on consensual act of sex between the complainant and the accused, the Apex Court has clearly held in the case of DR.
DHRUVARAM MURLIDHAR SONAR v. STATE OF
MAHARASHTRA AND OTHERS – (2019) 18 SCC 191 as follows:
“ 18. In Uday v. State of Karnataka, 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 whon
WP No. 4118 of 2022
she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
23. Keeping in view the approach that the court must adopt in such cases, we shall now
WP No. 4118 of 2022
proceed to consider the evidence on record. IN the instant case, the prosecutrix was 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."
WP No. 4118 of 2022
19. In Deelip Singh v. State of Bihar, 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 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
WP No. 4118 of 2022
were under the impression that theaccused 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 that marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time.
20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus � Deelip Singh, 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 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
WP No. 4118 of 2022
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 at pare 24 come to the aid of the appellant."
21. In Deepak Gulati vs. State of Haryana, the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not
WP No. 4118 of 2022
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 busstand 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.
WP No. 4118 of 2022
22. Recently, this Court, in Shivashankar vs. State of Karnataka, 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 this complainant's own allegation that they lived together as man and wife. It was held as under: (Shivashankar case, 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 possible, 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 his effect only to satisfy his list, 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
WP No. 4118 of 2022
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 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 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 Medial 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 father
WP No. 4118 of 2022
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
WP No. 4118 of 2022
also of the view that since the complainant has filed to prima facie show the commission of rape, the complainant registered under Section 376(2)(b) cannot be sustained.
25. Further, the FIR nowhere spells out any wrong committed by the appellant under Section 420 IPC or under Section 3(1)(x) OF THE SC/ST Act. Therefore, the High Court was not justified in rejecting the petition filed by the appellant under Section 482 CrPC. ”
In the light of the law laid down by the Apex Court in the aforesaid judgment, the offence punishable under Section 376 IPC could not have been added into the array of charges and further act of the learned Magistrate committing the matter to the learned Sessions Judge is also rendered unsustainable. In so far as the other proceedings are concerned which are also called in question by the petitioner, those reliefs sought need not be considered at this juncture as trial had gone on till 1-102019 before the learned Magistrate. Therefore, the only relief that can be granted in the case at hand is restoration of status quo ante to 1-10-2019 at the stage where the evidence was
WP No. 4118 of 2022
tendered for offences punishable under Sections 406, 420 r/w
34 of the IPC prior to its committal.
O R D E R
WP No. 4118 of 2022
The writ petition stands disposed of.
Ordered accordingly.
In view of the disposal of the main petition, I.A.No.1/2022 also stands disposed.
Sd/JUDGE
KG
3 issues framed by the court
Whether addition of Section 376 IPC charges for consensual sexual acts based on breach of marriage promise is sustainable.
Whether the learned Magistrate was justified in altering the charge and committing the case to Sessions Court.
Whether Section 482 CrPC powers warrant quashing of the committal order.
Colour shows how this judgement treated each authority
Dr. Dhruvaram Murlidhar Sonar v. State of Maharashtra and OthersExplained¶42
(2019) 18 SCC 191 · Who else cites this
Uday v. State of KarnatakaExplained¶45
Uday v. State of Karnataka
Deelip Singh v. State of BiharExplained¶56
Deelip Singh v. State of Bihar
Deepak Gulati etc.Explained¶68
Deepak Gulati vs. State of Haryana
Shivashankar v. State of KarnatakaExplained¶74
Shivashankar vs. State of Karnataka
3 provisions across 2 enactments
DR RAVISHANKAR BHAT
STATE OF KARNATAKA
MS. M M VIJAYALAKSHMI
M. NAGAPRASANNA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
