Why did the police register the FIR and file a charge sheet in a fake rape case? Why was the The High Court Government Pleader making indefensible submissions?
In Sri Akhil Thomas vs The State of Karnataka (2024), Karnataka High Court's Justice M.Nagaprasanna quashed the proceedings in case against the petitioner pending on the file of XXX Additional Chief Metropolitan Magistrate, Bengaluru. The Court relied on several decisions of the Supreme Court including the decision in Deelip Singh v. State of Bihar, (2005) 1 SCC 88 : 2005 SCC (Cri) 253].
Akhil Thomas (31), the petitioner was in relationship with Mary Ovia John (31), the 2nd respondent. It was claimed by the latter that the relationship was on the promise of the petitioner getting married to the complainant. The breach of promise of marriage led the complainant to register the complaint against the petitioner for the aforesaid offences. The police conducted investigation and filed a charge sheet. The filing of the charge sheet drove the petitioner to the doors of the High Court. The counsel appearing for petitioner submitted that the acts from the date they met till the date of registration of the crime were all consensual, but never on a promise of marriage. The complainant was already married and had projected herself to be a divorced lady in bumble app. When the petitioner came to know the fact that she was not yet divorced, he breached the promise of marriage. He submitted that there is no crime that is made for offence of rape on consensual acts. The counsel for the 2nd respondent submitted that the she is not willing to pursue the matter any further and would leave the decision to the hands of the Court.
The High Court Government Pleader refuted the submission of the petitioner by contending that the petitioner should come out clean in a full blown trial, as the offence laid is the one punishable under Section 376 of the IPC, which provides for the punishment for rape. The Section 376 (1) reads: "Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]."
Notably, Section 64 of The Bharatiya Nyaya Sanhita (BNS) deals with the punishment for rape. It reads: "Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine." It is evident that except for the change in the section number of the provision for punishment for rape, there is no change in BNS.
In its judgement the High Court has recorded that the narrated facts are not in dispute. "The petitioner and the respondent come in contact on a bumble app. It is the contention of the petitioner that in the app, the complainant had projected herself to be a divorced lady and therefore, the petitioner had evinced interest to develop friendship with the 2nd respondent/complainant. The friendship blossomed into relationship and the relationship went into physical relationship as well. After few months after the relationship, the petitioner then discovers that the complainant is not a divorced lady and is having a child which is 5 years old. It is then he breaches the promise allegedly held for marrying the complainant. This leads the complainant to register the complaint."
The Court observed: "If the contents of the complaint and the summary of the charge sheet are read in tandem, what would unmistakably emerge is, obliteration of the crime against the petitioner, for the reason that the complainant was already married and the marriage was still subsisting at the time when she projected herself to be a divorced lady without a divorce actually happening. Therefore, there cannot be promise of marriage held on to a NC: 2024:KHC:48393 lady, who was already married. Be that as it may. The other acts alleged are all consensual acts. On such consensual acts in a relationship between the petitioner and the respondent cannot become the offence of rape as obtaining under Section 376 of the IPC."
The Court drew on several decisions wherein "The Apex Court has delineated the inter-play between the offence of rape and a consensual sexual relationship, both on the false promise of marriage, and promise of marriage. Therefore, a deeper delving into the issue becomes unnecessary, suffice to quote the judgments of the Apex Court rendered over the years. The Apex Court in the case of PRAMOD SURYABHAN PAWAR v. STATE OF MAHARASHTRA has drawn distinction between rape and consensual sexual relationships. While delineating inter-play between promise of marriage and allegation of rape, the Apex Court has held as follows: “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 Deepak Gulati v. State of Haryana, (2013) 7 SCC 675 : (2013) 3 SCC (Cri) 660], the Supreme Court has held that "there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the latter falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 IPC."
In Deelip Singh v. State of Bihar, (2005), the Court framed the following two questions relating to consent: (1) Is it a case of passive submission in the face of psychological pressure exerted or allurements made by the accused or was it a conscious decision on the part of the prosecutrix knowing fully the nature and consequences of the act she was asked to indulge in?
(2) Whether the tacit consent given by the prosecutrix was the result of a misconception created in her mind as to the intention of the accused to marry her?
In this case, the girl lodged a complaint with the police stating that she and the accused were neighbours and they fell in love with each other. One day in February 1988, the accused forcibly raped her and later consoled her by saying that he would marry her. She succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her, and therefore continued to have sex on several occasions. After she became pregnant, she revealed the matter to her parents. Even thereafter, the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl, but the accused avoided marrying her and his father took him out of the village to thwart the bid to marry. The efforts made by the father of the girl to establish the marital tie failed. Therefore, she was constrained to file the complaint after waiting for some time. 20. With this factual background, the Court held that the girl had taken a conscious decision, after active application of mind to the events that had transpired. It was further held that at best, it is a case of breach of promise to marry rather than a case of false promise to marry, for which the accused is prima facie accountable for damages under civil law.
In its order dated November 26, 2024, the High Court concluded that "if further proceedings against the petitioner are not obliterated, it would,on the face of it, become an abuse of the process of law and result in miscarriage of injustice."
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