Allowed

Santhoshkumar @ Santhosh @ Noubade v. State of Karnataka

Karnataka HC19 Jun 2024CRL.P/2622/2022

Case brief

AI extract

What is this about?

Accused in S.C.No.1993/2018 for rape, cheating and miscarriage offences arising from a six-year consensual live-in relationship with allegations of false promise of marriage and abortion challenged his discharge rejection. Holding the acts consensual and the case one of breach, not false promise, the High Court quashed the proceedings.

What did the court decide?

Petition allowed; proceedings in S.C.No.1993/2018 pending before LIII Addl. City Civil and Sessions Special Judge, Bengaluru, quashed.

Santhoshkumar @ Santhosh @ Noubade Vs State of Karnataka — Dowry and Cruelty | Karnataka HC (2024)

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NC: 2024:KHC:21818 CRL.P No. 2622 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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CRIMINAL PETITION NO. 2622 OF 2022

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BETWEEN:

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SANTHOSHKUMAR @ SANTHOSH @ NOUBADE S/O BANDEPPA AGED ABOUT 32 YEARS, OCC: TEMPORARY ASSISTANT, I.I.S.C. R/AT NEAR APOLLO PHARMACY, PWD ROAD, B NARAYANAPUR, BENGLAURU-5600

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…PETITIONER

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(BY SRI. CHETAN DESAI, ADVOCATE)

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AND:

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Digitally signed by NAGAVENI Location: HIGH COURT OF KARNATAKA

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STATE OF KARNATAKA BY VIJAYANAGAR POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, CIVIL COURT BUILDING, BENGALURU-560 001.

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KUMARI RASHMI HALSURKAR D/O NAGANATH RAO, AGED ABOUT 41 YEARS, R/AT NO.751, 5^TH CROSS, 9^TH B MAIN ROAD, VIJAYANAGAR 2^ND STAGE, RPC LAYOUT, BENGLAURU CITY-560 104.

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…RESPONDENTS

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(BY SRI. HARISH GANAPATHI, HCGP FOR R1; SMT. POONAM PATIL, ADV. FOR R2)

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THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 03.02.2022 AND TO ALLOW THE APPLICATION FILED BY THE PETITIONER U/S 227 OF CRPC IN S.C.NO.1993/2018 PENDING ON THE FILE OF THE LIII ACC AND SESSIONS SPL. JUDGE, BANGALORE TO SERVE.

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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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The petitioner is before this Court calling in question the proceedings in S.C.No.1993/2018 registered for offences punishable under Sections 376, 420 and 313 of the IPC.

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Heard the learned counsel Sri.Chetan Desai, appearing for the petitioner, the learned HCGP Sri.Harish Ganapathi, appearing for respondent No.1 and the learned counsel Smt.Poonam Patil, for respondent No.2.

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3. Facts in brief, germane are as follows:

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The petitioner is the sole accused and respondent No.2 is the complainant. The petitioner and the complainant are said to have had relationship right from 2011 through 2017 and they were staying under the same roof. Therefore, the

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3 - NC: 2024:KHC:21818 CRL.P No. 2622 of 2022

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complainant herself narrates that it was a live-in relationship for close to six years. A complaint comes to be registered by respondent No.2 on 09.03.2018 alleging that the petitioner has had a sexual relationship with the complainant on the promise of marriage which from the inception was false. He had no intention to get married and therefore, the complaint is registered for offences punishable under Sections 376 and 420 of IPC. The complaint further narrates that on the instructions of the petitioner, the complainant undertook abortion and therefore, Section 313 of IPC for the offence of voluntarily causing miscarriage is laid against the petitioner. The petitioner files an application seeking his discharge from the proceedings invoking Section 227 of Cr.P.C in S.C.No.1993/2018. That having been rejected has driven the petitioner to this Court in the subject petition.

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Learned counsel appearing for the petitioner submits that the relationship between the two both physical and otherwise was consensual as they were living in the same house and therefore, it was a live-in relationship for six years. The talks of marriage between the two also did take place and

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the parents of the petitioner did not agree as the complainant was three years older to the petitioner.

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Learned counsel Smt.Poonam Patil representing the complainant would make a vehement effort to refute the submissions contending that they were living under the same roof but the entire period in which they were living under the same roof was on the pretext that he would get married to the complainant. Therefore, it was the physical relationship that the petitioner had throughout the six years was on account of promise of marriage, which from the inception was false. No effort was made to get married and above all, it was the petitioner who directed the complainant to get the child aborted only then he could get married.

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Learned counsel would further submit that this is not a case of breach of promise of marriage but would fall under the category false promise of marriage and therefore, it is a matter of trial for the petitioner to come out clean.

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Learned HCGP would toe the lines of the

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complainant in contending that the charge sheet is filed and the matter is pending before the Court of Session, which should permitted to be taken to its logical conclusion, as it is for the petitioner to come out clean in the trial.

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I have given my anxious consideration to the contentions of respective learned counsel and have perused the material on record.

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The afore-narrated facts are not in dispute. The

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relationship between the two is a matter of record. The relationship floundering, results in a complaint being registered for the aforesaid offences. Since the issue springs from the complaint, I deem it appropriate to notice the complaint:

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"ರವ��ೆ ��ಾಂಕ:- 09.03.2018

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�ಾನ� �ೕ�ೕ�ಸ� - ಇ� !ೆಕ"#

$ಜಯನಗರ�ೕ�ೕ�(ಾ)ೆ .

*ೆಂಗಳ,ರು

ಇಂದ

NC: 2024:KHC:21818 CRL.P No. 2622 of 2022

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ಕು�ಾ�ರ/0 ಹುಲಸೂ#ಕ# 4��ಾಗ�ಾ56ಾ7 ನಂ .751, 5 �ೇಅಡ:ರ;ೆ< , 9 �ೇ 4ಮುಖ�ರ;ೆ< , $ಜಯನಗರ 2 �ೇ ಹಂತ , ಆ# . A . BಬDಾವ)ೆ , *ೆಂಗಳ,ರು -560104 Eನಂ : 9844779987

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�ಾನ�6ೇ ,

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$ಷಯ :- ಸಂGೋHಕು�ಾ#4�ಬಂDೆ!ೆI �ೌ*ಾKೆ ಎಂಬಯುವಕನುನನMನುM ANೕOBಮದುPೆQಾಗುವRKಾSನಂ4B , KೈUಕಸಂಬಂಧWೊಂ�ಒY0 ಗಭ[!ಾತ�ಾ\BಈಗಮದುPೆQಾಗುವR�ಲ^PೆಂದುEೕಸ�ಾ\ರುವ ಬ�ೆ_ ದೂರು .

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*************

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ಕು�ಾ�ರ/0 ಹುಲಸೂ#ಕ#ಆದ�ಾನು ತಮ0�^ೇaೊಳbcವRKೇ�ೆಂದ6ೆ �ಾನು Yೕಲdಂಡ $eಾಸದ�^ 2013 �ಮದ *ಾ\�ೆKಾರ6ಾS PಾಸPಾSರುGೆ<ೕPೆ . ಈ ಸಮಯದ�^ ನಮ0 fgೆ^ಯ ಮಕ[h �ಾNಮದ ಯುವಕ ಸಂGೋH ಕು�ಾ# ಈತನ ನಮ�ೆ ಪ�ಚಯದ ವ�k<QಾSದುl , ಈತನು �ಾನು Wಾಗೂ ನನM ತಮ0�ಾದ $Pೇm ಕು�ಾ# ಮೂವರು ಒಂKೇ ಮ�ೆಯ�^ 2017 ;ೆಂಬ#Oಂಗಳವ6ೆ$ಗೂ nೊGೆಯ�^KೆlವR .

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ನನM nೊGೆಯ�^ ಸಂGೋH ಕು�ಾ# ಈತನು ಸಹ ಐ . ಐ . ಎ� . B ಯ�^ GಾGಾd�ಕ ಸWಾಯಕ�ಾSಕತ[ವ� pವ[UಸುO<ದುl , �ಾನು , ನನM ತಮ0 Wಾಗೂ ಸಂGೋH ಕು�ಾ#ಮೂವರುಒq"�ೆ ಅನೂನ�PಾSKೆlೕವR .

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ಸಂGೋH ಕು�ಾ# Wಾಗೂ �ಾನು ಸು�ಾರು ವಷ[ಗaಂದ ಒಬrರ�ೊಬrರು ANೕOಸುO<KೆlೕPೆ . ಇKೇ ಸಲು�ೆsಂದ Yೕಲdಂಡ pPಾಸದ�^ ನನM ತಮ0 �ಾನು Wಾಗೂ ಸಂGೋಷಕು�ಾ#ಒq"�ೆ Pಾಸ$ರುGೆ<ೕ�ೆ .

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ಈ ಸಂದಭ[ದ�^ ಸಂGೋH ಕು�ಾ# ನನMನುM ಮದುPೆQಾಗುGೆ<ೕ�ೆಂದು ನಂ4BರುGಾ<�ೆ . ಆಗ ಆತನುನನ�ೆ ಒಂದು ಒeೆcಯ ೆಲಸ Bkdದ ಕೂಡgೇ ಮದುPೆQಾಗುGೆ<ೕ�ೆಂದು Wೇaೊಂಡು ಬಂ�ದುl , �ಾನು ಸಹ ಆತನು Eೕಸದ �ಾತನುM ನಂ4ದುl , ಆತನು Eೕಸ�ಂದನಂ4BKೈUಕಸಂಪಕ[ �ಾ\ರುGಾ<�ೆ. ಈತನು ನನM nೊGೆ ಸು�ಾರು ��ಾಂಕ 14.01.2013 �ಂದ 06.12.2017 ರವ6ೆ�ೆ ಈತನು ನನM nೊGೆ ಆ�ಾ�ೆ_ KೈUಕ ಸಂಪಕ[ದ�^ ಇದlನು.

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ಇದರ ಸಲುPಾS �ಾನು ಗಭ[ವOQಾSದುl ��ಾಂಕ :01.05.2017 ರಂದು , $ಜಯನಗರ ಶ6ಾವO ಆಸIGೆNಯ�^ ಪ�ೕxBKಾಗ ಗಭ[ವOQಾSರುವRದು ಖyತPಾSರುವRದು Oaದು ಬಂ�ರುತ<Kೆ . ( ಪNOಯನುM ಲಗ_O<BKೆ ) ನಂತರ �ಾನು ಆತp�ೆ OaBದಾರಣ pೕವR ಗಭ[Gೆ�ೆBೊ ನಂತರ ಮದುPೆQಾ�ೋಣ ಎಂದು ಪN�ಾಣ �ಾ\ದ ಾರಣ�ಾGೆN Gೆ�ೆದುೊಂಡುಗಭ[!ಾತ �ಾ\B`ೊಳcgಾSರುತ<Kೆ .

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�ಾನು , ಸಂGೋH ಮತು< ನನM ತಮ0 ಒq"�ೆ ಇರುವ ಬ�ೆ_ ಈಗ Pಾಸ$ರುವ ಮ�ೆಯ �ಾ�ೕಕರ�^ *ಾ\�ೆ ಕ6ಾರು ಪತNದ�^ಯು ಸಹ ನಮೂ�Bದುl ಅದರಂGೆ ಒq"�ೆ PಾಸPಾSರುGೆ<ೕPೆ . ( *ಾ\�ೆ ಕ6ಾರು ಪತN ಲಗO<BKೆ ) ಒq"�ೆ ಇರುವ �{ೋ� ಸಹ ಲಗO<BರುGೆ<ೕ�ೆ .

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ಈSರುPಾಗ ಸಂGೋH ಕು�ಾ#�ೆ ಈಗ ಆgೆ^ೕ� ಇಂ\Qಾ!ೆ| �}{ೆ~ ಬ�ೆMೕರಘq" , *ೆಂಗಳ,ರು ಕಂಪpಯ�^ ೆಲಸ Kೊ6ೆkದುl _,_ ಈಗ ಆತp�ೆ ೆಲಸ Kೊರkರುವ ಾರಣ ನನMನುM ಮದುPೆ �ಾ\ೋ ಎಂದು ೇaKಾಗ �ಾನು ಮದುPೆ �ಾ\ೊಳbcವR�ಲ^ ಎಂದು WೇaರುGಾ<�ೆ . ನಂತರ�ಾನು ನಮ0 U�ಯರು 4ೕದ#�ೆ WೋSಅವರತಂKೆ Gಾs U�ಯ6ೊಂ��ೆ $ಷಯ OaB ಮದುPೆ �ಾ`ೊಳbcವಂGೆ ೇaೊಂಡರು ನನMನುM ಮದುPೆ �ಾ`ೊಳcಲುp6ಾಕ�BರುGಾ<�ೆ .

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ನನMನುM ಮದುPೆQಾಗುವRKಾS ನಂ4B Eೕಸ�ಂದ ನನM�^ KೈUಕ ಸಂಪಕ[$�Bೊಂಡು _,_ ಗಭ[ದ�ಸುವಂGೆ �ಾ\ _,_ ನಂತರವ€ ಗಭ[!ಾತ �ಾ\ಸಲು ಾರಣ�ಾS ನನ�ೆ Eೕಸ �ಾ\ರುO<ರುವ ಸಂGೋH ಕು�ಾ# ಇವನ $ರುದ• ಾನೂನು ಕNಮೈ�ೊಂಡುನನ�ೆ �ಾ�ಯಒದSಸುವಂGೆ `ೋರುGೆ<ೕ�ೆ .

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ವಂದ�ೆಗeೆ,ಂ��ೆ ,”

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The complainant herself narrates that they were in

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the same house as a live-in couple for about four years from 2013 to 2016 and they were in love. It is the case of the complainant that the petitioner has had physical escapades with the complainant all on account of promise of marriage, which he has eventually breached. Therefore, the complainant

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alleges that it was a false promise of marriage. The police after investigation filed a charge sheet. The summary of the charge sheet as obtaining in column No.7 reads as follows:

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" ಾಲಂ ನಂ _4_ ರ�^ ಕಂಡ ಆ6ೋA;ಾx _-1_ ರವರ nೊGೆ _2013_ �ೇ ;ಾ�pಂದ ;ೆMೕಹ *ೆಳBೊಂಡು ಮದುPೆ �ಾ`ೊಳbcವRKಾS ನಂ4B ಆ;ೆ ಉq"B *ೆಂಗಳ,ರು ನಗರ $ಜಯನಗರ ��ೕ� (ಾ)ಾ ಸರಹKಾlದ ನಂ 751. 2 �ೇ ಮಹ\ , 5 �ೇ ಾN� _, 9_ �ೇ 4 ಮುಖ�ರ;ೆ< _,_ ಆ# _._ A _._ B gೇಔ„ _,_ $ಜಯನಗರ _2_ �ೇ ಹಂತ _,_ *ೆಂಗಳ,ರು ಎಂಬ $eಾಸದ�^ನ ;ಾx _-7_ ರವರ ಮ�ೆಯ�^ಇಬrರು ಒq"�ೆ ;ಾx _-1_ ರವರಸWೋದರ;ಾx _-6_ ರವರnೊGೆ ;ೇ� ಒಂKೇ ಮ�ೆಯ�^ �ೆgೆBದುl _,_ �ೆgೆBರುವ ಸಮಯದ�^ ಆ6ೋAಯು � _:14.11.2023_ �ಂದ _06-12-2017_ ರವ6ೆ�ೆ ;ಾx _-1_ ರವರ nೊGೆ ಆ�ಾ�ೆ_ KೈUಕ ಸಂಪಕ[ �ಾ\ೊಂ\ದುl _,_ ಅGಾ�…ಾರ�ಂದ ;ಾx _-1_ ಗ†ಾ[ವOQಾSದುl _,_ ��ಾಂಕ _01-05-2017_ ರಂದು ;ಾx _-15_ ರವರ ಬa *ೆಂಗಳ,ರು $ಜಯನಗರ ಶ6ಾವO ಆಸIGೆNಯ�^ ಈ ಬ�ೆ_ ತ!ಾಸ)ೆ �ಾ\ಸಲು WೋKಾಗ ಈೆ �ಾ†ಾ[ವOQಾSರುವRದನುM ;ಾx _-15_ ರವ�ಂದ ಖyತ ಪ\Bೊಂಡು Pೈದ�ರ ಸಲWೆಯನುM ೇಳKೆ _._ ಆ6ೋA ಈೆ�ೆ ಮದುPೆ �ಾ`ೊಳcKೆ Eೕಸ �ಾಡುವ ಉKೆlೕಶ�ಂದ Eದಲು pೕನು ಗಭ[!ಾತ �ಾ\Bೋ ನಂತರರ�^ ಮದುPೆ ಮ\ೊಳbcGೇ�ೆ ಎಂದು ;ಾx -1 ರವ��ೆ ಆ)ೆ ಪN�ಾಣ �ಾ\ ನಂfB ಈತ�ೆ QಾವRKೋ ಗಭ[p6ೋಧಕ �ಾGೆNಯನುM `ೊಟು" ಗಭ[!ಾತ �ಾ\B ನಂತರ ಆ6ೋA ;ಾx - ರವರನುM ಮದುPೆQಾಗದು ನಂ4B ಅGಾ�…ಾರPೆಸS ಗˆ[‰Qಾದ ನಂತರ ಗಭ[!ಾತ �ಾ\B Eೕಸ �ಾ\ರುವRದು ತpŠೆsಂದದೃಡಪq"ರುGೆ< ."

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ಆದl�ಂದ Yೕಲdಂಡ ಕಲಂ ಪN`ಾರ ಆ!ಾ�ತರು /Œಾಹ[ ಅಪ6ಾಧPೆಸSರುGಾ<6ೆಂದು ಈKೋ•ಾ6ೋಪ)ಾ ಪq" ."

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A perusal at the summary of the charge sheet or

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the complaint, as the case would be, is indicative of the fact

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that the petitioner and the complainant were in live-in relationship for about six years. The complainant tenders her statement under Section 164 of Cr.P.C., before the concerned Court on 15.03.2018. The statement is germane to be noticed, it reads as follows:

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“ ಮWಾನಗರ ಮುಖ� ದಂDಾŽಾ�ಗಳಕ•ೇ� _,_ *ೆಂಗಳ,ರು � _: 13.03.2018_ ರ ಆKೇಶದಂGೆ � _: 15-03-2018_ ರಂದು ಕಲಂ _164 (5)_ ದಂಡಪNkNQಾ ಸಂUGೆ ಅ\ಯ�^ ಸಂತNಸ<ರ WೇaೆಯನುM Kಾಖ�Bೊಳcಲು ಸಂತNಸ<ರನುM ಮಂಜು�ಾ• Wೆ‘ B _,_ $ಜಯನಗರ(ಾ)ೆ _,_ *ೆಂಗಳ,ರುಇವರುಕ6ೆದುೊಂಡುಬಂ�ರುGಾ<6ೆ .

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ಹಸರು ರ/0 ಹುಲಸೂ#ಕ# ತಂKೆಯWೆಸರು �ಾಗ�ಾ56ಾ7 ವಯಸು 37 ವಷ[ ನಂ .751, 5 �ೇ ಅಡ:ರ;ೆ< , 9 �ೇ 4ಮುಖ� ರ;ೆ< , Pಾಸಸ’ಳ $ಜಯನಗರ , 2 �ೇಹಂತ , ಆ# . A . B . gೇಔ„ , *ೆಂಗಳ,ರು .

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;ಾx�ೆ ಪN�ಾಣವಚನ†ೂೕ�Bದ ��ಾಂಕ: 15.03.2018ೆ ಕಲಂ 164 ದಂಡಪNkNQಾಸಂUGೆ ಅ\ಯ�^ಸಂತNಸ<ರWೇa`ೆ :

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�ಾನು Yೕಲdಂಡ $eಾಸದ�^ PಾಸPಾSದುl ನನ�ೆ ಆ6ೋAಯು 2004 �ೇ ಇಸ$sಂದ ಪ�ಚಯ$ದುl �ಾನು ಮತು< ಆ6ೋAಯು ಪರಸIರ ANೕOಸುO<KೆlವR . ಆ6ೋAಯುಆgೆ”ೕ�ಇಂ\Qಾ Wೈ . � . ನ�^ೆಲಸ�ಾಡುO<ದು �ಾನು ಮತು< ಆ6ೋAಯು** **_2011_ �ಂದ ಪರಸIರ ANೕOಸುO<ದುl** **_2013_ �ಂದ** **_2017_ ರ ವ6ೆ�ೆ ಒಂKೇ ಮ�ೆಯ�^ �ಾ$ಬrರು ಗಂಡ WೆಂಡOಯಂGೆ Pಾಸ �ಾ\ೊಂ\ದುl** **_,_ ಆ6ೋAಯು ನನM nೊGೆ ;ೆMೕಹ�ಂದ ಇದುl ಮದುPೆ �ಾ`ೊಳbcವRKಾS ನಂ4B ಆ;ೆ ಹುq"B ನನM nೊGೆ KೈUಕ ಸಂಪಕ[ವನುM *ೆeೆBರುGಾ<6ೆ** **_._ �ಾನು ಗಭ[ವOQಾSKಾlಗ ಗಭ[ Gೆ�ೆBೋ ಎಂದು Wೇa $ಜಯನಗರದ�^ರುವ ಶ6ಾವOಆಸIGೆNಯ�^ ಪ�ೕŒೆ �ಾ\B ನಂತರ ಗಭ[ Gೆ�ೆಸದ ಾರಣ ಆ6ೋAಯು ನನ�ೆ ಗಭ[ Gೆ�ೆB`ೋ ಮದುPೆQಾ�ೋಣ ಎಂಬ ಆ;ೆ ಹುq"B QಾವRKೋ

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�ಾGೆNಗಳನುM ೊಟು"** **_,_ ನಂತರ ತನM ಮ�ೆಯ�^ WೇಳbGೆ<ೕ�ೆ ಎಂದು Wೇa ಈಗ ಮದುPೆ �ಾ\ೊಳcಲು p6ಾಕ�B ನನ�ೆ Eೕಸ �ಾ\ರುGಾ<6ೆ** **_._ ಈ ಬ�ೆ_ ನಮ0 ಮ�ೆಯ U�ಯರು Wಾಗೂ ಆ6ೋAಯ ಮ�ೆಯವರೂ ಕೂಡ 4ೕದ#ನ�^ರುವ ಆ6ೋAಯವರ yಕdಮ0ನ ಮ�ೆಯ�^ ನಮ0 ಮದುPೆ �ಾತುಕGೆQಾಡಲು WೋSKಾlಗ ಆ6ೋAಯ ತಂKೆ Gಾsಗಳb pೕನು ಸಂGೋಷpSಂತ Kೊಡ:ವa�lೕಯ ಆದl�ಂದ ಮದುPೆ �ಾ`ೊಳbcವR�ಲ^Pೆಂದು p6ಾಕ�BರುGಾ<6ೆ ಆದl�ಂದ ಆ6ೋAಯ $ರುದ• ಾನೂನು ಕNಮ ಜರುSB ನನ�ೆ �ಾ�ಯ ೊ\Bೊಡ*ೇೆ•ಂದುತಮ�^!ಾN–[ಸುGೆ<�ೆ

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( ಈ WೇaೆಯನುM ಪDೆದುೊಳbcPಾಗ �ಾ�QಾŽೕಶರು , ಸಂತNಸ< ;ಾx, Wಾಗೂ *ೆರಳಚು˜�ಾO[�ಾತN ಇರುGಾ<6ೆ .)”

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It is the case of the complainant in her statement that the petitioner and the complainant knew each other since 2011 and their friendship had flowered into relationship from 2013 to 2017, as they were living in the same house as a live-in couple. Therefore, if the statement of the complainant and the summary of the charge sheet are read in juxta position, what would unmistakable emerge is that all that has between the petitioner and the complainant were all consensual acts.

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The learned counsel for the respondent as observed hereinabove makes a herculean effort to bring the issue of false promise of marriage, only on the score that the complainant got the child aborted on the direction of the petitioner, and

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therefore, it should come within the ambit of false promise of marriage.

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The said submission is noted, only to be rejected, as all these acts come within the same umbrella of the consensual acts between the petitioner and the respondent. Therefore, the offence under Section 376 of IPC or the fact of abortion under Section 313 of IPC as is alleged are loosely laid against the petitioner, which could not have been.

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Permitting further proceedings to move on, on the offences under Sections 376 and 313 of IPC, would run foul of the judgment of the Apex Court in the case of Naim Ahamed v.

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State (NCT of Delhi)¹ , where the Apex Court considering identical facts where the prosecutrix before the Apex Court had also become pregnant and the abortion had taken place on the direction of the accused therein. The Apex Court holds that would not be enough circumstance to haul the accused for an offence under Section 376 of IPC. The issue would be that for all these six years both the petitioner and the complainant have

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1 2023 SCC Online SC 89

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indulged in acts, which are consensual, neither have lured the other. Therefore, if the acts are of consensus between the two, the breach of promise of marriage would not become an offence under Section 420 of IPC, as the ingredient under Section 415 of IPC is hardly met. Section 415 of IPC mandates that the intention of cheating by the accused upon the victim should be present from the inception. The inception in the case at hand is consensus. If the inception is consensus, it cannot be lead to cheating. More so, in the light of the fact that all efforts were made by the accused to get the victim in marriage but the parents of the accused have denied marriage on the ground that the victim was three years older than the accused. Therefore, the case cannot be brought under the 'false promise of marriage'. It at best, is a breach of promise of marriage.

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This Court, in identical circumstances had quashed the proceedings against the accused in Crl.P.No.8468/2021. The said judgment of this Court is affirmed by the Apex Court in the case of Ms.X and Mr.A and others , wherein the Apex Court has held as follows:

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" 12. This Court, in the facts of the said case, set aside the judgment of the High Court which refused to exercise its jurisdiction under Section 482 of Cr.P.C. to quash the proceedings. The Court found that this was a fit case wherein the High Court ought to have invoked its jurisdiction under Section 482 of Cr. P.C. to quash the proceedings.

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13. In the present case also, the facts are almost similar. Even as per the version of the complainant, the following facts have been emerged:

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(i) 4 years prior to the FIR being lodged on 1st October 2020, accused No. 1 followed the prosecutrix and told her that he loved her and she should also love him;

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(ii) After a period of 2 years, she agreed to love him and both were intimate with each other;

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(iii) One year prior to the date of the incident, accused No.1 took the prosecutrix to his aunty's house in Chitradurga and they stayed there. On that day at about 09.00 am, in his aunty's house, by giving trust and belief that he would marry her, accused No.1 forcibly made sexual contact with the prosecutrix;

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(iv) Thereafter, accused No. 1 took the prosecutrix to various places including his own house and committed sexual intercourse with her; and

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(v) As per the version of the prosecutrix, the first incident has taken place in the year 2019. As per Karnataka Secondary Education Examination Board Certificate, her date of birth is 12th September 1998. Even if it is assumed that the incident has taken place in January 2019, she would have been over the age of 18.

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14 After the prosecutrix became pregnant, accused No. 1 caused her abortion on 17th August 2020. Though her initial version was that she was admitted in the hospital for two days, it is falsified by the statement of the doctor/Head of Krishna Nursing Home. After this incident, she discussed the matter with her elders in the family and decided to lodge the complaint.

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15. We find that, in the present case also like the case of Pramod Suryabhan Pawar (supra), the allegations in the FIR so also in the restatement (Annexure P-6) made before the Dy. S.P., Challakere, do not, on their face, indicate that the promise by accused No. 1 was false or that the complainant engaged in the sexual relationship on the basis of such false promise. This apart from the fact that the prosecutrix has changed her version. The version of events given by the prosecutrix in the restatement (Annexure P-6) made before the Dy. S.P., Challakere is totally contrary to the one given in the FIR.

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16. Similar facts arose for consideration before this Court in the case of Shambhu Kharwar (supra). In the said case, the prosecutrix had filed a complaint that there was love affair between her and the accused for a period of three years. The accused had given an assurance to her regarding solemnization of marriage. They started living under the same roof and also made sexual relationship. Thereafter, the accused entered into a ring ceremony with someone else. In this background, the prosecutrix had lodged the complaint that the accused had forcible sexual intercourse with her on the false promise of marriage. After considering the material placed on record, the Court observed thus:

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“13. …..Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under

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Section 375 IPC are absent. The relationship between the parties was purely of a consensual nature. The relationship, as noted above, was in existence prior to the marriage of the second respondent and continued to subsist during the term of the marriage and after the second respondent was granted a divorce by mutual consent.”

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17. This Court, in the case of State of Haryana v. Bhajan Lal4, has observed thus:

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“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.

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(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.

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(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

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an order of a Magistrate within the purview of Section 155(2) of the Code.

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(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.

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(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.

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(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.

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(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.

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(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.”

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18. We find that the present case would squarely fall under categories (1), (3) and (5) as reproduced hereinabove for the reasons which we have already recorded in the earlier paragraphs. No doubt, that the power of quashing the criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of rare cases, it is also equally settled that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. However, in the present case, even if the allegations made in the FIR and the material on which the prosecution relies, are taken at its face value, we find that there are no sufficient grounds for proceeding against the accused. We find that no error has been committed by the learned Single Judge of the High Court by holding that permitting further proceedings to continue would be an abuse of process of law and result in miscarriage of justice. The High Court has correctly applied the law on the issue and come to a just finding warranting no interference."

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None of the submissions that the learned counsel

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for respondent No.2 – complainant seeks to contend are acceptable in the light of the fact that the issue standing answered by the Apex Court in the aforesaid case.

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For the aforesaid reasons, the following:

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ORDER

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i) The criminal petition is allowed;

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ii) The proceedings in S.C.No.1993/2018, pending on the file of LIII Additional City Civil and Sessions Special Judge, Bengaluru, stand quashed.

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Sd/JUDGE

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KG List No.: 1 Sl No.: 40

Santhoshkumar @ Santhosh @ Noubade v. State of Karnataka

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Santhoshkumar @ Santhosh @ Noubade v. State of Karnataka

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