Allowed

Raghavendra Reddy v. the State and Anr.

Karnataka HC6 Nov 2024CRL.P/201427/2023

Case brief

AI extract

What is this about?

Accused sought quashing of rape and cheating proceedings arising from a seven-year consensual relationship on a promise of marriage. Finding unexplained FIR delay and no material that the promise was false at inception or made in bad faith to deceive, the court quashed proceedings against the petitioner.

What did the court decide?

Proceedings in SC No.180/2023 arising out of Crime No.92/2022 quashed insofar as petitioner (accused No.1).

Raghavendra Reddy Vs the State and Anr. — Quashing and FIR | Karnataka HC (2024)

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NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 6^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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CRIMINAL PETITION NO. 201427 OF 2023

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BETWEEN:

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RAGHAVENDRA REDDY S/O JAGANATH @ JAGADEV REDDY AGED ABOUT 34 YEARS, OCC.MEDICAL SHOP AT YADGIR, R/O RAMTIRTH VILLAGE, TQ.CHITTAPUR, DIST. KALABURAGI-585 211.

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…PETITIONER

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(BY SRI. AVINASH A UPLOANKAR, ADVOCATE AND SRI. RAVI K ANOOR, ADVOCATE)

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AND:

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Digitally signed by R HEMALATHA Location: HIGH COURT OF KARNATAKA

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THE STATE THROUGH CITY WOMEN POLICE STATION KALABURAGI, DIST. KALABURAGI, NOW REPRESENTED BY ADDL SPP HIGH COURT OF KARNATAKA KALABURAGI BENCH-585 107.

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SHANKREMMA D/O MALLANNAREDDY BACHIMATTI, AGED ABOUT 34 YEARS, OCC.BANK SERVANT, R/O. NAGANOOR, TQ.SHAHAPUR, DIST. YADGIRI, NO RESIDING AT MAKA LAY-OUT, KALABURAGI, DIST.KALABURAGI-585 102.

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…RESPONDENTS (BY SRI F.M. INAMDAR, HCGP FOR R1; SMT. SHANKREMMA, R2 PARTY-IN-PERSON)

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NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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THIS CRL.P IS FILED U/S.482 OF CR.P.C. PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO EXERCISE INHERENT POWERS U/SEC. 482 CR.P.C. EXAMINE THE RECORDS AND QUASH THE PROCEEDINGS IN NO.180/2023 (CRIME NO.92/2022 OF KALABURAGI WOMEN POLICE STATION), FOR THE OFFENCES U/SEC. 376(2) (n), 504, 506, 109, 493, 509, 420, 201 R/W 34 OF IPC, PENDING BEFORE V ADDL. DISTRICT AND SESSIONS JUDGE AT KALABURAGI, AGAINST THE PETITIONER, IN THE INTEREST OF JUSTICE AND EQUITY.

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THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HEMANT CHANDANGOUDAR

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ORAL ORDER

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The petitioner before this Court is accused No.1 in the FIR dated 10.09.2022 in crime no.92/2022, registered in Mahila PS, Kalaburagi North Sub Division, Kalaburagi City and is sought to be prosecuted for the offences punishable under Sections 376(2)(n), 504, 506, 109, 493, 509, 420, 201 read with Section 34 of IPC, in SC/180/02023 pending on the file of the V Addl. District and Sessions Judge, Kalaburagi. The petitioner is currently enlarged on bail vide order dated 29.07.2023.

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The case of the prosecution is that accused Nos. 2 and 3 are the parents of accused No. 1, accused No. 4 is the brother of accused No. 1, and accused Nos. 5 and 6 are the sisters of accused No. 1. It is alleged that accused No. 1, by falsely promising to marry the de facto complainant, had sexual

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3 - NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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intercourse with her over the course of seven years prior to the filing of the FIR. It is further alleged that accused No. 1 was drawing the salary of the de facto complainant. Additionally, it is alleged that the other accused persons (Nos. 2 to 6) instigated accused No. 1 not to marry the de facto complainant and verbally abused her, preventing her from entering their house.

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The learned counsel for the petitioner argues that in the absence of any material evidence showing that accused No. 1 induced the de facto complainant to engage in sexual intercourse under a false promise of marriage, the continuation of the criminal proceedings would constitute an abuse of the legal process.

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In support, he places reliance on the decision of the Hon'ble Supreme Court in the case of Sonu @ Subhash Kumar - vs- State of Uttar Pradesh & anr. (Crl.A No.233/2021, DD 1.3.2021) and Pramod Suryabhan Pawar -vs- The State of Maharashtra and others (2019) 9 SCC 608.

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The de facto complainant arrayed as respondent No.2 herein contends in person that a bare perusal of the complaint and charge sheet indicates that the petitioner had induced her to engage in sexual intercourse on account of a promise of marriage, to be contracted in the near future. She further contends that the veracity of the allegations can be examined into only at the stage of the trial and therefore, when the charge sheet material discloses the commission of the offences alleged the instant petition deserves to be dismissed.

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NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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On the other hand, the learned High Court Government Pleader for the respondent No.1 - State submits that the charge sheet material clearly discloses the commission of the aforesaid offences by the accused herein, and veracity of the allegation made against the accused No.1 can be considered only at the stage of trial, and the same cannot be gone into at this stage. Hence, he prays for dismissal of the petition.

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Considered the submissions of the learned counsel for the parties.

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The victim in her statement recorded under Section 164 of Cr.PC has reiterated the averments made in the FIR. The last of the events, on which, it is alleged that, the accused No.1 had forcible sexual intercourse by falsely promising to marry her was on 17.6.2020. The alleged incident that, the accused abused in filthy language when she went to their house was on 5.10.2020. Though the allegation made against the accused No.1 committing forcible sexual intercourse is during the period of June, 2020, no explanation is offered for the delay in lodging the FIR, dated 10.09.2022, in crime no. 92/2022, registered in Mahila PS, Kalaburagi North Sub Division, Kalaburagi City.

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Perusal of the charge sheet material indicates that, the accused No.1 and the victim were in love for the last four to five years from the date of lodging the FIR. The allegation that, the accused No.1 induced the victim to have sexual intercourse with an

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NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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intention to cheat by promising to marry her, which is essential requirement to constitute the offence punishable under Section 420 of IPC, is conspicuously absent. Further perusal of the charge sheet indicated that the accused No.1 and the defacto complainant were in relationship since 4.11.2016. On 10.12.2017, the accused called the defacto complainant to his room, and the accused No.1 induced the victim to have sexual intercourse by promising to marry, and purportedly continued to have sexual intercourse on multiple occasions till 1.8.2022. The FIR was lodged on 10.9.2022.

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The Hon'ble Supreme Court in the case of Sonu @ Subhah Kumar (supra) at para-11 has held as follows:

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"11. Bearing in mind the tests which have been enunciated in the above decision, we are 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 Cr.PC, no offence has been established. There is no allegation to the effect that the 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. On these facts, we are of the view that the High Court was in error in declining to entertain the petition under Section 482 of Cr.PC on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established."

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The Hon'ble Supreme Court in the case of Pramod Suryabhan Pawar (supra) at paras-16 and 18 has held as follows:

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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"

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NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The "consent" of a woman Under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:

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There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the Accused; and whether the consent involved was given after wholly

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understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the Accused, and not solely on account of misrepresentation made to her by the Accused, or where an Accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently.

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Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the Accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance". Section 90 Indian Penal Code cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact

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NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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that from the very beginning, the Accused had never really intended to marry her."

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To summarize 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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The FIR was lodged by the respondent No.2 only when the relationship between the accused No.1 was strained, and with an intention to wreak vengeance and revengeful intent, and there is no material to establish that that the promise given was in bad faith with an intention to deceive when he had allegedly had sexual interocurse. Therefore, when essential elements to constitute the offences alleged against the Petitioner are conspicuously absent, the continuation of criminal proceedings will be an abuse of the process of law.

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Accordingly, I pass the following:

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ORDER

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i) The petition is allowed.

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ii) The impugned proceedings in SC No.180/2023 arising out of Crime No.92/2022 of Kalaburagi Women Police Station, pending on the file of the learned V Addl. District and Sessions

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NC: 2024:KHC-K:5411 CRL.P No. 201427 of 2023

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Judge, Kalaburagi, insofar as it relates to the petitioner - accused No.1 is hereby quashed.

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Sd/-

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(HEMANT CHANDANGOUDAR) JUDGE

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Bkm