Karnataka High Court
Arjun P Kamath vs State Of Karnataka on 25 August, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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WP No. 4493 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
WRIT PETITION NO. 4493 OF 2021 (GM-RES)
BETWEEN:
ARJUN P. KAMATH
S/O SRI P. PUNDALIK KAMATH
AGED ABOUT 30 YEARS
PRESENTLY R/AT TISTILANTIE
6C-1902230, ESPOO
FINLAND, EUROPE.
...PETITIONER
(BY SRI. K.B. MONESH KUMAR.,ADVOCATE)
AND:
1. STATE OF KARNATAKA
BY KORAMANGALA POLICE STATION
KORAMANGALA, BENGALUR- 34
REP. BY ITS SUB INSPECTOR.
2. ANAGHA N. SONDE
Digitally signed
by PADMAVATHI
D/O NIRANJAN MURTHY R. SONDE
BK
Location: HIGH
R/AT : FLAT NO.C-1
COURT OF
KARNATAKA
KAMADHENU APARTMENTS
NO.100, DIAGONAL ROAD
V.V. PURAM, BANGALORE - 560 004.
...RESPONDENTS
(BY SMT. K.P. YASHODHA, HCGP FOR R1;
R2 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH THE ENTIRE PROCEEDINGS FILED AGAINST THE
PETITIONER IN C.C.NO.23427/2017 ON THE FILE OF 45TH
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WP No. 4493 of 2021
ACMM AT BANGALORE ARISING FROM FIR NO.483/2016 ON
THE FILE OF KORMANGALA P.S. FOR OFFENCES PUNISHABLE
UNDER SECTION 376, 420, 506 OF IPC PRODUCED AT
ANNXURE-A AND A1 AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
1. The petitioner is before this Court calling in question the proceedings in C.C.No.23427/2017 on the file of the 45 th A.C.M.M. at Bengaluru, registered for the offences punishable under Sections 376, 420 and 506 of IPC.
2. The 2nd respondent-complainant though served remains unrepresented. Heard Sri.K.B.Monesh Kumar, learned counsel for the petitioner and Smt.K.P.Yashoda, learned HCGP for respondent.
3. Brief facts leading to the filing of the present petition as borne out in the petition are as follows:
The petitioner claims to be an Engineer by qualification and joins the Company Nokia/Seimens in the month of July 2009 where he comes to meet the 2nd respondent. The meeting of the petitioner turns to friendship, then to close -3- WP No. 4493 of 2021 acquaintance and had a relationship thereon which was physical as well. Thereafter, he settled in Finland and occasionally used to come to India and then meets the 2nd respondent and had traveled with her and had a relationship with her, which was sexual.
4. On an allegation that the relationship of the petitioner and the 2nd respondent which was physical on the aforesaid occasions from 2009 to 2012, a complaint comes to be registered by the complainant-respondent No.2 alleging that the petitioner had indulged in sexual activity with the complainant on the promise of marriage and breach of said promise of marriage has lead to the offence punishable under Sections 376, 420 and 506 of the IPC and registered in Crime No.263/2018. The Police after investigation file a charge sheet against the petitioner, for the aforesaid offences and the matter is now pending before the concerned Court in C.C.No.23427/2017. It is the filing of the charge sheet and issuing summons on the petitioner that drives the petitioner to this Court in the subject petition.
-4- WP No. 4493 of 20215. Learned counsel appearing for the petitioner taking this Court through the documents appended to the petition, seeks to demonstrate that the relationship between the petitioner and respondent No.2 was purely on consensual and even if it is on the pretext of marriage, the breach of marriage would not amount to cheating under Section 420 of the IPC let alone.
6. Learned High Court Government Pleader would contend that the offence is glare and requires a trial for the petitioner to come out clean.
7. The respondent No.2 is served long ago and is unrepresented, even as on today.
8. I have given my anxious consideration to the submissions made by the respective learned counsel appearing for the parties and have perused the material on record.
9. The facts narrated hereinabove, the dates and events need not be reiterated. The respondent No.2 and the petitioner were employees of Siemens Company in the year 2009. Being a co-
-5- WP No. 4493 of 2021employee, the contact between them leads to friendship, the friendship turns into relationship, the relationship turns into sexual relationship and the same continued from 2009 to 2012.
A complaint came to be filed four years later, in the year 2016, on the allegation that petitioner had indulged in sexual relationship with the complainant on the pretext of marriage as it is a false promise of marriage and it would become an offence punishable under Section 376 of the IPC. The complaint and the summary of the charge sheet would clearly indicate that the relationship between the petitioner and respondent No.2 even if it was physical, is consensual. The complainant herself registers a complaint of consensual relationship from 2009 to 2012, in the year 2016 and the medical report tendered by the doctor is that there has been no sexual intercourse on the complainant.
10. With all the aforesaid circumstances, if further proceedings are permitted to continue under Section 376 of the IPC, it would become an abuse of the process of law and run foul of the judgments of the Apex Court in the cases of in the case of PRAMOD SURYABHAN PAWAR v. STATE OF -6- WP No. 4493 of 2021 MAHARASHTRA reported in (2019) 9 SCC 608 and DHRUVARAM MURALIDHAR SONAR v. STATE OF MAHARASHTRA reported in (2019) 18 SCC 191.
11. The Apex Court, while delineating inter-play between promise of marriage; allegation of rape and consensual relationship, in the case of PRAMOD SURYABHAN PAWAR (supra), has held as follows:
"14. In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. 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. In Anurag Soni v. State of Chhattisgarh [Anurag Soni v. State of Chhattisgarh, (2019) 13 SCC 1: 2019 SCC OnLine SC 509], this Court held:
"12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a -7- WP No. 4493 of 2021 misconception of fact as per Section 90 IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 IPC and can be convicted for the offence under Section 376 IPC."
Similar observations were made by this Court in Deepak Gulati v. State of Haryana (2013)7 SCC 675: (2013) 3 SCC (Cri) 660] (Deepak Gulati):
"21. ... 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;"
15. In Yedla Srinivasa Rao v. State of A.P. (2006)11 SCC 615:(2007) 1 SCC (Cri) 557] the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the Court observed:
"10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because -8- WP No. 4493 of 2021 she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent."
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 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 [Deepak Gulati v. State of Haryana, (2013) 7 SCC 675:(2013) 3 -9- WP No. 4493 of 2021 SCC (Cri) 660] this Court observed: (SCC pp. 682-84, paras 21 & 24) "21. ... 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 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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24. 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 IPC 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 that from the very
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WP No. 4493 of 2021beginning, the accused had never really intended to marry her."
(Emphasis supplied)
17. In Uday v. State of Karnataka, (2003) 4 SCC 46 : 2003 SCC (Cri) 775] the complainant was a college-going student when the accused promised to marry her. In the complainant's statement, she admitted that she was aware that there would be significant opposition from both the complainant's and accused's families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family. The Court observed that in these circumstances the accused's promise to marry the complainant was not of immediate relevance to the c om p l a i n an t ' s d ec i si o n t o en g a g e in se xu a l intercourse with the accused, which was motivated by other factors: (SCCp.58, para 25) "25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The
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WP No. 4493 of 2021proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. "
(emphasis supplied)
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
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WP No. 4493 of 2021been 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."
12. The Apex Court, a little later in the case of DHRUVARAM MURLIDHAR SONAR (supra), while following the earlier judgment of the Apex Court in the case of UDAY v. STATE OF KARNATAKA reported in (2003) 4 SCC 46 and DEELIP SINGH v. STATE OF BIHAR reported in (2005) 1 SCC 88, has held as follows:
"18. In Uday v. State of Karnataka (2003) 4 SCC 46 : 2003 SCC (Cri) 775, this Court was considering a case where the prosecutrix, aged about 19 years, had given consent to sexual intercourse with the accused with whom she was deeply in love, on a promise that he would marry her on a later date. The prosecutrix continued to meet the accused and often had sexual intercourse and became pregnant. A complaint was lodged on failure of the accused to marry her. It was held that consent cannot be said to be given under a misconception of fact. It was held thus: (SCC pp. 56-57, paras 21 & 23) "21. It therefore appears that the consensus of judicial opinion is in favour of the view that the co ns ent given by t he prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact
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within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether co ns ent given by t he prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to t he judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and t he s urroundi ng circ umst anc es, befo re reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.
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23. Keeping in view the approach that the court must adopt in such cases, we shall now proceed to consider the evidence on record. In the instant case, the prosecutrix was a grown-up girl studying in a college. She was deeply in love with the appellant. She was, however, aware of the fact that since they belonged to different castes, marriage was not possible. In any event the proposal for their marriage was bound to be seriously opposed by their family members. She admits having told so to the appellant when he proposed to her the first time. She had sufficient intelligence to understand the significance and moral quality of the act she was consenting to. That is why she kept it a secret as long as she could. Despite this, she did not resist the overtures of the appellant, and in fact succumbed to them. She thus freely exercised a choice between resistance and assent. She must have known the
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consequences of the act, particularly when she was conscious of the fact that their marriage may not take place at all on account of caste considerations. All these circumstances lead us to the conclusion that she freely, voluntarily and consciously consented to having sexual intercourse with the appellant, and her consent was not in consequence of any misconception of fact."
19. In Deelip Singh v. State of Bihar, (2005)1 SCC 88 : 2005 SCC (Cri) 253] , the Court framed the following two questions relating to consent : (SCC p. 104, para 30) (1) Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in?
(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her?
In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she became pregnant, she revealed the matter to her parents. Even thereafter, the intimacy continued to the knowledge of the parents
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WP No. 4493 of 2021and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time.
20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law. It was held thus : (Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p. 106, para 35) "35. The remaining question is whether on the basis of the evidence on record, it is reasonably possible to hold that the accused with the fraudulent intention of inducing her to sexual intercourse, made a false promise to marry. We have no doubt that the accused did hold out the promise to marry her and that was the predominant reason for the victim girl to agree to the sexual intimacy with him. PW 12 was also too keen to marry him as she said so specifically. But we find no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise he made was false to his knowledge. No circumstances emerging from the prosecution evidence establish this fact.
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WP No. 4493 of 2021On the other hand, the statement of PW 12 that "later on", the accused became ready to marry her but his father and others took him away from the village would indicate that the accused might have been prompted by a genuine intention to marry which did not materialise on account of the pressure exerted by his family elders. It seems to be a case of breach of promise to marry rather than a case of false promise to marry. On this aspect also, the observations of this Court in Uday case [Uday v. State of Karnataka, (2003) 4 SCC 46: 2003 SCC (Cri) 775] at para 24 come to the aid of the appellant."
21. In Deepak Gulati v. State of Haryana, (2013)7 SCC 675:(2013) 3 SCC (Cri) 660], the Court has drawn a distinction between rape and consensual sex. This is a case of a prosecutrix aged 19 years at the time of the incident. She had an inclination towards the accused. The accused had been giving her assurances of the fact that he would get married to her. The prosecutrix, therefore, left her home voluntarily and of her own free will to go with the accused to get married to him. She called the accused on a phone number given to her by him, to ask him why he had not met her at the place that had been pre-decided by them. She also waited for him for a long time, and when he finally arrived, she went with him to a place called Karna Lake where they indulged in sexual intercourse. She did not raise any objection at that stage and made no complaints to anyone. Thereafter, she went to Kurukshetra with the accused, where she lived with his relatives. Here too, the prosecutrix voluntarily became intimate with the accused. She then, for some reason, went to live in the hostel at Kurukshetra University illegally, and once again came into contact with the
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WP No. 4493 of 2021accused at Birla Mandir there. Thereafter, she even proceeded with the accused to the old bus-stand in Kurukshetra, to leave for Ambala so that the two of them could get married at the court in Ambala. At the bus station, the accused was arrested by the police. The Court held that the physical relationship between the parties had clearly developed with the consent of the prosecutrix as there was neither a case of any resistance nor had she raised any complaint anywhere at any time, despite the fact that she had been living with the accused for several days and had travelled with him from one place to another. The Court further held that it is not possible to apprehend the circumstances in which a charge of deceit/rape can be levelled against the accused.
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23. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and
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WP No. 4493 of 2021not solely on account of the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC.
24. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that she is a widow. It was alleged by her that the appellant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered. The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas sometimes at his home". Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time
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WP No. 4493 of 2021and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since the complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained."
In the light of the facts obtaining in the case at hand and the judgments rendered by the Apex Court supra, permitting further proceedings to continue against the petitioner would amount to abuse of process of the law and result in miscarriage of justice.
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WP No. 4493 of 202113. For the aforesaid reasons, the following:
ORDER i. Criminal Petition is allowed.
ii. Proceedings in C.C.No.23427/2017 pending on the file of the XLV Addl. C.M.M, Bengaluru stand quashed qua the petitioner.
Sd/-
JUDGE BNV