IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 11TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE B.A. PATIL CRIMINAL REVISION PETITION NO.596/2018 BETWEEN:
STATE OF KARNATAKA BY MICO LAYOUT POLICE STATION BENGALURU, REP. BY STATE PUBLIC PROSECUTOR HIGH COURT BUILDING BENGALURU – 01 …...PETITIONER (BY SRI V.M.SHEELVANTH, SPP – 1 AND SRI M. DIVAKAR MADDUR, HCGP.) AND:
JATIN CHHABRIA S/O. VIJAY CHHABRIA AGED ABOUT 27 YEARS R/AT. NO.1201, ‘A’ BLOCK CONCORD APARTMENT NEELADRI ROAD ELECTRONIC CITY BENGALURU – 560 100 NATIVE PLACE:
NO.2/3, NEW RAJENDRANAGAR SECTOR – 7, RAYPUR DISTRICT CHATTISGHAD STATE …RESPONDENT (BY SRI SHYAM SUNDER BAJPEKAR, ADV.) THIS CRIMINAL REVISION PETITION IS FILED UNDER SECTIONS 397 R/W. 401 OF CR.P.C. PRAYING THAT THIS HON’BLE COURT MAY BE PLEASED TO SET ASIDE THE JUDGMENT AND ORDER DATED 11.10.2017 PASSED IN S.C.NO.446/2017 PASSED BY LIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU DISCHARGING THE ACCUSED / RESPONDENT HEREIN FOR THE OFFENCE P/U/Ss.376 AND 420/417 OF IPC ETC.
THIS CRIMINAL REVISION PETITION COMING ON FOR FINAL HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This petition has been filed by the State being aggrieved by the order dated 11.10.2017 passed by the 53rd Additional City Civil and Sessions Judge, Bengaluru, in S.C.No.446/2017, whereunder, the application filed by the respondent – accused under Section 227 Cr.P.C. came to be allowed and the accused is discharged from the offences punishable under Sections 376 and 420/417 of IPC.
2. I have heard the learned State Public Prosecutor for the petitioner – State and learned counsel for the accused.
3. The factual matrix of the case are that, on 11.02.2016, complainant filed a complaint at Samata Nagar Police Station, Mumbai. On the basis of the jurisdiction, the said complaint was transferred to the Mico Layout Police Station, Bengaluru. It is alleged in the complaint that the victim is resident of Bombay and she got married with one Mr. Kumar Gaurav on 24.05.2014. Because of difference of opinion, she started residing separately in Bengaluru as she was working in City Bank. It is further alleged that the accused was a co-employee in the said Bank. He came in contact with her and thereafter, they became good friends. The accused started showing his love towards the complainant and proposed to marry her. It is further alleged that he used to visit the house of the complainant and has slept overnight at her place. It is further alleged that when he was staying so, he used to subject her under the influence of certain drugs and intoxicants and thereafter, he used to have sexual intercourse against her will. Such incidents have taken place on number of occasions and in that light, the complaint has been filed. The investigation officer after investigating the case filed the charge sheet against the accused for the offences punishable under Sections 328, 354, 420 and 376 of IPC. Thereafter, the learned Magistrate took the cognizance and committed the case to the Sessions Court. The Sessions Court secured the presence of the accused and hence, the case was posted for hearing before charge. The accused filed an application for discharge on various grounds. The said application was objected by the prosecution and after hearing the learned counsel for the parties, the trial Court discharged the accused by impugned order. Challenging the legality and correctness of the said judgment and order, the State is before this Court.
4. The main grounds urged by the learned State Public Prosecutor for the petitioner – State are that, the learned Sessions Judge without looking into the factual matrix has wrongly exercised the power conferred on it and has discharged the accused. The trial Court ought to have ascertained the facts whether there exists a strong suspicion with regard to the allegations made against the accused. Inspite of that, it has held a mini trial and on various grounds, the trial Court has erroneously passed the impugned order. It is his further contention that the complaint itself clearly goes to show that the accused used to come to the house of the complainant and by giving her drink and intoxicating her he used to have sex, which clearly goes to show that the said act of the accused is not a consensual sex and it is against her will. It is his further submission that the accused was knowing fully well that she is married and under the influence of pills, he used to have a physical contact. It is his further submission that the Court below has to ascertain whether the accused has any intention or not and whether the consent given by the victim is a free consent or not, which are the matters, which have to be considered and appreciated only at the time of leading the evidence. It is his further submission that, though he relied upon the decision of the Hon’ble Supreme Court in the case of Uday Vs. State of Karnataka reported in 2003 Part 4 SCC 46 but in the said judgment itself, it has been held that there is no strait jacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. Without looking into such ratio, the Court below has come to a wrong conclusion and has wrongly discharged the accused.
5. It is the specific contention of the learned counsel for the accused that it is a consensual sex. If a prosecutrix gives the consent relying upon the false promise of marriage by the accused, under such circumstance it amounts to nothing but consent given under misconception and as such, consent can excuse the accused from the charge of rape. In order to substantiate his contention he relied upon the decision in the case of Anurag Soni Vs. State of Chhattisgarh reported in AIR 2019 SC 1857. It is his further submission that the matter of evidence cannot be looked into at the stage of discharge application. He further submitted that while looking into the said factual matrix, the trial Court has erroneously discharged the accused. On these grounds, he prays to allow the petition by setting aside the impugned order of the trial Court.
6. Per contra, learned counsel appearing on behalf of the respondent - accused vehemently argued and contended that as there is no prima facie material to proceed with the trial, the accused has filed the application for discharge. It is his further submission that though the charge sheet has been filed for the offences punishable under Sections 320, 354, 420 and 376 of IPC but subsequently, Sections 328 and 354 of IPC have been dropped. When Section 328 of IPC has been dropped, it itself indicates the fact that she has not been administered with any drugs or intoxicants and question of he had a physical contact at the time of intoxication does not arise at all. It is his further submission that, the contents of the complaint and other materials clearly go to show that she do not know the exact date of the incident. In the complaint, she has vaguely stated that alleged incident has taken place between 01.09.2014 and 08.09.2015 and subsequently, she has filed a correction petition and she wants to incorporate the new dates. It is his further submission that the prosecutrix is aged about 27 years and a married woman. Knowing the consequence, even though as per the complaint the alleged incident has taken place between 01.09.2014 and 08.10.2015, the complaint was registered in the year 2016. There is a delay in filing the complaint. It is his further submission that all the materials which have been produced clearly go to show that it is not a rape as contemplated under Section 375 of IPC. At the most, it amounts to nothing but a consensual sex. In this behalf, he relied upon the decision of the Hon’ble Supreme Court in the case of Dr. Dhruvaram Muralidhar Sonar Vs. State of Maharashtra and Another reported in 2018 SCC Online 3100.
7. It is his further submission that if the hymen is absent then under such circumstances, it clearly goes to show that the said act is a consensual act and the consent was voluntary and not under the misconception of fact. He further submitted that she wanted the position and felt that she has not succeeded to the said need, with wreck vengeance she has filed the complaint. It is his further submission that she has entered into such an act, knowing fully well about the consequences. She has entered at her own peril and the accused was not at fault. He further submitted that the statement recorded under Sections 161 and 164 of Cr.P.C. and other records clearly go to show that there is inconsistency in the said statement. It is his further submission that mere breach of promise will not amount to offence punishable under Section 420 of IPC. It is his further submission that no captivity has been alleged and materials in this behalf have not been produced. If at all any such alleged incident has taken place, under such circumstance, the complainant ought to have filed the complaint after the alleged incident and that every breach of promise to marry cannot be said as cheating or rape. In order to substantiate such contention he has relied upon the decision of the Hon’ble Bombay High Court in the case of Mrs. Sonali Alfred Jadhav Vs. the State of Maharashtra reported in 2014 SC Online Bom 348. It is the further submission that the every breach of promise to marry cannot be said to be either a cheating or rape. If such material is not produced before the Court then under such circumstance, the accused is entitled for discharge. In order to substantiate his contention he relied upon the decision in the case of Pramod Suryabhan Pawar Vs. State of Maharashtra and Another reported in AIR 2019 SC 4010. It is his further submission that the trial Court after taking into consideration, the material available has come to the conclusion that there is a prima facie material to discharge the accused. It is his further submission that where the materials placed before the Court discloses grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. He further submitted that when there is no any substantial material, the Court below has rightly discharged the accused. There is no good ground to interfere with the order of the trial Court. The order of the trial Court deserves to be confirmed. On these grounds he prays to dismiss the petition.
8. I have carefully and cautiously gone through the submissions of the learned counsel appearing for the parties and perused the records.
9. Before going to consider the points which have been raised by the learned counsel appearing for the parties, what are the matters to be considered and extent of enquiry permissible on the part of the Court while considering the application under Section 227 of Cr.P.C. has to be taken into consideration.
10. It is well proposed proposition of law that while considering the application under Section 227 of Cr.P.C., the Court below has got undoubted power to sift and weigh the evidence for a limited purpose to finding out as to whether there is a prima facie case as against the accused to proceed against him to frame the charge? The test to determine a prima facie case would naturally depend upon the facts of each case and no straight jacket formula or universal law can be made in this behalf.
11. It is further observed that the Court has to see whether there is a prima facie case as against the accused or not? If two views are equally possible, one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the Judge is justified in discharging him. While exercising such power, the Court has to apply its judicial mind and to determine as to whether a case for trial has been made out or not? At the same time, it is also held that the trial Court is not supposed to hold a mini trial by marshalling the evidence on record. All these proposition of law has been laid down in catena of decisions of the Hon’ble Apex Court. For the purpose of brevity, I quote two decisions of the Hon’ble Apex Court. In the case of UNION OF INDIA Vs. PRAFULLA KUMAR SAMAL AND ANOTHER reported in (1979) 3 SCC 4 at paragraph No.10 it has been observed as under:
“10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.”
12. The said proposition of law as stated above has been reiterated in the case of Asim Shariff Vs. National Investigation Agency reported in (2019) 7 SCC 148 at paragraph No.18 it has been observed as under:
“18. Taking note of the exposition of law on the subject laid down by this Court, it is settled that the Judge while considering the question of framing charge under Section 227 CrPC in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are possible and one of them giving rise to suspicion only, as distinguished from grave suspicion against the accused, the trial Judge will be justified in discharging him. It is thus clear that while examining the discharge application filed under Section 227 CrPC, it is expected from the trial Judge to exercise its judicial mind to determine as to whether a case for trial has been made out or not. It is true that in such proceedings, the court is not supposed to hold a mini trial by marshalling the evidence on record.”
13. Keeping in view the above said proposition of law, the factual matrix of the case if they have been looked into, it is alleged in the complaint that the complainant is married to one Mr. Kumar Gaurav and there were some difference of views between him and the complainant. When she started residing at Bengaluru, she came in contact with her colleague – accused, they become close friends. It is her further contention that the accused used to stay there and the complainant was influenced with certain drugs and intoxicants and thereafter, he used to have physical contact with her. Admittedly, the complainant is aged 27 years at the time of alleged incident and she was working in a City Bank. It is also alleged in the complaint that the said incident has taken place in between 01.09.2014 to 08.10.2014. It is admitted fact that Sections 328 and 354 of IPC have been dropped as against the accused and the State has not challenged the said order of dropping of the said offences. When Section 328 of IPC has been dropped, under such circumstance, the accused used to subjecting her to influence of certain drugs and intoxicants and thereafter, he used to have a physical contact with her cannot be believed at all.
14. Be that as it may. Section 375 of IPC defines what would mean by rape. For the purpose of brevity, I quote Section 375 of IPC, which reads as under:
“375. Rape.- A man is said to commit “rape” if he-
(a) penetrates his penis, to any extent, into the vagina, mouth, urthra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:-
First.- Against her will. Secondly.-With her consent.
Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.
Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.
Fifthly.- With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.”
15. On going through the above said Section, the said act of the accused will not fall in any one of the description stated in the said Section. Even, if the 4th clause is taken into consideration, it is not having any ingredients so as to attract the said provision and it is not a case of the complainant that she has been put to captivity and he had a physical contact with her.
16. It has been alleged in the complaint that the accused promised her to marry and had a physical contact but admittedly, she being a married women she does not wanted to contact the accused. Even the statement recorded under Section 164 of Cr.P.C clearly goes to show that she has expressed her desire to have a physical contact only after the divorce.
17. The subsequent conduct if it is taken into consideration, after the transfer of accused to Bombay, the complainant along with her parents, sister and other relatives went to the place of the accused. That itself clearly goes to show that only with an intention to harass and to take a revenge, she has filed a complaint only with Samtanagar police station. If really, there was no consent as contended in the complaint, under such circumstance, nothing was prevented her to file a complaint when the alleged incident has taken place in the month of September – 2014. Admittedly, the complaint has been registered on 19.12.2015, there is a delay of one year three months. Even other records also go to show that the complaint has been filed belatedly. She has been got examined by the Doctor after two months of the complaint. When she is a married women, then under such circumstance, there was no scope for accused to marry the prosecutrix. Hence, obtaining the consent of the prosecutrix either on mis-conception or false promise of marrying her also does not arise at all so as to come to the conclusion that the accused has committed offence, which is punishable under Section 420 of IPC.
18. All the material if they have been seen together, prima-facie, it clearly goes to show that if at all any physical contact is there in between the complainant and the accused, it is nothing but a consensual sex. Even it has been brought on record that during the course of investigation, as per the say of the complainant, her husband is impotent. If it is the fact, under such circumstance, because of suitability, physical and psychological comfort and because of biological urge or requirement, she might have co-operated with the accused, if facts are taken into consideration then under such circumstance, it supports the case of the accused.
19. To establish whether the consent was vitiated by a mis-conception 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. This proposition of law has been laid down in the case of Pramod Suryabhan Pawar quoted supra at paragraph Nos.14, 16 and 18, it has been observed as under: AIR 2019 SC 4010 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 Chhattisgarh9, 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 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 inDeepak Gulati v. State of Haryana10 (“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. InDeepak 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 misrepresentation made to her by the 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.
… 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 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.”
20. On going through the records, prima facie, the facts indicate that there is no material to show that the accused has made a false promise and on the basis of the false promise, they had a physical relationship.
21. Be that as it may. Even on plain reading of the complaint, it indicates that the accused promised to marry the complainant, whether he was having any intention to deceive her and whether the complainant was aware that there exists obstacle to marry the accused? in-spite of knowing all these facts, she has engaged in physical relationship. These are all the factors, they are looked into, there is no material to hold that with the false promise, they had a physical contact.
22. Looking from any angle and as stated in the above said decisions, it clearly goes to show that it is only a consensual sex nothing more than that and the State has not made out any good grounds so as to interfere with the order of the trial Court.
23. I have carefully and cautiously gone through the order of the trial Court.
24. Though the discussion held by the trial Court is like holding a mini trial, by and large prima facie if it is looked into, the said order is neither perverse nor illegal so as to interfere with the said order. Accordingly, the said order is liable to be confirmed.
25. In the light of the discussions held by me above, the revision petition is being devoid of merits, the same is liable to be dismissed and accordingly, it is dismissed.
Sd/- JUDGE nvj/VBS