Legal Implications of Invoking BNS Sections 64(2)(m) and 69 Together in Sexual Offence Cases

The transition from the Indian Penal Code to the Bharatiya Nyaya Sanhita (BNS), 2023, has introduced significant refinements in how sexual offences are categorized and punished. One of the most complex areas of this new framework involves the distinction between rape committed under a false promise and sexual intercourse obtained through deceit. Legal practitioners and litigants frequently grapple with the overlap between provisions that punish non-consensual acts and those that punish consent obtained through misrepresentation.

A primary point of contention in recent litigation is: Can BNS S 64(2)(m) & S 69 Be Invoked in Same Case? As the judiciary begins to interpret these provisions, it has become evident that while these sections target different degrees of culpability, they often appear together in the same First Information Report (FIR).

Understanding the Distinction Between Section 64(2)(m) and Section 69

To determine if both sections can be applied concurrently, it is essential to understand the specific legal threshold each provision establishes under the Bharatiya Nyaya Sanhita, 2023.

Section 64(2)(m) is a specific aggravated form of rape. It punishes acts of rape committed against a woman under a false promise of employment or marriage 2025 Supreme(Online)(Ker) 43360. The essence of this provision is that the act is considered non-consensual because the consent was vitiated by deceit 2025 Supreme(Online)(Ker) 43360. In these instances, the law views the deceit as so fundamental that it negates the legal validity of the consent provided.

In contrast, Section 69 was introduced to address sexual intercourse by employing deceitful means, which includes false promises of marriage, but specifically in contexts without amounting to rape 2025 Supreme(Online)(Ker) 43360. This section is designed for scenarios where consent was obtained through misrepresentation or inducement, but the elements of force or the specific thresholds of rape are not fully met.

Concurrent Invocation in Criminal Proceedings

In practice, it is common for prosecutors to invoke both sections in a single crime. The reason for this concurrent charging is often to cover the varying degrees of deceit and culpability involved in a relationship. Because the line between consent vitiated by deceit (Section 64) and deceitful inducement (Section 69) can be thin, FIRs frequently list both to ensure that the accused is held accountable regardless of how the court ultimately characterizes the consent 2026 Supreme(Online)(Kar) 3366 and 2026 Supreme(Online)(Ker) 9408.

However, the sustainability of these charges depends heavily on the evidence. While both may be invoked initially, courts scrutinize whether the facts support both charges or if one provision subsumes the other. For instance, Section 64(2)(m) requires proof of rape-level non-consent 2025 Supreme(Online)(Ker) 43360. If the evidence suggests that the intercourse was a result of a mutual, though eventually failed, romantic arrangement, the court may find the charges under Section 64 unsustainable.

Judicial Trends in Quashing and Bail

Recent judicial outcomes indicate that while both sections are routinely invoked together, they are frequently quashed if the relationship is found to be consensual or if the parties reach a settlement.

1. Impact of Mutual Settlements

Many cases involving these sections are quashed when the parties reach an amicable resolution. In Crime No.1/2025, where the FIR included Sections 64(2)(m), 69, 77, 78, 115(2), 351(2), and 352, the court ordered to Quash the FIR... based on a joint affidavit indicating a settlement 2025 Supreme(Online)(KAR) 3283. This demonstrates that for non-heinous offences, compounding is permissible when both parties consent 2025 0 Supreme(Kar) 801.

2. The Consent is King Principle

Courts are increasingly vigilant about distinguishing between a false promise (deceit from the start) and a breach of promise (an intention to marry that changed over time). The judiciary has noted that there is a clear distinction between mere breach of a promise, and not fulfilling a false promise 2025 3 Supreme 178. Consent is only considered vitiated if the deceit existed from inception 2025 Supreme(Online)(Kar) 22549.

Evidence of long-term relationships often leads to the quashing of such FIRs. For example, in one instance, a 16-year relationship was cited as a factor in quashing the proceedings, as such duration infers voluntariness rather than a fraudulent inducement 2025 3 Supreme 178. Similarly, bail may be granted if the victim is found to have consented to the relationship, even if the relationship was socially complex (e.g., involving a married person) 2025 Supreme(Online)(Kar) 21986.

3. Custodial Interrogation and Pre-Arrest Bail

Despite the trend toward quashing consensual matters, courts do not grant pre-arrest bail as a matter of routine. In Crime No.504/2025, where charges under 64 and 69 were brought, the court denied pre-arrest bail, stating that serious allegations warrant custodial interrogation 2025 Supreme(Online)(Ker) 43360.

Procedural Safeguards under the BNSS

For the accused, the primary remedy against the abuse of these provisions is seeking quashing under BNSS Section 528 (which serves as the equivalent to the former CrPC Section 482). This allow courts to prevent the abuse of the process of any court.

Furthermore, the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) has introduced safeguards to prevent the registration of frivolous complaints, particularly when public servants are involved. Under Section 175(4) of the BNSS, applications alleging offences by public servants in the discharge of official duties must be supported by an affidavit 2026 2 Supreme 462. This requirement is intended to weed out false, frivolous, or vexatious complaints and strike a balance between accountability and the protection of officials from judicial abuse 2026 2 Supreme 462.

Key Takeaways for Litigants

When dealing with cases where both Section 64(2)(m) and Section 69 are invoked, the following factors are typically decisive:

• Timing of Deceit: Was there a clear intention to deceive from the very beginning, or did the relationship break down later?
• Duration of Relationship: Long-term associations generally suggest voluntary consent, making it harder to prove a false promise from inception.
• Evidence of Settlement: Joint affidavits and mutual settlements are high-probability routes for quashing FIRs under these sections.
• Procedural Compliance: Accused parties should leverage BNSS Section 528 early if the evidence clearly points to a consensual relationship.

Ultimately, while the law permits the concurrent invocation of these sections to ensure broad coverage in an FIR, the judicial trend prioritizes personal autonomy and the reality of consensual relationships over a mechanical application of the law. Because legal outcomes vary based on the specific facts of each case, individuals should seek professional counsel to navigate these complex provisions.