Crl.MC.No. 3502 of 2018

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY,THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940 Crl.MC.No. 3502 of 2018** - **CP 7/2016 of JUDICIAL MAGISTRATE OF FIRST CLASS -II,PERINTHALMANNA** **CRIME NO. 156/2015 OF MELATTUR POLICE STATION , MALAPPURAM** ## **PETITIONERS/ACCUSED:** > 1. **ANSAR, S/O.ABDUL RASHEED, AGED 30 YEARS, VARIYATHODI HOUSE, VADAKKUMANNAM, MANNARKKAD TALUK, PALAKKAD DISTRICT** > 2. **SUHAIL, S/O. SHARAFUDDIN, AGED 30 YEARS, KULUKKAMPARA HOUSE, THENGARA P.O, MANNARKKAD, PALAKKAD DISTRICT** 3. **SAJJAD, S/O.ABU, AGED 30 YEARS, KOLAMBAN HOUSE, VADAKKUMANNAM, MANNARKKAD TALUK, PALAKKAD DISTRICT** **BY ADVS. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** ## **RESPONDENTS:** > 1. **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 682 031.** 2. VICTIM **BY ADV. SMT.T.V.NEEMA R1 BY PUBLIC PROSECUTOR SMT.MAYA.M.N** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 3502 of 2018 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The 2[nd] respondent is the de facto complainant in Crime No.156 of 2015 registered at the Malappuram Police Station. The said crime was registered on 27.2.2015, _inter alia_ , under Sections 376(2)(n) and 506(1) read with Section 34 of the IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. After investigation, final report was laid before the jurisdictional Magistrate and the case is pending as C.P.No.7 of 2016 on the file of the Judicial Magistrate of the First Class-II, Perinthalmanna. The instant petition is filed seeking to quash the above proceedings. 3. According to the prosecution, the petitioners 2 and 3 are the friends of the 1[st] petitioner. The de facto complainant is a member of the scheduled caste. She got acquainted with the 1[st] petitioner in the year 2014 and he started visiting her. On the Crl.MC.No. 3502 of 2018 3 assurance that he would marry her, the 1[st] petitioner entered her house sometime in the month of June, 2014 and subjected her to sexual intercourse. Thereafter, on 2.2.2015, he accompanied the de facto complainant and her brother to Trivandrum and they had physical relationship inside the room of a lodge at Pulimoodu. Insofar as the petitioners 2 and 3 are concerned, the allegation is that they dissuaded the de facto complainant when she insisted that the 1[st] petitioner should marry her. 4. The learned counsel appearing for the petitioners would contend that an evaluation of the statement of the 2[nd] respondent would reveal that the relationship was consensual between two willing adults. The victim was aged 23 years when the First Information Statement was lodged and she was working as a Lab Technician. They fell in love and they started having a relationship. The parents of both sides were also aware of their relationship. Later, when the relationship became strained, an allegation of rape was levelled against the 1[st] petitioner. The learned counsel would rely on the decision of the Apex Court in **Dhruvaram Murlidhar Sonar (Dr.)** v. **State of Maharashtra and Others** [2019 (1) KHC Crl.MC.No. 3502 of 2018 4 403 (SC)] and contended that there is a clear distinction between rape and consensual sex and in the case on hand, it is evident that the relationship was consensual. According to the learned counsel, the criminal proceedings against the petitioners is a clear abuse of process and the same is liable to be quashed. 5. The learned Public Prosecutor, on instructions, submitted that the statement has recorded and the lady has stated that it was under some misconception of fact that she had lodged a complaint as against the petitioners herein. In her statement, a copy of which is produced before the Court, the 2[nd] respondent has stated that she had married another man and she has a daughter in the wedlock. 6. Smt.T.V.Neema has entered appearance for and on behalf of the 2[nd] respondent. The learned counsel submitted that the 2[nd] respondent is now living a happy married life with her husband and child and it would not be in her best interest to continue with the prosecution proceedings. According to the learned counsel, the 2[nd] respondent was in a relationship with the 1[st] petitioner and when their relationship became strained, she was advised by her friends Crl.MC.No. 3502 of 2018 5 to prosecute the 1[st] petitioner. The information was furnished owing to the situation prevailing then and in view of the changed circumstances, she is not desirous of prosecuting the petitioners. The learned counsel would refer to the affidavit sworn to by the de facto complainant and also the statement recorded by the investigating officer during the pendency of this proceedings to canvass support for the prayer sought for by the petitioners. 7. I have considered the submissions advanced and have gone through the entire case diary. The case of the 2[nd] respondent is that she had an affair with the 1[st] petitioner herein which lasted for several years. 8. In **Dhruvaram Murlidhar Sonar** (Supra), the Apex Court had occasion to elucidate the principles and it was laid down that there is a clear distinction between rape and consensual sex. It was observed that there is a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. The Crl.MC.No. 3502 of 2018 6 acknowledged consensual physical relationship between the parties would not constitute an offence Under Section 376 of the Indian Penal Code. Furthermore, the 2[nd] respondent has filed an affidavit stating that the crime was registered due to the situation prevailing then and she has no grievance. 9. Having considered all the relevant aspects and the affidavit sworn to by the 2[nd] respondent and also the contentions advanced by her counsel, I am of the view that the continuance of proceedings before the court below will result in abuse of process. There is no case for the 2[nd] respondent that her dignity was violated by a wanton act of the petitioners. This is not one of those cases wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 2[nd] respondent and her family comprising of her husband and child, if the prosecution is permitted to continue. In that view of the matter, the prospects of an ultimate conviction is remote and bleak Crl.MC.No. 3502 of 2018 7 even if the case is proceeded with. Furthermore, the 2[nd] respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-A2 Final Report and all further proceedings against the petitioners in C.P.No.7 of 2016 on the file of the Judicial First Class Magistrate Court-II, Perinthalmanna are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** IAP Crl.MC.No. 3502 of 2018 8 ## **APPENDIX** ## **PETITIONERS' EXHIBITS :** ANNEXURE A1: CERTIFIED COPY OF THE FIR IN CRIME NO.156/2015 IN MELATTUR POLICE STATION ANNEXURE A2: TRUE COPY OF THE FINAL REPORT IN CRIME NO.156/2015 ANNEXURE A3: TRUE COPY OF THE AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT DULY NOTARIZED. ## **RESPONDENTS' EXHIBITS :** NIL