Karthik Gowda vs State of Karnataka and Others

Budihal R.B., J.—This petition is filed by the petitioner-accused challenging the entire proceedings initiated on the basis of the complaint filed by respondent No. 2 registered in respondent Police Station Crime No. 236/2014 pending on the file of the VIII ACMM Court, Bengaluru for the offences punishable under Sections 376, 420 and 366 of IPC.

The case of the prosecution as per the complaint dated 27.8.2014 lodged by complainant-respondent No. 2 is that the accused-petitioner herein came in contact with the complainant, on 8.5.2014 at about 8.00 p.m., at Sanjaynagar coffee day and they were introduced each other through one Kushal. Thereafter, the accused was talking to the complainant over phone and shortly, both of them were attracted. Accused was insisting the complainant to marry him and threatened her that, in case she refused, the consequences would be serious. Due to the fear and as there was no other way, the complainant accepted and gave her consent. On 5.6.2014, accused took the complainant by Air to his house at Mangaluru, where he said that after getting permission from his parents, he will marry her in a grand manner and he further insisted her that for the present, he would tie a thread with a piece of turmeric to her neck. As there was no other way, she accepted for the same and because of the insistence and pressure, she got tied a thread with a piece of turmeric to her neck in front of pooja room in the house of the accused at Mangaluru at about 4.00 p.m. On that day, the complainant stayed with the petitioner in his house and during the night, against her will and without her consent, he committed rape on her. Thereafter, the accused and the complainant returned to Bengaluru, where, in the apartment belonging to the accused, he committed rape on her for four times. The complainant and the accused used to meet each other in the country club at Airport road so also they were meeting at Skybar at UB City. The accused further used to introduce the complainant as his wife to his friends.

Since one month prior to filing of the complaint, petitioner-accused stopped receiving phone calls of respondent No. 2-complainant and through TV news, the complainant came to know that engagement ceremony of the accused with some other lady has been fixed. In the meanwhile, the friends of the accused were telling the complainant that it would be doubtful of the accused marrying her. In this background, on 10.8.2014, she tried number of times to talk to accused, even then, he had not received the phone calls. Then, she spoken to the mother of the petitioner over phone and told that she wanted to talk to her and asked as to when she should meet her, for which, the mother of the petitioner told that she is in Madikeri and she will be coming to Bengaluru, on the next day. On 11.8.2014, the complainant went to the house of accused at Sanjayanagar and explained to the mother of the accused as to what had happened between the accused and herself. There was no reaction by the mother of the accused. Thereafter, Goutham and Kushal, friends of the accused, were sent to the complainant''s place. They threatened her that she should not make any hue and cry alleging that the petitioner has not married her, and again they will come on Thursday to meet her. She was also threatened not to disclose these things before others. On 27th, which was the birth date of the accused, the complainant tried to contact him over phone as she wanted to greet him, but he did not respond at all. On 27.8.2014, through television, complainant came to know about the engagement of the accused. Hence, she gave complaint stating that as the accused and his family members, financially and politically are strong persons, herself and her family members may be given protection and action may be taken against the accused and she may be provided justice in the case. In the complaint, she has given the details at point Nos. 1 to 3 about the alleged rape on her and the accused meeting her at the skybar, country club and turf club, number of times. On 5.6.2014, at 8.30 p.m., in a party, the accused introduced complainant as his wife before his friends-Arvind and Prajwal. On the basis of the said complaint, the case was registered against the petitioner-accused for the offences punishable under Sections 420, 376 and 366 of IPC.

Heard the arguments of the learned senior counsel appearing for the petitioner-accused, learned SPP appearing for respondent No. 1-State and the learned Counsel appearing for respondent No. 2-complainant.

Learned Senior Counsel appearing of the petitioner - accused during the course of his arguments submitted that the allegations made in the complaint are factually not correct and knowingly, false statement has been made by the complainant. In the complaint, there are corrections, scoring and additions, which are not at all initialled by the complainant. For the allegation in the complaint, that on 5.6.2014, the petitioner took respondent No. 2-complainant to Mangaluru by Air and after taking to his house in Mangaluru, he married her by tying a thread with a piece of turmeric to her neck, the learned Senior Counsel submitted that the petitioner has produced the list containing the passengers name, which are produced at page Nos. 31 and 37 of the petition, which shows that the complainant had not travelled with the petitioner and she alone had travelled. This itself falsify the contention of the complainant that the petitioner took her to Mangaluru by Air, threatened and married her and thereby, committed rape on her. He has also submitted that there is delay of more than 2 1/2 months in lodging the complaint and hence, the conduct of the complainant is to be appreciated by the court. The learned Senior Counsel further submitted that if really, the complainant has been ravished by the petitioner, immediately, she could have lodged a complaint without waiting for further period of 2 1/2 months. The complaint averments also show that after committing rape on the complainant-respondent No. 2 at Mangaluru and after coming to Bengaluru, in the house of the petitioner, located in the apartment fallen to his share, he committed rape for four-five times. For this, the learned Senior Counsel submitted that these are all the false allegations made against the petitioner. He submitted that even if the allegations made in the complaint are taken to be true for the sake of appreciation of arguments, it will not make out a case under section 376 of IPC. It is also submitted that the complainant filed a suit before the Family Court at Bengaluru seeking declaration that she is to be declared as legally wedded wife of the petitioner. The petitioner contested the same by filing objection statement and ultimately, the said suit has been dismissed by the family court. He submitted that no ingredients of the offence of cheating are made out in the complaint. If at all the case of respondent No. 2-complainant to be accepted, then civil remedy is the proper remedy available to her. For the objection by the other side that that investigation is still going on and it is not the stage to allow the petition and quash the proceedings, in this regard, the learned Senior Counsel submitted that it is not the correct legal position and if the complaint and FIR do not make out a prima facie case then, the petitioner can maintain the petition and the court can quash the proceedings. The learned Senior counsel lastly made the submission that there is false implication of the petitioner in the case and hence, the same may be allowed and the criminal proceedings initiated against the petitioner may also be quashed.

In support of his contentions, the learned Senior Counsel appearing for the petitioner has relied upon the following decisions:

"1. State of Haryana and others Vs. Ch. Bhajan Lal and others,

Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another,

Shameed Raj M. Nadaf v. State of Karnataka -Crl.P. No. 4066/2014 dated 6.8.2014 (HCK)

Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others,

Jose Thettayil v. Station House Officer - a decision dated 1.8.2013 passed by the High Court of Kerala in Crl. M.C. No. 2737/2013."

Learned SPP appearing for respondent No. 1-State during the course of his arguments made the submission that investigation is still going on and it is too premature to quash the criminal proceedings. Hence, submitted that the petition is not maintainable at this stage.

Learned counsel appearing for respondent No. 2-complainant during the course of his arguments made the submission that FIR is not the encyclopedia to contain all the averments. It is also his submission that the complaint averments itself show that even with regard to the marriage of respondent No. 2 with the petitioner, there was threat and coercion on her. The complaint averments also goes to show that the petitioner by making false promise of marrying respondent No. 2, exploited her for his sexual satisfaction, and thereby cheated respondent No. 2. Regarding delay in lodging the complaint, the learned counsel made the submission that it is only when respondent No. 2 came to know through TV news channels that the engagement ceremony of the petitioner with another lady took place and then immediately, she approached the mother of the petitioner and as she did not get any response in the matter, ultimately, she filed the complaint. The learned counsel further submitted that looking to the events that has taken place, in fact, there is no delay. Respondent No. 2-complainant is having apprehension that the petitioner and his family members, being politically and financially strong, will put danger to her life and in the complaint itself, she has requested the police to give protection to her. The learned counsel further made the submission that serious offence under Sections 376 and 420 of IPC are alleged against the petitioner and the concerned police are investigating the matter. The final report is yet to be submitted by the police and hence, at this stage, it is not proper to quash the proceedings.

In support of his contentions, learned counsel for respondent No. 2 has relied upon the following decisions:

"1. Md. Jakir Ali Vs. The State of Assam,

Rabi Narayan Ojha Vs. State of Orissa,

State of Bihar and Another Vs. Md. Khalique and Another,

State of Kerala and Others Vs. O.C. Kuttan and Others,

Janata Dal Vs. H.S. Chowdhary and Others,

Saleha Khatoon Vs. State of Bihar and Another,

Rajendra Datta Zarekar v. State of Goa - 2008 Crl.L.J. 710 (SC)

Karthi @ Karthick Vs. State Rep. by Inspector of Police, Tamil Nadu, "

I have perused the petition averments and also the other materials produced by both sides so also perused the decisions relied upon by the learned Senior Counsel for the petitioner-accused and the learned Counsel appearing for respondent No. 2-complainant.

Let me refer to the decisions relied upon by the learned Senior Counsel for the petitioner. In the decision reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, , the Hon''ble Supreme Court has laid down the proposition and the relevant points to be considered are as under:

"Crl.P.C. 1973 - section 482, 154 and 157 - Crl. Proceeding - when can be quashed by high court in exercise of powers under section 482 or Article 226 - circumstances stated by way of illustration - on facts held high court not justified in quashing the FIR - constitution of India Art. 226." While considering the aforesaid case, Their Lordships of the Hon''ble Supreme Court have held that:

"The order of the high court quashing the first information report, viewed from any angle, cannot be sustained both on the question of law and facts. Consequently, that part of the judgment of the high court quashing the first information report is set aside.

The following categories are cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under section 482 Cr.P.C. can be exercised by the high court either to prevent abuse of process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myriad of cases wherein such power should be exercised.

(i) 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 entirety do not prima facie constitute any offence or make out a case against the accused.

(ii) Where the allegation in the first information report and other materials if any accompany the FIR do not disclose a cognizable offence justifying an investigation by the police officer under section 156(1) of the Code except under an order of magistrate within the purview of section 155(2) of the Code.

(iii) 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 and make out a case against the accused.

(iv) 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 of a magistrate as contemplated under section 155(2) of the Code.

(v) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act providing efficacious redress for the grievances of the aggrieved party.

(vii) 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 to spite him due to private and personal grudge."

In the decision reported in Asmathunnisa Vs. State of A.P. represented by the Public Prosecutor, High Court of A.P., Hyderabad and Another, , Their Lordships of the Apex Court have laid down the proposition as under:

"(A) Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act (33/1989) Section 3(1)(x) - offences of atrocities -expression ''in any place within public view'' occurring in section 3(1)(x) - means that the public must view the person being insulted for which he must be present - no offence on allegations under the said section gets attracted if person is not present.

(B) Crl.P.C. (2/1974) Section 482 -inherent powers - to quash complaint - abuse of process leading to injustice is brought to the notice of court - court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."

Their Lordships of Hon''ble Supreme Court in the reported decision in Inder Mohan Goswami and Another Vs. State of Uttaranchal and Others, , have laid down the proposition as under:

"(A) Criminal P.C. (2 of 1974), S. 482 - Abuse of process of Court - Dispute about cancellation of agreement to sell property - Is civil dispute-Institution of criminal proceedings under Ss. 420, 120-B, 467, IPC against vendor - An abuse of process of Court - Court must ensure that criminal prosecution is not used as an instrument of harassment or for seeking private vendentta or with an ulterior motive to pressurise accused - Refusal to quash, criminal proceedings - Improper. (Paras 21, 22, 45, 58)

(B) Criminal P.C.(2 of 1974), S. 482 - Inherent powers - Exists for advancement of justice -Injustice by abuse of process of Court can be prevented by exercising inherent powers. (Para 24)

(C) Criminal P.C.(2 of 1974), S. 482 - Inherent powers - Exercise - Powers not to be exercised when facts of case are incomplete and hazy and no evidence is produced before Court. (Para 27) "

(D) Penal Code (45 of 1860), S. 415 - Cheating -Intention is an essential ingredient - It has to be shown that accused had a fraudulent or dishonest intention at time of making promise -From mere fact that promisor could not keep his promise it cannot be presumed that he all along had a culpable intention to break promise from beginning. (Paras 41)"

In a decision of the High Court of Kerala dated 1.8.2013 passed in Crl. M.C. No. 2737/2013, His Lordship has laid down the proposition as under:

"Indian penal code, 1860-petitioner herein is the first accused in the said case and his son is the second accused. The first accused is a sitting MLA and a prominent person enjoying wide popularity among the people of his constituency- the residential house, where the complainant Resides, And The Saw Mill Are Situate In The Same Compound-The Complainant Used To Go To The Business Concern To Help Her Father- The Complainant Had Her Mobile Phone With Her And When The Number Was Sought For By The MLA, It Was Given To Him - The MLA Used To Phone Her Occasionally - The MLA Indicated That He Was Planning To Meet Her Father And Talk About the Marriage. Thereafter, He Called The Complainant Frequently- There Apart From Him, His Eldest Son Adarsh, Two Directors, Cheriyan And Smiley And Other Staff Were Present For The Next Five Months. Adarsh, the Eldest Son Of The MLA Used To Attend His Office- The Number Of The Apartment Is 11-C. A Few Interior Decorations Were Done. After The Purchase, The MLA Had Come To See The Flat. He Is Said To Have Opined That The Existing Interior Decorations Were Of Old Style And So Also The Furniture And Advised Her To Modernize The Furniture And Interior Decorations. With The Help Of Her Father, The Complainant Carried Out Interior Decorations Worth Rs. 40 Lakhs-While Things Stood So, The Complainant Came To Know From Her Friends That There Was A Marriage Proposal For Adarsh With Some Other Girl. The Complainant Came To Know The Same In August, 2012. After She Came To Know About The Same, When Adarsh Came To Her Flat They Had Indulged In Sexual Intercourse Which Was Caught In The Web Camera. Subsequently, Without Much Delay, Adarsh Went To Bombay-The Investigation Of Any Case Does Not Seem To End And It Goes On Endlessly Adding Provisions of I.P.C. And More And More Accused, Some Of Them Based Solely On The Confession Of An Accused. In Some Other Cases Any Number Of Additional Statements Are Taken From The Complainant And Then More And More Offences Get Added And So Also Number Of The Accused. A Stage Has Reached Where Anybody Could Be Booked For Any Offence Eroding The Sancity Attached To Investigation. It Is Even More Curious To Note That Any Number Of Final Reports Are Also Being Filed In Cases Labeling Them As Split Charges. It Is Time That Authorities Concerned Bestow Their Attention To This Matter So That The System Can Retain Its Credibility And Acceptability - Allowed. (Para 100)" The relevant paragraphs to which learned Senior Counsel for the petitioner herein drew the attention of this Court during the course of arguments are para Nos. 89, 95 and 100. They are as under:

"89. In the light of the decisions of the Apex Court, the decisions relied on by the DGP reported in Ram Lal Yadav and Others Vs. State of U.P. and Others, and State of Maharashtra and Others Vs. Arun Gulab Gawali and Others, cannot be taken as imposing absolute prohibition on exercising powers under Section 482 of Cr.P.C. at the threshold. The decisions show that the various stages at which the power can be exercised and the circumstances under which it can be so done. The above decisions indicate that there is no prohibition in exercising the power to quash the proceedings at the threshold provided the conditions mentioned in those decisions are satisfied. One such recognized principle is that if the allegations in the complaint on the very face of it or even prima facie do not make out the offence alleged or any offence, the High Court will be certainly within its power in quashing the proceedings. It is no doubt true that power is to be exercised sparingly in rarest of the rare cases especially when interference is sought for at the threshold. 98. It necessarily follows that the power to commence investigation is dependent upon the fact that the complaint or the information received by the police officer discloses the commission of a cognizable offence. When a complaint is laid making certain allegations and a crime is registered for cognizable offence, it cannot be said that the court is not within its power to examine whether the allegations contained in the complaint gave rise to the offence mentioned in the FIR. Of course, quoting of a wrong provision by itself is not a ground to interfere. Again, the contention of the learned DGP that whatever may be the crime that may be registered initially has no significance and it is the offence that is found out later during investigation but that matters cannot be accepted.

HOWEVER, one cannot shut his eyes to the counter affidavit filed by the third respondent before this court. In the counter affidavit filed by the third respondent, except for the sexual assaults said to have been committed on her, which she states were under misconception of fact, she has no complaint regarding any other act done by the petitioner. Even assuming that a complaint was laid by a layman, at least at the time of filing the counter affidavit before court, the third respondent could have indicated that she had other grievances also. In fact a reading of the complaint and the counter affidavit of the third respondent would clearly show that she had no grievance regarding the various other acts committed by the petitioner. It is significant to notice that even in the complaint when indecent behavior emanated from the petitioner, no objection or resistance was offered by the third respondent. She does not state that she has any grievance regarding those conducts of the petitioner.

BEFORE parting with this matter, a very disturbing trend that has emerged in criminal jurisprudence needs to be mentioned. Of late, the investigation of any case does not seem to end and it goes on endlessly adding provision of I.P.C. and more and more accused, some of them based solely on the confession of an accused. In some other cases any number of additional statements are taken from the complainant and then more and more offences get added and so also number of the accused. A stage has reached where anybody could be booked for any offence eroding the sanctity attached investigation. It is even more curious to note that any number of final reports are also being filed in cases labelling them as split charges. It is time that authorities concerned bestow their attention to this matter so that the system can retain its credibility and acceptability. For the above reasons, this Crl.M.C. has to succeed. Accordingly, this petition is allowed and the complaint Annexure A1 and the FIR Annexure A2 shall stand quashed as far as the petitioner is concerned and further proceedings against the petitioner shall stand dropped."

Perusing the decisions relied upon by the learned Counsel for respondent No. 2 in the decision reported in Md. Jakir Ali Vs. The State of Assam, , it is observed as under:

"(A) Penal Code (45 of 1860), Ss. 376, 417 -Rape - Proof Accused allegedly induced prosecutrix to have sexual intercourse with him by making promise to marry her - Defence by accused that prosecutrix had illicit relation with her brother-in-law and that she suffered from mental disorder - There was no convincing evidence to probabilise this plea of defence - There was nothing on record to establish that she was mentally abnormal as alleged - On contrary, evidence on record clearly proved that accused had made false promise of marriage to victim to have sexual intercourse with her - It caused harm to her mind and reputation - Conviction of accused is, therefore, proper.

(B) Penal Code (45 of 1860), S. 376 - Rape case - Age of prosecutrix - In opinion of doctor, age of girl was above 18 years with 20 weeks of single viable intra -uterine pregnancy-Medical opinion with regard to age may vary by two years on either side - However, no evidence was adduced by prosecution by producing necessary document from school of victim to show her age - Medical evidence on record, which goes in favour of the accused, cannot therefore be ignored - Trial will proceed on premises that she was above 18 years of age at time of incident.

(C) Penal Code (45 of 1860), Ss. 375, 90 - Rape charge - Consent - Submission of body by a woman under fear or misconception of fact cannot be constructed as consented sexual act."

The relevant portion at paragraph Nos. 25 and 26 of the said decision is as under:

"25. When an accused makes a false promise to marry, which he never intends to carry out, and induces thereby the victim, so deceived, to have with him sexual act, which the victim would not have indulged in or permitted, had she not been induced by such deception and when such act of having sexual intercourse by her with the accused causes, or is likely to cause, damage or harm to her body, mind or reputation, the act of the accused would amount to cheating. Thus, when a woman is induced to part with her chastity or virginity, which is the most valued possession of hers, the person, who so induces the woman by making false representation, would be liable for punishment under Section 417, I.P.C. if the victim''s having sexual intercourse, with such a person, causes, or is likely to cause, harm to her body, mind or reputation, for, in such a case, unless so deceived, the victim would not have permitted sexual act by the accused. To put it differently, had such a victim not been deceived, she would not have permitted sexual act or would have refrained from allowing such sexual act and clearly in such a case, but for her permitting such sexual act, she would not have suffered harm to her body, mind or reputation.

Since the definition of the offence of cheating indicates, as already pointed out above, that even when no parting of property is occasioned by deception, the deception may still amount to cheating if, as a result of the deception, a woman does anything or omits to do anything, which she would not have, but for such deception, done or omitted to do, it logically follows that when an accused, not intending to marry a woman, induces the woman, so deceived, to have sexual intercourse with him or induces such a woman to omit from resisting the act of sexual intercourse by him with her, the act of the accused of having sexual intercourse with such a woman would amount to offence of cheating if the act of the woman in letting such a man have sexual inter-course with her or the act of the woman in omitting to resist the act of sexual intercourse by such a man with her causes or is likely to cause damage or harm to the person of such a woman, her mind or reputation."

In the decision reported in Rabi Narayan Ojha Vs. State of Orissa, , His Lordship of the Orissa High Court has laid down the proposition as under:

"Crl.P.C. (2 of 1974) Section 482 - Penal Code (45 of 1860) Section 376 - Criminal proceedings in respect of offence under section 376 of Penal Code - quashment of - existence of prima facie case - inherent powers cannot be invoked to compound offence under section 376 IPC - since it is a serious and heinous offence of the affecting society." In para No. 7 of the said decision, it is observed as under:

"7. Being abreast of the aforesaid settled position of law and the rule of precedence of the precedents, this Court finds this application under Section 482 Cr.P.C. bears no merit. Offence under Section 376, I.P.C. is a serious and heinous one not only effecting an individual but also the society. On the face of existence of prima facie case such offence should not be allowed to be compounded by importing Section 482, Cr.P.C. simply because that benefits individuals. Such a course if adopted, then it reduces and may be in certain cases convert the offence of rape to prostitution in a different manner. If the accused is innocent and victimised by the family members of the prosecutrix then at the stage of trial, accused can have the remedy on bringing appropriate evidence in support of his defence plea regarding his innocence. It is for the trial Court to consider at that stage, about the statement of the prosecutrix and on finding that a false F.I.R. was lodged by the prosecutrix it should follow with appropriate criminal proceeding against the person who lodged the false F.I.R. and the persons who abetted the same. However, the aforesaid is a mere observation and the trial Court is not to consider the same unless such evidence is brought on record in course of the trial." 17. In the reported decision in State of Bihar and Another Vs. Md. Khalique and Another, , the Hon''ble Supreme Court has laid down the proposition as under:

"Criminal P.C. (2 of 1974), S. 482 -Inherent powers - Quashment of Criminal proceedings - Categorical allegations of forgery of assessment order of compensation payable under Bihar Land Reforms Act and also allegations of fraud played while verifying interest of Jamindari - And specific allegation of conspiracy - Made in the FIR against accused persons, revenue Officers - FIR, therefore disclose prima facie case against them -Investigation cannot be interfered with. " In para No. 8 of the said decision, it is observed as under:

"In view of the settled legal position and as offences have been disclosed in the FIR, the High Court ought not to have interfered with the investigation and should have permitted police to complete it. We, accordingly, hold that the High Court has committed a grave error in quashing the entire proceeding and ought not to have thwart the prosecution." 18. In the decision reported in State of Kerala and Others Vs. O.C. Kuttan and Others, , the Apex Court has laid down the proposition as under:

"Constitution of India - Arts. 226, 227 and 136 - Quashing of FIR - Allegation against a large number of accused persons of sexual exploitation under threat, coercion, force and allurement - Case registered under Ss. 366-A, 372, 376, 344 IPC and Immoral Traffic Act -High Court not justified in embarking upon an enquiry by sifting evidence and coming to conclusion with regard to the age of the prosecutrix and also recording a finding that no offence of rape had been committed -Uncharitable comments made by the High Court against the prosecutrix deprecated - High Court exceeded its jurisdiction to record a finding that the prosecutrix was a consenting party - Order of the High Court set aside and the investigating agency directed to proceed with the investigation and conclude the same in accordance with law -Criminal Procedure Code, 1973, S. 482." The relevant portion of paragraph 6 of the said decision is that:

"It is too well settled that the first information report is only an initiation to move the machinery and to investigate into a cognizable offence and therefore, while exercising the power and deciding whether investigation itself should be quashed, utmost care should be taken by the court and at that stage, it is not possible for the court to sift the materials or to weigh the materials and then come to the conclusion on one way or the other. In the case of state of U.P. v. O.P. Sharma, a three judge Bench of this Court indicated that the High court should be loath to interfere at the threshold to thwart the prosecution exercising its inherent powers under section 482 or under articles 226 and 227 of the constitution of India as the case may be and allow the law to take its own course. The same view was reiterated by yet another three judge bench of this court in the case of Rashmi Kumar v. Mahesh Kumar Bhada wherein this court sounded a word of caution and stated that such power should be sparingly and cautiously exercise only when the court is of the opinion that otherwise there will be gross miscarriage of justice." 19. Further, in the decision reported in Janata Dal Vs. H.S. Chowdhary and Others, , the Hon''ble Supreme Court held thus:

"(D) Criminal P.C. (1974), S. 482 - Inherent power - Exercise of - Scope - FIR filed by CBI in BOFORS case - In suo motu exercise of inherent power, single Judge of High Court directing office to issue notice for quashing prosecution as FIR did not prima facie disclose any offence - Held, action was uncalled for and unwarranted.

Judgment dated 19.12.1990 of single Judge, Delhi High Court, Partly Reversed.

FIR - Quashing of - Exercise of suo motu power of High Court Judge - Propriety.

The criminal Courts are clothed with inherent power to make such orders as may be necessary for the ends of justice. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice of the administration of which alone the Courts exist. The powers possessed by the High Court under S. 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles.

The inherent power conferred by S. 482 should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved whether factual or legal are of great magnitude and cannot be seen in their true perspective without sufficient material Of course, no hard and fast rule can be laid down in regard to the cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage."

In the decision reported in Saleha Khatoon Vs. State of Bihar and Another, , His Lordship of the Patna High Court has laid down the proposition as under:

"(A) Penal Code (45 of 1860), S. 375 - "Without her consent" - Accused obtaining consent of lady on basis of fraud and allurement on pretext that ultimately she would be married - Under that pretext, lady allowing accused to have sexual intercourse with her - Held, alleged act was committed without her consent." 21. In the decision reported in Rajendra Datta Zarekar Vs. State of Goa, , their Lordships of the Apex Court have laid down the proposition as under;

"Rajendra Datta Zarekar v. State of Goa

(A) Penal Code (45 of 1860), S. 375 - Rape - False implication of accused - Normally improbable -Rape leaves a permanent scar and has a serious psychological impact on victim and also her family members - No one would normally concoct a story of rape just to falsely implicate a person. (Para 13)

AIR 2013 SUPREME COURT 2645

"Karthi alias Karthick v. State Rep. by Inspector of Police, Tamil Nadu

(A) Penal Code (45 of 1860), S. 375, S. 90 - Rape -Consent - Obtaining of consent by exercising deceit - Cannot be legitimate defence to exculpate an accused.

(B) Penal Code (45 of 1860), S. 375, S. 90 - Rape -Consent on promise to marry - Evidence of village elders that they had required accused-appellant to accede to their request, on their suggestion, matter was reported to police - It demolishes projection made by accused in his statement under Section 313 of Cr.P.C. that accusation of rape was levelled against him for forcing to shell out an exorbitant sum of money to prosecutrix - Plea that accused had not made any promise to prosecutrix that he would marry her hence, cannot be accepted. (Para 15)

(C) Penal Code (45 of 1860), S. 375 - Criminal P.C. (2 of 1974), S. 154 - Rape - FIR - Delay in lodging - First incident of sexual intercourse commenced six months prior to date when complaint was made to Police - As long as commitment of marriage subsisted, relationship between parties could not be described as constituting offence of rape - It is only after accused declined to marry prosecutrix, she reported matter to police - There was no delay in lodging FIR."

Looking to the principles enunciated in the decisions relied upon by both sides, which are referred above, and also careful reading of the averments of the complaint, about which reference is already made in detail, there is an averment in the complaint that the petitioner-accused was insisting respondent No. 2-complainant to marry him and he had also posed threat to her that, in case, she refuses to marry him, the consequences would be very serious. Respondent No. 2-complainant has further mentioned in the complaint that because of fear and as there was no other way, she admitted and consented to marry him. These averments prima facie would indicate that the petitioner promised respondent No. 2 that he will marry her in a grand manner after getting the consent of his parents and accordingly, tied a thread with a piece of turmeric to her neck. There is also specific averment in the complaint that on 5.6.2014, at Mangaluru, respondent No. 2 stayed in the house of petitioner and during night, when the petitioner insisted her to have sexual intercourse on the ground that they have already married, she objected for the same telling that they have not married officially. Though there was objection, forcibly, the petitioner had sexual intercourse with her. The averments of the complaint also shows that as the petitioner stopped to receive the phone calls of respondent No. 2 and as the friends of petitioner came and informed her that it may be doubtful for her to have marriage with the petitioner, she tried to contact the petitioner over phone on 10.8.2014 number of times. But the petitioner did not receive the calls. The complaint averments also point out that when respondent No. 2 went to the house of the petitioner at Sanjaynagar and spoken to the mother of the petitioner informing about the incident that has happened between herself and the petitioner, even then, she did not get any response from the mother of the petitioner. There after, one Goutham and Kushal, the friends of petitioner, were sent to respondent No. 2 and they warned her that she should not make any hue and cry stating that petitioner has not married her.

Looking to all these allegations made in the complaint, it cannot be said that the case of the prosecution is totally groundless and liable for quashing. As there are serious allegations in the complaint that by making false promise and against the will of respondent No. 2, the petitioner tied a thread with a piece of turmeric to her neck and without her consent, he had the sexual intercourse with her and thereby cheated her, the matter requires investigation by the investigating agency.

Apart from that, as rightly submitted by the learned SPP, the investigation is still going on and the police have to file final report in the matter. The petition filed by the petitioner is considered to be premature at this stage. Therefore, without looking into the investigation materials, only on the basis of the contentions raised by the petitioner in the petition regarding some corrections in the complaint, it is not proper to come to conclusion of the entire case of the prosecution. These are the things which are to be considered after the investigation materials are placed before the court.

Regarding delay as contended by the petitioner, the materials would show that when respondent No. 2 came to know through the news in the TV channels about the arrangement of engagement ceremony of the petitioner with another lady, she immediately lodged the complaint.

When serious allegations are made for the alleged offence under Sections 376 and 420 of IPC, and in view of the principles enunciated in the decisions of the Hon''ble Supreme Court and also the other High Courts, referred above, I am of the opinion that it is not a case to invoke Section 482 of Cr.P.C. to quash the proceedings.

I have perused the decisions relied on by the learned Senior Counsel for the petitioner, which are referred above. Considering the facts and circumstances narrated in those decisions and also the facts and circumstances in the case on the hand, those decisions, at this stage, will not come to aid and assistance of the petitioner. The decisions relied upon by the learned counsel appearing for respondent No. 2 are in respect of the offence under section 376 of IPC and hence, they are made applicable to the case on hand.

In view of the discussion as above, with regard to the factual aspects as also the legal position relating to this matter, the contentions of the learned Senior Counsel that the complaint and FIR averments will not make out prima facie case, cannot be accepted and hence, I am of the opinion that the petitioner has not made out a case to allow the petition and to quash the entire proceedings. Accordingly, the petition is rejected.