Karnataka High CourtMr. Kiran Y vs The State Of Karnataka on 22 June, 2022Author:M.NagaprasannaBench:M.Nagaprasanna-1-\n\n\n\n\n                                                    CRL.P No. 2746 of 2020\n                                                C/W CRL.P No. 2844 of 2020\n\n\n\n                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU\n\n                         DATED THIS THE 22ND DAY OF JUNE, 2022\n\n                                        BEFORE\n                       THE HON'BLE MR JUSTICE M.NAGAPRASANNA\n                          CRIMINAL PETITION NO. 2746 OF 2020\n                                          C/W\n                          CRIMINAL PETITION NO. 2844 OF 2020\n\n\n                IN CRL.P.2746 OF 2020\n\n                BETWEEN:\n\n                 MR. KIRAN Y\n                 S/O YOGENDRA NAYAK\n                 AGED 29 YEARS\n                 R/AT YENITHADKA HOUSE\n                 KOLLA VILLAGE\n                 K C FARM HOUSE\n                 KADABA HOBLI\nDigitally        KADABA TALUK\nsigned by\nPADMAVATHI\nBK\n                 D K DISTRICT-574221.\nLocation:\nHigh Court of\nKarnataka                                                    ...PETITIONER\n\n                (BY SHRI S. RAJASHEKAR, ADVOCATE)\n\n                AND:\n\n                1.    THE STATE OF KARNATAKA\n                      KAMAKSHIPALYA POLICE STATION\n                      REPRESENTED BY\n                      STATE PUBLIC PROSECUTOR,\n                      HIGH COURT OF KARNATAKA\n                      BENGALURU-560001.\n                           -2-\n\n\n\n\n                                    CRL.P No. 2746 of 2020\n                                C/W CRL.P No. 2844 of 2020\n\n\n\n2.   SMT. YOGASHREE H C\n     D/O SRI. CHANGAPPA H N\n     AGED ABOUT 28 YEARS\n     R/AT NO.77, GANAPATHI TEMPLE ROAD,\n     SANNAKKIBAILU KAMAKSHIPALYA\n     BENGALURU-560079.\n\n                                           ...RESPONDENTS\n\n(BY SHRI. K.S. ABHIJITH, HCGP FOR R1;\n SHRI V. KRISHNAMURTHY, ADVOCATE FOR R2 (ABSENT)\n\n\n     THIS CRIMINAL PETITION FILED UNDER SECTION 482 OF\nCR.P.C PRAYING TO QUASH THE ORDER OF TAKING\nCOGNIZANCE DATED 20TH JANUARY, 2020 PURSUANT TO\nFILING OF CHARGE SHEET IN CR.NO.295 OF 2019 OF\nKAMAKSHIPALYA POLICE STATION, ON THE FILE OF V\nADDL.C.M.M., BENGALURU FOR THE ALLEGED OFFENCES P/U/S\n354C, 506, 376, 504 AND 417 R/W 34 OFIPCBY ALLOWING\nTHIS PETITION; AND ETC.\n\n\nIN CRL.P.2844 OF 2020\n\nBETWEEN:\n\n ANAND KUMAR\n S/O RAJAN\n AGED 38 YEARS\n R/AT NO.8, 5TH 'A' CROSS\n RMV 2ND STAGE, BOOPASANDRA\n BENGALURU -560 094\n                                             ...PETITIONER\n\n(BY SHRI S. RAJASHEKAR, ADVOCATE)\n                           -3-\n\n\n\n\n                                    CRL.P No. 2746 of 2020\n                                C/W CRL.P No. 2844 of 2020\n\n\n\nAND:\n\n1.   THE STATE OF KARNATAKA\n     KAMAKSHIPALYA POLICE STATION\n     REPRESENTED BY\n     STATE PUBLIC PROSECUTOR,\n     HIGH COURT OF KARNATAKA\n     BENGALURU-560001.\n\n2.   SMT. YOGASHREE H C\n     D/O SRI CHANGAPPA H N\n     AGED ABOUT 28 YEARS\n     R/AT NO.77, GANAPATHI TEMPLE ROAD,\n     SANNAKKIBAILU KAMAKSHIPALYA\n     BENGALURU-560079.\n\n                                           ...RESPONDENTS\n\n(BY SHRI K.S. ABHIJITH, HCGP FOR R1;\n SHRI V. KRISHNAMURTHY, ADVOCATE FOR R2 (ABSENT)\n\n\n     THIS CRIMINAL PETITION FILED UNDER SECTION 482 OF\nCR.P.C PRAYING TO QUASH THE ORDER OF TAKING\nCOGNIZANCE DATED 20TH JANJUARY, 2020 PURSUANT TO\nFILING OF CHARGE SHEET IN CR.NO.295 OF 2019 OF\nKAMAKSHIPALYA POLICE STATION, ON THE FILE OF V\nADDITIONAL CHIEF METROPOLITAN MAGISTRATE COURT,\nBENGALURU FOR THE ALLEGED OFFENCES P/U/S 354C, 506,\n376, 504 AND 417 R/W 34 OFIPCBY ALLOWING THIS\nPETITION; AND ETC.\n\n\n     THESE PETITIONS COMING ON FOR ADMISSION, THIS\nDAY, THE COURT MADE THE FOLLOWING:\n                                -4-\n\n\n\n\n                                         CRL.P No. 2746 of 2020\n                                     C/W CRL.P No. 2844 of 2020\n\n\n\n                           ORDERCriminal Petition No.2746 of 2020 is filed by the accused\n\nNo.1 arising out of Crime No.295 of 2019 for offences\n\npunishable underSection 354C,506,376,504,417and34of\n\nthe Indian Penal Code.2.   Heard Sri S. Rajashekar, learned counsel for the\n\npetitioner and Sri K.S. Abhijith, learned High Court Government\n\nPleader for respondent No.1.3.   The brief facts leading to the filing of the present\n\npetitions, as projected by the prosecution, are as follows:4. The second respondent is the complainant. Accused\n\nNo.1-petitioner and the second respondent, were in love and\n\nhad had a relationship for over five years prior to registration of\n\nthe complaint. On an allegation that the petitioner refused to\n\nadhere to the promise of marriage that he had made for all the\n\nfive years of relationship and had had physical contact with the\n\npetitioner on such promise of marriage, the complainant\n\nregisters a complaint on 17th August, 2019.        The complaint\n\nbecomes crime in Crime No.295 of 2019 for the afore-quoted-5-CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020offences.   The police, after investigation, filed a charge sheet\n\nagainst the petitioner for offences punishable underSection\n\n354C,417,376,504,506and34of the Indian Penal Code.The concerned Court, by an order dated 20th January, 2020,\n\ntakes cognizance of the police report/charge sheet filed and\n\nissues summons to the petitioner.      It is at that juncture, the\n\npetitioner has knocked the doors of this Court in the subject\n\ncriminal petition No.2746 of 2010.5. Criminal Petition No.2844 of 2020 is filed by accused\n\nNo.2 in the same crime.     The allegation against the accused\n\nNo.2 in the subject petition is that he is the brother-in-law of\n\nthe accused No.1-petitioner in the companion petition, and he\n\nhad assured the complainant that he would get the accused\n\nNo.1 and her married and he has also breached the promise of\n\nmarriage and has committed offences that would become\n\npunishable underSections 417,354C,504,506and376of the\n\nIndian Penal Code. The learned Magistrate takes cognizance of\n\nthe offences as is alleged against accused No.1, against the\n\naccused No.2 as well. It is this order of taking cognizance and-6-CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020issuance of summons that drives the petitioner to this Court in\n\nthe subject petition.6. The learned counsel appearing for the petitioner Sri S.\n\nRajashekar, would contend with vehemence that the allegation\n\nagainst the accused No.1 is that he has breached the promise\n\nof marriage and had such physical relationship with the\n\ncomplainant for about six years prior to the registration of\n\ncomplaint. With this being the allegation, he submits that the\n\nbreach of promise of marriage could not be made an offence\n\npunishable underSection 376or even 417 of theIndian Penal\n\nCode.        The learned counsel would place reliance upon the\n\njudgment of the Apex Court in the case ofDHRUVARAM\n\nMURLIDHAR SONAR v. THE STATE OF MAHARASHTRAreported\n\nin (2019)18 SCC 191.7.    Counsel for the complainant has remained absent\n\nthroughout.8. This Court, after hearing the learned counsel for the\n\npetitioner, had passed the following order on 15th June, 2022:-7-CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020"Heard    Sri    S.     Rajashekar,   learned   counsel\n      appearing for the petitioner.There is no representation on behalf of respondent\n      No.2.As a last chance, awaiting appearance of the\n      learned counsel for the respondent No.2, list the matter\n      on 22.06.2022.In the event, there is no representation on behalf\n      of respondent No.2, the matter would be taken up and\n      considered in his absence.Interim         order      granted      earlier,     in\n      Crl.P.No.2844/2020, is extended till the disposal of the\n      petition."9. In the light of the said order, matter is taken up for\n\nconsideration in the absence of the learned counsel appearing\n\nfor the second respondent, as he has remained absent.10.     The learned High Court Government Pleader would\n\nhowever, seek to justify the action of registration of crime and\n\nfiling of the final report pursuant to the investigation. It is his\n\ncontention that there was no intention of the petitioner to ever\n\nmarry the complaint and on a false promise of marriage, he has-8-CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020had sexual relationship with the complaint and therefore, the\n\nmatter requires trial and seeks dismissal of the petition.11.     I have given my anxious consideration to the\n\nsubmission made by the respective learned counsel appearing\n\nfor the parties and have perused the material on record. Since\n\nthe entire issue springs from the complaint so registered by the\n\ncomplaint, it is germane to notice the preamble of the\n\ncomplaint itself:"«µÀAiÀÄ:-   £À£Àß£ÀÄß ¸ÀÄªÀiÁgÀÄ 5 ªÀµÀðUÀ½AzÀ ¦æÃw¹ ªÀÄzÀÄªÉ\n      ªÀiÁrPÉÆ¼ÀÄîvÉÛÃ£ÉAzÀÄ £ÀA©¹ £À£Àß eÉÆvÉ zÉÊ»PÀ ¸ÀA§AzsÀªÀ£ÀÄß ¨É¼É¹,\n      FUÀ eÁwAiÀÄ «ZÁgÀzÀ°è £Á£ÀÄ ªÀÄzÀÄªÉ ªÀiÁrPÉÆ¼ÀÄîªÀÅ¢®èªÉAzÀÄ\n      ºÉÃ½ £À£ÀUÉ ªÉÆÃ¸À ªÀiÁrzÀ QgÀuï ªÉÊ 30 ªÀµÀð ©£ï AiÉÆÃVÃAzÀæ\n      £ÁAiÀÄÌ ºÁUÀÆ CªÀ£À vÁ¬Ä ¸ÀÄ«ÄvÀæªÀÄä PÉÆÃA AiÉÆÃVÃAzÀæ £ÁAiÀÄÌ\n      CªÀgÀ ºÀwÛgÀzÀ ¸ÀA§A¢ü D£ÀAzï PÀÄªÀiÁgÀ gÀªÀgÀ «gÀÄzÀÞ zÀÆgÀÄ. "12.   The subject of the complaint is that for five years,\n\nthe accused No.1 and the complaint were in love and had had\n\nphysical relationship on account of being in love and were living\n\ntogether for some time and finally the accused No.1 has\n\nbreached the promise of marriage and therefore, he is to be\n\nproceeded against for offence punishable underSection 376of-9-CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020Indian Penal Code.    The entire narration in the complaint is\n\nagainst two people.    One the accused No.1 with whom the\n\ncomplainant had a live-in relationship; and the other, the\n\nbrother-in-law of the accused No.1, who had promised that he\n\nwould get the accused No.1 and the complainant married. Both\n\nof them are alleged to have breached the promise of marriage.After registration of the complaint, police take up investigation\n\nand have filed final report for the aforestated offences against\n\nthe accused No.1 and 2.         The learned Magistrate takes\n\ncognizance of offence against both the accused in common.Therefore, accused No.2 is also now alleged for offences\n\npunishable underSection 376of the Indian Penal Code. There\n\ncannot be any better illustration for non-application of mind by\n\nthe learned Magistrate taking cognizance of offences in a\n\ncavalier manner, even otherwise the issue stands covered by\n\nthe judgments of the Apex Court in the case of, 1) PRAMOD\n\nSURYABHAN PAWAR v. STATE OF MAHARASHTRA reported in\n\n(2019)9 SCC 608; and 2) DHRUVARAM MURALIDHAR SONAR v.STATE OF MAHARASHTRA reported in (2019)18 SCC 191.- 10 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020The Apex Court, while delineating inter-play between\n\npromise of marriage and allegation of rape, in the case of\n\nPRAMOD SURYABHAN PAWAR (supra), has held as follows:"14. In the present case, the "misconception of\n     fact" alleged by the complainant is the appellant's\n     promise to marry her. Specifically in the context of a\n     promise to marry, this Court has observed that there is a\n     distinction   between   a   false     promise      given   on   the\n     understanding by the maker that it will be broken, and\n     the breach of a promise which is made in good faith but\n     subsequently not fulfilled.InAnurag Soni v. State of\n     Chhattisgarh [Anurag    Soniv.       State   of    Chhattisgarh,\n     (2019) 13 SCC 1: 2019 SCC OnLine SC 509], this Court\n     held:"12. The sum and substance of the\n        aforesaid decisions would be that if it is\n        established and proved that from the inception\n        the accused who gave the promise to the\n        prosecutrix to marry, did not have any intention\n        to marry and the prosecutrix gave the consent for\n        sexual intercourse on such an assurance by the\n        accused that he would marry her, such a consent\n        can be said to be a consent obtained on a\n        misconception of fact as perSection 90IPC and,\n        in such a case, such a consent would not excuse\n        the offender and such an offender can be said to\n        have committed the rape as defined underSections 375IPC and can be convicted for the\n        offence underSection 376IPC."- 11 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020Similar observations were made by this Court inDeepak\nGulati v. State of Haryana(2013)7 SCC 675: (2013) 3\nSCC (Cri) 660] (Deepak Gulati):"21. ... There is a distinction between the\n   mere breach of a promise, and not fulfilling a\n   false promise. Thus, the court must examine\n   whether there was made, at an early stage a false\n   promise of marriage by the accused;"15.InYedla        Srinivasa     Rao v. State      of     A.P.(2006)11 SCC 615:(2007) 1 SCC (Cri) 557] the accused\nforcibly     established        sexual       relations     with       the\ncomplainant. When she asked the accused why he\nhad spoiled her life, he promised to marry her. On\nthis   premise,     the    accused         repeatedly    had        sexual\nintercourse       with     the       complainant.        When          the\ncomplainant became pregnant, the accused refused to\nmarry her. When the               matter was       brought to         the\npanchayat, the accused admitted to having had sexual\nintercourse     with     the    complainant      but     subsequently\nabsconded. Given this factual background, the Court\nobserved:"10. It appears that the intention of the\n   accused as per the testimony of PW 1 was, right\n   from the beginning, not honest and he kept on\n   promising that he will marry her, till she became\n   pregnant. This kind of consent obtained by the\n   accused cannot be said to be any consent because\n   she was under a misconception of fact that the\n   accused intends to marry her, therefore, she had\n   submitted to sexual intercourse with him. This fact\n   is also admitted by the accused that he had- 12 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020committed sexual intercourse which is apparent\n   from the testimony of PWs 1, 2 and 3 and before\n   the panchayat of elders of the village. It is more\n   than clear that the accused made a false promise\n   that he would marry her. Therefore, the intention\n   of the accused right from the beginning was not\n   bona fide and the poor girl submitted to the lust of\n   the accused, completely being misled by the\n   accused who held out the promise for marriage.\n   This kind of consent taken by the accused with\n   clear intention not to fulfil the promise and\n   persuading the girl to believe that he is going to\n   marry her and obtained her consent for the sexual\n   intercourse under total misconception, cannot be\n   treated to be a consent."16. Where the promise to marry is false and\nthe intention of the maker at the time of making the\npromise itself was not to abide by it but to deceive\nthe woman to convince her to engage in sexual\nrelations, there is a "misconception of fact" that\nvitiates the woman's "consent". On the other hand,\na breach of a promise cannot be said to be a false\npromise. To establish a false promise, the maker of\nthe promise should have had no intention of\nupholding his word at the time of giving it. The\n"consent" of a woman underSection 375is vitiated\non the ground of a "misconception of fact" where\nsuch misconception was the basis for her choosing\nto engage in the said act.InDeepak Gulati [Deepak\nGulati v. State of Haryana, (2013) 7 SCC 675:(2013) 3\nSCC (Cri) 660] this Court observed: (SCC pp. 682-84,\nparas 21 & 24)- 13 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020"21. ... There is a distinction between the\nmere breach of a promise, and not fulfilling a false\npromise. Thus, the court must examine whether\nthere was made, at an early stage a false promise\nof marriage by the accused; and whether the\nconsent     involved was   given    after    wholly\nunderstanding the nature and consequences of\nsexual indulgence. There may be a case where the\nprosecutrix agrees to have sexual intercourse on\naccount of her love and passion for the accused,\nand not solely on account of misrepresentation\nmade to her by the accused, or where an accused\non account of circumstances which he could not\nhave foreseen, or which were beyond his control,\nwas unable to marry her, despite having every\nintention to do so. Such cases must be treated\ndifferently.***24. Hence, it is evident that there must be\nadequate evidence to show that at the relevant\ntime i.e. at the initial stage itself, the accused had\nno intention whatsoever, of keeping his promise to\nmarry the victim. There may, of course, be\ncircumstances, when a person having the best of\nintentions is unable to marry the victim owing to\nvarious unavoidable circumstances. The "failure to\nkeep a promise made with respect to a future\nuncertain date, due to reasons that are not very\nclear from the evidence available, does not always\namount to misconception of fact. In order to come\nwithin the meaning of the term "misconception of\nfact", the fact must have an immediate relevance".Section 90IPC cannot be called into aid in such a\nsituation, to pardon the act of a girl in entirety,\nand fasten criminal liability on the other, unless\nthe court is assured of the fact that from the very- 14 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020beginning, the accused had never really intended\n     to marry her."(emphasis supplied)17.InUday v. State of Karnataka, (2003) 4\nSCC 46 : 2003 SCC (Cri) 775] the complainant was a\ncollege-going student when the accused promised\nto marry her. In the complainant's statement, she\nadmitted that she was aware that there would be\nsignificant opposition from both the complainant's\nand accused's families to the proposed marriage.\nShe engaged in sexual intercourse with the accused\nbut nonetheless kept the relationship secret from\nher family. The Court observed that in these\ncircumstances the accused's promise to marry the\ncomplainant was not of immediate relevance to the\ncomp l ain an t' s d ecis ion to en g a ge in s ex u al\nintercourse with the accused, which was motivated\nby    other    factors:      (SCCp.58,        para   25)\n\n             "25. There is yet another difficulty\n     which faces the prosecution in this case. In a\n     case of this nature two conditions must be\n     fulfilled for the application ofSection 90IPC. Firstly, it must be shown that the\n     consent was given under a misconception of\n     fact. Secondly, it must be proved that the\n     person who obtained the consent knew, or\n     had reason to believe that the consent was\n     given in consequence of such misconception.\n     We have serious doubts that the promise to\n     marry induced the prosecutrix to consent to\n     having sexual intercourse with the appellant.- 15 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020She knew, as we have observed earlier, that\n  her marriage with the appellant was difficult\n  on account of caste considerations. The\n  proposal was bound to meet with stiff\n  opposition from members of both families.\n  There was therefore a distinct possibility, of\n  which she was clearly conscious, that the\n  marriage may not take place at all despite the\n  promise of the appellant. The question still\n  remains whether even if it were so, the\n  appellant knew, or had reason to believe,\n  that the prosecutrix had consented to having\n  sexual intercourse with him only as a\n  consequence of her belief, based on his\n  promise, that they will get married in due\n  course. There is hardly any evidence to prove\n  this fact. On the contrary, the circumstances\n  of the case tend to support the conclusion\n  that the appellant had reason to believe that\n  the consent given by the prosecutrix was the\n  result of their deep love for each other. It is\n  not disputed that they were deeply in\n  love. They met often, and it does appear that\n  the prosecutrix permitted him liberties which,\n  if at all, are permitted only to a person with\n  whom one is in deep love. It is also not\n  without significance that the prosecutrix\n  stealthily went out with the appellant to a\n  lonely place at 12 o'clock in the night. It\n  usually happens in such cases, when two\n  young persons are madly in love, that they\n  promise to each other several times that\n  come what may, they will get married."(emphasis supplied)18. To summarise the legal position that\nemerges from the above cases, the "consent" of a- 16 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020woman with respect toSection 375must involve an\n      active and reasoned deliberation towards the\n      proposed act. To establish whether the "consent"\n      was vitiated by a "misconception of fact" arising\n      out of a promise to marry, two propositions must be\n      established. The promise of marriage must have\n      been a false promise, given in bad faith and with no\n      intention of being adhered to at the time it was\n      given. The false promise itself must be of\n      immediate relevance, or bear a direct nexus to the\n      woman's decision to engage in the sexual act."13.   The Apex Court, a little later in the case of\n\nDHRUVARAM MURLIDHAR SONAR (supra), while following the\n\nearlier judgment of the Apex Court in the case of UDAY v.STATE OF KARNATAKA reported in (2003)4 SCC 46 and DEELIP\n\nSINGH v. STATE OF BIHAR reported in (2005)1 SCC 88, has\n\nheld as follows:"18.InUday v. State of Karnataka(2003) 4 SCC\n      46 : 2003 SCC (Cri) 775, this Court was considering a\n      case where the prosecutrix, aged about 19 years, had\n      given consent to sexual intercourse with the accused with\n      whom she was deeply in love, on a promise that he would\n      marry her on a later date. The prosecutrix continued to\n      meet the accused and often had sexual intercourse and\n      became pregnant. A complaint was lodged on failure of\n      the accused to marry her. It was held that consent cannot- 17 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020be said to be given under a misconception of fact. It was\nheld thus: (SCC pp. 56-57, paras 21 & 23)\n\n          "21. It therefore appears that the consensus\n   of judicial opinion is in favour of the view that the\n   consent given by the prosecutrix to sexual\n   intercourse with a person with whom she is deeply\n   in love on a promise that he would marry her on a\n   later date, cannot be said to be given under a\n   misconception of fact. A false promise is not a fact\n   within the meaning of the Code. We are inclined to\n   agree with this view, but we must add that there is\n   no straitjacket formula for determining whether\n   consent given by the prosecutrix to sexual\n   intercourse is voluntary, or whether it is given\n   under a misconception of fact.In the ultimate\n   analysis, the testslaid down bythe courts provide\n   at best guidance to the judicial mind while\n   considering a question of consent, but the court\n   must, in each case, consider the evidence before it\n   and the surrounding circumstances, before\n   reaching a conclusion, because each case has its\n   own peculiar facts which may have a bearing on\n   the question whether the consent was voluntary,\n   or was given under a misconception of fact. It\n\n   must also weigh the evidence keeping in view the\n   fact that the burden is on the prosecution to prove\n   each and every ingredient of the offence, absence\n   of consent being one of them.***23. Keeping in view the approach that the\n   court must adopt in such cases, we shall now\n   proceed to consider the evidence on record. In the\n   instant case, the prosecutrix was a grown-up girl\n   studying in a college. She was deeply in love with\n   the appellant. She was, however, aware of the fact- 18 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020that since they belonged to different castes,\n   marriage was not possible. In any event the\n   proposal for their marriage was bound to be\n   seriously opposed by their family members. She\n   admits having told so to the appellant when he\n   proposed to her the first time. She had sufficient\n   intelligence to understand the significance and\n   moral quality of the act she was consenting to.\n   That is why she kept it a secret as long as she\n   could. Despite this, she did not resist the overtures\n   of the appellant, and in fact succumbed to them.\n   She thus freely exercised a choice between\n   resistance and assent. She must have known the\n   consequences of the act, particularly when she\n   was conscious of the fact that their marriage may\n   not take place at all on account of caste\n   considerations. All these circumstances lead us to\n   the conclusion that she freely, voluntarily and\n   consciously consented to having sexual intercourse\n   with the appellant, and her consent was not in\n   consequence of any misconception of fact."19. In Deelip Singh v. State of Bihar, (2005)1 SCC\n88 : 2005 SCC (Cri) 253] , the Court framed the following\ntwo questions relating to consent : (SCC p. 104, para 30)\n\n            (1) Is it a case of passive submission in\n      the face of psychological pressure exerted or\n      allurements made by the accused or was it a\n      conscious decision on the part of the\n      prosecutrix knowing fully the nature and\n      consequences of the act she was asked to\n      indulge in?(2) Whether the tacit consent given by\n      the    prosecutrix   was    the  result of  a\n      misconception created in her mind as to the\n      intention of the accused to marry her?- 19 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020In this case, the girl lodged a complaint with\nthe police stating that she and the accused were\nneighbours and they fell in love with each other.\nOne day in February 1988, the accused forcibly\nraped her and later consoled her by saying that he\nwould marry her. She succumbed to the entreaties\nof the accused to have sexual relations with him, on\naccount of the promise made by him to marry her,\nand therefore continued to have sex on several\noccasions. After she became pregnant, she revealed\nthe matter to her parents. Even thereafter, the\nintimacy continued to the knowledge of the parents\nand other relations who were under the impression\nthat the accused would marry the girl, but the\naccused avoided marrying her and his father took\nhim out of the village to thwart the bid to marry.\nThe efforts made by the father of the girl to\nestablish the marital tie failed. Therefore, she was\nconstrained to file the complaint after waiting for\nsome time.20. With this factual background, the Court\nheld that the girl had taken a conscious decision,\nafter active application of mind to the events that\nhad transpired. It was further held that at best, it is\na case of breach of promise to marry rather than a\ncase of false promise to marry, for which the\naccused is prima facie accountable for damages\nunder civil law. It was held thus : (Deelip Singh v. State- 20 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253] , SCC p.\n106, para 35)\n\n          "35. The remaining question is whether on\n   the basis of the evidence on record, it is\n   reasonably possible to hold that the accused with\n   the fraudulent intention of inducing her to sexual\n   intercourse, made a false promise to marry. We\n   have no doubt that the accused did hold out the\n   promise to marry her and that was the\n   predominant reason for the victim girl to agree to\n   the sexual intimacy with him. PW 12 was also too\n   keen to marry him as she said so specifically. But\n   we find no evidence which gives rise to an\n   inference beyond reasonable doubt that the\n   accused had no intention to marry her at all from\n   the inception and that the promise he made was\n   false to his knowledge. No circumstances emerging\n   from the prosecution evidence establish this fact.\n   On the other hand, the statement of PW 12 that\n   "later on", the accused became ready to marry her\n   but his father and others took him away from the\n   village would indicate that the accused might have\n   been prompted by a genuine intention to marry\n   which did not materialise on account of the\n   pressure exerted by his family elders. It seems to\n   be a case of breach of promise to marry rather\n   than a case of false promise to marry. On this\n   aspect also, the observations of this Court inUdaycase [Uday v. State of Karnataka, (2003) 4 SCC\n   46: 2003 SCC (Cri) 775] at para 24 come to the\n   aid of the appellant."21.InDeepak Gulati v. State of Haryana, (2013)7\nSCC 675:(2013) 3 SCC (Cri) 660], the Court has drawn a\ndistinction between rape and consensual sex.This is a\ncase of a prosecutrix aged 19 years at the time of the- 21 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020incident. She had an inclination towards the accused. The\naccused had been giving her assurances of the fact that\nhe would get married to her. The prosecutrix, therefore,\nleft her home voluntarily and of her own free will to go\nwith the accused to get married to him. She called the\naccused on a phone number given to her by him, to ask\nhim why he had not met her at the place that had been\npre-decided by them. She also waited for him for a long\ntime, and when he finally arrived, she went with him to a\nplace called Karna Lake where they indulged in sexual\nintercourse. She did not raise any objection at that stage\nand made no complaints to anyone. Thereafter, she went\nto Kurukshetra with the accused, where she lived with his\nrelatives. Here too, the prosecutrix voluntarily became\nintimate with the accused. She then, for some reason,\nwent to live in the hostel at Kurukshetra University\nillegally, and once again came into contact with the\naccused at Birla Mandir there. Thereafter, she even\nproceeded with the accused to the old bus-stand in\nKurukshetra, to leave for Ambala so that the two of them\ncould get married at the court in Ambala. At the bus\nstation, the accused was arrested by the police. The Court\nheld that the physical relationship between the parties\nhad clearly developed with the consent of the prosecutrix\nas there was neither a case of any resistance nor had she\nraised any complaint anywhere at any time, despite the\nfact that she had been living with the accused for several\ndays and had travelled with him from one place to\nanother. The Court further held that it is not possible to- 22 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020apprehend the circumstances in which a charge of\ndeceit/rape can be levelled against the accused.****23. Thus, there is a clear distinction between\nrape and consensual sex. The court, in such cases,\nmust     very   carefully     examine      whether    the\ncomplainant had actually wanted to marry the\nvictim or had mala fide motives and had made a\nfalse promise to this effect only to satisfy his lust,\nas the latter falls within the ambit of cheating or\ndeception. There is also a distinction between mere\nbreach of a promise and not fulfilling a false\npromise. If the accused has not made the promise\nwith the sole intention to seduce the prosecutrix to\nindulge in sexual acts, such an act would not\namount to rape. There may be a case where the\nprosecutrix agrees to have sexual intercourse on\naccount of her love and passion for the accused and\nnot solely on account of the misconception created\nby accused, or where an accused, on account of\ncircumstances which he could not have foreseen or\nwhich were beyond his control, was unable to\nmarry her despite having every intention to do.\nSuch cases must be treated differently. If the complainant\nhad any mala fide intention and if he had clandestine\nmotives, it is a clear case of rape. The acknowledged\nconsensual physical relationship between the parties\nwould not constitute an offence underSection 376IPC.- 23 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 202024. In the instant case, it is an admitted position\nthat the appellant was serving as a Medical Officer in the\nPrimary Health Centre and the complainant was working\nas an Assistant Nurse in the same health centre and that\nshe is a widow. It was alleged by her that the appellant\ninformed her that he is a married man and that he has\ndifferences with his wife. Admittedly, they belong to\ndifferent   communities.   It   is   also   alleged   that   the\naccused/appellant needed a month's time to get their\nmarriage registered. The complainant further states that\nshe had fallen in love with the appellant and that she\nneeded a companion as she was a widow. She has\nspecifically stated that "as I was also a widow and I\nwas also in need of a companion, I agreed to his\nproposal and since then we were having love affair\nand accordingly we started residing together. We\nused to reside sometimes at my home whereas\nsometimes at his home". Thus, they were living\ntogether, sometimes at her house and sometimes at\nthe residence of the appellant. They were in a\nrelationship with each other for quite some time\nand enjoyed each other's company. It is also clear\nthat they had been living as such for quite some\ntime together. When she came to know that the\nappellant had married some other woman, she\nlodged the complaint. It is not her case that the\ncomplainant has forcibly raped her. She had taken a\nconscious decision after active application of mind\nto the things that had happened. It is not a case of- 24 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 2020a     passive    submission           in   the   face   of    any\n     psychological pressure exerted and there was a\n     tacit consent and the tacit consent given by her was\n     not the result of a misconception created in her\n     mind.    We     are   of   the   view      that, even    if   the\n     allegations made in the complaint are taken at their\n     face value and accepted in their entirety, they do\n     not make out a case against the appellant. We are\n     also of the view that since the complainant has\n     failed to prima facie show the commission of rape,\n     the complaint registered underSection 376(2)(b)cannot be sustained."14.    On the bed rock principleslaid down bythe Apex\n\nCourt, if the case at hand is considered, the unmistakable\n\ninference would be that proceedings against the petitioner for\n\noffences punishable underSection 376cannot be sustained for\n\nthe reason that the petitioner and the respondent/complainant,\n\nas observed hereinabove, were in love and had a live-in\n\nrelationship for more than 5 years. The narration in the\n\ncomplaint is also to the effect that sincere efforts were made\n\nfor getting the marriage performed but due to certain caste\n\nequations, the marriage could not take place, the case is thus a\n\nbreach of promise of marriage.- 25 -CRL.P No. 2746 of 2020C/W CRL.P No. 2844 of 202015.   In the light of the uncontroverted facts in case at\n\nhand, the narration in the complaint, the summary of the\n\ncharge sheet, or even the statements recorded, would all point\n\nat one instance "a live-in relationship" between the complaint\n\nand the petitioner for over five years and the judgments\n\nrendered by the Apex Court, I deem it appropriate to obliterate\n\nthe proceedings against the petitioners in both the petitions,\n\nfailing which it would become an abuse of process of law and\n\nresult in miscarriage of justice.      For the aforesaid reasons, I\n\npass the following:ORDER1. Petitions are allowed;2. Order dated 20th January, 2020 pursuant to filing\n\n         of charge sheet in Crime No.295 of 2019 of\n\n         Kamakshipalya Police Station, on the file of\n\n         V Addl. C.M.M., Bengaluru is quashed qua the\n\n         petitioner.Sd/-JUDGE\nlnn