Ajith v. State of Kerala & Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, 1942** ## **Crl.MC.No.3020 OF 2020(F)** **CRIME NO.186/2020 OF CHAVARA POLICE STATION AND ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, CHAVARA, KOLLAM DISTRICT** ## **PETITIONER/SOLE ACCUSED:** **AJITH AGED 31 YEARS, S/O.SASIDHARAN, RESIDING AT AJITH BHAVAN, THOTTINUVADAKKU, CHAVARA PANCHAYATH, KOLLAM-691583.** **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENT/STATE AND DE-FACTO COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-682031.** - **2 THE STATION HOUSE OFFICER, CHAVARA POLICE STATION, KOLLAM DISTRICT-691583.** - **3 XX(VICTIM) XX** ## **R3 BY ADV. SRI.K.K.VIJAYAN** ## **OTHER PRESENT:** ## **R1 & 2 BY SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.3020 OF 2020(F) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.3020 of 2020 ---------------------------------------------Dated this the 18[th] day of December, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed on 08.07.2020, under Sec.482 of the Code of Criminal Procedure (Cr.P.C.), is as follows:- _"….........to quash Annexure-A1 FIR No.186/2020 of Chavara Police Station on the file of the Judicial First Class Magistrate Court, Chavara, Kollam District as registered against the petitioner.”_ 2. Heard Sri.S.Sreekumar (Kollam), learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for official respondents 1 & 2 and Sri.K.Vijayan, learned counsel appearing for the contesting respondent No.3 (lady _de-facto_ complainant). 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.A1 FIR in Crime No.186/2020 of Chavara Police Station, which has been registered for offences punishable under Secs.376(2)(b) & 420 Crl.MC.No.3020 OF 2020(F) 3 of the IPC on the basis of the First Information Statement given by the 3[rd] respondent lady defacto complainant on 27-02-2020 at about 3.30 p.m, in respect of the alleged incidents, which had happened for the period from 03-11-2019 onwards. 4. One of the main contentions urged by the learned counsel appearing for the petitioner is that, even if it is assumed for argument sake that the incidents alleged by the 3[rd] respondent in Anx.A1 FIS and especially the sexual incidents alleged therein are assumed to be broadly true, still the vital ingredients of the offence of forcible sexual intercourse, so as to constitute rape as per Sec.375 of the IPC are not made out in the instant case. As the said incidents if true, but it could have happened only on the basis of consent between the parties and not otherwise. Of course, a subsidiary contention is also put up by the petitioner that now the entire disputes between the petitioner and the 3[rd] respondent has been resolved and that they have decided to solemnise their marriage without much delay and that since they belong to different caste and as the marriage of the younger sister of the petitioner is being contemplated, they need some more time to convince the family Crl.MC.No.3020 OF 2020(F) 4 members, for their blessings to ensure that the marriage is solemnised between the petitioner and the 3[rd] respondent etc. In that regard, the petitioner would also place reliance on decisions of this Court as in _**Freddy @ Antony Francis & Others v. State of Kerala & Another**_ [2017 KHC 344 = 2018 (1) KLD558], _**Denu P. Thampi v. Ms.X & Another**_ [2019 (3) KHC 199 = 2019(2) KLT 996], where it has been held that though ordinarily it may not be right and proper for this Court to quash grave and serious offence of rape as per Sec.376 of the IPC, on the ground of settlement, still an exception could be made out in cases, where the allegation is that consent for the sexual relationship was obtained initially on the basis of promise to marry, it is alleged to resile and then the impugned criminal proceedings is set in and where subsequently the accused and lady _de-facto_ complainant have solemnised their marriage, etc, and that in such cases, the impugned criminal proceedings could be quashed taking note of such extenuating circumstances to ensure that the marital life of the _de-facto_ complainant is not detrimentally affected and keeping in view future and welfare of the lady defacto complainant etc. Crl.MC.No.3020 OF 2020(F) 5 5. This court need not now consider the subsidiary contention, as it is admitted case of the parties that the proposed marriage between them have not yet been solemnised in the manner known to law. 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 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 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 Crl.MC.No.3020 OF 2020(F) 6 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 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 Crl.MC.No.3020 OF 2020(F) 7 relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 7. The abovesaid issue as to whether the consent to have sexual relationship was obtained from the woman has been vitiated by misconception of fact as understood in Sec.90 of the IPC on the basis of the alleged false promise to marry etc, has been the subject matter of consideration of recent decisions of the Apex Court as in _**Pramod Suryabhan Pawar v. State of Maharashtra & another**_ [(2019) 9 SCC 608], _**Maheshwar Tigga v. Sate of Jharkhand**_ [(2020) 2 KLD 589 (SC)], etc. 8. Now it may be pertinent to refer to the contents of Anx.A1 FIS and in Anx.A1 FIS, the case set up by the 3[rd] respondent is that, she is aged 32 years and she is working as a Senior Assistant in Government Finance Institution and that she was married to another person in July, 2005 and that she has a son now aged 13 years born in their marital relationship. That she has been separated from her husband from 2013 onwards. Further that the petitioner/accused now aged 33 years is also working in Government undertaking as a clerk. Further that both of them were classmates since Std.VIII in the Crl.MC.No.3020 OF 2020(F) 8 school and have also been living in the immediate neighbourhood. That after she got separation from husband, both of them became intimate and an affair have started and that she had even given moneys to the tune of Rs.15 Lakhs to him for the period from 2016 to 2019 onwards. That later, she got divorce from her 1[st] husband in October, 2019 and that on 03-11-2019, petitioner had come to the residence at about 11.00p.m in the night and that he had forced her to have sex with him and further that he had assured her that he would marry her, etc. Later on 26-01-2020 also he had come to her residence and he had forced her to have sex with him, then also he had assured her that he would marry her etc. That later, she came to know that there is a marriage proposal for the petitioner and that he has contemplated to marry another lady. Thereupon she felt cheated and she has given the instant complaint to the Police, etc. 9. A close and intelligent reading of the FIS would make it clear that, the petitioner and the 3[rd] respondent have been living in the neighbourhood since their childhood days and both of them were even classmates in the same school since Crl.MC.No.3020 OF 2020(F) 9 Std.VIII onwards and they were quite close to each other. Both of them are in their early 30’s and both of them are working in Government undertakings. The 3[rd] respondent was married and later she has been separated from her husband since the year 2013 and she got divorce only in 2019. The case set up in the FIS that even she has given moneys to the tune of about Rs.15 Lakhs to the petitioner to meet his house construction expenses between 2016 to 2019 would show that, both of them were having a close relationship and they trusted each other. It has been borne in mind that the alleged transaction of money has taken place at a time when the 3[rd] respondent was married, but separated, but had not secured dissolution of marital relationship. It is during the time that she was separated from her husband that they had become more close and intimate. It has also to be borne in mind that they have been living in the neighbourhood for a very long time since their childhood days and both of them were even classmates since Std.VIII. Therefore, an intelligent reading of the FIS would lead to the conclusion that even if the alleged sexual incidents said to have happened on 03-11-2019 and 26-01-2020 are true, it could have Crl.MC.No.3020 OF 2020(F) 10 happened only on the basis of consent between the parties and not otherwise. The first incident is said to have happened in the night at 11.00 p.m. of course, there are averments therein that the petitioner had forced her to have sex. But in the same time, the 3[rd] respondent would also say that the petitioner had assured her that he would marry her. 10. Therefore going by the totality of the facts and circumstances of the case and bearing in mind the friendship of the parties since their early childhood days and from the time when they were classmates in their high school days onwards and the fact that they are living in the immediate neighbourhood and also taking note of the fact that both of them are working in reputed Government undertakings, it has to be held from a overall totality of the facts and circumstances of the case that if the alleged sexual incidents are assumed to be broadly correct, it could happened more probably on the basis of consent than otherwise. 11. Then the next issue is as to the alleged promise to marry, etc. Any promise that may have been made by the petitioner before the 3[rd] respondent had secured divorce cannot Crl.MC.No.3020 OF 2020(F) 11 be countenanced in law, for the simple reason that the promise made by a male accused to a married lady that he would marry the latter, is a promise, which is opposed to public policy and morals and hence unconscionable and hit by Sec.23 of the Indian Contract Act. It has also been borne in mind that if any such promise made by a party to another, who is already married at a time when the marital dispute for that parties obsessing, is a promise if fulfilled, would amount to commission of offence, in as much as marriage of a party with another, who has got a living spouse might invite criminal culpability envisaged in Sec.494 of the IPC relating to bigamy. 12. The prosecution does not have any case that the applicable personal law of the parties permit more than one marriage at a time. Then crucially the next issue is as to whether the alleged promise to marry was false right from the inception of the act that is, it was a false promise made by the accused right from the inception when the promise was made with the fraudulently intention to not to fulfill the said promise and for the purpose of getting the consent of the lady to have sexual relationship. This is a prime requirement to fulfill the Crl.MC.No.3020 OF 2020(F) 12 requirements of misconception of fact as understood in Sec.90 of the IPC. 13. Going by the overall factual matrix in this case, taking note of the abovesaid facts and circumstances, the prosecution has not brought in any strong materials to indicate that, even if it is assumed that the petitioner has made any such promise, the said promise was false and dishonest right from the beginning and that it has been made only with the dishonest intention to not to marry the lady and only for the purpose of having sex with the lady. Since the said requirement is conspicuously absent, then it cannot be said that the consent to marry was obtained on the basis of assurance of marriage, which would attract misconception of fact as understood in Sec.90 of the IPC. That apart, the second requirement to attract misconception of fact as understood in Sec.90 of IPC is that, the said misconception should have an immediate proximity in time to the occurrences in hand. 14. It is also well established that in order to come within the meaning of misconception of fact that the fact must have an immediate relevance. It is also pertinent to refer to the Crl.MC.No.3020 OF 2020(F) 13 dictum laid down by the Division Bench of the Kolkata High Court in the case in _**Jayanthi Rani Panda v. State of West Bengal and another**_ (1984 CriLJ, 1535) = (1984 KHC 1148), where in Para No.8, it has been held that in order to make out a case of misconception of fact as understood in Sec.90 of the IPC to vitiate the consent obtained on the basis of promise to marry etc, the prosecution should have credible materials to show that accused had no intention of keeping the promise and that failure to keep the promise at a future uncertain date due to reasons that may not be clear does not always amount to misconception of fact at the inception of the act itself and in order to come within the meaning of misconception of fact as understood in Sec.90 of the IPC, the fact must have an immediate relevance. 15. Further the said acts have occurred in the course of a long standing love affair, which included also sexual relationship, then Sec.90 of the IPC may not be called in aid in such a case to excuse the act of the one of the person and to fasten criminal culpability on the other. Such acts should be seen as incidents which have occurred in the course of a Crl.MC.No.3020 OF 2020(F) 14 passionate affair and promiscuity of two full grown adults who opted to have relationship which is also inclusive of sexual relationship, on the basis of their own moral and ethical choices. 16. Accordingly, after hearing both sides and after due evaluation of the totalities of the facts and circumstances of the case, this Court is of the considered view that the petitioner has made out a strong probable case even if there was an alleged promise to marry, then the sexual incident could have happened mainly on the basis of consent between the parties and not otherwise and that the vital ingredients of the offence of rape as per Sec.375 of the IPC. 17. Accordingly after hearing both sides and due evaluation of the totality of the facts and circumstances of the case, this Court is of the considered view that the petitioner has made out a strong probable case that even if there was an alleged promise to marry, then the sexual incident could have happened mainly on the basis of consent between the parties and not otherwise and that the vital ingredients of the offence of rape as per Sec.375 of the IPC are not made out in this case. Crl.MC.No.3020 OF 2020(F) 15 18. Further, Sri.K.K. Vijayan, learned counsel appearing for the 3[rd] respondent (lady victim) would submit that his party has made the allegations in the impugned criminal proceedings against the petitioner mainly out of misunderstandings, as the petitioner's mother was insisting that he should marry another lady presumably on account of the fact that the petitioner belongs to Scheduled Caste, whereas the 3[rd] respondent belongs to a forward community and it is only to ensure that the petitioner's marriage with any other lady of his choice that the 3[rd] respondent has made the abovesaid allegations with the good intention that the petitioner and the 3[rd] respondent will be able to solemnise the marriage later after convincing the families on both sides to get their blessings for the marriage, etc. 19. Taking note of the overall facts and circumstances of the case, this Court is of the considered view that the impugned criminal proceedings could be subject to interdiction in the hands of this Court to exercise the inherent extraordinary powers of this Court saved and reserved in terms of Sec.482 of the Cr.P.C. and that the continuance of the impugned criminal Crl.MC.No.3020 OF 2020(F) 16 proceedings will be an abuse of the process of this Court. In that view of the matter it is ordered that the impugned Annexure A1 FIR in crime No.186 of 2020 of Chavara Police Station as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 20. The petitioner will produce certified copies of this order before the investigating officer concerned as well as before the Judicial First Class Magistrate Court-I, Chavara, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand disposed of. ## **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//21112020 Crl.MC.No.3020 OF 2020(F) 17 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO.186/2020 OF THE CHAVARA POLICE STATION.** **ANNEXURE A2 A TRUE COPY OF THE AFFIDAVIT DATED 6TH MAY 2020 SWORN BY THE THIRD RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL**