Anoop Prakash v. Union Territory of Lakshadweep and Victim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 14TH DAY OF DECEMBER 2020 / 23RD AGRAHAYANA, 1942** **Crl.MC.No.77 OF 2019(H)** **CRIME NO.17/2018 OF KAVARATHI POLICE STATION , Lakshadweep** ## **PETITIONER/ACCUSED** **ANOOP PRAKASH AGED 33 YEARS S/O.JAYAPRAKASH, RESIDING AT ONJIYATH HOUSE, THODIYOOR P.O., KOLLAM DISTRICT.** **BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI** ## **RESPONDENTS/STATE:** **1 THE UNION TERRITORY OF LAKSHADWEEP REPRESENTED BY THE PUBLIC PROSECUTOR, UNION TERRITORY OF LAKSHADWEEP, HIGH COURT OF KERALA AT ERNAKULAM - 682 031. 2 VICTIM VICTIM** **R1 BY SRI.MANU.S, SCGC, ADMINISTRATION OF THE UNION TERRITORY OF LAKSHADWEEP R2 BY ADV. SRI.K.B.GANGESH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 77 of 2019 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 77 of 2019 -----------------------------------Dated this the 14[th ] day of December, 2020 ## **O R D E R** The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of Cr.PC is as follows: _“..to quash Anx.A1 FIR and all further proceedings pursuant to it in crime No.17/2018 of Kavarati Police Station, Union Territory of Lakshadweep as against the petitioner, so as to secure the ends of justice.”_ 2. Heard Sri.T.Madhu, learned counsel appearing for the petitioner (sole accused), Sri.S.Manu, learned Senior Central Government Standing Counsel for the Lakshadweep Administration appearing for R1 and Sri.K.B.Gangesh, learned counsel appearing for contesting respondent No.2 (lady defacto complainant). 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.A1 FIR in crime No.17/2018 of Kavaratti Police Station, Union Territory of Lakshadweep for offence punishable under Sec.376 of the IPC, on the basis of the first information statement given by the 2[nd] respondent-lady defacto complainant on 29-07-2018, in respect of the alleged incidents which 3 Crl.M.C No. 77 of 2019 had happened for the period from February, 2015 to February, 2017. 4. Various submissions have been made by both sides. One of the prime contentions urged by Sri.T.Madhu, learned counsel appearing for the petitioner is that, a mere reading of the impugned materials, more particularly, at Anx.A1 FIS given by none other than the 2[nd] respondent-lady defacto complainant would clearly show that, even if the alleged sexual incidents narrated therein are assumed to be broadly true, then the said incident would have happened only on the basis of consent between the accused and the lady defacto complainant and not otherwise and hence, the vital ingredients of the offence as per Sec.376 of the IPC are not made out in this case. 5. In that regard, it is pointed out that, it is clearly admitted by the 2[nd] respondent in Anx.A1 that, she knew very well that the petitioner was already married to another woman and that he had made it clear that he can consider marrying the 2[nd] respondent only after he secures dissolution/divorce in respect of his subsisting marital relationship and that the so called assurance or promise said to have been made by a married accused that he would marry the lady defacto complainant after obtaining divorce, etc, cannot be the basis to contend that the consent of the woman to have sexual relationship Crl.M.C No. 77 of 2019 4 was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC and that vital ingredients of the offence of forcible sexual intercourse so as to constitute the ingredients of rape as per Sec.375 of the IPC which is punishable as per Sec.376 thereof are conspicuously absent in this case. Hence, it is urged that the very initiation and continuance of the impugned criminal proceedings is an abuse of the process of court. 6. The learned counsel for the petitioner has relied on various decisions of the Apex Court to buttress his contention regarding lack of ingredients of the offence as per Sec.376 of the IPC. Further the petitioner has also urged various submissions and has placed reliance on judgments of the Apex Court in cases as in _**Hitesh Verma v. State of Uttaraghand and another**_ (judgment dated 05-11-2020 in Crl.Appeal No.707/2020), that the alleged offence as per Sec.3(1) (r) and 3(1)(s) will not be attracted in the instant case as there is no allegation that the alleged utterance of caste name etc, has being made in any place within public view. The petitioner has urged that the said aspect is without prejudice to the basic contention that the abovesaid allegations regarding utterance of caste name, etc, are absolutely false and factually wrong, etc. Crl.M.C No. 77 of 2019 5 7. Further the petitioner would also point out that even after the petitioner was arrested and remanded in this case, 2[nd] respondent had filed petition before the SHO and has also filed affidavit before the Sessions Court concerned stating that, the allegations regarding forcible sexual intercourse are wrong and that the relationship was consensual in nature and that she had even supported the plea of the petitioner to release him on regular bail. In that regard, the petitioner would place reliance on documents as per Anxs.A5 & A6, etc. 8. Per contra, Sri.S.Manu, learned Senior Central Government Standing Counsel for the Lakshadweep Administration appearing for R1 and Sri.K.B.Gangesh, learned counsel appearing for R2 (lady defacto complainant) would submit that the matter is pending investigation and investigation has not so far been completed and that therefore, this Court may not interdict in the investigation process, etc. 9. After hearing both sides, this Court is of the considered view that _prima facie,_ the petitioner has made out certain strong contentions, which deserve serious consideration. However, the fact of the matter is that, the challenge made in this petition filed under ## Crl.M.C No. 77 of 2019 6 482 of Cr.PC is at the FIR stage of the impugned criminal proceedings and the matter is pending investigation and the same has not been completed. Though the petitioner was initially arrested and remanded in regard to his involvement in the instant case, he has been later released on regular bail by the Anx.A4 order passed by the Sessions Court concerned. Therefore no serious prejudice would be caused to the petitioner now if the investigation is allowed to proceed further, so that the same could be finalised in the manner known to law. 10. Accordingly, it is ordered that the investigating agency concerned will ensure that the investigation in the present case is completed without much delay and in view of certain aspects of the matter, it is further ordered that before filing of the Final report, the Investigating Officer concerned should get effective legal advice in the matter, as to whether the ingredients of the offences alleged are probably made out and thereafter the Investigating Officer concerned may file the Final report in the matter without much delay. The process in this regard may be duly completed by the investigating agency by filing of the Final report in this case, without much delay preferably within a period of three months from the date of Crl.M.C No. 77 of 2019 **==> picture [6 x 8] intentionally omitted <==** production of a certified copy of this order. Thereafter if any of the parties concerned have any legally justiciable grievances thereto, liberty is accorded to work out their remedies in the manner known to law. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 77 of 2019 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1** **THE TRUE CERTIFIED COPY OF THE FIR IN CRIME NO.17/2018 OF KAVARATTI POLICE STATION, UNION TERRITORY OF LAKSHADWEEP.** **ANNEXURE A2 THE TRUE COPY OF THE REPORT DATED 3/8/2018 FILED BY THE INSPECTOR OF POLICE, KAVARATTI POLICE STATION IN CRIME NO.17/2018 OF KAVARATTI POLICE STATION.** **ANNEXURE A3 THE TRUE COPY OF THE REMAND APPLICATION DATED 3/8/2018 PREPARED BY THE INSPECTOR OF POLICE, KAVARATTI POLICE STATION IN CRIME NO.17/2018OF KVARATTI POLICE STATION. ANNEXURE A4 THE TRUE COPY OF THE ORDER DATED 10/8/2018 IN CRL.M.C.NO.6/2018 ON THE FILES OF THE LEARNED SESSIONS'S COURT, KAVARATTI. ANNEXURE A5 THE TRUE COPY OF THE REPRESENTATION DATED 29/7/2018 SUBMITTED BY THE SECOND RESPONDENT BEFORE THE STATION HOUSE OFFICER, KAVARATTI POLICE STATION. ANNEXURE A6 THE TRUE COPY OF THE AFFIDAVIT DATED 3/8/2018 SWORN IN BY THE SECOND RESPONDENT.** ## **RESPONDENT'S/S EXHIBITS: NIL**