High Court allowed criminal petition and quashed proceedings for cheating under Section 417 IPC, relying on Supreme Court precedent that consent amidst a relationship without bad faith does not constitute cheating or rape.
Criminal petition allowed and proceedings in C.C.No.10313/2020 before Chief Metropolitan Magistrate, Bengaluru quashed.
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.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF SEPTEMBER, 2023 BEFORE
THE HON'BLE MR JUSTICE HEMANT CHANDANGOUDAR
CRIMINAL PETITION NO. 9649 OF 2021
BETWEEN:
SANTHOSH KUMAR @ SANTHOSH NAIDU S/O UDAY KUMAR, AGED ABOUT 34 YEARS OCCUPATION BUILDING CONTRACTOR RESIDING AT NO.33, 17TH MAIN ROAD JHBCS LAYOUT, J.C.NAGARA MAHALAKSHMI LAYOUT, BENGALURU-560 086.
…PETITIONER
(BY SRI. C H JADHAV, SENIOR ADVOCATE FOR SRI. CHETAN JADHAV, ADVOCATE) AND:
Digitally signed by B K MAHENDRAKUMAR Location: HIGH COURT OF KARNATAKA
(BY SRI. M R PATIL, HCGP FOR R-1; SRI. M P VISHWANATH, HCGP FOR R-2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973 PRAYING TO SET ASIDE THE ORDER DATED 15.09.2020 IN C.C.NO.10313/2020 PENDING ON THE FILE OF THE COURT OF THE CHIEF METROPOLITAN MAGISTRATE, BENGALURU, THEREBY TAKING COGNIZANCE AGAINST THE PETITIONER FOR THE OFFENCE P/U/S 417 OF IPC AND CONSEQUENTLY QUASH THE ENTIRE PROCEEDINGS PENDING THEREON AND ETC.
NC: 2023:KHC:33786 CRL.P No. 9649 of 2021
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner-accused is sought to be prosecuted for the offence punishable under section 417 of IPC.
No.2 would submit that, the charge sheet material discloses that the petitioner by promising to marry induced the defactocomplainant to have sexual intercourse, and by refusing to marry has committed an offence of cheating, and the veracity of the allegation against the petitioner can be considered at the time of trial, and at this stage, the same cannot be gone into.
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.
19. The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations
with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows:
19.1. The complainant and the appellant knew each other since 1998 and were intimate since 2004.
19.2. The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant.
19.3. The appellant expressed his reservations about marrying the complainant on 31-1-2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015.
20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax.
21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant's failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant's promise of marriage. Therefore, even if the facts set out in the complainant's statements are accepted in totality, no offence under Section 375 IPC has occurred.
12. Accordingly, I pass the following:
ORDER
i) The criminal petition is allowed
ii) The impugned proceedings in C.C.No.10313/2020 on the file of the Chief Metropolitan Magistrate, Bengaluru stands quashed.
Sd/JUDGE
HR
2 issues framed by the court
Whether criminal proceedings for cheating and rape should be maintained where consent was given knowing the obstructions to marriage.
Whether the essential elements to constitute the offence of cheating are present given the consensual nature of sexual relations.
Colour shows how this judgement treated each authority
PRAMOD SURYABHAN PAWAR -VS- STATE OF MAHARASHTRA AND ANOTHERApplied¶29
2019 SCC ONLINE SC 1073 · Who else cites this
4 provisions across 2 enactments
SANTHOSH KUMAR @ SANTHOSH NAIDU S/O UDAY KUMAR
STATE BY MAHALAKSHMIPURAM POLICE BANGALORE CITY
LAKSHMI D/O CHANDRASHEKAR
HEMANT CHANDANGOUDAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
