Karnataka High Court
Mr Sri Ashish Kumar Jha vs State Of Karnataka on 15 September, 2022
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
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CRL.P No. 4157 of 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE M.NAGAPRASANNA
CRIMINAL PETITION NO. 4157 OF 2020
BETWEEN:
MR SRI ASHISH KUMAR JHA
AGED ABOUT 25 YEARS
S/O MR. BHARAT JI JHA
RESIDENT OF TOWER C-304
UKN ESPERANZA
THUBARAHALLI, WHITE FIELD
MAIN ROAD, BENGALURU CITY
KARNATAKA - 560 066.
...PETITIONER
(BY SRI.SANDESH J CHOUTA, SENIOR ADVOCATE
ALONG WITH SRI.STANLEY SAM, ADVOCATE)
AND:
1. STATE OF KARNATAKA
Digitally signed by
PADMAVATHI B K
BY VARTHUR POLICE STATION
Location: HIGH
COURT OF
REPRESENTED BY PUBLIC PROSECUTOR
KARNATAKA
HIGH COURT BUILDING
BANGALORE-01.
2. SMT. SHRUTHI V S
AGED 31 YEARS
D/O MR. SURESH
R/O 65, 7TH A CROSS
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CRL.P No. 4157 of 2020
KORAMANGALA, 4TH 'B' BLOCK
BANGALORE - 560 095.
...RESPONDENTS
(BY SRI.K.S.ABHIJITH, HCGP FOR R1:
SMT. P.V. KALPANA, ADVOCATE FOR R2)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO QUASH THE ENTIRE PROCEEDINGS
AGAINST THE PETITIONER HEREIN PENDING BEFORE ACJM IN
CRIME NO.114/2020 AT ANNEXURE-B AND C BY ALLOWING
THIS APPLICATION FILED BY THE PETITIONER AND ETC.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY,
THE COURT MADE THE FOLLOWING:
ORDER
The petitioner is before this Court calling in question proceedings in crime No.114/2020, registered for offence punishable under Section 376 of the IPC.
2. Heard Sri Sandesh J. Chouta, learned senior counsel for the petitioner, Sri K.S.Abhijith, learned High Court Government Pleader appearing for respondent No.1 and Smt. P.V.Kalpana, learned counsel for respondent No.2.
-3- CRL.P No. 4157 of 20203. Sans details, facts in brief are as follows:
The second respondent is the complainant. The petitioner and respondent No.2 come to become friends on a dating app by name "Coffee Meets Begel" and initially claim to have indulged in chatting and later become acquaintances and also have physical relationship. The complainant appears to be aggrieved by the act of the petitioner and seeks to register a complaint before the jurisdictional police. It transpires that the jurisdictional police call the petitioner and the complainant and try to resolve the dispute. The resolution of the dispute not going well with the complainant, she registers a complaint on 16.05.2020, alleging that the petitioner had indulged in the act which become offence punishable under Section 376 of the IPC. It is the registration of the crime that drives the petitioner to this Court in the subject petition.
4. The petition having been entertained, this Court granted an interim order on 06.10.2022, interjecting -4- CRL.P No. 4157 of 2020 further proceedings and same is subsisting even as on date. By then, the petitioner had spent about 75 days in prison on account of registration of the crime for the offence punishable under Section 376 of the IPC.
5. Learned senior counsel appearing for the petitioner would take this Court through the documents appended to the petition, to contend that the relationship of the petitioner with the complainant was purely consensual as both met on a dating app and later on, getting acquainted to each other, got physical. The learned senior counsel would further submit that respondent No.2 - complainant is habitual in these acts and has gone on registering several complaints against several men for the very same offence on a similar grievance and would submit that it is a fit case that this Court will have to impose exemplary costs upon -5- CRL.P No. 4157 of 2020 respondent No.2 as a deterrent so that she will not indulge in filing such complaints in future.
6. On the other hand, learned counsel appearing for respondent No.2 would refute the submissions of the learned senior counsel appearing for the petitioner to contend that it is a complaint that is made before the police for the offence punishable under Section 376 of the IPC and therefore, the act is an offence that has to be investigated into. The act of it being a consensual or otherwise, is a matter of trial and the petitioner has to come out clean in such trial.
7. Learned High Court Government Pleader would toe the lines of the learned counsel appearing for respondent No.2 -6- CRL.P No. 4157 of 2020
8. I have given my anxious consideration to the submissions made by the learned counsel for both the parties and perused the material on record.
9. The afore-narrated facts are not in dispute. The relationship of the petitioner with the complainant getting generated on a dating app called "Coffee Meets Begel" is also not in dispute. The consensual acts between the petitioner and the complainant or otherwise, is a matter to be considered at the case at hand. The issue springs out from a complaint registered by the complainant -
respondent No.2. The complaint is extracted for the purpose of quick reference.
"I, Shruthi V.S., came in touch with Ashish Kumar Jha over a dating app. We were talking over phone for over 40 days. After lockdown, we met at his house. We got physical. Before having sex, he was talking to me very lovingly and he was trying to impress me. Immediately after having sex, he started saying, you order food for yourself, you go back home now itself. When I went to his flat, he told me, "You can stay in this flat however long you want". He started showing total negligence towards me just to get rid of me. He has impressed me and showed me love -7- CRL.P No. 4157 of 2020 only to get physical with me and exploit me emotionally.
Even when he was called in the police station on 14/05/2020, he held my feet and started crying, I became little emotional and wanted to listen to him. Immediately after I told him I was not going to file the case, he started acting negligently, I asked him, let's go to your home and talk for 30 minutes, he started saying, I will book a hotel room if you want to talk but I will not take you to my flat."
(Emphasis added) The complainant narrates that the petitioner came in touch with her on a dating app and began to talk over phone for about 40 days and after lockdown, both met at the house of the petitioner. Immediately after getting physical, the petitioner has told to order food for herself and to go back home. It is the allegation that triggers the crime punishable under Section 376 of the IPC, for the offence of rape under Section 375 of the IPC. The later part of the complaint is that, on 14.05.2020, the petitioner appears to have touched the feet of the complainant and became emotional and later, when the complainant -8- CRL.P No. 4157 of 2020 assured that she will not file any case, again he started neglecting her. This is the crux of the complaint. Merely because the complainant, in the complaint narrates about having physical relationship with the petitioner, a crime is registered and as a result of which, the petitioner is into custody for close to 75 days.
10. Though it is only a complaint, the matter is at the stage of investigation. What merits consideration in the case at hand is the contents of the complaint that the complainant being habitual in registering such complaints.
One such complaint registered against one Amey Nandkumar Telawane, by the very same complainant, was the subject matter before this Court in Crl.P.No.6489/2021 disposed on 06.07.2022 and while disposing the petition, this Court has taken note of the complaints registered by the very same complainant against other men. It becomes germane to notice them in the subject petition as -9- CRL.P No. 4157 of 2020 well, as it is the same complainant making the same allegations. The findings of this Court in the aforesaid case reads as follows:
"11. The charge sheet filed against the petitioner is for offences punishable under Sections 417 and 420 of IPC. To allege the offence under Section 420 of IPC, ingredients of Section 415 of the IPC are necessarily to be present. The complaint itself narrates that it was the consensual act between the two. The only grievance in the complaint and also in the summary of the charge sheet is that the petitioner has lied to her with regard to his age. If lying of the age did not make any difference to the physical relationship that is narrated in the complaint, it can hardly become an offence of cheating later on. There was no inducement, whatsoever, by the petitioner on the complainant. Therefore, the offences under Sections 417 or 420 of the IPC cannot even be seen to its remotest sense both in the complaint and in the charge sheet filed by the police. In the light of the complaint being so frivolous, it is germane to notice several complaints registered by the very complainant against several men alleging offences punishable under Sections 376, 417, 420 or even 354(c) of the IPC. A few of them which are appended to the petition are extracted hereunder to demonstrate repeated complaints being registered by the
- 10 -
CRL.P No. 4157 of 2020complainant against several men, after having a relationship with them and indulging in consensual acts of sexual intercourse. They read as follows:
" 29.08.2020 To.
Police Inspector Koramangagal Police Station Bangalore.
From: Permanent address: Shruthi V.S. (31 years) Vadoor, Kunniganahalli P, 65, 7th A Cross, Sakleshpur T, Hassan Dist 4th Block Karnataka - 573214. Koramangala Bangalore Mob: 9380945235
Sub: Criminal case against Sambit Ponda Respected Sir, I had met Sambit Pand, (30 years) on a dating app, on 14/June/2020. His mobile numbers are 9538688403 and 8553877503. We were talking like good friends and I had met him and stayed in his flat for two days after that he only asked me to go back to my PG. Then we were talking for few days. I asked him to meet me, but he said he is
- 11 -CRL.P No. 4157 of 2020
busy and he would meet me later etc. He said few uncomfortable things while we were chatting so I blocked him on my phone. He did not contact me after that. Now, on 28.08.2020, he messaged on whatsapp 8553877503 and sent me the explicit pictures of me which were taken by him when I was sleeping. He was blackmailing that he would make all the pictures viral everywhere in the internet. He deleted those pictures before took the screenshots and blocked me when I said I would complain to police. Please take strict action on him as per law and register an FIR for taking my explicit pictures without my knowledge and blackmailing me.
Thanks, Sd/-
29/08/2020 Address:
Attached 2 pages Sambit Panda
Whatsapp chat Associate Director
self attested DXC technologies
Electronic city
Bangalore
¢£ÁAPÀ:29.08.2020 gÀAzÀÄ 18.50 UÀAmÉUÉ ¦gÁåzÀÄzÁgÀgÀÄ ¤ÃrzÀ zÀÆgÀ£ÀÄß ¥ÀqÉzÀÄ gÁ.ªÉÆ.¸ÀA-176/2020 PÀ®A-354 (¹), 506 L.¦.¹ jvÁå ¥ÀæPÀgÀt zÁR°¹gÀÄvÉÛ."
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CRL.P No. 4157 of 2020"To 16/05/2020 Police Inspector Varthur Police Station Bangalore From:
Shruthi V.S. D/o Suresh, Age: 31 years 65, 7th A Cross, Koramangala, 4th B Block Bangalore, Ph: 9380945235, Hindu, Lingayat Permanent Address:
Vadoor, Kunniganahalli Post Sakleshpur T, Hassan Dist - 573214 Sub: Rape case against ASHISH KUMAR JHA Respected Sir, I, Shruthi V.S., came in touch with Ashish Kumar Jha over a dating app. We were talking over phone for over 40 days. After lockdown, we met at his house. We got physical. Before having sex, he was talking to me very lovingly and he was trying to impress me. Immediately after having sex, he started saying, you order food for yourself, you go back home now itself. When I went to his
- 13 -CRL.P No. 4157 of 2020
flat, he had told me, "You can stay in this flat however long you want". He started showing total negligence towards me just to get rid of me. He has impressed me and showed me love only to get physical with me and exploit me emotionally.
Even when he was called in the police station on 14/05/2020, he held my feet and started crying, I became little emotional and wanted to listen to him. Immediately after I told him I was not going to file the case, he started acting negligently. I asked him, let's go to your home and talk for 30 minutes, he started saying, I will book a hotel room if you want to talk, but I will not take you to my flat.
This behavior and attitude towards me shows that he has raped me by deceiving me.
Hence, I request you to register F.I.R. and take strict actions against him as per the law. Date of Incident 08/05/2020.
Thanks, Shruthi V.S. Address of Ashish:
Tower - C, 304 UKN Esperanza Thubarahalli Whitefield, Bangalore
- 14 -CRL.P No. 4157 of 2020
Ph: +91 7010430475 +91 9629662798"
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- 15 -CRL.P No. 4157 of 2020
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"
To: Date: 12/06/2019
Sub Inspector
- 16 -
CRL.P No. 4157 of 2020
Whitefield Police Station
Bangalore
Respected Sir,
Myself, Shruthi V.S. (30 years) D/o Suresh with mobile number 9380945235, residing at New Shivani Paradise PG for ladies, Prashanth Layout, 1st Cross, Whitefield Main Road, Bangalore.
Phone - 9739810893, Harihara
Enclave, HSR Layout
I met Rama Reddy (age 29 years), on
an online phatform, and we started liking each other. On 03/06/2019 evening, I went to him flat in HSR Layout to meet him. We talked to each other, and when he expressed his interest in getting physical with me, I said, I don't want to get physical, again, he expressed his interest in getting physical. I said I need commitment from him. For that he agreed that he wouldn't abandon me after sex, he would meet me twice a week, talk to me on phone and not talk to any other girl. He also said that he loves me. After this we had physical relationship.
Next day, he took off from his office and stayed at his flat, along with me and a day after that, morning I came back to my PG. He went to his office. On whatsapp, I expressed that I was feeling depressed. For that he said he
- 17 -CRL.P No. 4157 of 2020
cannot handle me and he wants to end the relationship. When I didn't agree to it, we continued talking. We met and things were fine for 2-3 days.
For any small incident, if he is not happy, he used to say that he would block me. The incidents were like, you are calling me at 4 am,
12 am, office hours.
Then I told him that I wouldn't call him in his work and sleep time and I kept my words.
Yesterday, evening while talking, he started saying things like, I wan interested in getting physical with him, so I went to his flat and he was not interested in it at all.
He started talking in entirely different one and he reversed the whole incident. When I asked him to message me whatever he was saying, with the fear of being caught he said the truth, not complete truth.
And then he said that he was going block me and he blocked me on phone and whatsapp and asked me to file a case in court.
He has cheated on me and falsely induced me into getting physical with him by breaking is promise.
Hence I request you to take strict action on him.
Thanks, Attached 14 pages
whatspp
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CRL.P No. 4157 of 2020
Shruthi V.S. conversations
Attached 8 pages gmail
conversations."
"To. 01/04/2021
Police Inspector
Madiwala Police Station
Bangalore
Sub: Sexual exploitation, molestation and outraging the modesty case against Vishal Naik (31 years, 9964297517) Respected Sir, I had first met Vishal Naik for help during Inner Engineering Mediation course. He had told me that he would support me with everything that is needed. We were together on 18/12/2020, as I had a video conference to attend at High Court. We first went to Star Bucks, but there was lot disturbance. So he booked a hotel room so that I can clearly hear and talk what's going on in the Court. Hotel name: Delta Regency Room No.402, Madiwala Maruthi Nagar, 1st Cross, 1st Main. At that time we got physical and had oral intercourse. Before that he promised me that he wouldn't leave
- 19 -
CRL.P No. 4157 of 2020me or cheat on me. But after that we mutually decided that we will not have physical relationship. But he said he would still be there. He told me he doesn't want to marry anyone at all. I reluctantly agreed to it because he promised me that he was not going away from me. After few days when had met again, he told me that he is my boyfriend just so that I co-operate with him for the physical advances. Immediately next day he stepped back from the promise and said I have not told you that I am yout boyfriend. He had also promised me that he wouldn't cheat on me. But now intentionally started saying outrageous things on my face so that I go away from him on my own. He even said, you can have affair with other boys, I will also have affair with other girls.
This behavior shows clearly that he had no intention of being with me. But to just physically and emotionally rape me.
Hence I request you to file an F.I.R and take actions on him as per law. Caste: Lingayat.
Thanks Permanent
Address:
Shruthi V.S. Vadoor,
R.B. Elizabeth (9380945235) Kunniganahalli Post
#21, S.T. Bed Layout Sakleshpur T.
1st Cross Road, Hassan Dist - 573214
Koramangala - 34 "
- 20 -
CRL.P No. 4157 of 2020
14. In the light of what is narrated hereinabove and the offences alleged being not made out either in the complaint or in the summary of the charge sheet filed by the prosecution, if further proceedings are permitted to continue against the petitioner in the teeth of the aforesaid facts, it would undoubtedly become an abuse of process of law, degenerate into harassment and result in miscarriage of justice, as the petitioner has been enmeshed into the web of crime, as several others have been enmeshed by respondent No.2 - complainant."
(Emphasis supplied) The afore-quoted complaints registered by this very complainant against several men are all around the same time i.e., 2019 - 2021 for offences punishable under Section 376 of the IPC or Section 354C of the IPC, as the case would be and what run through in all these complaints are that, the acts of consensual sex between those accused and the very complainant.
11. The case at hand is one such case, where there cannot be any offence that would be punishable under
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CRL.P No. 4157 of 2020Section 376 of the IPC, as the complaint itself narrates that it was an act of consensual sex and the grievance of the complainant was the negligence on the part of the petitioner every time after getting physical. This can, by no stretch of imagination can become offence punishable under Section 376 of the IPC as none of the ingredients of Section 375 of the IPC are found even as a foundation for registering the impugned complaint. If further investigation or proceedings is permitted to continue, in the teeth of the aforesaid facts, they would run foul of the judgment of the Apex Court in the case of DHRUVARAM MURLIDHAR SONAR v. THE STATE OF MAHARASHTRA reported in (2019)18 SCC 191 and .
"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)
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"21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the 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 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 consent given by the 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 the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before 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.
***
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
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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 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?
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CRL.P No. 4157 of 2020In 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 and 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
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CRL.P No. 4157 of 2020predominant 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. On 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
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CRL.P No. 4157 of 2020and 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 accused 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.
****
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 not solely on account of the misconception created
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CRL.P No. 4157 of 2020by 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 and 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
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CRL.P No. 4157 of 2020to 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."
(Emphasis supplied) In a recent judgment of the Apex Court in the case of SHAMBHU KHARWAR VS. STATE OF UTTAR PRADESH AND ANOTHER reported in 2022 SCC Online SC 1032, 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 entirety do not prima facie constitute any offence or make out a case against the accused. (2)
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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,6 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
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CRL.P No. 4157 of 2020along 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 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..."
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CRL.P No. 4157 of 202011. 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 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
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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.
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CRL.P No. 4157 of 202013. 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 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."
(Emphasis supplied) In the light of the aforestated facts and the judgments rendered by the Apex Court, further
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CRL.P No. 4157 of 2020proceedings, if permitted to continue would result in abuse of the process of the law, as the complainant has already abused the process of law, every time, by registering complaints after complaints against several men including the petitioner.
13. In the light of the aforesaid facts, it becomes germane to consider the contention of the learned senior counsel for the petitioner with regard to the costs to be imposed upon the complainant, for such abuse every time.
The Apex Court in the case of MARY ANGEL AND OTHERS VS. STATE OF TAMIL NADU reported in (1995) 5 SCC 209, has held as follows:
"11. Next, we would refer to the decision in Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1 :
(1964) 2 SCR 336] wherein this Court considered the power of the High Court to expunge remarks made against a medical practitioner who submitted his opinion on the health of the accused pending the proceedings before the Magistrate. While considering the scope of inherent powers under Section 561-A of the Code, the Court succinctly analysed the jurisdiction which could be exercised by the High Court in the following words:
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"When we speak of the inherent powers of the High Court of a State we mean the powers which must, by reason of its being the highest court in the State having general jurisdiction over civil and criminal courts in the States, inhere in that court. The powers in a sense are an inalienable attribute of the position it holds with respect to the courts subordinate to it. These powers are partly administrative and partly judicial. They are necessarily judicial when they are exercisable with respect to a judicial order and for securing the ends of justice. When we speak of ends of justice we do not use the expression to comprise within it any vague or nebulous concept of justice, nor even justice in the philosophical sense but justice according to law, the statute law and the common law. Again, this power is not exercisable every time the High Court finds that there has been a miscarriage of justice. For, the procedural laws of the State provide for correction of most of the errors of subordinate courts which may have resulted in miscarriage of justice. These errors can be corrected only by resorting to the procedure prescribed by law and not otherwise. Inherent powers are in the nature of extraordinary powers available only where no express power is available to the High Court to do a particular thing and where its express powers do not negative the existence of such inherent power. The further condition for its exercise, insofar as cases arising out of the exercise by the subordinate courts of their criminal jurisdiction are concerned, is that it must be necessary to resort to it for giving effect to an order under the Code of Criminal
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Procedure or for preventing an abuse of the process of the court or for otherwise securing the ends of justice.
The power to expunge remarks is no doubt an extraordinary power but nevertheless it does exist for redressing a kind of grievance for which the statute provides no remedy in express terms. The fact that the statute recognizes that the High Courts are not confined to the exercise of powers expressly conferred by it and may continue to exercise their inherent powers makes three things clear. One, that extraordinary situations may call for the exercise of extraordinary powers. Second, that the High Courts have inherent power to secure the ends of justice. Third, that the express provisions of the Code do not affect that power. The precise powers which inhere in the High Court are deliberately not defined by Section 561-A for good reason. It is obviously not possible to attempt to define the variety of circumstances which will call for their exercise. No doubt, this section confers no new power but it does recognize the general power to do that which is necessary 'to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice'. But then, the statute does not say that the inherent power recognized is only such as has been exercised in the past either. What it says is that the High Courts always had such inherent power and that this power has not been taken away. Whenever in a criminal matter a question arises for consideration whether in particular circumstances the High Court has power to make a particular kind of order in the absence of express provision in the Code or other statute the test to be applied would be whether it is necessary to do so to give effect to
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an order under the Code or to prevent the abuse of the process of the court or otherwise to secure the ends of justice."
(emphasis added) This extract is taken from Mary Angel v. State of T.N., (1999) 5 SCC 209 : 1999 SCC (Cri) 1296 : 1999 SCC OnLine SC 583 at page 222
22. In the result, we hold that while exercising inherent jurisdiction under Section 482, the Court has power to pass "such orders" (not inconsistent with any provision of the Code) including the order for costs in appropriate cases
(i) to give effect to any order passed under the Code, or
(ii) to prevent abuse of the process of any court, or
(iii) otherwise to secure the ends of justice.
As stated above, this extraordinary power is to be used in extraordinary circumstances and in a judicious manner. Costs may be to meet the litigation expenses or can be exemplary to achieve the aforesaid purposes."
(Emphasis supplied) The Apex Court holds that extraordinary powers is to be used in extraordinary circumstances and in a judicious manner and costs can be imposed to prevent abuse of the
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CRL.P No. 4157 of 2020process of the Court or otherwise, secure the ends of justice.
14. One of the tenet laid down (supra), is applicable to the present case at hand, to prevent abuse of the process of the law. The acts of the complainant which are narrated hereinabove, would clearly become a case where the complainant has been abusing the process of law by registering crime every time for rape, after consensual acts, alleging no ingredients of Section 375 of the IPC.
Therefore, the petition will have to be allowed with exemplary costs to be imposed upon the complainant at Rs.25,000/-.
15. For the aforesaid reasons, I make the following:
ORDER i. The Criminal Petition is allowed.
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ii. The proceedings in crime No.114/2020, pending before the ACJM, Bengaluru, stands quashed.
iii. The respondent - complainant is imposed Rs.25,000/- as costs to be paid to the account of Legal Services Authority within a period of twenty weeks.
Sd/-
JUDGE NVJ List No.: 1 Sl No.: 57