Telangana High Court
Bharani Venkat Karthik, vs The State Of Telangana, on 10 July, 2025
THE HONOURABLE SRI JUSTICE E. V. VENUGOPAL
CRIMINAL PETITION No.1896 of 2025
ORDER:
The present criminal petition is filed under Section 528 of BNSS, seeking to quash the proceedings against the petitioner/accused in Crime No.31 of 2025, on the file of Police Station, Bhadrachalam Town, Bhadradri Kothagudem District, registered for the offences under Section 69 of BNS.
2. The petitioner herein is the accused and respondent No.2 herein is the complainant before the trial Court. For the sake of convenience hereinafter parties are referred to as accused and the complainant.
3. The brief facts of the case are that the complainant lodged a complaint against the accused stating that she was separated with her husband over family disputes and living at YSR colony, Bhadrachalam along with her son and to proceed legally against her husband, the complainant approached the accused, who is an advocate believed her to take-up case and to do justice and took advantage as she is separated from her husband and living alone, saying deceitful words to her by making false promises to marry, took her to his house at Medical colony, Bhadrachalam in the temporary absence of his parents and sexually participated with 2 her several times with her consent and coexistence with her. When the complainant got pregnant and asked the accused about marriage, the accused refused to marry her and threatened her to got aborted the pregnancy, if not, he will post all her pictures in social media. Hence, the complainant lodged a complaint against the accused.
4. On receipt of the said complaint, the Inspector of Police, Bhadrachalam Town, Bhadradri Kothagudem, registered a case in Crime No.31 of 2025, under Sections 69 of BNS.
5. Heard Sri V.Raghunath, learned Senior Counsel representing Sri S.M.Rizwan Akhtar, learned counsel for the petitioner and Sri B.Srinivas Rao, learned counsel for respondent No.2 and E.Ganesh, learned Assistant Public Prosecutor appearing for respondent No.1-State and perused the record.
6. Learned Senior Counsel appearing for the petitioner contended that respondent No.2 is a married woman, got married in the year 2012, thereafter, disputes arose between her and her husband, she left the conjugal society of her husband and started living separately with her son. Respondent No.2 voluntarily engaged in the sexual intercourse with the petitioner. Except stating that she became pregnant in the year 2023 and 3 subsequently in the year 2024, no details were furnished in the said complaint. The facts of the case do not attract the provision under Section 69 of BNS.
7. To support his case, learned counsel relied on the catena of judgments, which reads as under:
7.1. The Hon'ble Supreme Court in the case of XXXX vs. State of Maharashtra 1 observed the following, while quashing the FIR registered under Section 376(n) and 506 of IPC, under similar facts and circumstances. The relevant portion reads as under:
12. In any case, even on the dates when the complainant alleges that the parties had physical relations, she was already married. She falsely claimed that divorce from her earlier marriage took place...... It is not a case where the complainant was of an immature age who could not foresee her welfare and take right decision. She was a grown up lady about ten year elder to the appellant. She was matured and intelligent enough to understand the consequences of the moral and immoral acts for which she consented during subsistence of her earlier marriage. In fact, it was a case of betraying her husband.
7.2. The Hon'ble Supreme Court in the case of XXX vs. State of Maharashtra 2 held as under:
22. Applying the said proposition of law to the present case, the Respondent No. 2 herself has stated in her complaint that while her marriage was in subsistence, she has indulged in physical relationship with the Petitioner and she on her own has left him on ground of infidelity. Hence, the case of the Petitioner is 1 (2024) 3 SCC 496 2 (2024) SCC OLine Bom 3645 496 4 fully covered by the prepositions of the law as laid by the Hon'ble Apex Court in case of Pramod Suryabhan Pawar v. The State of Maharashtra (supra).
23. Yet in another decision of the Hon'ble Apex Court in case of Naim ahmed v. State (NCT of Delhi), 2023 Live Law (SC) 66: (2023) 1 SCR 1061, a view has been taken by the Hon'ble Apex Court with the facts similar to that of present Petition, wherein the prosecutrix was a married woman and a mother of three children, who engaged in physical relationship with the accused, later on accusing him of rape. She had also gone to stay with the accused during the subsistence of marriage with her husband. In the facts of this case only when the some dispute arose between the accused and the prosecutrix, she filed complaint alleging him commission of rape within the meaning of Section 375 of the IPC.
In the facts of this case it has been held by the Hon'ble Apex Court that, on the background of the fact that she had resided with the accused during the subsistence of her marriage leaving her husband, it cannot be said that the prosecutrix had given her consent for sexual relationship with Appellant so as to hold Appellant under the misconception of fact guilty for having committed rape within the meaning of Section 357 of IPC. 7.3. The Hon'ble Supreme Court in the case of Naim Ahmed vs. State (NCT of Delhi) 3, which has extensively dealt with the issue of a married woman engaging in sexual relation with third person on the alleged false promise of marriage, and acquitted the accused therein. The relevant portion reads as under:
22. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted finder the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant Undisputedly, she continued to have such relationship with hint at least for about five years till 3 (2023) 15 SCC 385 5 she gave complaint in the year 2015. Even if the allegations made by her in her deposition before the courts are taken on their face value, then also to construe such allegations as rape by the appellant, would be stretching the case too far. The prosecutrix being a married woman and the mother of three children was matured and intelligent enough to understand the significance and the consequences of the moral or immoral quality of act she was consenting to. Even otherwise, her entire conduct during the course of such relationship with the accused, is closely seen, it appears that she had betrayed her husband and three children by having relationship with the accused, for whom she had developed liking for him. She had gone to stay with him during the subsistence of her marriage with her husband, to live a better life with the accused. Till the time she was impregnated by the accused in the year 2011, and she gave birth to a male child through the loin of the accused, she did not have any complaint against the accused of he having given false promise to marry her or having cheated her. She also visited the native place of the accused in the year 2012 and came to know that he was a married man having children also still she continued to live with the accused at another premises without any grievance. She even obtained divorce from her husband by mutual consent in 2014, leaving her three children with her husband. It was only in the year 2015 when some disputes must have taken place between them, that she fled the present complaint. The accused in his further statement recorded Section 313 Cr.P.C had stated that she had filed the complaint as he refused to fulfil her demand to pay her huge amount. Thus, having regard to the facts and circumstances of the case, it could not be said by any stretch of imagination that the prosecutrix had given her consent for the sexual relationship with the appellant under the misconception of fact, so as to hold the appellant guilty of having committed rape within the meaning of Section 375 I.P.C.
23. In that view of the matter, the accused deserves to be quitted from the charges levelled against him. Of course, the direction for payment of compensation given by the courts below shall remain unchanged as the appellant had accepted the responsibility of the child, and has also paid the amount of compensation to the prosecutrix.6
7.4. The Hon'ble Supreme Court in the case of Davendra vs. State of Maharashtra, through Police Station Officer and another 4, reads as under:
12. Indisputably, the marriage of non-applicant no. 2 is still in subsistence. If that is so, the question of making the promise of marriage by the applicant does not arise. Further, perusal of F.I.R.
shows that the alleged promise of marriage was not given before committing of the sexual acts by the applicant, it is stated to have been given by the applicant after physical relations were established. Thus, the alleged promise of marriage was not having direct nexus to non-applicant No. 2's decision to engage in the initial sexual intercourse with the applicant. In view of this, the consent was not vitiated by a "misconception of fact" as has been held in case of Pramod Pawar (supra). That apart, it seems that from 30/09/2017 onwards, there were various instances of sexual intercourse between the applicant and non-applicant No. 2 without any fuss. This continued for a considerable time and almost after more than four years, non-applicant No. 2 decided to register F.I.R. Non-applicant no. 2 is a married woman and her marriage is still in subsistence. Non-applicant no. 2 was aware that there exists obstacle in marrying with the applicant. Having earlier marriage in subsistence and also having tanagers children, still she continued to engage herself in sexual relations. All these factums lead to a conclusion that the alleged story of promise of marriage is inherently improbable.
14. In the case of Bhajan Lal (supra), the Apex Court, in paragraph 102 of the judgment gave categories of cases by way of illustration, wherein power under Article 226 or the inherent powers of given under Section 482 of the Cr. P.C. could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, which read thus:
(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.4
2022 SCC OnLine Bom 7364 7 (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient around for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(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.
15. The case of the applicant is covered in guideline Nos. (1) and (5) mentioned in paragraph 102 in the judgment of Bhajan Lal (supra). In view thereof, we find that registration of F.I.R. in the present case is abuse of criminal process. The application, therefore, deserves to be allowed.
8. On the other hand, learned counsel appearing for respondent No.2 would contend that respondent No.2 is a married 8 women and having one son. She approached the petitioner with clean hands for obtaining divorce from her husband. Taking the same as advantage, the petitioner with a maladife intention made false promise to respondent No.2 stating that he will marry respondent No.2 after obtaining divorce and had physical relationship with her. Due to which, respondent No.2 became pregnant in the year 2023, petitioner forcibly aborted her pregnancy. Later, in the year 2024, respondent No.2 became pregnant. When respondent No.2 asked the petitioner about the marriage, he threatened her with dire consequences.
9. Learned counsel further contended that the judgments relied upon by the petitioners are not applicable to the present case. The respondent-police have rightly and appropriately imposed Section 69 of BNS. The truth or otherwise would be revealed only after full-fledged trial. Hence seeks to dismiss the present criminal petition Section 69 of BNS, reads as under:
Sexual intercourse by employing deceitful means, etc. Whoever, by deceitful means or by making promise to marry a woman without any intention of fulfilling the same, and has sexual intercourse with her, such sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.9
Explanation: "deceitful means" shall include the false promise of employment or promotion, inducement or marring after suppressing identity.
10. Per contra, the learned Assistant Public Prosecutor vehemently contended that that the crime is at the investigation stage and interference of this Court at this stage is unwarranted. Due to stay in operation, the investigation could not carry on. Unless and until full-fledged trial is conducted by examining the evidence and facts before it, truth will not be elicited. Hence seeks to dismiss this criminal petition.
11. The Hon'ble Supreme Court in the case of (1) Pramod Suryabhan Pawar vs. The State of Maharashtra and another 5, which has extensively dealt with the issue of sexual relationship established between the complainant and the accused on multiple occasions - complainant was aware of obstacles. The relevant portion reads as under:
11. The primary contention advanced by the complainant is that the appellant engaged in sexual relations with her on the false promise of marrying her, and therefore her "consent", being premised on a "misconception of fact" (the promise to marry), stands vitiated.
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 5 (2019) 9 SCC 608 10 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. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction under Section 482, this Court observed:
"15. An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of."
This understanding was also emphasised in the decision of this Court in Kaini Rajan v State of Kerala8:
"12. ... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and asset. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances."
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, this Court held:
"37. 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 misconception of fact as per Section 90 of the 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 11 Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC."
Similar observations were made by this Court in Deepak Gulati v State of Haryana ("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..."
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 this Court observed:
"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 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.
...
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 12 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 beginning, the accused had never really intended to marry her."
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. (2) Amol Bhagwan Nehul vs. The State of Maharashtra and another 6 which has dealt with a consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. The relevant paras reads as under:
9. In our considered view, this is also not a case where there was a false promise to marry to begin with. A consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. Such conduct not only burdens the Courts, but blots the identity of an individual 6 2025 SCC OnLine SC 1230 13 accused of such a heinous offence. This Court has time and again warned against the misuse of the provisions, and has termed it a folly3 to treat each breach of promise to marry as a false promise and prosecute a person for an offence under section 376 IPC.
12. Having regard to the submissions made by all the parties and upon considering the judgments relied upon by the petitioners, this Court is of the opinion that respondent No.2 has admitted that she was married and having one child and she had approached the petitioner to help her for obtaining divorce from her husband. Later on, respondent No.2 voluntarily involved in the sexual intercourse with the petitioner that does not amount to rape. Therefore, the said section does not apply to the facts of the present case. The Hon'ble Supreme Court in the matter of XXXX vs. State of Maharashtra (supra) has rightly held that the complainant was a married lady having a son and claiming that she is in physical relations with the accused with her own consent. There could not be any question of promise to marry given by the appellant to her at that stage and continuation of proceedings against the petitioner herein is nothing but an abuse of process of law and hence, the proceedings are liable to be quashed.
13. Accordingly, the Criminal Petition is allowed and the proceedings against the petitioner in Crime No.31 of 2025, on the file of Police Station, Bhadrachalam Town, Bhadradri Kothagudem 14 District, registered for the offences under Section 69 of BNS is hereby quashed.
Miscellaneous petitions, if any, pending shall stand closed.
____________________________ JUSTICE E.V.VENUGOPAL Dated: 10.07.2025 vsu