Judicial Analysis Court Copy Headnote Facts Arguments Court observation

KARNATAKA HIGH COURT
K Natarajan, J.
Arun Kumar – Petitioner
versus
State of Karnataka and Anr. – Respondents
Criminal Petition No.200913 of 2024
(482(Cr.PC)/528(BNSS))
Decided on 30.9.2024

Advocates:
Counsel for the Parties:
For the Petitioner:Sri. Mahantesh Patil, Advocate
For the Respondent No.1: Sri. Jamadar Shahabuddin, HCGP
For the Respondent No.2:Sri. S. S. Mamadapur, Advocate

IMPORTANT POINT
FIR registered under wrong law can be quashed but complaint can be retained and filed afresh under right law.

Headnote:
Bharatiya Nagarik Suraksha Sanhita, 2023 – Sections 358 and 528 – Indian Penal Code, 1860 – Sections 376, 323, 506 and 420 – Constitution of India – Article 20(1) – Rape, hurt, criminal intimidation and cheating – Sustainability of FIR registered on 01.07.2024 under Section 154 of Cr.P.C. after commencement of BNSS, 2023 for offences committed prior to 01.07.2024 – If any offences committed prior to commencement of BNS prior to 01.07.2024, police required to register FIR for offences under IPC but not under BNS – Police have rightly registered FIR for offences against petitioner under the IPC – However, police must have registered FIR on 01.07.2024 under Section 173 of BNSS, but not under Section 154 of repealed Cr.P.C. – It cannot be permissible to investigate the matter under Section 176 of BNSS for FIR registered under 154 of Cr.P.C. after commencement of BNSS on or after 01.07.2024 – It cannot be a considered as curable defect – However, there is no fault of victim or complainant for registering FIR under Cr.P.C. by police – FIR is required to be quashed by retaining complaint filed by de facto complainant – At this stage even if FIR is quashed on technical ground but police can register fresh FIR under Section 173 of BNSS and investigate the matter under Section 176 of BNSS and file final report in accordance with law.(Paras 13, 17, 28, 29 and 30)
Result: Petition allowed.

ORDER (ORAL)

K. Natarajan, J.—This petition is filed by the petitioner / accused under Section 528 of Bharatiya Nagarika Suraksha Sanhita –2023 (hereinafter referred as BNSS) for quashing First Information and FIR in Crime No.180/2024, registered by the Lingasugur Police Station, for the offences punishable under Sections 376, 323, 506 and 420 of IPC, pending on the file of Prl. Civil Judge (Jr. Dn) and JMFC, Lingasugur, Dist: Raichur.

2. Heard the learned counsel for the petitioner, the learned High Court Government Pleader for the respondent No.1 – State and the learned counsel for the respondent No.2.

3. The case of the prosecution is that as per the first information lodged by the respondent No.2 before the police on 01.07.2024, alleging that she is working as a nurse in a Government Hospital, Lingasugur. Her husband met with an accident on 28.03.2021, admitted in the Government Hospital and he was died on 30.03.2021. During the time of treatment and after the death of her husband, the accused / petitioner said to be working in the same Hospital as ‘D’ group employee. He was helped the complainant while treatment. After the death of her husband and the accused frequently used to visit the house of the complainant and consoled the respondent No.2. He also came forward to give life to the complainant and promise to marry her. On this background, the accused took the complainant into a room under the guise of going to the Temple and committed sexual assault on her against her will on 24.06.2021. Further, he used to call her forcibly and commit the sexual assault. Subsequently, on the assurance of marriage, the accused has collected more than Rs.11,43,180/- from the complainant on various dates through online transfer and also received by cash totally Rs.2,00,000/- and cheated the complainant without repaying the same and also not remarrying the de-facto complainant. Hence, the complaint came to be filed.

4. After receipt of the complaint from the de-facto complainant on 01.07.2024, the police have registered the FIR under Section 154 of Cr.P.C. for the offences punishable under Sections 376, 323, 506 and 420 of IPC. Being aggrieved with the registering the FIR and the complainant, the petitioner has filed this petition for quashing the same.

5. The learned counsel for the petitioner urged mainly two grounds for quashing the FIR, which is as under:-

(i) The learned counsel for the petitioner has contended that the offences alleged in the complaint was occurred on 24.06.2021 and subsequent dates on or prior to 30.06.2024, but the complaint was filed on 01.07.2024, wherein the criminal procedure code has been repealed by the Central Government and new law i.e., BNSS has been come into force from 01.07.2024 onwards. Therefore, the police cannot registered the FIR under Section 154 of Cr.P.C. on or after 01.07.2024. Therefore, conducting the investigation and the FIR registered under the repealed Cr.P.C. is not sustainable.

(ii) The learned counsel also argued on the merits of the case, that the complaint was major and working as a Government Nurse in the Hospital, married woman. But it is not possible to believe the accused committed rape against her will and consent, in order to bring under the provisions of Section 375 of IPC, and for the punishment prescribed under Section 376 of IPC. There is inordinate delay in lodging the complaint for more than 03 years. Therefore, it is not fit case to investigate the matter by the police. Therefore, prayed for quashing the FIR.

6. The learned counsel appearing for the respondent No.2 has seriously objected the petition contending that the petitioner under the guise of promise of marriage committed the sexual assault on the victim lady. He also received huge amount more than Rs.2,00,000/- from her and he has cheated the complainant. There is no consent of the victim, but the accused committed the rape by taking her under the guise of going to the Temple and misusing the loneliness of