Crl.M.C.No.1634 of 2019

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 28TH DAY OF MAY 2019 / 7TH JYAISHTA, 1941** ## **Crl.MC.No. 1634 of 2019** **TO QUASH THE POLICE CHARGE AND ALL FURTHER PROCEEDINGS IN C.P.NO.5/2019 PENDING ON THE FILE OF JUDICIAL FIRST CLASS MAGISTRATE COURT, THRIPUNITHURA CRIME NO. 1185/2018 OF HILL PALACE POLICE STATION , ERNAKULAM** ## **PETITIONER/ACCUSED:** **SACHU.P.CHANDRAN AGED 25 YEARS S/O CHANDRAN, PUTHUKUDY HOUSE, KANIYAMPUZHA, EROOR.P.O, THRIPUNITHURA.** ## **BY ADV. SRI.S.NIRMAL KUMAR** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLILC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. 2 VICTIM BY ADV. SRI.SUJITH AJAYAN** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1, SRI.SUJITH AJAYAN FOR R2** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 28.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.1634 of 2019 2 ## **ALEXANDER THOMAS, J.** **=========================== Crl.M.C.No.1634 of 2019** **===========================** Dated this the 28[th] day of May, 2019 ## **ORDER** The petitioner has been arrayed as the sole accused in the impugned Annexure-A3 FIR in Crime No.611/2018 of Kannamaly Police Station, Ernakulam, which was registered on 13.07.2018, for offences punishable under Secs.376, 312 & 420 of the IPC on the basis of the First Information Statement/complaint of the 2[nd] respondent/lady defacto complainant/victim. Later, the said crime was transferred to Thripunithura Hill Palace Police Station, wherein it was re-numbered as Crime No.1185/2018. Subsequently, the police after due investigation has filed the impugned Annexure-A1 final report/charge sheet in the said Crime No.1185/2018 of Thripunithura Hill Palace Police Station, which has now led to the pendency of committal proceedings, C.P.No.5/2019 on the file of the Judicial First Class Magistrate Court, Thripunithura. The petitioner seeks quashment of the impugned criminal proceedings mainly on the Crl.M.C.No.1634 of 2019 3 ground that even going by admitted allegations of the 2[nd] respondent/lady defacto complainant in her First Information Statement, etc., it can be seen that the alleged sexual relationship has happened only on the basis of consent between the parties and that even according to her, the parties were in love for about 10 years and that they had into sexual relationship on quite a few occasions and it is thereafter, that the petitioner had promised her that he would marry her and that later he had breached his promise, etc. 2. Heard Sri.S.Nirmal Kumar, learned counsel appearing for the petitioner/accused, Smt.Priya Shanavas, learned Public Prosecutor appearing for 1[st] respondent-State and Sri.Sujith Ajayan, learned counsel appearing for the 2[nd] respondent/lady defacto complainant. 3. The gist of the prosecution case is that the petitioner/accused and the 2[nd] respondent/lady defacto complainant were working under the same employer, viz., S.D.Lifestyle Glam Saloon and Spa at Vyttila, Ernakulam and that they were in love for about 10 years and that that parties had entered into sexual relationship and that later, the petitioner had promised her that he would marry her and that he had also persuaded her to conduct medical termination of the pregnancy, which arose out of the said sexual relationship, etc. and that Crl.M.C.No.1634 of 2019 4 therefore, the petitioner has committed the abovesaid offences. The 2[nd] respondent has now filed Annexure-A2 affidavit dated 28.02.2019 stating that the said complaint was made by her out of the said misunderstandings and that the parties had solved the dispute and that she is no longer interested to pursue the impugned criminal proceedings and that he has no objection in quashment of the impugned criminal proceedings. 4. It is by now well established that grave and serious offences, including those under Sec.376 (rape) of the IPC cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. See _**Shimbhu v. State of Haryana**_ [2014(13) SCC 318], _**Parbatbhai Aahir v. State of Gujarat**_ [2017 (9) SCC 641], _**Anita Maria Dias v. State of Maharashtra**_ [2018 (3) SCC 290], _**Sebastian @ Solly v. State of Kerala**_ [2015(1) KLJ 384], etc. Therefore, the submissions made by the petitioner/accused and the 2[nd] respondent/lady de facto complainant that the impugned criminal proceedings, which mainly includes the offence of rape as per Sec.376 of the IPC be quashed on the basis of settlement between the parties, cannot be countenanced by this Court. The main sheet-anchor of the Crl.M.C.No.1634 of 2019 5 case is now argued by Sri.S.Nirmal Kumar, learned Advocate appearing for the petitioner/accused is that even going by the admitted allegations of the prosecutrix in the prosecution materials, it can be seen that the alleged sexual relationship between the parties would have occurred only on the basis of consensus and volition of the parties and that even according to her, the parties were in love for quite some time and later they were working in the same place and that they had sexual relationship and subsequently that too that the petitioner had promised her that he would marry her, which was breached by him, etc. and that he had persuaded her to conduct medical termination of pregnancy, which arose out of the said relationship. To appreciate this contention, it will be more pertinent to refer to the entire entirety of the First Information Statement given by the 2[nd] respondent/lady defacto complainant before the police, which triggered the instant Annexure-A3 Crime No.611/2018 of Kannammaly Police Station (which was later transferred to the Hill Palace Police Station, wherein it was re-numbered as the instant Crime No.1185/2018). The said FI Statement, which has been produced as Annexure-A3 along with Crl.M.A.No.4/2019, filed in the above Crl.M.C., reads as follows: Crl.M.C.No.1634 of 2019 6 ## **“CWI** ആവലലതതകലരതയടട പഥമ വതവര ടമലഴത **(FIS )** കമളങത വതല�ജ� **,** കണകടവ� കരയതൽ **,** പനയൽ വ ടതൽ **,** ലജലസഫ� മകൾ **23** വയസള കർമല ജതസ� ന ഇന� **(13.07.18)** വവകതട� **7.30** മണതക� കണമലലത ല.ലല സ� ല/ഷനതൽ ഹലജരലയത ലരണകലയലട� .റയന ടമലഴത **, (829536749)** ഞലൻ ഒര വർഷലതലളമലയത വവറതലയതലള **S.D. Life Style Glam Saloon and Spa** കമനതയതൽ **Customer Relationship Executive** ആയത ലജലലത ട;യ വരന **.** ഞലൻ എരരള സച .ത **.** ;നൻ എന .യനമലയത **10** വർഷലതലളമലയത ഇഷതതലലയതരന **.** .തന ട� സച എടE വ ടതൽ വന� അചലനലട� ഞങളടട ബനടതപറത സLസലരതകകയL **,** എടന വതവലഹL ട;യലതലളലടമന� **. . 2016** ടമയ� മലസL സച വലഗലനL ട;യകയL ട;യ ഞലൻ സചവതലനലടടലപL മനലറതലL മറL ല.ലയതടണ� ഏലതല ഒര ദതവസL സച എടന ഞലൻ തലമസതചതരന ലഹല/ലതൽ നതനL കടതടകലണല.ലകകയL **,** സചവതടE വ ടതൽ ടവച� ഞങൾ ശലര രതക ബനതതൽ ഏർടപടകയL ട;യ **.** .തന ട� ഞങൾ വയനലടതൽ ടർ ല.ലകകയL ഞങളടട ഫണതടE ബനവതടE വ ടതൽ മന ദതവസL തലമസതകകയL അവതടട ടവചL ബനതതൽ ഏർടപടകയL ട;യ **. 2017** ൽ ഞലൻ ഗർഭതണതയലകകയL **,** സചവതടE നതർബനപകലരL മടലല_രതയതലള സLഗ ത ലഹലസതറലതൽ അലബലർഷൻ ട;യകയL ട;യ **.** .തന ട� ഞങൾ സLസലരതകകയL **,** എടന സച വതവലഹL ട;യടമന� ഉറപ നൽകകയL ട;യ **. 2018** മലർച� മലസലതലടട സച എടന ഒഴതവലകലൻ തടങത **.** എടന ലഫലൺ ട;യകലയല **,** കലണകലയല ഒനL ട;യതരനത� **.** .തന ട� എനതകL സLശയL ലതലനത **.** സചവതലനലട� സLസലരതകണL എന� .റഞ .തന ട� ഏപതൽ മലസL **Copt Avenue walkway** യതൽ എതകയL സചവമലയത സLസലരതചലപലൾ സചവതന� എടന വതവലഹL കഴതകലൻ തലലരjമതട�നL **,** എനതക� ലവണത കലതതരതലകണ എനL .റഞ **.** എടE .പല സചവതടന വതളതച സLസലരതകകയL ട;യ **.** അലപലൾ സചവതടE .പടയ വതളതചലപലൾ അവരL എതതർപ� .റഞ **.** എടE കയതൽ നതനL .ലലപലഴലയത ഒര ലകതതലധതകL ര. വലങതയതട� എടന വതവലഹL ട;യടമന പത കയതലലണ� ഞലൻ ഇതതടന�ലL സമതതചത� **.”** 5. The meticulous perusal and analysis of the contents of the said FI Statement dated 13.07.2018 would reveal that since past one year, she has been working in “S.D Lifestyle Glam Saloon and Spa”, Vytilla, Ernakulam as Customer Relationship Executive and that she has known the petitioner/accused for the last more than 10 years and that they were having a love affair and that families of both parties did not like the relationship, as they belong to different religion and that later, the petitioner had come to her house and talk to her father and had promised to marry her. That the petitioner and the Crl.M.C.No.1634 of 2019 7 2[nd] respondent had gone to Munnar and various other places in May, 2016 and that the petitioner had taken her from her hostel and later they had sexual relationship in his house and they had also gone to Wayanad and had stayed in the house of a relative of a friend for three days and they had sexual relationship. In 2017, she had become pregnant and that due to the persuasion of the petitioner, she had undergone medical termination of pregnancy in a hospital at Mattancherry. That later, the petitioner had assured her that he would marry her and subsequently from March, 2018 onwards, the petitioner started neglecting her and stopped his phone conversations and which raised suspicion in her and she later had detailed discussion with him and the petitioner reveals that he is no longer interested to marry her and that she need not wait for him any further and that she had informed her family members about this and her father had talked to the petitioner and the petitioner’s father had also opposed the marriage proposal and that the petitioner has received about Rs.1 lakh from her on various occasions and that she had given his money on the expectation that he would marry her, etc. 6. It is by now well established that there is a fine and substantial distinction between rape as understood in Sec.376 of the Crl.M.C.No.1634 of 2019 8 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 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 Crl.M.C.No.1634 of 2019 9 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. 7. In the instant case, the facts very glaring and clear. The parties were in love affair since younger days and for more than 10 years even at the time of submission of the First Information Statement on 13.07.2018 as can be seen from Annexure-A3. It appears that both of them are working in the same place and they had indulgent sexual relationship, which can be only on the basis of consent and volition. Though there is an averment in the first part of Annexure-A3 that the petitioner had given a promise to her father that he will marry her, the entire narration of the sequence will make it clear that they are having a love affair and that both them were gone to Munnar and some time in May, 2016 and had sexual relationship and had gone to Wayanad and that stayed there three days and had sexual relationship and that she Crl.M.C.No.1634 of 2019 10 later became pregnant in the year 2017 and had undergone medical termination of pregnancy in a hospital at Mattancherry, Ernakulam on the persuasion of the petitioner. That later, the petitioner had promised that he would marry her. Subsequently, from March, 2018 onwards the petitioner backtracked and started neglecting her. It is also stated at the end of the FIS that the petitioner has received about Rs.1 lakh from her and that he had given that money to him only because of the love affair and he was promised to marry her. As far as from the abovesaid narration of the facts had disclosed from the admitted allegations in Annexure-A3 FIS, it can be seen that the alleged sexual relationship between the parties would have taken place only on the basis of consent and volition of the parties. Even the promise to marry is said to have been given by the petitioner to the 2[nd] respondent/lady de facto complainant much later after she had undergone the medical termination of pregnancy. 8. In the light of these aspects, it is clear like the blue sky that the alleged incidents would have taken place only on the basis of consent between the parties. In the light of the abovesaid legal principles laid down by the Apex Court and various High Courts as mentioned in hereinabove, the vital ingredients of forcible sexual Crl.M.C.No.1634 of 2019 11 intercourse for the offence of rape as understood in Sec.376, are not attracted and as the incidents occurred or happened only on the basis of consent of the parties. Of course, there is an allegation that the petitioner had persuaded her to undergo medical termination of pregnancy and on that ground, the prosecution has also included the offence as per Sec.312 of the IPC., which reads as follows: _**“312. Causing miscarriage** - Whoever voluntarily causes a woman with child to miscarry, shall, if any miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”_ 9. The statement of one Dr.Geetha S.Prabhu, Gynecologist, who had conducted the medical termination of pregnancy in the Mattancherry Hospital, taken by the Investigating Officer in this crime on 28.07.2018 has been given on pages 26 and 27 of Annexure-A1 final report/charge sheet. That the 2[nd] respondent and the petitioner had approached her stating that both of them are married and that the 2[nd] respondent informed that she wants to conduct MTP as she is interested to search some employment abroad and that the doctor conducted a blood test and she had also conducted a scan and it is found that her continued pregnancy would be detrimental to her health Crl.M.C.No.1634 of 2019 12 and that she was asked to come for a scanning on 24.06.2016 and that after the scanning it was found that the pregnancy was of four weeks and five days gestation period and that it was not live foetus and it is found to be in a condition of one sac and that thereupon the doctor had informed the 2[nd] respondent that her consent is required and the consent papers were signed and thereafter the said doctor had given tablets to the 2[nd] respondent for effecting the MTP and next medical review was conducted on 05.07.2016, which reveal that the pregnancy is negative. Further that she had also given the medical details about the pregnancy and had stated that the continued pregnancy would have been detrimental to the health of the 2[nd] respondent and it was with the consent of the 2[nd] respondent that the MTP was done. The abovesaid statement of the Gynecologist has given on pages 26 & 27 of Annexure-A1 final report/charge sheet is the admitted materials of the prosecution, therein the specific case of the charge witness is that the scanning had revealed that it was not live foetus and that the continuation of pregnancy will be detrimental to the her health and that therefore the MTP was advised and it was in the full consent and volition of the 2[nd] respondent that the MTP was conducted by the doctor, etc. In the light of these aspects, it cannot be said that any of Crl.M.C.No.1634 of 2019 13 the vital ingredients of Sec.312 of the IPC are made out in the facts and circumstances of the case. 10. There is yet another allegation that the 2[nd] respondent had given about Rs.1 lakh to the petitioner and that she had given the said amount on the latter's promise that he would marry her, etc. It is in the light of these aspects, the prosecution has included offence under Sec.420 of the IPC. Going by the admitted prosecution materials, no strong case to prove the basic aspect that the petitioner had dishonest and fraudulent intention even right to the commencement of the entire transaction is not evident. Moreover, the said offence is a compoundable offence as per Sec.320 of the Cr.P.C. Though the settlement arrived at between the parties cannot be of any avail as far as the offence as per Sec.376 of the IPC is concerned, the said settlement certainly can be pressed into service for the offence of Sec.420 of the IPC. In the cumulative light of all these aspects as it emerges on the totality of the facts and circumstances of the case, this Court is of the considered view that the impugned criminal proceedings are liable to be quashed as the vital offences are not made out and moreover, any further continuation of impugned criminal proceedings would be a futility and therefore, wastage of precious time of the police Crl.M.C.No.1634 of 2019 14 investigation machinery, the prosecution machinery as well as the judicial fora. So the impugned criminal proceedings deserve to be interdicted by exercise of the inherent powers conferred under Sec.482 of the Cr.P.C. 11. In the light of these aspects, it is ordered that the impugned Annexure-A1 final report/charge sheet filed in Crime No.1185/2018 of Tripunithura Hill Palace Police Station, which has led to the institution of committal proceedings in C.P.No.5/2019 on the file of the Judicial First Class Magistrate Court, Tripunithura as against the petitioner/accused and all further proceedings taken in pursuance thereof, will stand quashed. The petitioner will forward certified copy of this order to the Investigating Officer concerned and the abovesaid trial court concerned. Office of the Advocate General will forward a certified copy of this order to the Investigating Officer concerned, for necessary information. With these observations and directions, the above Crl.M.C will stand finally disposed of. Sd/- ## **ALEXANDER THOMAS JUDGE** vgd Crl.M.C.No.1634 of 2019 15 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 CERTIFIED COPY OF THE CHARGE SHEET ANNEXURE A2 AFFIDAVIT FILED BY THE DEFACTO COMPLAINANT. ANNEXURE A3 FIRST INFORMATION STATEMENT OF DE FACTO COMPLAINANT**