Alex Varghese v. State of Kerala and Lakshmi

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 11TH DAY OF JUNE 2019 / 21ST JYAISHTA, 1941** **Crl.MC.No.8409 of 2017** **AGAINST THE ORDER/JUDGMENT IN CP 30/2017 of TEMPORARY COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS , THIRUVANANTHAPURAM (JMFC XII) CRIME NO.498/2016 OF Vanchiyoor Police Station , Thiruvananthapuram** ## **PETITIONER/S:** **ALEX VARGHESE, AGED 29 YEARS, S/O.GHEEVARGHESE, PATTATHIL HOUSE, T.C.20/3603,NALANCHIRA P.O., THIRUVANANTHAPURAM.** **BY ADVS. SRI.V.S.VISWAMBHARAN SRI.ENOCH DAVID SIMON JOEL SRI.P.T.SHEEJISH** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.(THROUGH THE STATION HOUSE OFFICER, VANCHIYOOR POLICE STATION). 2 LAKSHMI, AGED 32 YEARS, D/O.SULEKHA, RADHA NIVAS, T.C.28/971, SREEKANDESWARAM CHANDRASEKHARAN NAIR ROAD, VANCHIYOOR, THIRUVANANTHAPURAM-695035. BY ADVS. SRI.AJIT G.ANJARLEKAR SRI.GOVIND PADMANAABHAN SRI.G.P.SHINOD SRI.RAM MOHAN.G. OTHER PRESENT: SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 8409 of 2017 ================== Dated this the 11[th] day of June, 2019 ## **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: _“..... to quash Ann.A3 Final Report and all proceedings in C.P.30/ 2017 on the files of the Temporary Judicial First Class Magistrate's Court, Thiruvananthapuram and allow this petition with costs.”_ 2. Heard Sri.P.T.Sheejish, learned counsel appearing for the petitioner accused, Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 State and Sri.G.P.Shinod, appearing for the contesting respondent No.2. 3. The petitioner has been arrayed as the accused in Anx. A1 Crime No. 498/2016 of Vanchiyoor Police Station, which has been registered on 20.4.2016 for offence punishable under Sec. 376 of the I.P.C., on the basis of the first information statement given by the 2[nd] respondent defacto complainant on the same day. The Police, after investigation has filed the impugned Anx.A-3 final report/charge sheet in the said Crime No. 498/2016 of Vanchiyoor Police Station, which has led to the institution of Committal Proceedings, C.P.No. 30/2017 on the file of the Temporary Judicial First Class Magistrate's Court, Thiruvananthapuram. Crl.M.C.8409/17 - : 3 :- 4. In the said final report/charge sheet the offences alleged against the petitioner are those under Secs. 376 & 366 of the I.P.C. The main allegation disclosed against the petitioner in the impugned Anx. A-1/6 first information statement given on by the 2[nd] respondent on 18.6.2016 is that the 2[nd] respondent defacto complainant, then aged 31 years, is a divorced lady with a child and that the petitioner accused then aged 28 years, were known to each other and that the petitioner accused had assured her that he would marry her and that on the assurance, they had commenced intimate love affairs, involving even sexual relationship. That they were working in the same company/firm for the past one year and they were having mental and physical relationship since then and that on 27.11.2015, both of them had stayed in a hotel and even earlier, on 24.9.2014 they had stayed another hotel at Kovalam and later in hotels at Kavadiyar and Kottarakkara. That they had stayed together on 23.5.2015 in Hotel Raj Residencey, in Kottarakkara and that they were involving sexual relationship and that their love affair was known to the close relatives on either side. Later, the petitioner accused informed her that his family members and parents are opposing the marriage proposal and that he started backtracking from the marriage proposal, etc. and that now it has been learnt that his marriage with Crl.M.C.8409/17 - : 4 :- another women has fixed and that he has cheated and has committed the abovesaid offence of rape, etc. 5. 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**_ [(2003) 4 SCC 46] and _**Deelip Singh @ Dilip Kumar v. State of Bihar**_ [(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.**_ [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 be rather difficult to hold sexual intercourse in the course of a relationship Crl.M.C.8409/17 - : 5 :- 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 been 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 relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 6. From a meticulous reading of the prosecution materials, more particularly Anx.A-1/6 first information statement of the 2[nd] respondent lady defacto complainant as well as Anx. A-3 final report/charge sheet, it can be seen that it is the admitted case of the lady defacto complainant that she is a divorcee with a child and that both the parties were known to each other and that they were working in a company together for some time and they had commenced love affair which involved intense sexual relationship and they had stayed in various hotels, and that she had entered into this relationship on the assurance of the petitioner accused that he would marry her and Crl.M.C.8409/17 - : 6 :- that later had backtracked from that assurance and that he was taking steps to fix his marriage with another woman and that the petitioner has committed the abovesaid offences, etc. 7. From a proper reading of the abovesaid version of none other than the 2[nd] respondent lady defacto complainant, it can be seen that even if the allegations in the prosecution materials are assumed to be true, then it will lead to the irresistible inference that the incidents could have happened only on the basis of the consensual sexual relationship between the parties. The 2[nd] respondent is divorcee with a child and that she is 3 years elder to the petitioner accused and she is a grown up adult and certainly should know the consequences of her moral and ethical choices and she should be imputed with the knowledge that she was fully aware about the moral and personal consequences of her decision to enter into a love affair and sexual relationship with the petitioner accused, etc. From the above materials it cannot be proved beyond reasonable doubt that the petitioner had dishonest intention to breach the promise right from the commencement of the relationship and that he had given the assurance to marry her fully with the knowledge that he would never comply with it and only for the purpose of enjoying sexual relationship, etc. Even according to the 2[nd] respondent's case, she has Crl.M.C.8409/17 - : 7 :- stated that they were having an intense love affair involving sexual relationship and that both sides have informed their family members and close relatives about their affair and that proposal was mooted and much later, the petitioner has informed her that his family members are against the said proposal of the marriage with the 2[nd] respondent. From these admitted allegations in the prosecution materials, it cannot be said for a moment that the petitioner accused had the dishonest intention to make a fraudulent representation to her about the assurance to marry and that he had dishonest intention right from the commencement of the relationship that he would not fulfill the promise, etc. In the aforectied judgments of the Apex Court and various High Courts it is rather difficult to hold that sexual intercourse in the course of a relationship which was continued for quite some time is ‘rape’, especially in the face of the complainant’s own admission that they lived together and had sex. The Apex Court has elucidated the principles in that regard and it has been 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, Crl.M.C.8409/17 - : 8 :- 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. 8. In the light of these aspects, this Court has no hesitation to hold that even going by the admitted prosecution materials, no offence of forcible intercourse of rape as per Sec. 376 is made out in this case. Though Anx. A1 FIR has been registered only for offence under Sec. 376 I.P.C., the Police after investigation has also added the offence Sec. 366 of the I.P.C., apart from Sec. 376 I.P.C. Sec. 366 of the I.P.C. reads as follows: _**“Sec. 366: Kidnapping, abducting or inducing woman to compel her marriage, etc.** Whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to illicit intercourse, or knowing it to be likely that she will be forced or seduced to illicit intercourse shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this Code or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable as aforesaid.”_ 9. The prosecution does not have any case that the instant allegations involved any kidnapping, abducting of a woman, etc. Therefore, the only other ingredient in Sec. 376 to be examined is as to whether there are allegations that the accused had induced the woman to compel her marriage, etc. In the instant case, the specific Crl.M.C.8409/17 - : 9 :- allegation of the 2[nd] respondent lady defacto complainant is that the petitioner accused had promised her to marry and mooted the marriage proposal and that the petitioner accused had backtracked from the marriage proposal as his parents had opposed. Therefore the prosecution materials do not disclose any allegations whatsoever that the 2[nd] respondent was induced to compel her marriage against her will, etc. On the other hand, the stand of the 2[nd] respondent is that she wanted to marry the petitioner accused and that he had backtracked from the marriage proposal as he parents had opposed. Therefore, it goes without saying that none of the vital ingredients of the offence as per Sec. 366 of the I.P.C. is even remotely disclosed in the instant case. 10. The upshot of the above discussion is that the continuation of the abovesaid impugned criminal proceedings is a futile exercise as no offences are made out and therefore its continuation could be mere abuse of the process of the court as it amounts to wastage of precious resources and time of the investigation machinery and judicial fora. Accordingly, it is ordered in the interest of justice that further proceedings in the impugned Anx. A-3 final report/charge sheet filed in Crime No.498/2016 of Vanchiyoor Police Station, which has now led to the pendency of committal proceedings, C.P.No. 30/2017 on the file of the Temporary Crl.M.C.8409/17 - : 10 :- Judicial First Class Magistrate's Court, Thiruvananthapuram against the petitioner accused and all further proceedings taken in pursuance thereof will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.8409/17 - : 11 :- ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO.498/2016 OF VANCHIYOOR POLICE STATION.** **ANNEXURE A2 RUE COPY OF THE ORDER DATED 24.06.2016 IN B.A.3238/2016 ON THE FILES OF THIS COURT. ANNEXURE A3 CERTIFIED COPY OF THE FINAL REPORT IN CRIME 498/2016 OF VANCHIYOOR POLICE STATION. ANNEXURE A4 ORIGINAL AFFIDAVIT DTD.16.3.2019 FILED BY R2.**