Ajith v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** # **FRIDAY, THE 27TH DAY OF NOVEMBER 2020 / 6TH AGRAHAYANA, 1942** ## **CRL.MC.NO.3462 OF 2020(C)** ## **CRIME NO.762/2020 OF PEROORKADA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **AJITH, AGED 35 YEARS, S/O.NARAYANAN, SN NIVAS, KUDAPPANAMUKKU, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.P.K.VARGHESE** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** **2 VICTIM** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR ADV. SRI.P.S.ANISHAD, FOR R2.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 27.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -----------------------------------------Crl.M.C. No. 3462 of 2020 -----------------------------------------Dated this the 27[th] day of November, 2020 ## O R D E R ## The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“............quash Annexure-I FIR and all further proceedings against the petitioner in Crime No.762/2020 of Peroorkada Police Station, Thiruvananthapuram District, in the interest of justice.”_ 2. Heard Sri.P.K.Varghese, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R-1 (State) and Sri.P.S.Anishad, learned counsel appearing for the 2[nd] respondent lady defacto complainant/victim. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.I FIR in Crime No.762/2020 of Peroorkada Police Station, for offences punishable under Secs.376(2)(n) & 315 of the IPC, on the basis of Anx.II FIS given by the 2[nd] respondent lady defacto complainant/victim on 28.5.2020 in respect of the alleged incidents which happened for the period from 3.10.2017 to 20.3.2020. 4. The main contention urged by the petitioner is that the very initiation of impugned criminal proceedings at Anx.I is a grave abuse of the process of Court and is liable for quashment. In that regard, two Crl.M.C. No. 3462 of 2020 **==> picture [19 x 9] intentionally omitted <==** contentions have been raised by the petitioner. First contention is that, even if it is assumed that the main allegations of sexual incidents narrated in Anx.I are assumed to be broadly correct, then it can be seen that the same would have happened only on the basis of consent between two fully grown adults and that the same will not constitute the vital ingredients of offence of rape as per Sec.376 of the IPC. Further that, the entire disputes between the petitioner and the 2[nd] respondent has now been settled as can be seen from Anx.III affidavit dated 26.6.2020 wherein she has stated that the entire disputes between them have been settled and she has no further grievances against him, and further that she had initially given complaint against the petitioner due to her emotional imbalance and pressure from family members and friends, and that the impugned criminal proceedings may be quashed by this Court. 5. At the outset it has to be borne in mind that it is by now well settled that it may not be right and proper for this Court to ordinarily quash serious and grave offence of rape as per Sec.376 of the IPC solely on the ground of settlement between the parties {see Crl.M.C. No. 3462 of 2020 **==> picture [19 x 9] intentionally omitted <==** _**Shimbhu & Anr. v. State of Haryana**_ [(2014) 13 SCC 318], _**Parbatbhai Aahir v. State of Gujarat**_ [ _(_ 2017) 9 SCC 641], _**Anita Maria Dias v. State of Maharashtra**_ [(2018) 3 SCC 290], _**Sebastian @ Solly v. State of Kerala**_ [2015 (1) KLJ 384, etc.} Hence it may not be proper to quash the main offence of Sec.376 of the IPC solely on the ground of settlement between the parties. 6. Before dealing with the facts of the case, it will be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts in the matter of distinction of rape as per Sec.376 of the IPC and consensual sexual relationship between the parties. It is by now well established that there is a fine and substantial distinction between rape as understood in Sec.376 of the IPC and consensual sexual relationship between parties and this has been the subject matter of detailed consideration of various judgments of the Apex Court and various High Courts, including this Court. The said issue is the subject matter of a catena of rulings of the Apex Court in decisions as in _**Uday v. State of Karnataka**_ , reported in _**(2003) 4 SCC 46**_ Crl.M.C. No. 3462 of 2020 ..5.. and _**Deelip Singh @ Dilip Kumar v. State of Bihar,**_ reported in _**(2005) 1 SCC 88**_ , where it has been held that where the woman has voluntarily and consciously consented to have a sexual relationship with the accused, then her consent cannot be said to be in consequence of any misconception of fact as envisaged in Sec.90 of the IPC. In _**Dr.Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors.**_ , reported in _**2019 (1) SCALE 64**_ , the Apex Court has again highlighted about the substantial distinction between rape and consensual sexual relationship. In _**Shivshankar @ Shiva v. State of Karnataka & another** (judgment dated 06.04.2018 of the Apex Court in Crl.Appeal No.504/2018)_ , it has been held that it will be rather difficult to hold sexual intercourse in the course of a relationship which was continued for several years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together. In _**Dhruvaram Murlidhar Sonar’s case (supra)**_ , the Apex Court had elucidated the principles in that regard and it has laid down the clear distinction between rape and consensual sexual relationship and that the acknowledged Crl.M.C. No. 3462 of 2020 **==> picture [19 x 9] intentionally omitted <==** consensual physical relationship between the parties would not constitute an offence under Sec.376 of the IPC. It has also been held that breach of promise to marry in such cases will not by itself lead to a scenario, whereby it can be held that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 7. Now, coming to the facts of the case it can be seen that it is admitted case of the 2[nd] respondent lady defacto complainant in Anx.II FIS is that, she is a married lady aged 27 years and that she knew right from the beginning that the petitioner is also a married man and that the petitioner was working as manager in automobile agency where she was working, and that they had developed a love affair and the petitioner had assured her that he would marry her and for that purpose the petitioner should deliberately avoid her husband and the petitioner would also take care of her child and thereafter the petitioner and the 2[nd] respondent had a series of sexual relationships on various dates at various places for the period from 4.11.2017 to March, 2020 and that two occasions she had become pregnant and as told by the Crl.M.C. No. 3462 of 2020 ..7.. petitioner, she was forced to take some pills for aborting the fetus on account of which she had suffered bleeding and abortion and later the petitioner lost interest in her and she felt cheated and she came to know that the petitioner used to have such relationship with another lady as well, etc. Thus, it can be seen that the very admitted case of the 1[st] respondent in Anx.I FIR and Anx.II FIS is to be effect that she is already a married lady and that she never secured divorce from her husband and that she knew right from the beginning that the petitioner is also a married man, and that the petitioner had assured that he would marry her and take care of her and she should deliberately avoid her husband, etc. It is not even stated in Anx.II FIS that the petitioner had told her to divorce her husband and on the other hand what is stated is as follows: "…..............അജ�ത� വ�വ�ഹ� കഴ�ച�രനത�യ� എന�കറ�യ�മ�യ�രന. അയ�ൾ എനന വ�വ�ഹ� കഴ�ക�നമന� അത�ന� വവണ� ഞ�ൻ ഭർത�വ�നന മനപർവ� ഒഴ�വ�കണനമന� എന$ കഞ�നന വന�ക�നക�ള�നമന� പറഞ ന�ർബന�ച�രന.” 8. So the alleged promise said to have been made by a married man to another married lady that the former would marry the latter and that even if it assumed that the petitioner has asked Crl.M.C. No. 3462 of 2020 **==> picture [20 x 9] intentionally omitted <==** her to divorce her husband so that they could marry later, etc, such a promise made by a married man to a married lady that he would marry her and that even the sexual relationships occurred on the basis of said assurance, it cannot be the basis to contend that the consent of woman was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 9. It has to be borne in mind that the very alleged promise made by a married man to a lady who is married to another man that the former would marry the latter etc is a promise which is opposed to public policy and morals as envisaged in Sec.23 of the IPC and hence such a unconscionable promise cannot be the basis to contend that the consent was obtained on the basis of misconception of fact which occurred on the basis of such a promise. In other words, if it is assumed that the sexual incidents would have taken place, then the same would have happened only on the basis of consent between two fully grown adults. Hence, none of the vital ingredients of the offence of rape as per Sec.376 of the IPC are made out in the instant case. So, the impugned criminal proceedings are liable for quashment on that sole ground. Crl.M.C. No. 3462 of 2020 **==> picture [19 x 9] intentionally omitted <==** 10. As regards the other impugned offence as per Sec. 315 of the IPC, the stand taken by the 2[nd] respondent in Anx.III affidavit would state that she has made the allegations against the petitioner due to her emotional imbalance and pressure and that she does not want to proceed with the complaint in that regard any longer, etc. 11. As regards Anx.III affidavit the learned Prosecutor was requested to get instructions and today when the matter has been taken up for consideration, the learned Prosecutor would submit on the basis of instructions that the investigating officer has conducted an enquiry and has also taken the statement of the 2[nd] respondent lady defacto complainant who has stated that she has voluntarily executed Anx.III affidavit and that the facts stated therein are true, and further that she has made allegations against the petitioner on account of her emotional imbalance and pressure from family and friends etc and that she has no subsisting grievances against the petitioner. The stand taken by the 2[nd] respondent could be taken into consideration atleast for examining the issues relating to the other alleged offence as per Sec.315 of the IPC. The 2[nd] respondent has taken a stand therein that the allegations Crl.M.C. No. 3462 of 2020 ..10.. have been made by her against the petitioner due to her emotional imbalance and pressure, and that she does not wish to proceed with the complaint any further, etc. further, in view of the stand taken by Anx.III, it appears that the inevitable result of the proceedings is the acquittal of the accused and therefore the continuance of the impugned criminal proceedings is an abuse of the process of court. In that view of the matter it is ordered that the impugned Anx.I FIR in Crime No.762/2020 of Peroorkada Police Station, as against the petitioner accused and all further proceedings emanating therefrom as against the petitioner accused will stand quashed and set aside. 12. The petitioner will produce a certified copy of this order before the investigating officer concerned as well as before the JFCMXI, Thiruvananthapuram, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 3462 of 2020 ..11.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** ## **ANNEXURE I** **A TRUE COPY OF THE CERTIFIED COPY OF THE FIR IN CRIME NO.762/2020 OF PEROORKADA POLICE STATION, THIRUVANANTHAPURAM DISTRICT (SEALED COVER).** ## **ANNEXURE II** **A TRUE COPY OF THE FI STATEMENT IN CRIME NO.762/2020 OF PEROORKADA POLICE STATION, THIRUVANANTHAPURAM DISTRICT (SEALED COVER).** ## **ANNEXURE III** **A TRUE COPY OF THE AFFIDAVIT SIGNED BY THE DE-FACTO COMPLAINANT DATED 26.6.2020 (SEALED COVER).**