Partly allowed

Iranna S/O Basayya Ganachari v. State of Karnataka

Karnataka HC8 Nov 2023CRL.P/102048/2023

Case brief

AI extract

What is this about?

High Court allowed Criminal Petition under Section 482 CrPC. Court quashed proceedings for rape and specific SC/ST Act sections, holding consent not vitiated by later broken marriage promise. However, court upheld offences for cheating, assault, criminal intimidation, and SC/ST atrocities.

What did the court decide?

Proceedings for rape (IPC 376, 376(2)(n)) and SC & ST Act 3(2)(v) quashed; Special Court to proceed for offences under IPC 323, 420, 504, 506 and SC & ST Act 3(1)(r), 3(1)(s).

Iranna S/O Basayya Ganachari Vs State of Karnataka — Cheating and Forgery | Karnataka HC (2023)

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NC: 2023:KHC-D:13082 CRL.P No. 102048 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH DATED THIS THE 8^TH DAY OF NOVEMBER 2023 BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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CRIMINAL PETITION NO. 102048 OF 2023

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BETWEEN:

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IRANNA S/O BASAYYA GANACHARI, AGE. 26 YEARS, OCC. STUDENT, R/O. BIDARI VILLAGE, TQ. JAMAKHANDI, DIST. BAGALKOT, PIN CODE-587301.

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… PETITIONER

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(BY SRI. SACHIN C. ANGADI, ADVOCATE)

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AND:

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STATE OF KARNATAKA, THROUGH SAVALAGI PS, SAVALAGI, R/BY ITS STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, DHARWAD.

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Digitally signed by VIJAYALAKSHMIM KANKUPPI VIJAYALAKSHMIM KANKUPPI Date: 2023.11.17 12:58:20 +0530

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SUSHMITA D/O LAKKAPPA TALAWAR, AGE. 20 YEARS, OCC. STUDENT, R/O. JAMBAGI, K.D.MUDHOL,

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NOW RESIDING AT BIDARI VILLAGE, TQ. JAMAKHANDI, DIST. BAGALKOT, PIN CODE-587301.

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… RESPONDENTS

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(BY SRI. P.N. HATTI, HCGP FOR R1; SRI. V.P. VADAVI, ADVOCATE FOR R2)

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THIS CRIMINAL PETITION IS FILED U/SEC.482 OF CR.P.C. SEEKING TO QUASH THE IMPUGNED ENTIRE CHARGE SHEET AND IMPUGNED CRIME NO. FIR 46/2023 FILED BY THE SAVALAGI PS. SAVALAGI IN SPL. CASE NO.84/2023 FOR THE OFFENCES P/U/SEC.376, 376(2) (N), 420, 323, 504, 506 OF IPC AND SEC. 3(1) (r), 3(1) (s), 3(2) (v) OF PREVENTION OF ATROCITIES ACT ON THE FILE PENDING BEFORE 2^ND ADDL. DISTRICT AND SESSION JUDGE,

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NC: 2023:KHC-D:13082 CRL.P No. 102048 of 2023

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BAGALKOT AND CONSEQUENTLY QUASH THE COMPLAINT FILED BY THE RESPONDENT NO.2.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is filed under Section 482 of the Code of Criminal Procedure (hereinafter referred to as ‘the Cr.P.C.’, for short) praying to quash the charge sheet and FIR in Crime No.46/2023 of Savalagi Police Station (Spl.Case No.84/2023) for the offences punishable under Sections 376, 376(2)(n), 420, 323, 504 and 506 of the Indian Penal Code (hereinafter referred to as ‘the IPC’, for short) and Sections 3(1)(r) and (s) and 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the ‘SC & ST Act’, for short) pending on the file of the learned II Additional District and Sessions Judge, Bagalkot.

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Heard the learned counsel appearing for the petitioner, the learned High Court Government Pleader appearing for respondent No.1-State and the learned counsel appearing for respondent No.2.

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Respondent No.2 is the complainant. She has

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filed a complaint stating that she is aged 20 years, completed her PUC and belongs to Talawar caste. She came in contact with the petitioner/accused since two years and they became friends and started loving each other. The petitioner/accused stating that he will marry her, had physical contact with her in his house several times. It is further stated that, when the complainant made a phone call to the petitioner/accused to marry her, at that time, he told that he will enquire with his family members and inform later. It is stated that on 06.04.2023 at 12:00 noon, the petitioner/accused secured the victim girl to the farm house of Bagawwa Ragha and told her that he is not marrying her and abused her in filthy language also touching her caste; assaulted her with lands and threatened to kill her. On the basis of the said complaint, a case came to be registered against the petitioner/accused in Savalagi Police Station Crime No.46/2023 for offences under Sections 376(2)(n), 376, 506, 504, 420 and 323 of IPC and Sections 3(1)(r) & (s) and 3(2)(v) of SC & ST Act. After investigation, charge

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NC: 2023:KHC-D:13082 CRL.P No. 102048 of 2023

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sheet came to be filed against the petitioner/accused for offences under Sections 376(2)(n), 376, 506, 504, 376, 420 and 323 of IPC and Sections 3(1)(r) & (s) and 3(2)(v) of SC & ST Act. Thereafter, a case came to be registered against these petitioner/accused in Spl.Case No.84/2023. The learned Spl. Judge took cognizance for the aforesaid offences against the petitioner/accused. The petitioner has sought for quashing of the said proceedings.

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The learned counsel appearing for the petitioner would contend that, the complainant is aged 20 years and a perusal of the averments of the complaint show that, she had love affair with the petitioner/accused and had consensual sexual intercourse with him and as the sexual intercourse is consensual, it does not attract offence under Section 376 of IPC. On that point, he places reliance on the decision of the Hon’ble Supreme Court in the case of

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Shambhu Kharwar v. State of Uttar Pradesh and another in

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Criminal Appeal No.1231/2022 decided on 12.08.2022. He further contended that the alleged abuse by this petitioner/accused touching the caste of the complainant is

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not in the view of public and therefore the offences under Section 3(1)(r) & (s) are not attracted. He further submitted that no MLC is registered and no wound certificate has been produced to attract the offence under Section 323 of IPC. With this he prayed to allow the petition.

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Per contra, the counsel for respondent No.2 and the learned Government Pleader would contend that, the petitioner/accused on the promise of marriage, had sexual intercourse with the complainant which attracts offence under Section 376 of IPC. They further contended that the petitioner/accused abused the complainant touching her caste in filthy language in the land of one Bagawwa Ragha and therefore it is in the view of public and it clearly attracts offence under Section 3(1)(r) & (s) of SC & ST Act. The petitioner/accused abused the complainant, gave her life threat and assaulted her with hands and CW-6-Srikanth Jamakhandi is an eyewitness to the said assault made by the petitioner on the complainant. The said aspect attracts the offences under Sections 323, 504 and 506 of IPC. They

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further contended that the petitioner promised to marry the complainant and thereafter refused to marry her and cheated her which attracts offences under Section 420 of IPC. They contend that there are no grounds for quashing the proceedings and prayed to dismiss the petition.

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An offence is punishable under Section 376 of 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

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with Section 90 of IPC is relevant which is set out below:

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“ 375. Rape - A man is said to commit "rape" if he –

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[...] under the circumstances falling under any of the following seven descriptions Firstly...

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Secondly. - Without her consent.

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[...]

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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

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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..."

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7. The Hon’ble Apex Court in the case of Shambhu

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Kharwar (supra) has observed thus:

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"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...

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[...]

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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...

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[...].

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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

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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 ...

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[...]

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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 ”.

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(emphasis supplied)

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Admittedly, on perusal of the averments of the complaint, the petitioner/accused and the 2^nd respondentcomplainant were in consensual relationship since one year prior to the date of complaint till 20.02.2023. Respondent No.2 is aged 20 years and completed her PUC. The second respondent developed friendship with the petitioner/accused and that he has assured that he would marry her. It is

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stated in the complaint that the petitioner/accused on 06.04.2023 has informed respondent No.2 that he will not marry her. The contents of the complaint and the statement of respondent No.2 leave no manner of doubt that, on the basis of the allegations as they stand, three important features emerge:

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i. the relationship between the petitioner and the second respondent was of a consensual nature;

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ii. the parties were in the relationship for about a period of one year;

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iii. subsequently, the petitioner had expressed a disinclination to marry the second respondent, which led to the registration of the FIR.

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The Hon’ble Apex Court in the case of Pramod Suryabhan Pawar v. State of Maharashtra reported in (2019) 9 SCC 608 while dealing with similar situation, the principles of law which must govern a situation like the present were enunciated in the following observations:

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“ Where the promise of 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

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“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…”

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Further, the Court has observed:

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“ 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.”

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Bearing in mind the tests which have been enunciated in the above decision, I am of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing under Section 482 of Code of Criminal Procedure, no offence has been established. There is no allegation to the effect that the

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promise to marry given to the second respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the appellant to marry the second respondent which gave rise to the registration of the FIR. The Hon’ble Apex Court in the case of Dhruvaram Muralidhar Sonar v. State of Maharashtra reported in 2019(18) SCC 191 while dealing with similar facts, as the present case, reiterated the parameters laid down in the case of State of Haryana v.

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Bhajan Lal reported in 1992 Supp(1) SCC 335 holding that:

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“13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking congnizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inhereint 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.”

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The allegations set out in the complaint do not

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constitute offence under Section 376 of IPC. Therefore, the cognizance taken for the offence under Section 376 and 376(2)(n) of IPC requires to be quashed.

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NC: 2023:KHC-D:13082 CRL.P No. 102048 of 2023

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As per the averments of the complaint, the victim girl belongs to scheduled caste. The averments of the complaint and the statement of respondent No.2 recorded by the police indicate that on 06.04.2023, the petitioner/accused abused respondent No.2-complainant in filthy words taking her caste name and assaulted her with hands and threatened to kill her. The said averments attract offence under Sections 323, 504 and 506 of IPC. As per the spot mahazar, the said incident has taken place in the land of one Bagawwa Ragha and therefore it is in the place of public view and it attracts offence under Section 3(1)(r) and (s) of SC & ST Act. The petitioner/accused promised respondent No.2 to marry her and thereafter he refused to marry her. The said allegation attracts offence under Section 420 of IPC. Therefore, considering the above aspects, the learned Special Judge has rightly taken cognizance against the petitioner/accused for offences under Section 323, 420 504 and 506 of IPC and Section 3(1)(r) and (s) of SC & ST Act.

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In view of the above, the following:

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ORDER

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The petition is allowed in part.

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The proceedings against the petitioner/accused in

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Spl.Case No.84/2023 so far as the offence under Section 376 and 376(2)(n) of IPC and Section 3(2)(v) of SC & ST Act are quashed.

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The Special Court shall proceed against the petitioner/accused for offences under Section 323, 504, 506 and 420 of IPC and Section 3(1)(r) and (s) of SC & ST Act.

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Sd/JUDGE

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kmv ct:bck

Iranna S/O Basayya Ganachari v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Iranna S/O Basayya Ganachari v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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