Karnataka High Court
D.S. Karthik vs State By R.T. Nagar on 16 December, 2016
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
®
IN THE HIGH COURT OF KARNATAKA AT
BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER 2016
BEFORE
THE HONOURABLE MR. JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION No.6631 OF 2015
BETWEEN:
D.S.Karthik,
Son of D.V.Sadananda Gowda,
Aged about 29 years,
Working as Managing Director,
At 4 Star Architectural Building
Products,
Residing at No.108B, Ranga Nilaya,
4th Main, 5th Cross,
Kalpana Chawla Road,
MLA Layout, Bopasandra,
Snajay Nagar,
Bengalury - 560 094.
(In the charge sheet name
Shown as Karthik Gowda)
...PETITIONER
(By Shri B.V.Acharya, Senior Advocate for Shri S. Rajashekar,
Advocate)
2
AND:
1. State by R.T.Nagar
Police Station,
Bengaluru - 560 032.
Represented by
State Public Prosecutor,
High Court Complex,
Bangalore - 560 001.
2. Mythreyi Gowda,
Daughter of Puttaswamy Gowda,
Aged about 28years,
Residing at No.650,
2nd Cross,
CBI Road, R.T.Nagar,
Bengaluru - 560 032.
...RESPONDENTS
(By Shri K.R.Keshav Murthy, State Public Prosecutor-II for
Respondent No.1/State)
*****
This Criminal Petition is filed under Section 482 code of
Criminal Procedure, 1973, praying to set aside the cognizance
taken by the order dated 18.9.2015 passed on the file of VIII
Additional Chief Metropolitan Magistrate, Bengaluru in
C.C.No.22834/2015 for the offence punishable under Section
417 of IPC by R.T.Nagar Police and proceedings against the
petitioner may be quashed by allowing the petition.
This petition having been heard and reserved on
05.12.2016 and coming on for pronouncement of orders this
day, the Court delivered the following:-
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ORDER
Heard the learned Senior Advocate, Shri B. V. Acharya, appearing for the learned counsel for the petitioner and the learned counsel for the respondent no. 2, Shri Akarsh S. Kanade and the learned State Public Prosecutor-II, Shri K. R. Keshavamurthy.
2. The facts leading up to this petition are said to be as follows .
Respondent no.2 herein had lodged a complaint against the petitioner as on 27-8-2014, alleging offences punishable under Sections 420, 376 and 366 of the Indian Penal Code, 1860 (Hereinafter referred to as the 'IPC', for brevity), before the RT Nagar Police Station, Bengaluru, which is said to have been registered as Crime no. 236/2014.
It was said to have been alleged in the complaint that she had met the petitioner for the first time on 8-5-2014 at a coffee bar, namely, Coffee Day in Sanjayanagar, Bengaluru. They 4 were said to have been introduced by a common friend, one Kushal. It is claimed that they soon became intimate friends and it transpires that the petitioner had even proposed to marry the second respondent. It is claimed that she had agreed.
It is stated that the petitioner had taken the said respondent to Mangalore by flight, as on 5-6-2014. And that he had taken her to a home of the petitioner at Mangalore and had declared that he was marrying her then and there in the presence of God and had taken her to the pooja room of the house and is said to have tied a piece of turmeric, representing a 'thali'. And on the same night, they are said to have engaged in sexual intercourse.
Thereafter they had spent much time together at various places such as the Skybar, UB City, Bengaluru, the Country Club, Bengaluru, etc., It is stated that the petitioner had openly introduced the said complainant as his wife, to friends whenever they met any of them. It is further said to be alleged 5 that the petitioner and the complainant engaged in sex on four occasions, over a period of time.
It is said to have been further stated in the complaint, that about a month prior to the complaint, the petitioner started avoiding her and did not even respond to phone calls.
It is stated that on 11-8-2014, the complainant is said to have met the mother of the accused and is said to have appraised her of the relationship. It transpires that the mother of the petitioner remained non-committal.
It is stated that on 27-8-2014, it was said to have been learnt by the complainant, through a news item on a TV Channel of the petitioner's engagement with another woman. The petitioner possesses celebrity status on account of his father being a well known political leader and presently a Minister of the Union Government of India.
It is thereafter that the complaint was said to have been lodged. The complainant has described herself as "Mythria 6 Karthik Gowda", thereby adopting the petitioner's name, apparently as her husband.
The police are said to have conducted a detailed investigation and filed a final report, as on 6-9-2015. The police have recorded a finding that no case was made out for offences punishable under Section 366 or Section 376 , IPC. It was found that the allegation of her abduction by the petitioner was trashed as it was found that she had flown to Mangalore of her own volition and had even booked the air ticket herself. It was also held that there was no material made available to substantiate the allegations of any physical relationship between the petitioner and the complainant. Further, there was not even circumstantial evidence in that regard. Accordingly, it was held that the allegation of an offence punishable under Section 376 IPC also could not be sustained. The only finding by the police that the petitioner and the complainant had been seen in public together and that there were telephonic conversations between them, over a period of time. The Police have, however, formed 7 an opinion that the circumstances would at best disclose an offence punishable under Section 417 IPC, as the conduct of the petitioner may have affected the complainant's feelings and reputation.
The Magistrate has accepted the findings recorded in the Final Report and has taken cognizance of the offence punishable under Section 417 IPC and has ordered issuance of summons against the petitioner. It is this which is under challenge in the present petition.
3. Shri Acharya would contend that the Police had, while rightly concluding that there was no substance in the allegations of the petitioner having committed offences punishable under Section 366 and Section 376 IPC, erroneously formed an opinion that the ingredients of an offence punishable under Section 417 were present. And that the court below has mechanically accepted that opinion, when the glaring circumstance that the necessary ingredients to constitute such 8 an offence were not even remotely made out. It is pointed out that the primary requirement is the presence of deception. Consequently there must be dishonest intention and inducement. The alleged inducement was that the petitioner would marry the complainant. According to the complainant that promise had been fulfilled by their marriage on 5-6-2014. The complaint therefore is that of a wife disowned by her husband. The conclusion of the police in their report is also not to the effect that there was deception, but that the feelings or the reputation of the complainant has been hurt or damaged. It is contended that in the above circumstance, the remedy of the complainant is to sustain the status that the complainant claims as the wife of the petitioner and seek appropriate remedies before a civil court and a criminal case of cheating can never be sustained. It is hence contended that the proceedings pending before the court below be quashed.
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4. On the other hand, the learned counsel for the respondent no. 2 would vehemently oppose the petition and would contend that there is abundant incriminating material to demonstrate that the petitioner had, on the promise of marriage, seduced and dishonestly induced her to have sex with him, repeatedly and thereafter has married another. In this regard, he would submit that a case under Section 376 IPC, is certainly made out, when the intention of the petitioner was to disown and deceive the complainant, from the very inception, after exploiting her sexually to satisfy his lust.
It is further contended that the police had deliberately suppressed incriminating material, such as recorded telephonic conversations, where the petitioner had candidly spoken about their sexual union and of his recounting the same, which would clearly implicate the petitioner and had demanded that the same be called for.
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The learned counsel for respondent no.2 has filed detailed written arguments elaborating the contentions as urged above.
The learned Counsel has in the written arguments reproduced the entire statements in the charge sheet as regards the allegations of the complainant as to the manner in which the petitioner had seduced and induced the complainant to succumb to his desires. Apart from this, clips of the telephonic conversations between the complainant and the second respondent are also reproduced to apparently demonstrate the intimacy which the complainant and the respondent had developed.
Reference is also made to the findings of the Investigating Officer as to the tenor of the complaint and the relationship that is demonstrated from the same.
It is the endeavour of the learned counsel to insist that the case of the complainant is sought to be diluted on the ground that the court below has taken cognizance only of an offence 11 punishable under Section 417 of the IPC and that the case made out in respect of an offence punishable under Section 376 IPC and other provisions not being relevant, is wholly unfair and unjust. The opinion of the Magistrate is subject matter of challenge in a revision petition and therefore cannot be construed as final and hence quashing of the proceedings at the instance of the petitioner would result in a miscarriage of justice, preventing the second respondent from establishing her case.
It is pointed out that the decision in the case of Karthi @ Karthick C.K vs. State, AIR 2013 SC 2645 is an authority to support the contention that sexual intercourse amounting to rape, which was engaged in by the parties, months earlier to the complaint, cannot be a ground to discard the First Information Report as the cause of action would arise in such cases, only when there is refusal to marry and when the inducement to have sex was the promise of marriage.
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Reliance is also placed on Rajendra Datta Zareker vs. State of Goa, 2008 Cri.LJ 710 (SC), to contend that the accusation of rape cannot normally be a concocted story as it leaves a permanent scar and serious psychological impact on the victim and her family members and therefore, it ought to be given its credence.
Reliance is placed on Saleha Khatoon vs. State of Bihar, 1989 Cri.LJ 202, wherein it was claimed that the woman had consented on the basis of fraud and allurement of marriage and sexual intercourse having occurred, it was held that the act was construed as having been committed without the consent of the victim.
Reliance is also placed on Yedla Srinivasa Rao vs. State of Andhra Pradesh, (2006)11 SCC 615, to contend that when the victim has submitted to the lust of the accused misled by the promise of marriage, the consent obtained is not a consent in the eye of law.
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Further reliance is placed on Bhumpaka Praveen Kumar vs. State of Telangana, ALD (CRI) (2015)1 681, which was a case where a man had promised a woman to marry her, but later rejected the proposal on the ground that his parents did not agree. They got married inspite of it and had stayed together as husband and wife and after some time, the accused had deserted her. A case having been registered against the accused therein, cognizance had been taken under sections 417, 323, 506 of the IPC and Section 4 of the Dowry Prohibition Act, 1961 and the accused was convicted for an offence under Section 417 IPC. The learned Counsel would contend that the said case would apply on all fours to the present case on hand.
It is therefore contended, as laid down in a series of decisions of the Supreme Court, including Yedla Srinivasa Rao vs. State of Andhra Pradesh, and Pradeep Kumar Verma vs. State of Bihar, supra, that the rape is the most morally and physically reprehensible crime in society, as it is an assault on the body, mind and privacy of the victim. While a murderer 14 destroys the physical frame of the victim, a rapist degrades and defies the soul of a helpless female. Rape reduces a woman to an animal, as it shakes the very core of her life. By no means, can a rape victim be called an accomplice. Rape leaves a permanent scar on the life of the victim and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape is a crime against the entire society and violates the human rights of the victim. Being the most hated crime, rape tantamounts to a serious blow to the supreme honour of a woman and offends both her esteem and dignity. It causes psychological and physical harm to the victim, leaving upon her indelible marks. Hence, it would be premature to scuttle the complaint on technical grounds.
5. The learned State Public Prosecutor, who was called upon to respond to the allegation had sought for time to obtain instructions and on an adjourned date, had produced material available with the police, which were recorded conversations 15 post the alleged separation of the petitioner and the complainant and that the same did not contain any such incriminating material in so far as the petitioner is concerned.
6. By way of reply, Shri Acharya would contend that in so far as the contention of the complainant that a case has been made out even under Section 376 of IPC and that the Final Report exonerating the accused of the said offence is concerned, the same is not the subject matter of the present Criminal Petition, but is the subject matter of a Criminal Revision Petition in Cr.RP No.844/2016 filed by the complainant on 14.11.2016 before the District and Sessions Judge at Bangalore. In the said Criminal Revision Petition, the complainant, the petitioner therein has sought for the following reliefs:-
a) To direct the VIII Additional Metropolitan Magistrate to take cognizance of the offences punishable under Sections 376, 16 493, 506, 109 and 120(b) of IPC along with Section 417 of IPC in C.C.No.22834/2015.
b) To direct the Magistrate to order further investigation by appointing any independent investigation authority in C.C.No.22834/2015
c) To issue a direction to the VIII Additional Metropolitan Magistrate to take cognizance against Smt. Datty Sadananda Gowda and Mr. D.V.Sadananda Gowda for the said offences in C.C.No.22834/2015.
It is relevant to note that though the Final Report has been filed on 6.9.2015, Criminal Revision Petition No.844/2016 came to be filed by the complainant before the District and Sessions Court, Bangalore on 14.11.2016, that is after a lapse of more than 1 one year and 2 months. In the Criminal Petition, the complainant has appeared through her advocate much earlier and the present Criminal Revision Petition No.844/2016 came to be filed after the above Criminal Petition is taken up for hearing. There is abnormal delay in filing the 17 Criminal Revision Petition and an application for condonation of delay has also been filed. In the circumstances, it is not open to the complainant in the above Criminal Petition to urge the grounds which are the subject matter of the Criminal Revision Petition before the Sessions Court and she cannot be permitted to simultaneously claim the reliefs before two fora. Hence, it is contended that the present Criminal Petition should be confined only to the prayer to quash the Charge Sheet and also the order of the Magistrate in so far as Section 417 of IPC is concerned.
It is well settled law that normally in the case of a love affair, where a man promises to marry a woman and even has a physical relationship with her and if subsequently the marriage does not come through, it cannot be said that an offence either under Section 376 or under Section 417 of IPC is made out. In such a case, the liability could only be under civil law for damages as held by the Supreme Court in the case of Deelip Singh vs. State of Bihar in Criminal Appeal No.44 of 2004 18 decided on 3.11.2004. In the present case, the circumstances do not indicate any dishonest or fraudulent intention to deceive the complainant. As held in several cases, mere failure to fulfill a promise on a subsequent date on account of various factors of circumstances do not amount to an act of cheating.
Reliance is placed on the following decisions:-
a) Criminal Appeal No.336 of 1996 decided on 19.2.2003, Uday Kumar vs. State of Karnataka.
It is held that there are no ingredients to satisfy the requirements under Section 375 of IPC as the prosecutrix had consented to sexual intercourse by the accused and was out of her free will and consent.
b) Tilak Raj vs. State of Himachal Pradesh, 2016 Crl. L.J. 1136 in Criminal Appeal No.13 of 2016.
It is held that the accused sexually exploited prosecutrix on the pretext of marriage and the same will not constitute an offence under Section 417 of IPC. It is further held that 19 fraudulent or dishonest intention to commit an offence under Section 417 of IPC is not made out.
c) State of Kerala vs. A. Pareed Pilla and another, AIR 1973 SC 326 The apex Court has held that to hold a person guilty of an offence punishable under Section 417 of IPC, it must be shown that dishonest intention of cheating existed at the time of making the promise.
d) Anjinappa vs. State of Karnataka, Criminal Appeal No.1833 of 2006.
It is held that consensual sex between the accused and the complainant will not constitute an offence of Section 417 or 376 of IPC.
7. In the light of the above contentions and from a perusal of the record, the case put forward by the complainant is ambiguous. The complainant is not sure whether she could claim to be the wife of the petitioner. Assuming that the 20 petitioner could establish that the so-called marriage that the petitioner and she had gone through was no marriage in the eye of law, and chooses to assert that sexual exploitation on the false promise of marriage is sufficient to make out a case for an offence punishable under Section 417 IPC, from the decided cases, it would appear that the ingredient of a sustained sexual relationship is a factor that would have to be established. But it is seen that the petitioner is absolved of any such allegation of having had sex on the false inducement of marriage. The charge sheet is silent in this regard. The only allegation is of a breach of a promise to marry. It is now on record that the complainant had not been able to provide any incriminating material to demonstrate that she had been abducted and that there was a sexual relationship forced on her by the petitioner's dishonest inducement of a formal marriage.
However, it is to be noticed that in the cases relied upon by the counsel for the second respondent in the written 21 arguments, the sexual exploitation was a primary allegation whereas it is not so in the present case on hand, as it stands.
It is seen that breach of a promise to marry is no longer actionable under the English law, under which exemplary damages could be awarded. (Quirk v. Thomas, (1916) 1 KB
516). That cause of action has been abolished in England in the year 1970, under The (English) Law Reform (Miscellaneous Provisions) Act, 1970. But under Indian law, a breach of promise to marry is actionable and there is no bar of public policy operating against the same. (See: Prema Korgaokar vs. Mustak Ahmed, AIR 1987 Guj.106) Judgments of various courts have allowed various claims for breach of promise to marry, like a claim for damages or compensation (Abdul Razak Keval v. M.H.Dalvi, (1918)42 Bom. 499, AIR 1917 Bom 61, 38 IC 771, Santu vs. Har Devi, AIR 1934 Lah 544, Khimji Kuverji Shah v. Laljli Kanamsi Raghavji, (1941)43 BOMLR 35), or return of money paid against the party who has broken it, or 22 against the person who has brought about the breach, or put himself in circumstances as requiring the other party to end the contract. (Birendra Kumar Biswas v. Hemlatha Biswas, AIR 1921 Cal.459) In assessing such damages, annoyance, possible loss of reputation and injury resulting from breach must be considered (Budhu Mal vs. Mansha Ram, AIR 1914 Lah 83) and something by way of solatium for loss of reputation has been awarded even where such loss was not sufficiently proved. Damages are also recoverable in tort for seduction in appropriate cases, when the plaintiff would not merely be entitled to loss sustained on account of not becoming the spouse of the other party, but also aggravation of that loss by her prospects of marriage being adversely affected.
Consequently, the mere allegation of cheating without any prima facie material of sexual exploitation, would at best entitle the complainant to damages in tort, if she could establish her case, but it would not enable her to prosecute the petitioner in criminal law.
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Accordingly, the petition is allowed and the proceedings pending in CC No.22834/2015 on the file of the VIII Additional Chief Metropolitan Magistrate, Bengaluru are quashed.
However, if the complainant should succeed in the pending Revision Petition in Cr.RP No.844/2016 seeking that the allegations of offences punishable under Section 366 and Section 376 IPC, could be pursued against the petitioner, the present order would not preclude the complainant from seeking that an offence punishable under Section 417 IPC should be revived in the Charge sheet.
Sd/-
JUDGE nv*