IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25th DAY OF JANUARY 2019 BEFORE THE HON’BLE Mr. JUSTICE ARAVIND KUMAR CRIMINAL PETITION No.6203/2017 BETWEEN:
Deepak Kumar Meher, S/o.Chaturbhuja Meher, Aged about 28 years, R/at Flat No.207, Chitrakuta Dhama-1, Opp.Bagmini Tech Park, C.V.Raman Nagar, Bengaluru-560 093.
(By Sri.Vivek Reddy, senior counsel for Sri.K.N.Subba Reddy, Advocate) ...Petitioner AND:
State of Karnataka, By Halasuru Police Station, Bengaluru-560 008.
...Respondent (By Sri.S.Chandrashekharaiah, HCGP for R-1, R-2 served and unrepresented) This Criminal Petition is filed under Section 482 Cr.P.C., praying to quash the entire proceedings in S.C.No.1354/2016 (Cr.No.230/2016) pending on the file of Addl. City Civil and Sessions Judge, Bengaluru.
This Petition coming on for admission, this day, the Court made the following:-
ORDER Though matter is listed for admission, by consent of learned advocates appearing for parties, it is taken up for final disposal.
2. Second respondent lodged a complaint on 16.06.2016 in the first respondent-Police Station against petitioner alleging that she and petitioner are related to each other and on account of close proximity with him, they started meeting each other which culminated into developing physical relationship. She has further stated that petitioner had refused to marry her and thereby cheated her. Hence, she sought for action being taken against petitioner. Said complaint came to be registered in Crime No.230/2016 against the petitioner for the offence punishable under Sections 376 and 420 of IPC and after investigation, chargesheet has been filed in S.C.No.1354/2016 for said offences. Hence, petitioner is before this Court for quashing of said proceedings.
3. I have heard the arguments of Sri.Vivek Reddy, learned senior counsel appearing on behalf of the petitioner, learned High Court Govt. Pleader appearing for first respondent. Though Respondent No.2 is served, she has remained unrepresented.
4. It is the contention of the learned senior counsel that complaint in question is based on erroneous facts and there has been no proper investigation conducted to ascertain as to whether complainant was examined which indicated there has been any recent sexual intercourse. He would also submit that ingredients of Sections 376 and 420 of IPC are not to be found by a bare reading of the complaint. As such, continuation of the proceedings against petitioner would be oppressive and prays for quashing of the proceedings. He would elaborate his submissions by contending that FSL certificate which is part of the chargesheet material would indicate that spermatozoa was not detected on vaginal smear and as such, the ingredients of Section 376 is not attracted. Learned counsel would submit that there is material inconsistency between the allegation made in the complaint and the medical evidence and hence, he prays for quashing of the proceedings. He would rely upon the Judgment of the Hon’ble Supreme Court in the matter of DR.DHRUVARAM MURLIDHAR SONAR v/s. THE STATE OF MAHARASHTRA & ORS. in Criminal Appeal No.1443/2018 disposed of on 22.11.2018 in support of his argument. Hence, he prays for allowing the petition and prays for quashing of the proceedings pending against petitioner in S.C.No.1354/2016.
5. Per contra, learned High Court Govt. Pleader appearing for 1st respondent would vehemently oppose the proceeding being quashed by contending that as to whether the ingredients alleged in the complaint is present or not is a matter which will have to be thrashed out after trial and at this stage, exercise of inherent jurisdiction to quash the proceedings is not called for. Hence, he prays for dismissal of the petition.
6. As already noticed herein above, 2nd respondent is served and unrepresented. Chargesheet which has been filed against the petitioner is for the offences punishable under Sections 376 and 420 of IPC. Section 376(1) prescribes the punishment for the offence of rape and Section 375 defines the offence of rape. The Hon’ble Apex Court in the case of DR.DHRUVARAM MURLIDHAR SONAR referred to supra, while examining the plea of the prosecution to proceed against the accused therein for the offence punishable under Section 376(2)(b), has examined these provisions including Section 90 of IPC which refers to explain “consent” in the background of the plea of the accused in the said case which was to the effect that it was consensual sex and having referred to earlier Judgments, Apex Court held that there is a clear description between ‘rape’ and ‘consensual sex’. It is further held that Court in each case will have to carefully examine whether the accused had actually wanted to marry the complainant-victim, had malafide 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 it has been held, if the accused had not made promise to marry her to indulge in sexual act, such an act would not amount to rape. It came to be held:
20. 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 malafide 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 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 by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do so. 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 of the IPC.
21. 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 some time 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 to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained.
7. In this background, when the complaint in question is perused, it would indicate that complainant only states that the petitioner had started behaving as being boy friend and as such, they started to keep physical relationship. Even according to the complainant, petitioner is not a stranger. In fact she admits that he is her relative. However, complainant does not state that she was forced to have sexual relation with him or the petitioner having induced her to have physical relationship with her under the guise of marrying her at a future date. On the other hand, allegations made in the complaint would indicate that by consent, petitioner and second respondent had physical relationship and later on, she had suggested to the accused to get married to her, which is said to have been refused by the petitioner. As held by the Hon’ble Apex Court in DR.DHRUVARAM MURLIDHAR SONAR case referred to supra, a clear distinction would be there between rape and consensual sex. In the instant case, a plain reading of the complaint would indicate that complainant and the petitioner had consensual sex or in other words, the physical relationship they had was by consent and at the point of time when they had physical relationship, there was no inducement or promise by the petitioner to the complainant and there is no such allegation made in the complaint. In that view of the matter, this Court is of the considered view that dicta laid down by Apex Court in DR.DHRUVARAM MURLIDHAR SONAR’s case referred to supra would be squarely applicable to the facts on hand.
8. Hence, the following order:
Criminal Petition is hereby allowed. Proceedings pending in S.C.No.1354/2016 on the file of Principal City Civil and Sessions Judge, Bengaluru, is quashed and petitioner is acquitted for the offences under Sections 376 and 420 of IPC.
SD/- JUDGE bnv*