SRI. ABHISHEK ACHARYA v. STATE OF KARNATAKA

CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court calling in question the proceedings in C.C.No.55299/2026 registered for offence punishable under section 69 of the Bharatiya Nyaya Sanhita.

2. Heard Sri.Nishit Kumar Shetty, learned counsel appearing for the petitioner, Sri.Anoop Kumar, learned HCGP appearing for respondent No.1, Smt.Shwetha Nayak N, learned counsel appearing for respondent No.2 and have perused the material on record. - 3 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR

3. The petitioner is accused No.1, respondent No.2-the complainant. Both were college mates and for the last 4 to 5 years, they were into a relationship, relationship was physical as well. Alleging that the petitioner-accused has had such physical relationship with the complainant on the pretext of promise of marriage and the said promise having been breached, the complaint comes to be registered. The police after investigation have filed a charge sheet for the aforesaid offence of section 69 of the BNS.

4. Learned counsel Sri.Nishit Kumar Shetty appearing for the petitioner would contend that all the acts between the two are consensual. The two have decided to live together but not by marrying but rendering the date of marriage three years later as the two are wanting to travel for their avocation beyond the shores of this nation. He would submit even otherwise, the summary of the charge sheet would not indicate that the offence alleged would meet the ingredients of section 69 of the BNS. - 4 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR

5. Learned counsel appearing for the respondent- complainant would vehemently accept the submission of the learned counsel for the petitioner contending that the intention of both to get married at a later point in time but would not continue with the avocation. The entire issue is triggered from the complaint. The complaint reads as follows: "To, Date:23.09.2025 The Station House Office, Abhishek Acharya Marathahalli Police station, 8139980979 Bengaluru 560037 9632169277 7829726797 Sub; -Complaint against Abhishek Acharya for cheating emotional and physical exploitation under fake promise of marriage. I Maha, residing at Marathhalli, Munnekolal filing this complaint against Abhishek Acharya. I have been in relationship with him for the past 1 and half years. From the beginning he approached in the name of love. I have known him since my college days. (Since June 2024, we were in physical relationship) Around June 2024 he made a first move and approached me he was so into me and was telling we will settle in different country and get a better job. He assured me that he would marry me once he gets a stable job and settle in life believing his promise and words, I trusted him completely he used to visit my place regularly we had a physical relationship sole by assurance that he would marry me. - 5 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR All this while I was never aware that he was already in relationship with other women and already engaged in march 2025 and is now planning to marry her in November 2025. I Discovered this fact only recently which show from very beginning, he had no intention of marrying me and deliberately misled with false promises to exploit me physically and emotionally after being confronted, he admitted to the engagement but merely said "Sorry" it was his mistake and asked to forget everything showing his dishonest intentions and complete betrayal. Even his sister and fiancé came to my place with him on 13.09.2025 (mid night) just to defend him whatever he have done, it was intentional to use me. And never had plan to be with me and marry me. What makes this more painful is that he was aware, I do not leave with my parents and nobody is their to support me. He have taken advantage of my situation and trust to keep me in this relationship. This actions have caused me immense mental trauma, emotional distress and damaged to my life. Faking love and false promise of marriage, he now wants to walk away by simply saying sorry. He also threatened that his entire family and him will commit suicide if I file FIR and just to let it go and move on. Therefore, I request you to kindly register my compliant and FIR please take appropriate action against him for cheating physically using me faking marriage promise. I seek justice of guidance from police on how to carry this forward. I am ready to provide to supporting evidence such as chats, messages, call records and any other proof. Sincerely Maha" - 6 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR The police conduct investigation and file a charge sheet. The summary of the charge sheet as obtaining in column No.17 reads as follows: “17. 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6. A perusal at the complaint and the summary of the charge sheet would not indicate any ingredients of offence under section 69 of the BNS.

7. Finding no ingredients of the offence under section 69, if further proceedings are permitted to continue against the petitioner, it would run foul of the judgment of the Apex Court in plethora of cases.

8. The Apex Court in the case of SAMADHAN v. STATE OF MAHARASTHRA1, holds as follows: “.…… ……. ……. 27. In this regard, it becomes relevant to refer to the in the case of Mahesh Damu decision of this Court Khare v. State of Maharashtra, (2024) 11 SCC 398, (“Mahesh Damu”) wherein the following observations were made: “27. In our view, if a man is accused of having sexual relationship by making a false promise of marriage and if 12025 SCC OnLine SC 2528 - 8 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR he is to be held criminally liable, any such physical relationship must be traceable directly to the false promise made and not qualified by other circumstances or consideration. A woman may have reasons to have physical relationship other than the promise of marriage made by the man, such as personal liking for the male partner without insisting upon formal marital ties.

28. Thus, in a situation where physical relationship is maintained for a prolonged period knowingly by the woman, it cannot be said with certainty that the said physical relationship was purely because of the alleged promise made by the appellant to marry her. Thus, unless it can be shown that the physical relationship was purely because of the promise of marriage, thereby having a direct nexus with the physical relationship without being influenced by any other consideration, it cannot be said that there was vitiation of consent under misconception of fact.” (underlining by us)

28. We find that the present case is not a case where the appellant lured respondent No. 2 solely for physical pleasures and then vanished. The relationship continued for a period of three long years, which is a considerable period of time. They remained close and emotionally involved. In such cases, physical intimacy 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. relationships are given

29. This Court has, on numerous occasions, taken note of the disquieting tendency wherein failed or broken the colour of criminality. The offence of rape, being of the gravest kind, must be invoked only in cases where there exists genuine sexual 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 injustice. Such instances transcend the realm of mere personal discord. The misuse of the - 9 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR criminal justice machinery in this regard is a matter of profound concern and calls for condemnation.

30. In Prashant v. State of NCT of Delhi, (2025) 5 SCC 764, this Court speaking through one of us (Nagarathna, J.) observed that a mere break-up of a relationship between a consenting couple cannot result in the 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 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 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 also 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 said 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 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 her partner and to consent to physical intimacy on the assurance that such a relationship would culminate in a lawful and socially recognised marriage. In such circumstances, the - 10 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR promise 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 where trust has been breached and dignity violated, lest the protective 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 moral conjecture.

32. Upon a careful consideration of the record in the present case, we are unable to discern any material that would warrant the invocation of Section 376(2)(n) of the IPC. The facts of the present case unmistakably indicate that it is a classic instance of a consensual relationship having subsequently turned acrimonious.

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 absence of consent in their physical relations. It was only upon 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 to have occurred between 12.03.2022 and stated 20.05.2024; however, lodged only on 31.08.2024, i.e. nearly three months after the last alleged act of sexual intimacy. the FIR was

34. The FIR is conspicuously silent as to any specific allegation that the appellant had either forcibly taken 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 the contention of proposal. In such circumstances, - 11 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR respondent No. 2 that the physical relationship between the parties was premised 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 willingly engages in a long-term sexual relationship with a man, 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 wife of the appellant thereby, dispelling the allegation that the intention of the appellant was to cheat her right inception of the relationship. from the

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 abundantly clear that she was in a consensual relationship with the appellant since 2006. It is alleged in the complaint that when she had proposed that they 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 - 12 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR guilty as the appellant and therefore, his marriage must be stopped.

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 had stated that unless there was a specific defence of a consensual 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 between the parties was, in fact, consensual, inasmuch as respondent No. 2 met the appellant whenever he to meet her. Furthermore, expressed a desire respondent No. 2, being a major and an educated individual, voluntarily associated with the appellant and entered into physical intimacy 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 is manifest that the relationship between the parties was consensual, and therefore, the absence of an express 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 otherwise clearly discerned. - 13 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR

38. At this stage it is material to refer to the decision of following in Mahesh Damu, wherein this Court 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, the good and evil on each side. There is a clear distinction 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 whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently. 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.

24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the - 14 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR itself, the accused had no initial stage 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 relevance’. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.” immediate (underlining by us) terms of which

39. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426, this Court formulated the parameters the powers under Section 482 of the Criminal Procedure Code, 1973 (now Section 528 of the BNSS) could be exercised. While it is not necessary to revisit all these parameters, a few that are relevant to the present case may be set out. The Court held that quashing may be appropriate: “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 entirety do not prima facie constitute any offence or make out 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. xxx”

40. In view of the foregoing analysis, we are unable to concur with the findings recorded by the High Court, - 15 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR inasmuch as the present case pertains to a consensual relationship, and the acts of respondent No. 2 clearly manifest consent to such a relationship devoid of any coercion, fraud, or misrepresentation as contemplated in Section 19 of the Indian Contract Act, 1872. In our opinion, the High Court's refusal to exercise its jurisdiction under Section 528 of BNSS unsustainable. The acts complained of in the present case occurred within the contours of a relationship that was, at the time, voluntary and willing. The continuation of the prosecution in such facts would be nothing short of an abuse of the court machinery.” The Apex Court in the case of AMOL BHAGWAN NEHUL v. STATE OF MAHARASHTRA2, holds as follows: record “.…… ……. ……. 8. Having heard both sides in this case and after carefully considering the material on record, the following attributes 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 appear Complainant/Respondent no. 2 was obtained against her will and merely on an assurance to marry. The Appellant and the Complainant/Respondent no. 2 were acquainted since 08.06.2022, and she herself admits that they The interacted Complainant/Respondent no. 2 engaged in a physical relationship alleging that the Appellant had done so without her consent, however she not only sustained her relationship for over 12 months, but continued to visit him in lodges on two separate occasions. The narrative the Complainant/Respondent no. 2 does not corroborate with her conduct. frequently consent love. (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 22025 SCC OnLine SC 1230 - 16 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR the Appellant to secure consent for sexual relations 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 inconceivable that the Complainant had engaged in a physical relationship with the Appellant, on the assurance of marriage, while she was already married to someone else. Even otherwise, such promise illegal and unenforceable qua the Appellant. to begin with was hometown threat caused there was any (c) There is no evidence of coercion or threat of injury to the Complainant/Respondent no. 2, to attract an offence under section 506 IPC. It is improbable 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 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 reason, the criminal prosecution against the Appellant herein is probably with an underlying motive and disgruntled state of mind. Ahmednagar, (d)There is also no reasonable possibility that the 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 - 17 - NC: 2026:KHC:19933 CRL.P No. 4367 of 2026 HC-KAR with. A consensual relationship turning sour or partners becoming distant cannot be a ground for invoking criminal machinery of the State. Such conduct not only burdens the Courts, but blots the identity of an individual accused of such a heinous offence. This Court has time and again warned against the misuse of the provisions, and has termed it a folly to treat each breach of promise to marry as a false promise and prosecute section 376 IPC.” offence person a (Emphasis supplied at each instance)

9. For the aforesaid reasons, the following: O R D E R [I] Criminal Petition is allowed. [II] Proceedings in C.C.No.55299/2026 pending before the XXIX Addl. CJM Court, Mayo Hall, Bengaluru City qua the petitioner stands quashed. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 2 Sl No.: 71