Karnataka High Court
Adarsh R. Maladinni vs The State Of Karnataka on 17 August, 2023
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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NC: 2023:KHC-D:9016
CRL.P No. 103929 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 17TH DAY OF AUGUST 2023
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 103929 OF 2022
BETWEEN:
ADARSH .R. MALADINNI
S/O. RAVINDRA MALADINNI,
AGE. 31 YEARS, OCC. BUSINESS,
R/O. PROFESSOR, MALAGI BUILDING,
PROFESSOR COLONY, NEAR INDIRA CANTEEN,
GOKAK, DIST. BELAGAVI-590001.
... PETITIONER
(BY SRI. AVINASH .M. ANGADI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
THROUGH GOKAK TOWN POLICE,
GOKAK, R/BY ITS STATE PUBLIC PROSECUTOR,
VIJAYALAKSHMI HIGH COURT OF KARNATAKA,
M KANKUPPI DHARWAD-580001.
2. PREETI BAMBARAGI
Digitally signed by D/O. VAJIRAPPA BAMBARAGI,
VIJAYALAKSHMI AGE. 35 YEARS, OCC. GOVT. SERVANT,
M KANKUPPI
VIVEKANAND NAGAR, 1ST CROSS,
Date: 2023.09.11
15:53:01 +0530 VIVEKANAND NAGAR, GOKAK,
DIST. BELAGAVI-590001.
... RESPONDENTS
(BY SRI. V.S. KALASURMATH, HCGP FOR R1;
SRI. P.V. GUNJAL, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED U/S 482 OF CR.P.C.,
SEEKING TO ALLOW THIS PETITION AND QUASHT HE COMPLAINT
AND FIR IN CRIME NO. 20/2022 AND CHARGE SHEET IN SPL. CASE
NO. 267/2022 PENDING ON THE FILE OF THE III ADDL. DISTRICT
AND SESSIONS JUDGE, BELAGAVI FOR THE OFFENCES PUNISHABLE
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NC: 2023:KHC-D:9016
CRL.P No. 103929 of 2022
U/S 376(1),(2)(n), 506 OF IPC AND SECTION 3(1)(r), 3(1)(s),
SECTION 3(2)(va) OF SC AND ST (POA) AMENDMENT ACT 2015 AND
ALL FURTHER PROCEEDINGS PURSUANT TO THEREIN IN RESPECT OF
THE PETITIONER HEREIN.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question the proceedings in SPl.C. No.267/2022 registered for offences punishable under Sections 143, 147, 342, 376(2)(n), 504, 506, 149 of the Indian Penal Code (hereinafter referred to as 'the IPC', for short) and under Section 3(1)(r)(s) and 3(2)(v), (va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as the 'SC & ST', Act).
2. Heard the learned counsel Sri. Avinash M. Angadi appearing for the petitioner, the learned Government Pleader for respondent No.1-State and the learned counsel Sri. P.V. Gunjal appearing for respondent No.2.
3. Facts in brief germane are as follows: -3-
NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 The second respondent is the complainant. The petitioner-accused No.1. The 2ndrespondent and the petitioner appear to have had a relationship when the complainant comes in contact with the petitioner on 05.12.2016. On and from 05.12.2016 up to the end of December 2019, the relationship between the complainant and the petitioner goes on. The relationship was both sexual as well. After about 3 years of the so called break of relationship, when the petitioner wanted to get married to another lady, the complainant registers the impugned complaint which becomes a crime in Crime No.20/2022 alleging that the petitioner/accused No.1 had sexual relationship with the complainant, on the promise of marriage, and has later on breached the said promise.
Therefore, the breach of promise of marriage has become an offence under Section 376(2)(n) and Section 420 of IPC. Since the complainant belong to the scheduled caste, the offence under Section 3(1)(r)(s) and other allied offences under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter -4- NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 referred to as 'the SC & ST Act', for sort) are also laid against the petitioner. The police conduct investigation into the matter and file a charge sheet against the petitioner. Filing of the charge sheet against the petitioner is what drives him to this Court in the subject petition.
4. The learned counsel appearing for the petitioner would contend with vehemence that the relationship between the complainant and the petitioner was consensual for a period of 3 years between 2016-2019. Complaint comes to be registered in the year 2022 for the afore quoted offences after about 6 years of the relationship between the two. He would contend that the relationship being consensual cannot amount to rape or attract the ingredients of rape, as is found under Section 375 of IPC. He would submit that there is no case made out even for alleging offences under the SC & ST Act.
5. On the other hand, learned counsel representing the complainant would vehemently refute the submissions to contend that the police after investigation -5- NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 have filed a charge-sheet and not for nothing that the police have filed the charge-sheet against the petitioner. Therefore the proceedings against the petitioner should be permitted to be continued, as the charge-sheet does narrate all the offences against the petitioner being met on the relationship between the two i.e. the complainant and the petitioner. He would seek dismissal of the petition.
6. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
7. The afore narrated facts are not in dispute. The dates and events are a matter of record. The complainant comes in contact with the petitioner on 05.12.2016, this is what is narrated in the complaint. The entire issue has now sprung from the complaint, Therefore, I deem it appropriate to notice the gist of the complaint as found in column 10 of the FIR. It reads as follows:
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NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 " ¢£ÁAPÀ 21-02-2022 gÀAzÀÄ 17-30 UÀAmÉUÉ EzÀgÀ°è £ÀªÀÄÆzÀÄ ªÀiÁrzÀ ¦AiÀiÁð¢zÁgÀ¼ÀÄ ¸ÀªÀzÀwÛ ¥ÉÆðøï oÁuÉUÉ ºÁdgÁV vÀªÀÄä zÀÆgÀÄ ¤rzÀÝgÀ°è EzÀgÀ°èAiÀÄ ¦AiÀiÁð¢zÁgÀ¼ÀÄ ¨Á®QÃAiÀÄgÀ ºÁ¸ÉÖîzÀ°è ¸ÀgÀPÁj PÉ®¸À ªÀiÁqÀÄwÛzÀÄÝ, ¸ÀzÀj ºÁ¸ÉÖî DgÉÆæ £ÀA§gÀ 1 FvÀ£À vÀAzÉAiÀÄ ªÀiÁ°PÀvÀézÀ ©°ØAUÀzÀ°è EzÀÄÝ »ÃUÁV DgÉÆæ £ÀA§gÀ 1 ªÀÄvÀÄÛ ¦AiÀiÁð¢zÁgÀ¼ÀÄ M§âjUÉƧâgÀÄ ¥ÀjZÀAiÀĪÁVzÀÝjAzÁ DgÉÆæ £ÀA§gÀ 1 FvÀ£ÀÄ 05-12-2016 gÀAzÀÄ 14-00 UÀAmÉUÉ vÀ£Àß ªÀÄ£ÉUÉ ¦AiÀiÁð¢zÁgÀ¼À£ÀÄß PÀgɬĹPÉÆAqÀÄ CvÁåZÁgÀªÉ¸ÀV ªÀÄzÀÄªÉ DUÀĪÀzÁV £ÀA©¹ ¥ÀĸÀ¯Á¬Ä¹ ¯ÉÊAVPÀ ¸ÀA¥ÀPÀð ºÉÆA¢zÀ ¨ÉvÀÛ¯ÉAiÀÄ ¥ÉÆmÉÆÃUÀ¼À£ÀÄß ¸ÁªÀiÁfPÀ eÁ®vÁtzÀ°è ºÁPÀÄvÁÛ£É CAvÁ ºÉzÀj¹ ¸ÀĪÀiÁgÀÄ ªÀÄÆgÀÄ ªÀµÀðUÀ¼À ªÀgÉUÉ ªÉÄ°AzÁ ªÉÄÃ¯É CvÁåZÁgÀ ªÀiÁqÀÄvÁÛ §A¢zÀÝ®èzÉ ¨ÉÃgÉ ªÀÄzÀÄªÉ ªÀiÁrPÉƼÀî¨ÉÃPÀÄ JAzÀÄ ²gÀ¸ÀAV UÁæªÀÄzÀ PÁ½PÁ zÉêÀ¸ÁÜ£ÀzÀ°è ¢£ÁAPÀ 21-02-2022 gÀAzÀÄ ªÀÄzÀÄªÉ ¸ÀdÄÓ ªÀiÁrPÉÆArzÁÝUÀ ¦AiÀiÁð¢zÁgÀ¼ÀÄ ºÉÆVzÀÝgÀ ¹nÖ¤AzÁV ªÀÄzÀÄªÉ PÁAiÀÄðzÀ°è EzÀÝ ¸ÀĪÀiÁgÀÄ 30 jAzÁ 35 d£ÀgÀÄ ¦AiÀiÁð¢zÁgÀ¼ÀÄ ¨ÉÃqÀgÀ eÁwAiÀĪÀ¼ÀÄ CAvÁ UÉÆwÛzÀÝgÀÆ ¸ÀºÁ DgÉÆævÀgÉ®ègÀÆ ¦AiÀiÁð¢zÁgÀ½UÉ CªÁZÀåªÁV ¨ÉÊAiÀÄÄÝ fêÀzÀ zÀªÀÄÄQ ºÁQ eÁw ¤AzÀ£É ªÀiÁr MAzÀÄ gÀÆ«Ä£À°è PÀÆr ºÁQzÀÄÝ EgÀÄvÀÛzÉ CAvÁ £ÀªÀÄÆzÀÄ EzÀÝAvÉ ¸ÀªÀzÀwÛ ¥ÉưøÀ oÁuÉ C¥ÀgÁzsÀ ¸ÀASÉå 46-2022 PÀ®A 143, 147, 342, 376 (2) (J£ï) 504, 506 ¸ÀºÀ PÀ®A 149 L¦¹ ªÀÄvÀÄÛ 3(1) (Dgï) (J¸ï) 3 (2) («í) 3(2) («í) J J¸ï ¹ J¸ï n ¦ J DPïÖ £ÉÃzÀPÉÌ zÁR¯Áw DgÉÆæ J-1 FvÀ£ÀÄ ¦AiÀiÁð¢UÉ CvÁåZÁgÀ ªÉ¸ÀVzÉ eÁUÉAiÀÄÄ UÉÆÃPÁPÀ ±ÀºÀgÀ oÁuÁ ºÀ¢ÝAiÀÄ UÉÆÃPÁPÀ ±ÀºÀgÀzÀ ºÉÆøÀ¥ÉÃoÀ UÀ°èAiÀÄ C¥ÀìgÁ PÀÆqÀ ZÁªÀÄÄAqÉñÀéj PÁA¥ÉèÃPÀìzÀ 1 £ÉÃAiÀÄ CAvÀ¹Ü£À ªÀÄ£ÉAiÀÄ°è EzÀÄÝzÀjAzÁ ºÀ¢Ý DzÁgÀzÀ ªÉÄÃ¯É ªÀUÁðªÀuÉAiÀiÁV §AzÀAvÉ ªÉÄð£ÀAvÉ ¥ÀæPÀgÀt zÁR°¹ vÀ¤SÉ PÉÊUÉÆArzÀÄÝ CzÉ."
8. The gist of the complaint is that from 05.12.2016 up to 21.02.2022, the petitioner is alleged to have had sexual relationship with the complainant on the pretext of him marrying her. The promise is breached, and the complaint comes about at the time when the petitioner was wanting to get married to another lady. It is, therefore, the complaint is registered for the aforesaid offences. The police after investigation have filed a charge -7- NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 sheet. Column No.17 of the charge-sheet reads as follows:
" WÀ£À £ÁåAiÀiÁ®AiÀÄzÀ C¢üPÁgÀ ªÁå¦ÛUÉ ¸ÉÃjzÀ UÉÆÃPÁPÀ ±ÀºÀgÀ ¥Éưøï oÁuÉAiÀÄ ªÁå¦ÛAiÀÄ ¥ÉÊQ UÉÆÃPÁPÀzÀ C¥ÀìgÁ PÀÆlzÀ°ègÀĪÀ DgÉÆæ J01 £À vÀAzÉAiÀÄ ªÀiÁ°PÀvÀézÀ°èAiÀÄ ZÁªÀÄÄAr PÁA¥ÉèÃPÀìzÀ JgÀqÀ£ÉÃAiÀÄ ºÁUÀÆ ªÀÄÆgÀ£ÉÃAiÀÄ ªÀĺÀrAiÀÄ£ÀÄß ªÉÄÃnæPï £ÀAvÀgÀzÀ ¨Á®QÃAiÀÄgÀ ºÁ¸ÉÖÃ¯ï ¨ÁrUɬÄAzÀ PÉÆnÖzÀÄÝ, ¦AiÀiÁð¢AiÀÄÄ ºÁ¸ÉÖ°£À ¸ÀÆ¥ÀjmÉAqÉAmï EzÀÄÝ, ¸ÀzÀj PÁA¥ÉèÃPÀìzÀ ªÉÆzÀ®£ÉÃAiÀÄ ªÀĺÀrAiÀÄ°è zÉÆõÁgÉÆÃ¥Àt ¥ÀvÀæ CAPÀt PÁ®A £ÀA§gÀ 12 gÀ°è £ÀªÀÄÆzÀ ªÀiÁrzÀ DgÉÆæ J01 FvÀ£ÀÄ ªÉÆzÀ®£ÉÃAiÀÄ ªÀĺÀrAiÀÄ°è ªÁ¸À«zÀÄÝ, DvÀ£ÀÄ ¦AiÀiÁð¢UÉ DUÁUÀ ¨sÉÃnAiÀiÁUÀĪÀÅzÀÄ ªÀÄvÀÄÛ ªÀiÁvÀ£Ár¸ÀĪÀÅzÀÄ ªÀiÁqÀÄwÛzÀÄÝ, ªÀÄvÀÄÛ ¦AiÀiÁð¢AiÉÆA¢UÉ ªÀiÁvÀ£ÁqÀĪÀÅzÀÄ ªÀÄvÀÄÛ ZÁnAUï ªÀiÁqÀĪÀÅzÀÄ ªÀiÁqÀÄwÛzÀÄÝ, »ÃVgÀĪÁUÀ ¢£ÁAPÀbÀ 05-12-2016 gÀAzÀÄ ªÀÄzÁåºÀß 2 UÀAmÉAiÀÄ ¸ÀĪÀiÁjUÉ DgÉÆæ J 01 FvÀ£ÀÄ vÁ£ÀÄ EzÀÝ MAzÀ£ÉÃAiÀÄ ªÀĺÀrUÉ §gÀ®Ä ¦AiÀiÁð¢UÉ PɼÀUÉ PÀgÉAiÀÄ®Ä ¦AiÀiÁð¢AiÀÄÄ DgÉÆævÀ£ÀÄ ªÁ¹¸ÀĪÀ MAzÀ£ÉÃAiÀÄ ªÀĺÀrAiÀÄ ªÀÄ£ÉAiÀÄ ¨ÁV®°è ¤®ÄèªÀµÀÖgÀ°è vÀPÀëtªÉà DgÉƦ J01 FvÀ£ÀÄ ¦AiÀiÁð¢AiÀÄ PÉÊAiÀÄ£ÀÄß »rzÀÄ M¼ÀUÉ J¼ÉzÀÄPÉÆArzÀÄÝ, ¦AiÀiÁð¢AiÀÄÄ CªÀ£À PÉʬÄAzÀ PÀ¹zÀÄPÉƼÀî°PÉÌ ¥ÀæAiÀÄw߸ÀĪÁUÀ ¨ÁV®ªÀ£ÀÄß ºÁQzÀªÀ£Éà ¦AiÀiÁð¢UÉ PɼÀUÉ PÉqÀ« CvÁåZÁgÀªÉ¸ÀVzÀÄÝ, D ¸ÀªÀÄAiÀÄzÀ°è J¯Áè WÀl£ÁªÀ½UÀ¼À ¥ÉÆÃmÉÆÃUÀ¼À£ÀÄß DgÉÆævÀ£ÀÄ PÁ®A £ÀA§gÀ 11 gÀ°è d¥ÁÛzÀ DvÀ£À ªÉƨÉÊ®zÀ°è ¸ÉgÉ »rzÀÄ, ¦AiÀiÁð¢UÉ ªÀÄzÀÄªÉ DUÀĪÀzÁV £ÀA©¹ ¥ÀĸÀ¯Á¬Ä¹ ¸ÀĪÀiÁgÀÄ ªÀÄÆgÀÄ ªÀµÀðUÀ¼ÀªÀgÉUÉ »AzÀÆ ¥ÀAZÁ¼À eÁwUÉ ¸ÉÃjzÀ DgÉÆæ J 01 FvÀ£ÀÄ »AzÀÆ ¨ÉÃqÀgÀ eÁwUÉ ¸ÉÃjzÀ ¦AiÀiÁð¢AiÀÄ ªÉÄÃ¯É CvÁåZÁgÀ ªÀiÁqÀÄvÁÛ zÉÊ»PÀªÁV ¸ÀA¥ÀPÀð ºÉÆA¢, ¯ÉÊAVPÀ ¸ÀA¥ÀPÀð ºÉÆA¢zÀ ¨ÉvÀÛ¯ÉAiÀÄ ¥ÉÆÃmÉÆUÀ¼À£ÀÄß ¸ÁªÀiÁfPÀ eÁ®vÁtzÀ°è ºÁPÀÄvÉÛÃ£É CAvÁ fêÀzÀ ¨ÉzÀjPÉ ºÁQzÀ C¥ÀgÁzsÀ."
9. A perusal at the complaint (supra) and column No.17 of the charge-sheet would clearly indicate that all the acts that are alleged are consensual between the petitioner and the complainant. Merely because the complainant belongs to scheduled caste, the offences under SC & ST Act are laid. There is no foundation either in the complaint or in the summary of the charge-sheet for alleging offences that would become punishable under the -8- NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 SC & ST Act. Therefore, the offences under the SC & ST Act are loosely laid against the petitioner. The offences, therefore, under the SC & ST Act cannot be sustained.
10. What remains to be considered is, whether an offence under Section 376(2)(n) of IPC can be permitted to be continued against the petitioner. In the light of the observation hereinabove, on a perusal at the complaint and the summary of the charge-sheet, is that the relationship between the petitioner and complainant was consensual, permitting further proceedings to continue would run foul of the judgment of the Apex Court in the case of Shambhu Kharwar v. State of Uttar Pradesh and another reported in 2022 SCC Online SC 1032. The Apex Court has held as follows:
" 8. In Bhajan Lal (supra) this Court formulated the parameters in terms of which the powers in Section 482 of CrPC may be exercised. While it is not necessary to revisit all these parameters again, a few that are relevant to the present case may be set out. The Court held that quashing may be appropriate:
"102. (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 -9- NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 entirety do not prima facie constitute any offence or make out a case against the accused. (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 an order of a Magistrate within the purview of Section 155(2). [...] (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."
9. In Dhruvaram Murlidhar Sonar v. State of Maharashtra, a two Judge Bench of this Court while dealing with similar facts as the present case reiterated the parameters laid down in Bhajan Lal (supra) held that:
"13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for.
Appreciation of evidence is also not permissible in exercise of inherent 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."
(emphasis supplied)
10. An offence is punishable under Section 376 of the 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 with Section 90 of the IPC is relevant which is set out below.
"375. Rape - A man is said to commit "rape" if he -
[...] under the circumstances falling under any of the following seven descriptions Firstly ... Secondly. - Without her consent.
[...] Explanation 2. - Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal
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NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 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
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..."
11. In Pramod Suryabhan Pawar v. State of Maharashtra,7 a two Judge Bench of this Court of which one of us was a part (D.Y. Chandrachud J.), held in Sonu @ Subhash Kumar v. State of Uttar Pradesh,8 observed that :
"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... [...]
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... [...]
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 promise cannot be said to be a false
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NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 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... [...]
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.
(emphasis supplied)
12. In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.
13. In this backdrop and taking the allegations in the complaint as they stand, it is impossible to find in the FIR or in the charge-sheet, the essential ingredients of an offence under Section 376 IPC. The crucial issue which is to be considered is
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NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 whether the allegations indicate that the appellant had given a promise to the second respondent to marry which at the inception was false and on the basis of which the second respondent was induced into a sexual relationship. Taking the allegations in the FIR and the charge-sheet as they stand, the crucial ingredients of the offence under 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.
14. The High Court, in the course of its judgment, has merely observed that the dispute raises a question of fact which cannot be considered in an application under Section 482 of CrPC. As demonstrated in the above analysis, the facts as they stand, which are not in dispute, would indicate that the ingredients of the offence under Section 376 IPC were not established. The High Court has, therefore, proceeded to dismiss the application under Section 482 of CrPC on a completely misconceived basis.
15. We, accordingly allow the appeal and set aside the impugned judgment and order of the High Court dated 5 October 2018 in application u/s 482 No 33999 of 2018. The application under Section 482 of CrPC shall accordingly stand allowed. The Case Crime No 11 of 2018 registered at Police Station Rasra, District Ballia, charge-sheet dated 23 April 2018 in the aforementioned case and the order dated 24 May 2018 in Criminal Case No 785 of 2018 in the Court of the Addl. Chief Judicial Magistrate (First), Ballia taking cognizance of the charge-sheet shall accordingly stand quashed. In the aforesaid case, the Apex Court was following an earlier judgment in the case of Dhruvaram Murlidhar Sonar
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NC: 2023:KHC-D:9016 CRL.P No. 103929 of 2022 v. State of Maharashtra reported in (2019) 18 SCC 191. Both of these cases were cases where the Apex Court considered the interplay between a consensual sex and rape and on promise of marriage and its breach. In the light of the issue being similar and that having been answered by the Apex Court in the aforesaid judgments, further proceedings would become an abuse of process of law and result in miscarriage of justice.
12. For the aforesaid reasons, the following ORDER i. The criminal petition is allowed.
ii. The proceedings in Spl.Case No.267/2022 pending on the file of the learned III Additional District and Sessions Judge, Belagavi, is quashed.
Sd/-
JUDGE Kmv ct:bck