Chacko Joseph v. State of Kerala and Anitha B

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 08TH DAY OF OCTOBER 2020 / 16TH ASWINA, 1942** ## **Crl.MC.No.7068 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CP 14/2017 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ETTUMANUR CRIME NO.1270/2016 OF Ettumanoor Police Station , Kottayam** ## **PETITIONER/S:** **CHACKO JOSEPH S/O. JOSEPH, AGED 29 YEARS, KATTUNGAL HOUSE, SOUTH ARYAD, AVALOOKUNNU P.O., ALAPPUZHA DISTRICT.** ## **BY ADV. SRI.JAMES ABRAHAM (VILAYAKATTU)** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOF OF POLICE, ETTUMANOOR, POLICE STATION, REPRESENTED THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 ANITHA. B AGED 35 YEARS, NOW RESIDING AT ARACKAPARAMBU HOUSE, NEAR GURUMANDIRAM, ARYADU, ALAPPUZHA - 688 538.** **R2 BY ADV. SRI.ABDUL JALEEL.A R2 BY ADV. SMT.M.A.SULFIA** ## **OTHER PRESENT:** **SMT.MAYA.M.N, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.7068 OF 2017** **2** ## **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = = Crl.M.C. No.7068 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 8[th] day of October, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Sec.482 of Cr.P.C. are as follows : _1. “Quash Annexure A2 and all further proceedings pursuant thereto in C.P.14/2017 on the file of Judicial First Class Magistrate Court-I, Ettumanoor. 2. Grant such other relief the court may deem fit to grant.”_ 2. Heard Sri.James Abraham (Vilayakattu), learned counsel appearing for the petitioner (sole accused), Smt.M.N.Maya, learned Public Prosecutor appearing for R1-State of Kerala and Sri.A.Abdul Jaleel, learned counsel appearing for contesting resp0ndent No.2 (lady defacto complainant). 3. The petitioner herein has been arrayed as the sole accused in the FIR in Crime No.1267/2016 of Alappuzha North Police Station for offences punishable under Secs. 376, 417 of the IPC on the basis of FIS given by the 2[nd] respondent lady defacto complainant on 12.8.2016 at 6.5o p.m. in respect of the alleged incidents which happened for the period from 8.7.2015 to 12.8.2016. Thereafter, the additional statement of the 2[nd] respondent-lady defacto complainant under Sec. 161 Cr.P.C. was recorded by the Police on 15.8.2018. Thereafter, it was noted that the major incidents have happened within the territorial limits of Ettumanoor Police **Crl.MC.No.7068 OF 2017** **3** Station, the abovesaid FIR initially registered at Alappuzha Police Station was transferred to the Ettumanoor Police Station, Kottayam District. Therein, it was re-registered as FIR in Crime No.1270/2016 on 22.8.2016 in respect of the very same incidents and for the very same alleged offences in question. The Police after investigation has filed the impugned Annexure-A2 final report/charge sheet in the said Crime No.1270/2016 of Ettumanoor Police Station and the case is now at the committal proceedings CC No.14/2017 on the file of the Judicial First Class Magistrate Court-I, Ettumanoor. This Court had earlier granted anticipatory bail to the petitioner/accused in this case as per Annexure-A1 order dated 8.9.2016 in B.A.No.6458/2016. The present Crl.M.C. was admitted by this Court on 17.10.2017 and this Court had granted interim stay of further proceedings in the impugned Annexure-A2, which has later been extended from time to time and subsequently extended until further orders on 10.3.2020. Hence, it appears that the case has not so far been committed to the Sessions Court concerned. 4. The main contention urged by Sri.James Abraham (Vilayakkatu), learned counsel appearing for the petitioner /accused is that the abovesaid allegations raised by the 2[nd] respondent which led to the impugned criminal proceedings are false and baseless and further that, even if it is assumed that the sexual incidents as narrated in the impugned criminal proceedings are broadly true, then the same would have happened **Crl.MC.No.7068 OF 2017** **4** only on the basis of mutual consent between the parties and so the vital ingredients of forcible sexual intercourse so as to constitute rape in terms of Sec.375 which is punishable under Sec.376 of the IPC are not made out in the instant case. 5. Per contra, Smt.M.N.Maya, learned Public Prosecutor appearing for the respondent-State and Sri.A.Abdul Jaleel, learned counsel appearing for 2[nd] respondent would strongly urge that the abovesaid contentions of the petitioner are untenable and that based on the materials at the impugned Annexure-A2 criminal proceedings, it cannot be said that the incidents in question have happened only on the basis of consent between the parties and that the specific case of the prosecution is that the 2[nd] respondent had agreed to have sexual relationship with the petitioner only on account of his promise and assurance that he would marry her. Further that, at best, the petitioner could have raised all these contentions in trial as these matters would require judicial evaluation after due appreciation of evidence on record in a full-fleged trial. Hence, the respondents would urge that this Court may dismiss the plea of the petitioner in the present Crl.M.C. 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 including this Court in the matter of substantial distinction between rape as conceived in Sec.375 of the IPC and consensual sexual relationship **Crl.MC.No.7068 OF 2017** **5** between the parties. It is by now well established that there is indeed a substantial and fine distinction between forcible sexual intercourse so as to constitute the offence of rape as conceived in Sec.375 which is punishable under Sec.376 of the IPC on the one hand and consensual sexual relationship between the parties on the other hand. This aspect has been the subject matter of detailed consideration in various judgments of the Apex Court and various High Courts including this Court. The said issue is the subject matter of catena of rulings of the Apex Court in decisions as in _**Uday v.State of Karnataka**_ (2003) 4 SCC 46 _**, Deelip Singh alias Dilip Kumar v.State of Bihar**_ (2005) 1 SCC 88 wherein it has been held that where a 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 expression No.2 of Sec.375 of the IPC and as defined in Sec. 90 of the IPC. In _**Dr.Dhruvaam Murlidhar Sonar v.State of Maharashtra and 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 6.4.2018 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 relationship which was continued for a long time in the course of an affair between the parties as rape as understood in Sec.375 of the IPC **Crl.MC.No.7068 OF 2017** **6** especially in the face of the complainant’s own version that they are living together and having a sexual relationship for quite some time. In _**Dhurvaram Murlidhar Sonar’s**_ case (supra), the Apex Court has elucidated the principles in that regard and it has been laid down therein about the clear distinction between the rape and consensual sexual relationship and that the acknowledged consensual physical relationship between the parties would not constitute an offence punishable under Sec.376 of the IPC. It has 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 envisaged in the explanation No. 2 of Sec.375 of the IPC and as understood in Sec.90 of the IPC. 7. The legal principles in that regard have also been elucidated with all clarity and visibility in a detailed judgment of this Court in the decision in _**Jose Thettayil v.SHO**_ , [2013 (3) KLT 552]. Recently, these principles are again been reiterated in detail in a recent judgment of the Apex Court in _**Pramod Suryabhan Pawar v.State of Maharashtra and anr**_ .[2019 (9) SCC 608]. 8. The Calcutta High Court in the decision _**Jayanti Rani Panda v.State of West Bengal and anr.**_ 1984 CriLJ 1535 = 1984 KHC 1148 has held that there has to be convincing materials at least from the overall facts and circumstances that when the accused made out a promise **Crl.MC.No.7068 OF 2017** **7** that he would marry the lady defacto complainant, that the accused had no intention of keeping that promise right from the beginning of the relationship and that the mere failure to keep a 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. In order to come within the meaning of misconception of fact as understood in Sec.90 of the IPC and explanation No.2 of Sec.375 of the IPC, the said fact must have an immediate relevance. Further that, if full grown adults consent to have act of sexual intercourse and continues to indulge in said activity, ordinarily it has to be treated as an act of promiscuity on their part and it cannot be said that mere promise alleged to have been made by the accused to the lady defacto complainant about marriage would lead to a scenario so as to hold that the consent of the woman to have such physical relationship was induced by misconception of fact as understood in Sec.90 of the IPC and in such situation, misconception of fact as understood in Sec.90 of the IPC cannot be correlated, unless it can be seen that from the very inception, the accused would never intended to marry the lady defacto complainant etc. Now coming to the facts of this case, it can be seen that the First Information Statement in this case was given on 12.8.2018 by the 2[nd] respondent/lady defacto complainant which led to the registration of the crime at Alappuzha North Police Station. Later, an additional statement under Sec.161 of the Cr.P.C. has also been recorded from the 2[nd] **Crl.MC.No.7068 OF 2017** **8** respondent/lady defacto complainant by the Police on 15.8.2018. It is thereafter that the FIR has been transferred from Alappuzha North Police Station, Alappuzha Dsitrict to the Ettumanoor Police Station, Kottayam District. 9. Both sides have taken this Court in extenso to the various materials in the impugned criminal proceedings at Annexure-A2, more particularly, the First Information statement given by the 2[nd] respondent on 12.8.2018 and further detailed statement given by her on 15.8.2018. The contents of both the statements appears to be broadly the same except that more details are given in the further statement given on 15.8.2018. The perusal of the said statement would make it clear that the case of the 2[nd] respondent is to the effect that she was then aged 35 years and is a Hindu by religion and has studied upto plus two course and that she had married a person and that she has two minor children, daughter aged 11 years and the son aged 7 years and that due to marital disputes, she had obtained divorce from her husband in the year 2013. That at the relevant time in the year 2015, she has been staying at Bangalore with her children. Further on a day in the year 2015, when she and her children were traveling in a train, she had met with the petitioner/accused and they became casually acquainted and they had exchanged their mobile numbers. Later, the petitioner /accused used to frequently contact her and once, had come to her residence at Bangalore and said that the petitioner/accused then aged **Crl.MC.No.7068 OF 2017** **9** 27 years had told her that he is an unmarried man and he is working as a Junior Officer in the Indian Army and that he is a Christian by religion. But later, the petitioner/accused had come to her residence at Bangalore and had befriended her and had told her that he is very much in love with her and that he is prepared to marry her and take care of her children etc. This led to a continuing love affair between them. Thereafter, the petitioner had tied a 'Thali' on her neck and also given her a saree as 'Pudava' (Éá¿Õ), as a symbol of one given by a bride-groom to a bride. Thereafter they had sexual relationship. Further that, on various other occasions they had sexual relationship at Bangalore in her residence as well as at Etumannor, Kottayam district, in a lodge. Last time, the petitioner had visited her was in January, 2016, and thereafter, he had never turned up and the 2[nd] respondent came to know that the petitioner is not interested in her and she felt cheated and has approached the police authorities by giving the abovesaid complaint/FIS, which led to the registration of the instant crime. 10. Going by the admitted allegations of the 2[nd] respondent, it can be seen that she is a divorced lady, aged more than 35 years, who belongs to Hindu religion and she was living with her children at Bangalore, which is a metropolitan city and that the petitioner, then aged 27 years, who belongs to Christian religion, a Junior officer in the Indian Army and he is an unmarried man. Going by the totality of the facts and circumstances disclosed from the impugned criminal proceedings, it can be seen that the **Crl.MC.No.7068 OF 2017** **10** relationship between the parties would have been predominantly in the nature of consensual one. The mere act of the man putting a garland or a thali over the neck of the woman and exchanging 'pudava' as is often done between a bridegroom and a bride etc cannot lead to a situation, whereby an educated single lady, who is living with her children in a metropolitan city like Bangalore to believe that the same is a solemn act on the part of the man to marry her etc. Any reasonable prudent person like the 2[nd] respondent, who is a single lady living alone with her children in a metropolitan city like Bangalore cannot bonafide believe that the so called assurance made by a unmarried man like the petitioner, who is about 7 years younger to the 2[nd] respondent and who belonged to a different religion is really serious about giving the assurance about marriage. From the nature of the intimate relationship alleged in the abovesaid statements of the 2[nd] respondent, it can be seen that such an educated lady who was living as a single lady with her children in a metropolitan city like Bangalore should have sufficient reasons to believe on the other hand that the physical relationship that she had entered into with the 2[nd] respondent was consensual in nature. Grown up adults like the petitioner and the 2[nd] respondent certainly have the right to make their own ethical and moral choices. But then, in such scenario, where one enters into a consensual relationship, the person who takes such decision to enter into such relationship on the basis of by taking one's own ethical and moral choices, **Crl.MC.No.7068 OF 2017** **11** should know that there are consequences. Hence, it cannot be said that even if the allegations of sexual incidents are true that the consent of the 2[nd] respondent was obtained on the basis of misconception of fact based on the alleged false promise to marry said to have been made by the petitioner. 11. Going by the legal principles laid down by the Apex Court and various High Courts in the aforecited judgments, this Court is constrained to take the view that by an overall appreciation of totality of facts and circumstances of this case borne out from the prosecution materials, it can be seen that even if the alleged sexual incidents narrated therein are broadly true, then the same could have happened only on the basis of consensual sexual relationship between the parties and not otherwise. Hence, this Court is consequently constrained to take the view that the vital ingredients of the offence of forcible sexual intercourse or rape as per Sec.375, which is punishable under Sec.376 of the IPC are not present in this case. So, the continuance of impugned criminal proceedings would amount to an abuse of process of court. 12. In the light of these aspects, this Court is of the view that the extra ordinary inherent powers conferred under Sec.482 of the CrPC could be invoked in this case so as to interdict with the impugned criminal proceedings as otherwise, it will amount to mere wastage of precious time and resources of the judicial organs as well as the prosecution machinery and the Police machinery etc **Crl.MC.No.7068 OF 2017** **12** 13. Accordingly, it is ordered that the impugned Annexure.A2 final report/charge sheet filed in Crime No. 1270/2016 of Etumanoor Police Station, Kottayam, as against the petitioner/accused, which has led to the pendency of committal proceedings C.P.No.14/2017 on the file of the JFCM-I, Etumanoor, as against the petitioner/accused and all consequential proceedings arising therefrom as against the petitioner/accused will stand quashed and set aside. 14. The petitioner will produce certified copy of this order before the Investigating Officer concerned as well as the Judicial First Class Magistrate Court-I, Ettumanoor, Kottayam District, who is dealing with C.P.No.14/2017 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.7068 OF 2017** **13** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A1**|**A TRUE COPY OF THE ODER DATED 05.09.2016 IN**| ||**B.A.NO. 6458/2016.**| |**ANNEXURE A2**|**A CERTIFIED COPY OF THE FINAL REPORT IN**| ||**CRIME NO. 1701/2016.**|