Ananthu M v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **MONDAY, THE 16TH DAY OF NOVEMBER 2020 / 25TH KARTHIKA, 1942** ## **Crl.MC.No.1901 OF 2020(G)** **CRIME NO.54/2020 OF Kottiyam Police Station , Kollam** ## **PETITIONER/S:** **ANANTHU.M AGED 24 YEARS S/O. MADHUSOODHANAN PILLAI, RESIDING AT KULANGARA VEEDU, VADAKKUMKARA WEST, UMAYANALLOOR, PADANILAM, KOTTIYAM, KOLLAM DISTRICT.** **BY ADV. SRI.S.SREEKUMAR (KOLLAM)** ## **RESPONDENT/S:** |**1**|**THE STATE OF KERALA**| |---|---| ||**REPRESENTED THE PUBLIC PROSECUTOR, HIGH COURT OF**| ||**KERALA AT ERNAKULAM-682 031.**| |**2**|**THE STATION HOUSE OFFICER**| ||**KOTTIYAM POLICE STATION, KOLLAM, REPRESENTED THE**| ||**PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM-**| ||**682031.**| |**3**|**VICTIM**| ||**X**| ||**R3 BY ADV. A.RAJIV**| ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, , PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.1901 OF 2020(G)** **2** ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = =** ## **Crl.M.C. No.1901 of 2020** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 16[th] day of November, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C. is as follows : _“... to quash Annexure-A1 FIR in crime No.54/2020 of Kottiyam Police Station on the file of the JFMC, Kollam district as 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 R1 and R2 and Sri.A.Rajiv, learned counsel appearing for R3-lady victim. 3. The petitioner herein has been arrayed as the sole accused in the impugned Annexure-A1 FIR in Crime No.54/2020 of Kottiyam Police Station, Kollam registered for offences punishable under Secs. 417, 366 and 376(2)(n) of the IPC on the basis of the First Information Statement given by the 3[rd] respondent-lady victim on 19.1.2020 at about 7 p.m. in respect of the alleged incident which happened from August 2019 onwards. The main ground raised by the petitioner for quashment of the impugned criminal proceedings is that a mere reading of Annexure-A1 FIR and FIS would make it clear like the day light that even if the alleged sexual incidents are assumed to be true, then the same could have happened only on the basis of the consent of both the parties and therefore, the vital ingredients of the **Crl.MC.No.1901 OF 2020(G)** **3** offence of rape as per Sec.375 of the IPC which is punishable under Sec.376 thereof are not made out in this case. Further that, the marriage between the petitioner/accused and the 3[rd] respondent- lady victim has now been solemnized in accordance with the provisions contained in the Special Marriage Act on 26.2.2020 as evident from Annexure-A2 statutory marriage certificate issued by the Registrar of the Marriages under the said Act and that the said marriage has been solemnized with the consent of both sides and with the that blessings of both the families. Further that, the 3[rd] respondent-lady victim has now sworn to Annexure-A3 affidavit dated 27.2.2020 stating about the factum of the solemnization of marriage between the parties and that she does not have any subsisting grievance against the petitioner and that it is better in her future marital life that the impugned criminal proceedings be quashed as the petitioner/accused is now her lawful husband. 4. 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 I.P.C 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 **Crl.MC.No.1901 OF 2020(G)** **4** 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 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 **Crl.MC.No.1901 OF 2020(G)** **5** undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 5. Now, it will be pertinent to refer to the basic facts disclosed in Annexure-A1 FIR and FIS. In Annexure-A1 FIS given by none other than the 3[rd] respondent-lady victim on 19.1.2020 before the Police stating that the petitioner/accused then aged 23 years and the 3[rd] respondent-lady victim then aged about 20 years that both working in a textile shop called ‘simla’ in the place in question since the last 1 ½ years and that they came to know of each other as they are interacting intimately and that a love affair developed between them and that the petitioner had assured her that he would marry her. That on a day in August, 2019, he had taken her to an isolated place in a nearby beach, where they have sexual relationship and that the abovesaid sexual incidents were repeated by them on quite a few other occasions and later, the petitioner had lost interest in the marriage proposal and that she felt cheated and that therefore, she has given the instant complaint to the police, which has led to the registration of the instant crime. 6. The counsel for the petitioner would point out that the abovesaid allegation that the petitioner had lost interest in the marriage proposal etc. is extremely false and that the allegations of sexual intercourse are also false and further that, the petitioner had approached the family members of the 3[rd] respondent that he is willing to marry, the **Crl.MC.No.1901 OF 2020(G)** **6** parents of the 3[rd] respondent were opposed to it, as the petitioner is not having a high status job and other aspects and it is only to put pressure on the 3[rd] respondent to give the abovesaid FIS so as to raise a crime against the petitioner in order to pressurize him to stop the love affair. 7. This Court need not get into the correctness of the said submissions made by the learned counsel for the petitioner and that after hearing both sides and after going through the admitted allegations of the prosecution in Annexure- A1 FIS, it can be seen that even if it is assumed that the incidents of sexual relationship narrated therein are broadly true, then the same could have happened only on the basis of the consent between the parties who are full grown adults. Both of them are adults and even if the allegations of the sexual incidents are true, then the same could have happened only on the basis of their passionate love affair and promiscuity to enjoy sexual relationship and not otherwise. Hence, it is only to be held that the vital ingredients of the offence of rape as per Sec.375 of the IPC, which is punishable under Sec.376 thereof are not made out in this case. Hence, the impugned criminal proceedings are liable for quashment on that sole ground. Further, the marriage between the petitioner and the 3[rd] respondent has been lawfully solemnized in accordance with the provisions contained in the Special Marriage Act as can be seen from Annexure-A2 statutory marriage certificate dated 26.2.2020 issued by the Registrar of Marriages, appointed under the provisions of Special **Crl.MC.No.1901 OF 2020(G)** **7** Marriage Act. 8. This Court has held that though the impugned criminal proceedings for serious and grave offences as per Sec.375 of the IPC may not be quashed on the ground of settlement between the parties. An exception appears to be made in cases where the petitioner/accused has later married the lady victim as can be held in various other decisions of this Court as in _**Freddy @ Antony Francis v.State of Kerala and anr.**_ [2017 KHC 344]=[2018 (1) KLD 558] _**and Denu P Thampi v. Ms.X**_ [2019 (3) KHC 199]=[2019 (2) KLT 996] _etc._ 9. The learned Public Prosecutor was asked to get instructions on the matters disclosed in Annexure-A2 marriage certificate and AnnexureA3 affidavit of the lady victim. Today, when the matter has been taken up for consideration, Sri.B.Jayasurya, learned Prosecutor would submit that on the basis of the instructions of the investigating officer concerned that the said IO has conducted an effective enquiry in the matter and thus also recorded the statement of the 3[rd] respondent-victim and has stated that her marriage with the petitioner has already been solemnized on 26.2.2020 in accordance with the provisions of the Special Marriage Certificate as certified in Annexure-A2 marriage certificate and that the facts stated by her in Annexure-A3 affidavit are true and has been stated by her voluntarily and that she is now leading a happy married life and that her future marital life will be detrimentally affected, if the impugned criminal **Crl.MC.No.1901 OF 2020(G)** **8** proceedings are not quashed etc., as the petitioner/accused is now her lawful husband. Therefore, the plea for quashment will also be considered by this Court in view of the second ground urged by the petitioner. 10. Taking into account the totality of the facts and circumstances of this case, this Court is inclined to take the view that the continuance of the impugned criminal proceedings will be nothing, but an abuse of process of court and would lead to mere wastage of the precious time and resources of the judicial organs of the State as well as the prosecution machinery and investigating agency concerned. In that view of the matter, it is ordered that the impugned criminal proceedings at Annexure-A1 FIR and crime No. 54/2020 as against the petitioner/accused and all further proceedings thereof as against the petitioner/accused will stand quashed and set aside. 11. The petitioner will produce certified copy of this order before the investigating officer concerned (SHO, Kottiyam Police Station) as well as the Judicial First Class Magistrate Court-II, Kollam for necessary information. With these observations and directions, the above Criminal Miscellaneous case will stand finally disposed of. ## **Sd/-** **ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.1901 OF 2020(G)** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO.54 OF 2020, DATED 19.1.2020 OF THE KOTTIYAM POLICE (SEALED COVER).** **ANNEXURE A2 THE TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE OFFICER, KOTTIYAM, DATED 26.2.2020(SEALED COVER).** **ANNEXURE A3 A TRUE COPY OF THE AFFIDAVIT DATED 27.2.2020 SWORN BY THE 3RD RESPONDENT BEFORE THIS HON'BLE COURT (SEALED COVER).**