1

Reserved on : 06.01.2026

Pronounced on : 19.01.2026

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 19

TH

DAY OF JANUARY, 2026

BEFORE

THE HON'BLE MR. JUSTICE M. NAGAPRASANNA

CRIMINAL PETITION No.1225 OF 2025

C/W

CRIMINAL PETITION No.2826 OF 2025

IN CRIMINAL PETITION No.1225 OF 2025

BETWEEN:

XXXX

XXXX

XXXX

XXXX

... PETITIONER

(BY SRI ABHISHEK KUMAR., ADVOCATE)

AND:

1 . THE STATE OF KARNATAKA

BY BYADARAHALLI POLICE,

REPRESENTED BY

STATE PUBLIC PROSECUTOR,

HIGH COURT

R

2

BENGALURU – 560 001.

2 . XXXX

XXXX

XXXX

... RESPONDENTS

(BY MISS.ASMA KOUSER, ADDL.SPP FOR R-1;

SRI AKSHAY R.HUDDAR, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF

BNSS, 2023, PRAYING TO QUASH THE FIR AND COMPLAINT IN

CR.NO.789/2024, BY THE BYADARAHALLI POLICE, WHICH I S

PENDING BEFORE THE CHIEF JUDICIAL MAGISTRATE (CJM)

BANGALORE RURAL DISTRICT, BANGALORE, THE FIR ALLEGE S

OFFENCES P/U/S 3(5), 318(2), 351(2), 69, 89, 64(2)( m) OF BNS,

2023.

IN CRIMINAL PETITION No.2826 OF 2025

BETWEEN:

1 . SMT. MALA R.,

D/O RAJESH KUMAR

AGED ABOUT 34 YEARS.

2 . SRI MURTHY T.V.,

S/O LATE K.VENKATAPPA

AGED ABOUT 48 YEARS

BOTH ARE R/AT

TARABANAHALLI VILLGE

CHIKKA JALA HOBLI

YELAHANKA TALUK

BENGALURU RURAL DISTRICT – 560 064.

... PETITIONERS

(BY SRI PUNITH C., ADVOCATE)

3

AND:

1 . THE STATE OF KARNATAKA

BY BYADARAHALLI POLICE

BENGALURU RURAL DISTRICT

REPRESENTED BY SPP

HIGH COURT BUILDING

BENGALURU – 560 001.

2 . XXXX

XXXX

XXXX

... RESPONDENTS

(BY MISS.ASMA KOUSER, ADDL.SPP FOR R-1;

SRI AKSHAY R.HUDDAR, ADVOCATE FOR R-2)

THIS CRIMINAL PETITION IS FILED UNDER SECTION 528 OF

BNSS, PRAYING TO QUASH THE FIR IN CR.NO.789/2024 FO R THE

OFFENCES P/U/S 3(5), 318(2), 351(2), 69, 89, 64(2)( m) OF BNS

ACT, 2023 AS PER ANNEXURE-A AND B BY THE RESPONDENT -

BYDARAHALLI POLICE, NOW PENDING ON THE FILE OF LEAR NED

CHIEF JUDICIAL MAGISTRATE, BANGALORE RURAL DISTRICT AT

BANGALORE, BY ALLOWING THE ABOVE PETITION.

THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND

RESERVED FOR ORDERS ON 06.01.2026, COMING ON FOR

PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWIN G:-

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CAV ORDER

Criminal Petition No.1225 of 2025 is filed by accused No.1

and the companion petition in Criminal Petition No.2826 of 2025 is

filed by accused Nos. 2 and 3. These petitioners ch allenge a

common crime in Crime No.789 of 2024. The complaina nt is

common. Therefore, these petitions are taken up to gether and

considered by this common order.

2. For the sake of convenience, the facts obtaining in Criminal

Petition No.1225 of 2025 would be narrated. In this order, accused

No.1 would be referred as the petitioner, for easy reference.

3. Facts, in brief, germane are as follows: -

3.1. The petitioner is said to be in relationship with the

complainant. Accused 2 and 3 in the companion petit ion are the

relatives of accused No.1. It is the averment in the petition that

the 2

nd

respondent/complainant is a resident of Anjananaga ra for

CORAM: THE HON'BLE MR JUSTICE M.NAGAPRASANNA

5

the last 4 to 5 years and her marriage had taken place 10 years ago

with a particular person and the complainant has a child born from

the said wedlock. In the year 2014, the averment in the petition is

that the complainant again married one Yathish Kumar T.R. and the

said marriage got dissolved in the year 2020 and fr om the said

wedlock she has a child of 4 years now. In the yea r 2020, it

appears that she gets acquainted with the present p etitioner, a

practicing Advocate in a case pertaining to Negotiable Instruments

Act. The complainant alleges that during the conversation with the

petitioner, he took the telephone number of the com plainant and

began conversation. The conversation turned into personal and the

petitioner thereafter in the year 2022 sent a frien d request on

Instagram of the complainant and also made phone ca ll to the

complainant requesting her to accept his request. Accordingly,

friendship between the complainant and the petition er developed

and the friendship further blossomed into having ph ysical

relationship as well.

3.2. The petition further narrates that in the month of July

2023 the petitioner came to the house of the compla inant and

6

expressed that he is willing to marry her and on th e pretext of

marriage has had physical relationship which continued thereafter

and on the breach of said promise of marriage, the complainant

registers a complaint before the jurisdictional Police on 09-12-2024

not only against the petitioner but also against relatives of the

petitioner. Registration of crime has driven the petitioners to this

Court in the subject petitions.

4. Heard Sri Abhishek Kumar, learned counsel for t he

petitioner/accused No.1, Sri Punith C, learned counsel appearing for

the petitioners/accused 2 and 3; Ms. Asma Kouser, l earned

Additional State Public Prosecutor appearing for respondent No.1 in

both the petitions and Sri Akshay R. Huddar, learne d counsel

appearing for respondent No.2/complainant in both the petitions.

SUBMISSIONS :

PETITIONER’S:

5. The learned counsel appearing for the petitione rs would

vehemently contend that there is no physical relationship between

the petitioner and the 2

nd

respondent/complainant at all. It is all

7

concocted story which the complainant is used to. H e would

contend that the complainant is already married not once but twice,

and a person who is already married cannot project physical

relationship on the promise of marriage. He would submit that the

complainant is in the habit of indulging in such acts of trapping

every man and registering crimes against them. He w ould submit

that if further proceedings are permitted to be continued, it would

become an abuse of the process of law. To buttress his

submissions, he takes this Court through the docume nts appended

to the petition to demonstrate marriage of the complainant with one

Yathish Kumar T. R. and proceedings of annulment of marriage with

Yathish Kumar T. R. and a crime being registered fo r offences

punishable under Section 363 of the IPC when the ch ild that the

complainant had from the first marriage who was by then 13 years

old goes missing, only to contend that the complain ant who was

married not once but twice, is wanting to project that the petitioner

has had physical relationship with the complainant on the promise

of marriage. He would submit that there is neither physical

relationship nor promise of marriage.

8

COMPLAINANT AND STATE:

6. Contrariwise, the learned counsel appearing for the 2

nd

respondent/complainant would vehemently refute the submissions

in contending that the crime is registered only on 09-12-2024. The

investigation should be permitted to continue. It is only then the

truth will come out. The petitioner has had relationship with the

complainant as an Advocate and a client for the last 3 years prior to

registration of crime. The physical relationship h ave happened

between the two on the pretext of promise of marria ge. The

complainant, though is married, came in contact with the petitioner

on divorce. In the light of her being single, all possibilities of

physical relationship on the pretext of marriage ca n spring. It

cannot be said that the crime should be nipped in the bud.

7. The learned Additional State Public Prosecutor Ms. Asma

Kouser would toe the lines of the learned counsel f or the

complainant in contending that the crime must not b e obliterated

and at the outset investigation should be permitted in the case at

hand.

9

8. The learned counsel for the petitioner would no w join issue

to contend that divorce between Yatish Kumar.T.R. a nd the

complainant though has happened in the year 2020, t hey are still

living together. He would take this Court through the documents

and the photographs to demonstrate that they are living together.

Therefore, he would submit that all the narration o f physical

relationship on pretext of marriage is a figment of imagination of

the complainant.

9. I have given my anxious consideration to the su bmissions

made by the respective learned counsel and have per used the

material on record.

CONSIDERATION:

10. The relationship of the parties to the lis are as narrated

hereinabove covering both these petitions. The facts, dates and link

in the chain of events are again not in dispute. It would suffice if

the narration would commence from the complainant g etting

married to one Yathish Kumar T. R. The marriage be tween the

complainant and Yathish Kumar T. R. happens on 30-0 5-2014. The

10

certificate of marriage is appended to the petition. It appears that

the complainant’s relationship with the said Yathish Kumar T. R.

flounders and floundering of the relationship leads the complainant

seeking annulment of marriage in M.C.No.3017 of 201 5. The said

matrimonial case is disposed of on account of settlement and the

marriage got dissolved on 22-10-2016. The petitioner was nowhere

in the picture till the said date. According to the complainant after

the grant of decree of divorce, a child is born from the wedlock in

the year 2020. In the year 2023, for legal assistan ce in a case

concerning Negotiable Instruments Act, the petition er and the

complainant come to know each other. It is here, th e petitioner

comes into the picture. Two years pass by. The comp lainant then

seeks to register a complaint before the jurisdictional Police on

09-12-2024. Since the subject issue is triggered fr om the

registration of complaint, I deem it appropriate to notice the

complaint. It reads as follows:

INTHEG

COUOR FKABELDS.

19YJI,20 COUOR 69'E,

1EM.PoI5 ನಗರ.

ಇಂದ.

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Email Id: nagarathana75@gmail.com

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T#ಾಂಕ.09-12-2024. ತಮQ 57ಾfO.

Nagarathna N.”

The narration in the complaint is with regard to ce rtain sexual

escapades of the petitioner with the complainant. A t the

penultimate paragraph, the complainant narrates tha t the attitude

of the petitioner suddenly changed and began to ignore the calls of

the complainant. Later it is the narration that she comes to know

that the parents of the petitioner are searching for a girl to get

accused No.1 married. Therefore, the complaint come s to be

registered as the petitioner has, on several occasions committed

the offence of rape for two years, on the pretext of marriage, but

he is wanting to get married with someone else. She further

14

narrates that due to the acts of the petitioner in the year 2024 she

had even become pregnant and the petitioner told the complainant

to get the pregnancy terminated. Immediately after registration of

the complaint, these petitions are preferred.

11. A perusal at the complaint would indicate that even if it is

taken on its face value, they were consensual acts for two years

whether on the pretext of marriage or otherwise. Jurisprudence is

replete with the judgments rendered by the Apex Cou rt from time

to time, which has intertwined the concept of rape and consensual

sex and how consensual sex on the promise of marria ge cannot

amount to rape. I deem it appropriate to notice th e said

judgments.

JUDICIAL LANDSCAPE:

12.1. The Apex Court in the case of DR. DHRUVARAM

MURLIDHAR SONAR v. THE STATE OF MAHARASHTRA

1

has

held as follows:

“…. …. ….

1

(2019) 18 SCC 191

15

11. In State of Karnataka v. M. Devendrappa [State of

Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC

(Cri) 539] , it was held that while exercising powe rs under

Section 482 CrPC, the court does not function as a court of

appeal or revision. Inherent jurisdiction under the section

though wide has to be exercised sparingly, carefully and with

caution and only when such exercise is justified by the tests

specifically laid down in the section itself. It was further held as

under : (SCC p. 94, para 6)

“6. … It would be an abuse of process of the

court to allow any action which would result in injustice

and prevent promotion of justice. In exercise of the

powers court would be justified to quash any proceeding

if it finds that initiation/continuance of it amounts to

abuse of the process of court or quashing of these

proceedings would otherwise serve the ends of justice.

When no offence is disclosed by the complaint, the court

may examine the question of fact. When a complaint i s

sought to be quashed, it is permissible to look into the

materials to assess what the complainant has alleged

and whether any offence is made out even if the

allegations are accepted in toto.”

… … …

23. Thus, there is a clear distinction between rape

and consensual sex. The court, in such cases, must v ery

carefully examine whether the complainant had actua lly

wanted to marry the victim or had mala fide motives and

had made a false promise to this effect only to sat isfy his

lust, as the latter falls within the ambit of cheat ing or

deception. There is also a distinction between mere

breach of a promise and not fulfilling a false prom ise. If

the accused has not made the promise with the sole

intention to seduce the prosecutrix to indulge in s exual

acts, such an act would not amount to rape. There m ay 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 misconcept ion

created by accused, or where an accused, on account of

circumstances which he could not have foreseen or w hich

were beyond his control, was unable to marry her de spite

having every intention to do. Such cases must be tr eated

differently. If the complainant had any mala fide

16

intention and if he had clandestine motives, it is a clear

case of rape. The acknowledged consensual physical

relationship between the parties would not constitu te an

offence under Section 376 IPC.

24. 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 Assist ant 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 wi fe.

Admittedly, they belong to different communities. I t 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 sometimes at his home” . Thus,

they were living together, sometimes at her house a nd

sometimes at the residence of the appellant. They were in a

relationship with each other for quite some time an d

enjoyed each other's company. It is also clear that they

had been living as such for quite some time togethe r.

When she came to know that the appellant had marrie d

some other woman, she lodged the complaint. It is n ot

her case that the complainant has forcibly raped he r. She

had taken a conscious decision after active applica tion of

mind to the things that had happened. It is not a c ase of

a passive submission in the face of any psychologic al

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 vi ew

that, even if the allegations made in the complaint are

taken at their face value and accepted in their ent irety,

they do not make out a case against the appellant. We

are also of the view that since the complainant has failed

to prima facie show the commission of rape, the

complaint registered under Section 376(2)( b) cannot be

sustained.”

(Emphasis supplied)

17

12.2. Later, the Apex Court in the case of SHAMBHU

KHARWAR v. STATE OF UTTAR PRADESH

2

has held as follows:

“…. …. ….

9. In Pramod SuryabhanPawar v. State of

Maharashtra [Pramod SuryabhanPawar v. State of Maharashtra,

(2019) 9 SCC 608 : (2019) 3 SCC (Cri) 903] a two-Judge Bench

of this Court of which one of us was a part (D.Y. Chandrachud,

J.), held in Sonu v. State of U.P. [Sonu v. State of U.P., (2021)

18 SCC 517] observed that: ( Pramod SuryabhanPawar

case [Pramod SuryabhanPawar v. State of Maharashtra, (2019)

9 SCC 608 : (2019) 3 SCC (Cri) 903] , SCC pp. 616-1 8 & 620,

paras 12, 14, 16 & 18)

“12. This Court has repeatedly held that consent

with respect to Section 375IPC involves an active

understanding of the circumstances, actions and

consequences of the proposed act. An individual who

makes a reasoned choice 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. …

***

14. … 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. …

***

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

2

(2022) SCC OnLine SC 1032

18

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 . …

***

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.”

(emphasis supplied)

… … …

11. In this backdrop and taking the allegations in

the complaint as they stand, it is impossible to fi nd in the

FIR or in the charge-sheet, the essential ingredient s of an

offence under Section 376IPC. The crucial issue whic h is

to be considered is whether the allegations indicat e that

the appellant had given a promise to the second

respondent to marry which at the inception was fals e and

on the basis of which the second respondent was ind uced

into a sexual relationship. Taking the allegations i n the

FIR and the charge-sheet as they stand, the crucial

ingredients of the offence under Section 375IPC are

absent. The relationship between the parties was pu rely

of a consensual nature. The relationship, as noted a bove,

was in existence prior to the marriage of the secon d

respondent and continued to subsist during the term of

the marriage and after the second respondent was

granted a divorce by mutual consent.

12. The High Court, in the course of its judgment, has

merely observed that the dispute raises a question of fact which

19

cannot be considered in an application under Section 482CrPC.

As demonstrated in the above analysis, the facts as they stand,

which are not in dispute, would indicate that the ingredients of

the offence under Section 376IPC were not establish ed. The

High Court has, therefore, proceeded to dismiss the application

under Section 482CrPC on a completely misconceived basis.”

(Emphasis supplied)

12.3. In XXXX v. STATE OF MADHYA PRADESH

3

the Apex

Court holds as follows:

“…. …. ….

9. While getting her statement recorded under Section

164CrPC, she admitted that she knew the appellant since 2017.

On account of dispute with her husband, she was living with her

parents. As she got acquainted with the appellant, they fell in

love. In 2018, the appellant went to Maharashtra fo r job.

However, he used to visit her home and take care of the

complainant as well as her daughter. In 2019, the a ppellant

assured the complainant that he will marry her in case she takes

divorce from her husband who used to harass and bea t her. For

this reason, she divorced her husband and solemnised marriage

with the appellant in a temple in January 2019. Thereafter, they

started living together with her daughter born from the previous

marriage. Despite assurance, the appellant did not solemnise

court marriage. After marriage was solemnised in te mple,

treating the appellant as her husband, they both started leading

a married life having physical relations from January 2019 till

June 2020. The appellant treated the complainant as his wife.

Thereafter, the appellant refused to respond to her calls and

even marry her.

… … …

11. Further, in the FIR the complainant stated that she

got divorce from her earlier husband on 10-12-2018. In the

statement under Section 164CrPC, she stated that ma rriage

between the appellant and the complainant was solem nised in a

3

(2024) 3 SCC 496

20

temple in January 2019. However, the date of divorc e as

claimed by the complainant is belied from the copy of the

decree annexed with the appeal as Annexure P-9, whe re divorce

by mutual consent was granted to the complainant an d her

husband vide judgment dated 13-1-2021. The aforesai d fact

could not be disputed. Meaning thereby, the complai nant

besides the facts in the FIR and also in the statem ent under

Section 164CrPC regarding her divorce from the earl ier

marriage, sought to claim that she had remarried wi th the

appellant during subsistence of her earlier marriage.

12. From the contents of the complaint, on the basi s

of which FIR was got registered and the statement go t

recorded by the complainant, it is evident that the re was

no promise to marry initially when the relations be tween

the parties started in the year 2017. In any case, even on

the dates when the complainant alleges that the par ties

had physical relations, she was already married. Sh e

falsely claimed that divorce from her earlier marri age

took place on 10-12-2018. However, the fact remains

that decree of divorce was passed only on 13-1-2021 . It

is not a case where the complainant was of an immat ure

age who could not foresee her welfare and take righ t

decision. She was a grown up lady about ten years e lder

to the appellant. She was matured and intelligent e nough

to understand the consequences of the moral and

immoral acts for which she consented during subsist ence

of her earlier marriage. In fact, it was a case of betraying

her husband. It is the admitted case of the prosecu trix

that even after the appellant shifted to Maharashtr a for

his job, he used to come and stay with the family a nd

they were living as husband and wife. It was also t he

stand taken by the appellant that he had advanced l oan

of Rs 1,00,000 to the prosecutrix through banking

channel which was not returned back.”

(Emphasis supplied)

21

12.4. In JASPAL SINGH KAURAL v. STATE OF NCT OF

DELHI

4

the Apex Court has held as follows:

“…. …. ….

13. At the outset, we refer to the ratio in Naim

Ahamed v. State (NCT of Delhi) [Naim Ahamed v. State

(NCT of Delhi), (2023) 15 SCC 385] whereby this Hon'ble

Court had decided a similar matter, wherein alleged ly,

the prosecutrix had also given her consent for a se xual

relationship with the appellant-accused, upon an

assurance to marry. The prosecutrix, who was herself a

married woman having three children, had continued to

have such relationship with the appellant-accused, at

least for about five years till she gave the compla int. In

the conspectus of such facts and circumstances, this Court had

observed as under : (SCC pp. 398-99, paras 21-22)

“21. The bone of contention raised on behalf of

the respondents is that the prosecutrix had given her

consent for sexual relationship under the misconception

of fact, as the accused had given a false promise to

marry her and subsequently he did not marry, and

therefore such consent was no consent in the eye of the

law and the case fell under Clause Secondly of Section

375IPC. In this regard, it is pertinent to note that there

is a difference between giving a false promise and

committing breach of promise by the accused. In case of

false promise, the accused right from the beginning

would not have any intention to marry the prosecutrix

and would have cheated or deceived the prosecutrix by

giving a false promise to marry her only with a view to

satisfy his lust, whereas in case of breach of promise,

one cannot deny a possibility that the accused might

have given a promise with all seriousness to marry her,

and subsequently might have encountered certain

circumstances unforeseen by him or the circumstances

beyond his control, which prevented him to fulfil h is

promise. So, it would be a folly to treat each breach of

promise to marry as a false promise and to prosecute a

person for the offence under Section 376. As stated

4

(2025) 5 SCC 756

22

earlier, each case would depend upon its proved fac ts

before the court.

22. In the instant case, the prosecutrix who

herself was a married woman having three

children, could not be said to have acted under 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 him at least for about five

years till she gave complaint in the year 2015.

Even if the allegations made by her in her

deposition before the court, are taken on their fac e

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

mature and intelligent enough to understand the

significance and the consequences of the moral or

immoral quality of act she was consenting to . Even

otherwise, if 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. Ti ll

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 filed the present complaint . The

accused in his further statement recorded under

Section 313CrPC had stated that she had filed the

complaint as he refused to fulfil her demand to pay

23

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

375IPC.”

(emphasis supplied)

14. The decision in Naim Ahamed [Naim

Ahamed v. State (NCT of Delhi) , (2023) 15 SCC 385] is

squarely applicable to the conspectus of present ca se. It

has been time and again settled by this Hon'ble Cou rt,

that the mere fact that physical relations were

established pursuant to a promise to marry will not

amount to a rape in every case. An offence under Se ction

375IPC could only be made out, if promise of marria ge

was made by the accused solely with a view to obtai n

consent for sexual relations without having any int ent of

fulfilling said promise from the very beginning, an d that

such false promise of marriage had a direct bearing on

the prosecutrix giving her consent for sexual relat ions.

[Mahesh DamuKhare v. State of Maharashtra , (2024) 11

SCC 398 : 2024 SCC OnLine SC 3471]

15. Upon a bare perusal of the FIR and the charge-sheet,

the following facts are clearly established:

15.1. The physical relationship between the appellant and

Respondent 2 was consensual from the very beginning and

cannot be said to be against the will or without the consent of

the prosecutrix. Even if the case of the prosecutrix is accepted,

there is no material on record to show that there w as any

dishonest inducement, or incitement on part of the appellant.”

15.2. There is also no material on record, to establish an

offence of criminal intimidation under Section 506IPC against

the appellant. In fact, it is apparent from the conduct of the

24

appellant, that he was acting in furtherance of the promise to

marry. It is the own observation of the High Court, that the

appellant had made a promise to marry Respondent 2 and was

acting accordingly. The mangalsutra being prepared with the

initials of the name of Respondent 2 complainant does reflect his

intention and promise to marry. However, in the eventuality of a

fall out or split between the parties, it cannot be said that the

promise to marry was false, and the corresponding c onduct

dishonest.

15.3. There is also no element of criminality that

can be accrued to the appellant, insofar as it is t he own

case of the prosecutrix, that she was in a relation ship

with the appellant, while being in a subsisting mar riage.

It is also hard to believe that the prosecutrix cou ld have

sustained a physical relationship for a prolonged p eriod

of five years [Prashant v. State (NCT of Delhi), (2025) 5

SCC 764] , while being in a subsisting marriage, an d even

subsequently obtaining divorce to sustain the

relationship. The prolonged period of the relations hip,

during which the sexual relations continued between the

parties, is sufficient to conclude that there was n ever an

element of force or deceit in the relationship. [ Mahesh

Damu Khare v. State of Maharashtra, (2024) 11 SCC 398 :

2024 SCC OnLine SC 3471] The prosecutrix was thus,

conscious and cognizant of the consequences of her

actions, and had given her consent after an active and

reasoned deliberation. [ Pramod Suryabhan Pawar v.

State of Maharashtra , (2019) 9 SCC 608 : (2019) 3 SCC

(Cri) 903]”

(Emphasis supplied)

12.5. In SAMADHAN v. STATE OF MAHARASHTRA

5

the

Apex Court has held as follows:

“…. …. ….

5

2025 SCC OnLine SC 2528

25

28. We find that the present case is not a case

where the appellant lured respondent No. 2 solely f or

physical pleasures and then vanished. The relationsh ip

continued for a period of three long years, which i s a

considerable period of time. They remained close an d

emotionally involved. In such cases, physical intim acy

that occurred during the course of a functioning

relationship cannot be retrospectively branded as

instances of offence of rape merely because the

relationship failed to culminate in marriage.

29. This Court has, on numerous occasions, taken

note of the disquieting tendency wherein failed or broken

relationships are given the colour of criminality. The

offence of rape, being of the gravest kind, must be

invoked only in cases where there exists genuine se xual

violence, coercion, or absence of free consent. To convert

every sour relationship into an offence of rape not only

trivialises the seriousness of the offence but also inflicts

upon the accused indelible stigma and grave injusti ce.

Such instances transcend the realm of mere personal

discord. The misuse of the criminal justice machiner y in

this regard is a matter of profound concern and cal ls for

condemnation.

30. In Prashant v. State of NCT of Delhi, (2025) 5 SCC

764, this Court speaking through one of us (Nagarat hna, J.)

observed that a mere break-up of a relationship bet ween a

consenting couple cannot result in the initiation o f criminal

proceedings. What was a consensual relationship bet ween the

parties at the initial stages cannot be given a col our of

criminality when the said relationship does not fructify into a

marriage. The relevant portion is extracted as under:

“20. In our view, taking the allegations in the FIR

and the charge-sheet as they stand, the crucial

ingredients of the offence under Section 376(2)(n)IPC

are absent. A review of the FIR and the complainant's

statement under Section 164CrPC discloses no indication

that any promise of marriage was extended at the

outset of their relationship in 2017. Therefore, even if

the prosecution's case is accepted at its face value, it

26

cannot be concluded that the complainant engaged in a

sexual relationship with the appellant solely on account

of any assurance of marriage from the appellant. The

relationship between the parties was cordial and al so

consensual in nature. A mere break up of a relationship

between a consenting couple cannot result in initiation

of criminal proceedings. What was a consensual

relationship between the parties at the initial stages

cannot be given a colour of criminality when the sai d

relationship does not fructify into a marital relationship.

Further, both parties are now married to someone else

and have moved on in their respective lives. Thus, in our

view, the continuation of the prosecution in the present

case would amount to a gross abuse of the process of

law. Therefore, no purpose would be served by

continuing the prosecution.”

(underlining by us)

31. This Court is conscious of the societal context in

which, in a country such as ours, the institution of marriage

holds deep social and cultural significance. It is, therefore, not

uncommon for a woman to repose complete faith in he r partner

and to consent to physical intimacy on the assurance that such

a relationship would culminate in a lawful and soci ally

recognised marriage. In such circumstances, the pro mise of

marriage becomes the very foundation of her consent, rendering

it conditional rather than absolute. It is, thus, conceivable that

such consent may stand vitiated where it is established that the

promise of marriage was illusory, made in bad faith, and with no

genuine intention of fulfilment, solely to exploit the woman. The

law must remain sensitive to such genuine cases whe re trust

has been breached and dignity violated, lest the pr otective

scope of Section 376 of the IPC be reduced to a mere formality

for those truly aggrieved. At the same time, the invocation of

this principle must rest upon credible evidence and concrete

facts, and not on unsubstantiated allegations or mo ral

conjecture.

… …. …

33. The appellant has unequivocally asserted that, during

the subsistence of the relationship, no grievance or allegation

was ever raised by respondent No. 2 regarding the a bsence of

27

consent in their physical relations. It was only up on the

appellant's refusal to fulfil her demand for payment of the sum

of Rs. 1,50,000/- that the present criminal proceedings came to

be instituted. Furthermore, the alleged incidents are stated to

have occurred between 12.03.2022 and 20.05.2024; ho wever,

the FIR was lodged only on 31.08.2024, i.e. nearly three

months after the last alleged act of sexual intimacy.

34. The FIR is conspicuously silent as to any specific

allegation that the appellant had either forcibly t aken or

compelled respondent No. 2 to accompany him to the hotel, nor

does it disclose any circumstance suggesting deceit or

inducement on the part of the appellant to procure her presence

there. Therefore, the only logical inference that emerges is that

respondent No. 2, of her own volition, visited and met the

appellant on each occasion. It is also borne out from the record

that whenever the appellant brought up the subject of marriage,

respondent No. 2 herself opposed the proposal. In s uch

circumstances, the contention of respondent No. 2 t hat the

physical relationship between the parties was premi sed upon

any assurance of marriage by the appellant is devoid of merit

and stands unsustainable.

35. We deem it appropriate to refer to the decision of this

Court in Rajnish Singh v. State of Uttar Pradesh, (2025) 4 SCC

197, whereby it was held that when a woman who will ingly

engages in a long-term sexual relationship with a m an, fully

aware of its nature and without any cogent evidence to show

that such relationship was induced by misconception of fact or

false promise of marriage made in bad faith from the inception,

the man cannot be held guilty of rape under Section 376 of

the IPC. The relevant portion of the judgment is extracted as

under:

“33. There is no dispute that from the year 2006

onwards, the complainant and the appellant were

residing in different towns. The complainant is an

educated woman and there was no pressure whatsoever

upon her which could have prevented her from filing a

police complaint against the accused if she felt that the

sexual relations were under duress or were being

established under a false assurance of marriage . On

many occasions, she even portrayed herself to be the

28

wife of the appellant thereby, dispelling the allegation

that the intention of the appellant was to cheat her right

from the inception of the relationship.

34. We cannot remain oblivious to the fact that it

was mostly the complainant who used to travel to meet

the appellant at his place of posting. Therefore, we are

convinced that the relationship between the complainant

and the appellant was consensual without the existence

of any element of deceit or misconception.

35. Further, the application filed by the

complainant at One Stop Centre, Lalitpur on 23-3-2022 ,

makes it abundantly clear that she was in a consensu al

relationship with the appellant since 2006. It is alleged

in the complaint that when she had proposed that the y

should marry and live together, the appellant physically

abused her and beat her up. If at all there was an iota of

truth in this allegation then the FIR should have been

registered immediately after this incident. However, it is

only when it came to the knowledge of the complainant

that the appellant was getting married to another

woman, in an attempt to stop his marriage, she filed

aforesaid complaint at the One Stop Centre wherein she

also admitted that she was equally guilty as the

appellant and therefore, his marriage must be stopped.

xxx

39. It is, therefore, clear that the accused is not

liable for the offence of rape if the victim has wilfully

agreed to maintain sexual relations. The Court has also

recognised that a prosecutrix can agree to have sexual

intercourse on account of her love and passion for the

accused.”

(underlining by us)

36. By the impugned order dated 06.03.2025, the High

Court observed that although it was contended on behalf of the

appellant that the relationship between him and respondent No.

2 was consensual in nature, no such categorical statement was

made by him in the memo of application and that the plea of

consent was merely inferred. In this regard, reliance was placed

by the High Court on the case of Ganga Singh v. State of

Madhya Pradesh, (2013) 7 SCC 278 : (2013) 3 SCC (Civ)

505 : (2013) 3 SCC (Cri) 314, wherein this Court ha d stated

29

that unless there was a specific defence of a conse nsual

relationship, such a defence cannot be inferred.

37. The said finding of the High Court, however,

fails to appreciate that a plain reading of the FIR in

question itself reveals that the relationship betwe en the

parties was, in fact, consensual, inasmuch as respo ndent

No. 2 met the appellant whenever he expressed a des ire

to meet her. Furthermore, respondent No. 2, being a

major and an educated individual, voluntarily assoc iated

with the appellant and entered into physical intima cy on

her own volition. It is also pertinent to note that , at the

relevant time, the marriage of respondent No. 2 was

subsisting. In light of the foregoing circumstances , even

upon a bare reading of the material on record, it i s

manifest that the relationship between the parties was

consensual, and therefore, the absence of an expres s

statement to that effect in the memo of application , as

emphasised in the impugned order, cannot be held

against the appellant when the same can be otherwis e

clearly discerned.

38. At this stage it is material to refer to the decision of

this Court in Mahesh Damu, wherein the following observations

were made:

“29. It must also be clear that for a promise to be

a false promise to amount to misconception of fact

within the meaning of Section 90IPC, it must have been

made from the very beginning with an intention to

deceive the woman to persuade her to have a physical

relationship. Therefore, if it is established that such

consent was given under a misconception of fact, the

said consent is vitiated and not a valid consent. In this

regard we may refer to Deepak Gulati v. State of

Haryana [Deepak Gulati v. State of Haryana, (2013) 7

SCC 675 : (2013) 3 SCC (Cri) 660], in which it was held

as follows : (SCC pp. 682-84, paras 21 & 24)

“21. Consent may be express or implied, coerced

or misguided, obtained willingly or through deceit.

Consent is an act of reason, accompanied by

deliberation, the mind weighing, as in a balance, t he

good and evil on each side. There is a clear distinction

30

between rape and consensual sex and in a case like this,

the court must very carefully examine whether the

accused 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 latter falls within the

ambit of cheating or deception. There is a distinction

between the mere breach of a promise, and not fulfilling

a false promise. Thus, the court must examine whethe r

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. An

accused can be convicted for rape only if the court

reaches a conclusion that the intention of the accused

was mala fide, and that he had clandestine motives.

xxx

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, th e

accused had never really intended to marry her.”

(underlining by us)”

(Emphasis supplied)

31

12.6. In BATLANKI KESHAV (KESAVA) KUMAR ANURAG

v. STATE OF TELANGANA

6

the Apex Court has held as follows:

“…. …. ….

25. In the chats which have been placed on record along

with the additional documents, the de-facto complainant, who is

referred to by the name ‘Muffin’, has admitted that she was

manipulative and was trying to “get a green card holder”. At one

point of time, she also stated that it would not be difficult for

her to trap the next one. In the very same breath, she mentions

that she would not waste time with the accused appe llant and

needs to “invest on the next victim”. She also mentions that she

would irritate her victims to the extent that they dump her, and

she could happily start with the next one. She also stated that

she was using the accused appellant.

26. These chats depict the stark reality about the

behavioral pattern of the de-facto complainant who

appears to be having manipulative and vindictive

tendency.

27. Thus, in our opinion, the accused appellant was

absolutely justified in panicking and backing out f rom the

proposed marriage upon coming to know of the

aggressive sexual behaviour and the obsessive natur e of

the de-facto complainant.

28. Hence, even assuming that the accused

appellant retracted from his promise to marry the

complainant, it cannot be said that he indulged in sexual

intercourse with the de-facto complainant under a false

promise of marriage or that the offence was committ ed

by him with the de-facto complainant on the ground that

she belonged to the Scheduled Castes/Scheduled Tribe s

community.

29. It is also relevant to mention here that in FIR No. 751

of 2021, the de-facto complainant has not even made a whisper

6

2025 SCC OnLine SC 1258

32

about the accused appellant dumping her on the grou nd of her

caste. Thus, apparently this allegation which has been set out in

the subsequent FIR No. 103 of 2022 lodged almost af ter seven

months is nothing but a sheer exaggeration which mu st be

discarded.

30. Having considered the entirety of facts and

circumstances as available on record, we are of the firm

opinion that allowing prosecution of the accused

appellant to continue in the impugned FIR No. 103 of

2022 would be nothing short of a travesty of justic e in

addition to being a gross abuse of the process of C ourt.

The impugned FIR No. 103 of 2022 is nothing but a

bundle of lies full of fabricated and malicious

unsubstantiated allegations levelled by the complai nant.

The facts on record clearly establish the vindictive and

manipulative tendencies of the complainant and thes e

aspects have a great bearing on the controversy.”

(Emphasis supplied)

12.7. Again, in the case of AMOL BHAGWAN NEHUL v.

STATE OF MAHARASHTRA

7

the Apex Court has held as follows:

“…. …. ….

8. Having heard both sides in this case and after carefully

considering the material on record, the following a ttributes

come to the fore:

(a) Even if the allegations in the FIR are taken as a true and

correct depiction of circumstances, it does not app ear

from the record that the consent of the

Complainant/Respondent no. 2 was obtained against h er

will and merely on an assurance to marry. The Appellant

and the Complainant/Respondent no. 2 were acquainte d

since 08.06.2022, and she herself admits that they

interacted frequently and fell in love. The

7

2025 SCC OnLine SC 1230

33

Complainant/Respondent no. 2 engaged in a physical

relationship alleging that the Appellant had done s o

without her consent, however she not only sustained her

relationship for over 12 months, but continued to v isit

him in lodges on two separate occasions. The narrative of

the Complainant/Respondent no. 2 does not corrobora te

with her conduct.

(b) The consent of the Complainant/Respondent no. 2

as defined under section 90 IPC also cannot be said

to have been obtained under a misconception of

fact. There is no material to substantiate

“inducement or misrepresentation” on the part of

the Appellant to secure consent for sexual relation s

without having any intention of fulfilling said

promise. Investigation has also revealed that

the Khulanama, was executed on 29.12.2022 which

the Complainant/Respondent no. 2 had obtained

from her ex-husband. During this time, the parties

were already in a relationship and the alleged

incident had already taken place. It is inconceivab le

that the Complainant had engaged in a physical

relationship with the Appellant, on the assurance o f

marriage, while she was already married to

someone else. Even otherwise, such promise to

begin with was illegal and unenforceable qua the

Appellant.

(c) There is no evidence of coercion or threat of i njury

to the Complainant/Respondent no. 2, to attract an

offence under section 506 IPC. It is improbable tha t

there was any threat caused to the

Complainant/Respondent no. 2 by the Appellant

when all along the relationship was cordial, and it

was only when the Appellant graduated and left for

his hometown to Ahmednagar, the

Complainant/Respondent no. 2 became agitated.

We also cannot ignore the conduct of the

Complainant/Respondent no. 2 in visiting the

native village of the Appellant without any

intimation, which is also unacceptable and reflects

the agitated and unnerved state of mind of the

Complainant/Respondent no. 2. For the same

34

reason, the criminal prosecution against the

Appellant herein is probably with an underlying

motive and disgruntled state of mind.

(d) There is also no reasonable possibility that th e

Complainant/Respondent no. 2 or any woman being

married before and having a child of four years,

would continue to be deceived by the Appellant or

maintain a prolonged association or physical

relationship with an individual who has sexually

assaulted and exploited her.

9. In our considered view, this is also not a case

where there was a false promise to marry to begin w ith.

A consensual relationship turning sour or partners

becoming distant cannot be a ground for invoking

criminal machinery of the State. Such conduct not o nly

burdens the Courts, but blots the identity of an in dividual

accused of such a heinous offence. This Court has ti me

and again warned against the misuse of the provisio ns,

and has termed it a folly

3

to treat each breach of promise

to marry as a false promise and prosecute a person for an

offence under section 376 IPC.”

(Emphasis supplied)

13.1. The Apex Court, in the case of Dr. DHRUVARAM

MURLIDHAR SONAR supra, draws with unmistakable clarity, the

doctrinal line that separates rape from consensual intimacy,

where two adults of their own volition, engage in c onsensual

sexual relation over a sustained period, the subseq uent

refusal of the man to marry the woman, howsoever

regrettable, does not, ipso facto, transmute such i ntimacy

35

into the offence of rape as punishable under Sectio n 376 of

the IPC.

13.2. The principle is reaffirmed in SHAMBHU KHARWAR

supra where the Apex Court interdicted the criminal process at

the threshold holding that the relationship between the

parties was purely consensual and accordingly quash ed the

crime as well as the charge sheet.

13.3. Likewise, in NAIM AHAMED v. STATE (NCT OF

DELHI) [(2023) 15 SCC 385 ], the Apex Court addressed an

identical factual complexion, where the complainant had

even become pregnant on account of the relationship , and

yet held that such circumstance, by itself cannot c lothe the

relationship with criminality, for pregnancy arisin g out of

consensual intimacy.

13.4. In SAMADHAN supra the Apex Court sounded a note

of stern caution against the disquieting tendency o f coloring

failed relationships, with the hue of heinous crime s. The

36

Apex Court holds that mere breakdown of a relations hip

between the consenting adults, cannot constitute ra pe nor

can the criminal law be set into motion as a retali atory

instrument, merely because the relationship did not

ultimately culminate in marriage.

13.5. Further, in AMOL BHAGWAN NEHUL, the Apex Court

observes that where the complainant is already married, the

allegation of physical intimacy induced by promise of

marriage stands on infirm grounds, for a promise wh ich is

ex-facie unenforceable, cannot in those circumstanc es, be

elevated into a foundation of imputing criminality.

13.6. In BATLANKI KESHAV (KESAVA) KUMAR ANURAG

supra the Apex Court goes even further, on a perusal of

contemporaneous chats, it found that the complainan t had

exhibited manipulative and vindictive tendencies an d held

that man backing out of marriage, even assuming suc h

promise existed, cannot automatically attract the o ffence of

rape. Holding the prosecution to be malicious and

37

fabricated, the Apex Court obliterates the proceedi ngs

against the accused.

13.7. In the light of the overwhelming majority o f such

decisions, the Apex Court has exercised its Constit utional and

inherent jurisdiction to arrest the criminal proces s, even at

the stage of registration of the crime, where the a llegation

taken to their highest, disclose nothing beyond a c onsensual

relationship subsequently turning sore.

APPLICABILITY OF THE LAW TO THE FACTS OF THE CASE:

14. In the case at hand, the relationship between the

complainant and the petitioner, at its inception, w as plainly

that of a client and a counsel. Yet to determine w hether the

complaint is a bonafide invocation of criminal law or an

endeavour covered by manipulation and vendetta, it

becomes necessary to notice certain antecedent fact s, which

emerge not from conjecture , but from documents placed on

record.

38

Manipulation and Malafides of the complainant:

A brief chronology bears mention:

14.2. The complainant is said to have married one Yathish

Kumar T. R. in the year 2014. The said marriage, by an order

dated 22-10-2016, was annulled. However in the year 2020, it

appears that a child was born to the complainant, the date of birth

being 21-08-2020. The birth certificate is placed on record. The

birth certificate depicts the date of birth of the child born to Yathish

Kumar T. R. and the complainant is as follows:

39

The birth certificate placed on record is not witho ut

significance. It indicates two distinct and tellin g

circumstances; first, that notwithstanding the annu lment

decree dated 22-10-2016 in M.C.No.3017 of 2015, a c hild is

born on 21-08-2020 to the complainant and the very same

Yathish Kumar T. R. and second, that the complainant

appears to have continued association with the said Yathish

Kumar T. R. even long after the severance of the mar ital tie.

Photographs are also produced to demonstrate that t he child now

about 4 years of age, has been living with the comp lainant and

Yathish Kumar T. R., as a family.

The matter does not rest there:

14.3. The petitioner has also produced another bir th

certificate evidencing the birth of a child on 15-12-2008 where the

father’s name is shown as Nagaraju and the mother, the

complainant. The said birth certificate is as follows:

40

The inevitable inference is that the complainant has two children,

the first born on 15-12-2008 from Nagaraju and the second born on

21-08-2020 from Yathish Kumar T. R., long after the annulment of

marriage dated 22-10-2016. These circumstances do not float

in isolation. They connect with yet another materi al episode.

14.4. A crime comes to be registered on 28-11-2022 and on

the basis of the said complainant a crime in Crime No.602 of 2022

41

for offence punishable under Section 363 of the IPC is alleged. The

gravamen of the complaint is that the child born from their earlier

relationship, went missing on 25-11-2022. The child was about 13

years at that point in time. In the complaint, the complainant

narrates that she is married and settled with another person. The

gist of the complaint is as follows:

ಸು<ಾರು 4 N;3.2MW 19cHE ಮ#ೆಯ/ ಕುಟುಂಬ ಸMೕತ ,ಾಸ,ಾKದುIJೊಂಡು

ಸು<ಾರು 2 N;3.2MW 4-5 19T ಮ#ೆ )a5D oೋK 1EO–EeNI ಮುEಾಂತರ COK <ಾ=O

9ೆ%ೕUತರ :2 5Xಾರ <ಾಡ8ಾK WಾವRSೇ ಉಪಯುಕ: <ಾU? Sೊ(ೆ?ರುವRT8ಾ/, iW“TMW

14.5. Yet another record is placed before this Cour t; the

complainant filed Crl.Misc.No.1467 of 2023 invoking Section 13(3)

of the Karnataka Registration of Births and Deaths Act, 1969 and in

the cause title therein, in the year 2023, the complainant describes

herself to be the wife of Yathish Kumar. The cause title reads as

follows:

42

“IN THE COURT OF THE CHIEF JUDICIAL MAGISTRATE.

BENGALURU RURAL DISTRICT, BENGALURU

Present:- Sri. SUNIL.R., B.COM., LL.B.,

CJM., Bengaluru Rural District,

Bengaluru.

Dated this the 20

th

day of January, 2024.

Crl. Misc. No. 1467/2023

PETITIONER : Smt. Nagarathna,

W/o. Sri. Yathish Kumar,

31 years, R/at No.458,

Muddinapalya Main Road,

Anjananahara, Bengaluru North,

Bengaluru-560 061.

(By Sri.B.L.Jayarama, Adv)

- V/S -

RESPONDENT : The Chief Registrar,

Births and Deaths,

Office of the Tahsildar,

Bengaluru South Taluk,

Bengaluru.

(Respondent placed exparte)

*************”

The prayer sought therein is follows:

“The petitioner has filed the petition under Section 13(3)

of the Registration of Births and Deaths Act, 1969 seeking

direction of this Court to direct the respondent to enter the date

of death of Renukamma, W/o Late Nagaraja, as 19.07. 2011 in

the death register.”

43

When all these facts, borne out from official recor ds, are

considered cumulatively, it becomes difficult to co mprehend,

far less accept, how the complainant could credibly assert

that she consented to sexual relationship on a “pro mise of

marriage”, when she appears to have been in a subsi sting

marital relationship or at the very least, in a con tinuing

domestic association, and is also mother of 2 child ren, one

about 13 years old and the other about 4 years.

14.6. What is more disturbing is the disquieting fashion in

which the complainant has sought to implicate other members of

the family of the petitioner. They are arraigned o n a tenuous

allegation that they did not cooperate or support the petitioner’s

marriage with the complainant, thereby attempting to create a

narrative of cheating. Criminal law cannot be perm itted to

be expanded by such facile insinuation.

15. The offences alleged included Section 69 of the BNS.

Section 69 of BNS reads as follows:

44

“69. Sexual intercourse by employing deceitful

means, etc.—Whoever, by deceitful means or by making

promise to marry to a woman without any intention o f fulfilling

the same, has sexual intercourse with her, such sex ual

intercourse not amounting to the offence of rape, s hall be

punished with imprisonment of either description fo r a term

which may extend to ten years and shall also be liable to fine.

Explanation.—“deceitful means” shall include inducement

for, or false promise of employment or promotion, or marrying

by suppressing identity.”

Section 69 criminalizes sexual intercourse by emplo ying deceitful

means including a promise of marriage, without inte ntion of

fulfilment. The provision though newly introduced, cannot be

interpreted, in a manner that allows it to become an instrument of

retroactive criminalization of consensual relationships upon the

mere recital of “promise”. The statute punishes deceit, not

disappointment; fraud, not failed affection; and ex ploitation,

not the collapse of relationship. On the facts presented, it is

difficult to discern where from the offence under Section 69 could

even spring. The complainant on her own showing and on

admitted records, appears to have been married/asso ciated

in other relationships, and to have children. In s uch

circumstances, the allegation of sexual intercourse , induced

solely on promise of marriage is inherently implaus ible and

45

legally unsustainable, consequently, neither Sectio n 96 BNS

nor Section 64 BNS (Section 376 of the earlier regi me, the

IPC) can be attracted.

16. The offence under Section 89 of the BNS (Section 313 of

the earlier regime) is also not made out. In view of the principle

enunciated by the Apex Court in NAIM AHAMED supra, consensual

sexual acts, do not by themselves, invite such prov ision, in the

absence of essential legal ingredients.

17. What then remains is, Section 318(2) of the BNS (Section

420 of the earlier regime, the IPC), even that cannot be invoked

merely because a relationship did not culminate in marriage.

The settle position of law is that, breach of a mar riage to

marry, howsoever morally questionable, is not per se

cheating in the criminal sense, unless dishonest in tention at

the inception is established, which is conspicuousl y absent

in the case at hand.

46

18. The petitions are at the stage of registration of crime. The

question whether this Court should interfere at the stage of

registration of crime is no longer res integra. The Apex Court in

MAHMOOD ALI v. STATE OF UTTAR PRADESH

8

has held as

follows:

“…. …. ….

10. The entire case put up by the first informant on the

face of it appears to be concocted and fabricated. At this stage,

we may refer to the parameters laid down by this Co urt for

quashing of an FIR in State of Haryana v. Bhajan Lal [State of

Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri)

426 : AIR 1992 SC 604] . The parameters are : (SCC pp. 378-

79, para 102)

“102. … (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 ent irety

do not prima facie constitute any offence or make o ut a

case against the accused.

(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 an d 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,

no investigation is permitted by a police officer without an order

8

2023 SCC OnLine SC 950

47

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 o n

the basis of which no prudent person can ever reach a

just conclusion that there is sufficient ground for

proceeding against the accused.

(6) Where there is an express legal bar engrafted in any

of the provisions of the Code or the Act concerned (under which

a criminal proceeding is instituted) to the instituti on and

continuance of the proceedings and/or where there is a specific

provision in the Code or the Act concerned, 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 t o

spite him due to private and personal grudge.”

We are of the view that the case of the present app ellants falls

within Parameters 1, 5 and 7, respectively, of Bhajan Lal [State of

Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335: 1992 SCC (Cri)

426: AIR 1992 SC 604].

11. At this stage, we would like to observe somethi ng

important. Whenever an accused comes before the Cou rt

invoking either the inherent powers under Section 4 82 of

the Code of Criminal Procedure (CrPC) or extraordin ary

jurisdiction under Article 226 of the Constitution to get the

FIR or the criminal proceedings quashed essentially on the

ground that such proceedings are manifestly frivolo us or

vexatious or instituted with the ulterior motive fo r wreaking

vengeance, then in such circumstances the court owe s a

duty to look into the FIR with care and a little mo re closely.

12. We say so because once the complainant decides

to proceed against the accused with an ulterior mot ive for

wreaking personal vengeance etc. then he would ensu re

that the FIR/complaint is very well drafted with all the

necessary pleadings. The complainant would ensure th at the

averments made in the FIR/complaint are such that t hey

48

disclose the necessary ingredients to constitute th e alleged

offence. Therefore, it will not be just enough for the Court to

look into the averments made in the FIR/complaint al one for

the purpose of ascertaining whether the necessary

ingredients to constitute the alleged offence are d isclosed or

not.

13. In frivolous or vexatious proceedings, the Cour t

owes a duty to look into many other attending

circumstances emerging from the record of the case over

and above the averments and, if need be, with due c are and

circumspection try to read in between the lines. The Court

while exercising its jurisdiction under Section 482 CrPC or

Article 226 of the Constitution need not restrict i tself only to

the stage of a case but is empowered to take into a ccount

the overall circumstances leading to the

initiation/registration of the case as well as the materials

collected in the course of investigation. Take for instance

the case on hand. Multiple FIRs have been registered over a

period of time. It is in the background of such cir cumstances

the registration of multiple FIRs assumes importance ,

thereby attracting the issue of wreaking vengeance out of

private or personal grudge as alleged.

14. State of A.P. v. Golconda Linga Swamy [State of

A.P. v. Golconda Linga Swamy, (2004) 6 SCC 522: 2004 SCC (Cri)

1805], a two-Judge Bench of this Court elaborated on the types of

materials the High Court can assess to quash an FIR . The Court

drew a fine distinction between consideration of materials that were

tendered as evidence and appreciation of such evidence. Only such

material that manifestly fails to prove the accusation in the FIR can

be considered for quashing an FIR. The Court held : (Golconda

Linga Swamy case [State of A.P. v. Golconda Linga Swamy, (2004)

6 SCC 522 : 2004 SCC (Cri) 1805] , SCC p. 527, paras 5-7)

“5. … Authority of the court exists for

advancement of justice and if any attempt is made t o

abuse that authority so as to produce injustice, the court

has power to prevent such abuse. It would be an abus e

of the process of the court to allow any action which

would result in injustice and prevent promotion of

justice. In exercise of the powers court would be

justified to quash any proceeding if it finds that initiation

or continuance of it amounts to abuse of the process of

49

court or quashing of these proceedings would otherwise

serve the ends of justice. When no offence is disclosed

by the complaint, the court may examine the question of

fact. When a complaint is sought to be quashed, it is

permissible to look into the materials to assess what the

complainant has alleged and whether any offence is

made out even if the allegations are accepted in toto.

6. In R.P. Kapur v. State of Punjab [R.P.

Kapur v. State of Punjab, 1960 SCC OnLine SC 21 : AIR

1960 SC 866] , this Court summarised some categories

of cases where inherent power can and should be

exercised to quash the proceedings : (SCC OnLine SC

para 6)

(i) where it manifestly appears that there is a

legal bar against the institution or continuance e.g. want

of sanction;

(ii) where the allegations in the first information

report or complaint taken at its face value and accepted

in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence,

but there is no legal evidence adduced or the evidence

adduced clearly or manifestly fails to prove the charge.

7. In dealing with the last category, it is

important to bear in mind the distinction between

a case where there is no legal evidence or where

there is evidence which is clearly inconsistent wit h

the accusations made, and a case where there is

legal evidence which, on appreciation, may or may

not support the accusations. When exercising

jurisdiction under Section 482 of the Code, the

High Court would not ordinarily embark upon an

enquiry whether the evidence in question is

reliable or not or whether on a reasonable

appreciation of it accusation would not be

sustained. That is the function of the trial Judge .

Judicial process, no doubt should not be an

instrument of oppression, or, needless

harassment. Court should be circumspect and

judicious in exercising discretion and should take

all relevant facts and circumstances into

consideration before issuing process, lest it would

be an instrument in the hands of a private

complainant to unleash vendetta to harass any

50

person needlessly. At the same time the section is

not an instrument handed over to an accused to

short-circuit a prosecution and bring about its

sudden death.”

(emphasis supplied)”

(Emphasis supplied)

The Apex Court reiterates with crystalline clarity that where the

proceedings are manifestly frivolous, vexatious, in herently

improbable or maliciously instituted to wreak vengeance, the High

Court should not hold itself looking into artful dr afting of the

complaint, but should travel to consider the antece dent

circumstances that led to registration of the crime, and obliterate

the same if it finds any of the aforesaid factors.

19. Applying the aforesaid principles to the case at hand, the

documents and events noticed hereinabove unmistakab ly disclose,

that the complaint is not a genuine criminal grievance, but bears a

strong imprint of manipulation and of an attempt to convert

private discord into public prosecution . This, therefore, is a

fit case where even proceedings for malicious prose cution

may be warranted. However, this Court for reasons best left

unstated, restrains itself and holds its hands from issuing such

direction. Wherefore, this Court cannot permit the criminal process

51

to be employed as an engine of harassment or a weap on of

retaliation and become an abuse of the process of t he law,

eventually resulting in miscarriage of justice.

20. For the aforesaid reasons, the following:

O R D E R

(i) Criminal Petitions are allowed.

(ii) FIR in Crime No.789 of 2024 registered at Byad arahalli

Police Station and pending before the Chief Judicia l

Magistrate, Bengaluru Rural District, Bengaluru stands

quashed.

Sd/-

(M.NAGAPRASANNA)

JUDGE

bkp

CT:MJ