IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE JOHN MICHAEL CUNHA CRIMINAL PETITION NO.5061 OF 2014 BETWEEN:
MUKESH S/O SUBBU KRISHNA AGED ABOUT 31 YEARS R/O P C EXTENSION KOLAR AT & DIST 563101 (By SRI: KARTHIK YADAV.V., ADVOCATE FOR SRI: VENKATA REDDY S K, ADVOCATE) AND 1. STATE OF KARNATAKA BY KOLAR TOWN POLICE KOLAR 563 101 2. SHALINI AGED ABOUT 27 YEARS D/O LATE M RAMAKRISHNAPPA, R/AT 1ST MAIN ORAD GANDHI NAGAR KOLAR 563 101 ... PETITIONER ... RESPONDENTS (BY SRI: VIJAYA KUMAR MAJAGE, ADDL. SPP FOR R1 SRI: N.SRIRAM REDDY, ADVOCATE FOR R2-ABSENT) THIS CRL.P IS FILED U/S.482 CR.P.C PRAYING TO PASS AN ORDER, QUASHING THE COMPLAINT AND FIR IN CRIME NO.219/2014 FOR THE OFFENCES PUNISHALBE UNDER SECCTIONS 493, 420 IPC AND SEC.3(1)(xii) & 3(2)(v) OF SC/ST (PREVENTION OF ATROCITIES) ACT, ON THE FILE OF THE II ADDL. DISTRICT AND SESSIONS JUDGE, KOLAR, TO STALL THE ABUSE OF PROCESS OF COURT, IN THE INTEREST OF JUSTICE.
THIS CRL.P COMING ON FOR HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
O R D E R Initially, the petitioner had sought to quash the FIR in Cr.No.219/2014 registered for the offences punishable under sections 493, 420 of Indian Penal Code and sections 2(v), 3(xii) and 3(i) of The Scheduled Castes and the Scheduled Tribes(Prevention of Atrocities) Act, 1989(for short ‘the Act’).
2. During the pendency of this petition, respondent police submitted a charge sheet against the petitioner for the offences punishable under section 376 r/w 420 Indian Penal Code and under Sections 3(ii), 3(v) of the Act. Charge under Section 493 Indian Penal Code is dropped in the charge sheet.
3. Learned counsel for the petitioner submits that much earlier to the registration of the FIR against the petitioner, respondent No.2/complainant had filed a complaint before the very same police on 21.07.2014. Said FIR was registered in Cr.No.157/2014. In the said complaint, she did not make any allegations of forcible intercourse or false promise. In the said complaint, the allegation was confined to the fact that she had advanced a sum of Rs.3.00 lakhs to the petitioner and the same was not repaid to her. On the very same day, the petitioner returned the said amount of Rs.3.00 lakhs paid by respondent No.2 and the complaint was closed. The instant complaint is filed on 3.8.2014. In the said complaint, it is stated that respondent No.2/complainant was subjected to forcible intercourse since 21.08.2008. It is the submission of the learned counsel that according to the complainant, on 20.09.2012, the petitioner herein had tied ‘thali’ to her neck and had married respondent No.2. In the said circumstances, charge of rape cannot stand. Further, the allegations made in the complaint, even if accepted on their face value, may at the most, go to show that there was breach of promise to marry and not forcible rape as alleged by the prosecution and hence, the prosecution of the petitioner for the alleged offence under Section 376 Indian Penal Code and consequently for the offence under Section 3 (ii) (v) of the Act are legally not tenable and amounts to abuse of process of Court.
4. In support of his submission, learned counsel has placed reliance on the decision of the Hon’ble Supreme Court in DR. DHRUVARAM MURLIDHAR SONAR vs. STATE OF MAHARASHTRA AND OTHERS, reported in AIR 2019 SC 327.
5. Refuting the submissions, learned Addl. SPP appearing for respondent No.1 however has argued in support of the impugned charge sheet contending that the material collected by the Investigating agency prima-facie constitute the ingredients of the offence punishable under section 376 Indian Penal Code. Respondent No.2 has narrated the manner in which she was subjected to forcible intercourse. The allegations made in the complaint are substantiated by her statement and other corroborating evidence and hence, there is a clear case for prosecution of the petitioner.
Learned counsel for respondent No.2 is absent. Considered the submissions and perused the records.
6. A reading of the complaint indicates that respondent No.2- complainant came in acquaintance with the petitioner about eight years earlier to the lodging of the complaint. According to her, she was taken to the house of the petitioner on 21.08.2008 and was subjected to forcible rape. Even thereafter she continued her relationship with the petitioner and even advanced a huge sum of Rs.3.00 lakhs to the petitioner as reflected in the complaint lodged by her in Cr.No.157/2014 dated 21.07.2014. In the said complaint, she did not make any allegation of forcible rape or false promise of marriage. On the other hand, she asserted that she came in acquaintance with the petitioner about seven years earlier while she was doing her beautician course. In this complaint, she has not even remotely referred to the alleged instance of rape or false promise of marriage. It is only after receipt of money advanced by her to the petitioner, she has come up with the allegation that on the false promise of marrying her, the petitioner subjected her to sexual intercourse. But in the same breath, she has stated that on 20.09.2012, she was taken to Prasanna Venkateshwara Temple, Chikkatirupathi and the petitioner tied ‘thali’ around her neck and promised her to take to his house. If this statement is believed, it goes to show that as on the date of lodging of the complaint dated 21.07.2014, already a customary marriage was entered into between the petitioner and the respondent.
7. In this context, it may be apposite to refer to the observations made by the Hon‘ble Supreme Court in para 20 of the decision relied on by the learned counsel for the petitioner in DR. DHRUVARAM MURLIDHAR SONAR vs. STATE OF MAHARASHTRA AND OTHERS, reported in AIR 2019 SC 327, which is extracted hereinbelow:-
“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 mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later 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 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. 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.”
8. In the light of the above observation, if the averments made in the F.I.R are perused, it is worthwhile to note that the grievance of the complainant was that the petitioner made a false promise of marrying her and continued sexual intercourse with her. But the sequence of events narrated by her in the complaint indicate that even after said promise of marriage, she continued her relationship with the petitioner. These circumstances clearly indicate that on her own accord, she continued her relationship with the petitioner. Under the said circumstances, it is difficult to believe that the alleged acts of sexual intercourse between the parties were committed against the wish and consent of respondent No.2, attracting the provision of Section 376 Indian Penal Code.
9. In identical set of facts in the case of Shivshankar @ Shiva referred above, the Hon’ble Supreme Court has observed that the complaint therein pretended to have loved the victim on the promise of marriage and he applied Kumkum on her forehead and tied the Arishina thread on her neck. She has further stated that she has been treating the appellant viz., the accused therein as her husband for the past eight years and thereafter the accused therein tried to escape from her and cheated her. In the light of the above facts, Hon’ble Supreme Court has held that in the facts and circumstances of the said case, it was difficult to sustain the charges levelled against the appellant who may have possibly, made a false promise of marriage to the complainant.
10. Even in the instant case, on considering the overall facts and circumstances of the case, respondent No.2 seems to have been aggrieved by the breach committed by the petitioner in keeping to the promise of marriage made to her and not on account of the alleged sexual intercourse by the petitioner. As a result, the charges levelled against the petitioner on the face of it appears to be false, malafide and obliquely motivated. Under the said circumstances, continuation of criminal proceedings against the petitioner, in my opinion, would be nothing but abuse of process of Court. Hence, in order to secure the ends of justice, the petition deserves to be allowed.
Accordingly, the petition is allowed. The proceedings initiated against the petitioner for the alleged offences under Section 376 r/w 420 Indian Penal Code and Sections 3(ii) (v) of the Act now pending in Spl. S.C.No.7/2014 on the file of II Addl. District & Sessions Judge, Kolar is hereby quashed.
Sd/- JUDGE *mn/-