John Thomas v. State of Kerala & De facto complainant (CW1)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 05TH DAY OF AUGUST 2020 / 14TH SRAVANA, 1942** ## **Crl.MC.No.2517 OF 2020(D)** **TO QUASH FURTHER PROCEEDINGS PENDING AGAINST THE PETITIONER IN SC NO.471 OF 2018 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS COURT, PALA** ## **PETITIONER/ACCUSED:** **JOHN THOMAS AGED 31 YEARS S/O.K.K.THOMAS, RESIDING AT KAVANASSERIL, KUNNAMPALLY, MOOLAVATTOM.P.O, PANACHIKKAD, POOVANTHURUTHU GDS, KOTTAYAM DISTRICT-686012** **BY ADVS. SRI.JACKSON JOHNY SRI.MUHAMMED YASIL SMT.ROSIN JOSEPH** ## **RESPONDENTS/STATE OF KERALA & DEFACTO COMPLAINANT(CW1)** **1 STATE OF KERALA THROUGH STATION HOUSE OFFICER, PALA POLICE STATION(CRIME NO.697 OF 2017) -REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2 MS.X X** **SRI.JAYASURYA – PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30-07-2020, THE COURT ON 05-08-2020 PASSED THE FOLLOWING:** **Crl.MC.No.2517 OF 2020** **2** **P.B.SURESH KUMAR, J. -----------------------------------------------** ## **Crl.M.C.No.2517 of 2020** ## **-----------------------------------------------** **Dated this the 5[th] day of August, 2020** ## **O R D E R** This is a proceedings under Section 482 of the Code of Criminal Procedure seeking orders quashing Annexure-A2 final report in Crime No.697 of 2017 of Pala Police Station, now pending trial in S.C.No.471 of 2018 on the files of the Additional District and Sessions Court, Pala. 2. The final report sought to be quashed is one instiuted alleging offences punishable under Sections 376(1), 506(i) and 201 of the Indian Penal Code (the IPC) and Section 119(b) of the Kerala Police Act. The petitioner is the accused and the second respondent is the de facto complainant in the case. The accusation in the case in essence is that on 09.06.2011 and on several days thereafter, the accused had sexual intercourse with the defacto complainant at different places and that he was threatening her that he would publish her obscene pictures in social media. The case set out by the petitioner in the proceedings is that the allegations made in the final report do not make out the offences alleged. **Crl.MC.No.2517 OF 2020** **3** 3. Heard the learned counsel for the petitioner, the learned Public Prosecutor as also the learned counsel for the second respondent. 4. When the matter was taken up, the learned counsel for the petitioner submitted that the petitioner was in fact in love with the second respondent and the case happened to be instituted on account of a misunderstanding between them. It was also submitted by the learned counsel that the misunderstanding between them has been sorted out and that the second respondent has no objection now in quashing the proceedings instituted by her. The learned counsel for the second respondent endorsed the said stand and submitted that the proceedings against the petitioner can be quashed. The learned Public Prosecutor also, on instructions, submitted that the dispute between the petitioner and the second respondent has been amicably settled. 5. One of the offences alleged being punishable under Section 376 of the IPC, the proceedings cannot be quashed based on the settlement arrived at between the parties, and the relief sought for by the petitioner can be granted in exercise of the power of this Court under Section 482 of the Code only if this Court finds that the final report sought to be quashed does not **Crl.MC.No.2517 OF 2020** **4** make out the offence of rape. 6. Annexure-A1 is the First Information Statement in the case. It is stated by the second respondent in Annexure A1 statement that she was in love with the petitioner from the year 2010 onwards; that she had sex with the petitioner 09.06.2011; that thereafter the accused has assured her that he would marry her; that the accused has once taken her to his house and introduced to his parents and that she had sex with the petitioner on several occassions thereafter also at different places. The First Information Report is seen lodged in the year 2017. 7. As noted, the second respondent has no case in the First Information Statement that the accused had sex with her on any false promise to marry her. Though it is alleged by the second respondent in the First Information Statement that the petitioner used to intimidate her that he would circulate her obscene pictures in social media, there is no case for the second respondent in the First Information Statement that the consent for the sex she had with the petitioner was vitiated on account of the said reason. Further, a reading of the First Information statement would also show that the essence of the grievance of the second respondent therein is the alleged threat on the part of the petitioner that he would circulate her obscene pictures in social **Crl.MC.No.2517 OF 2020** **5** media to tarnish her image. 8. In **Dhruvaram Murlidhar Sonar(Dr.) v. State of Maharashtra and others,** 2019(1) KHC 403 (SC), the Apex Court has explained the distinction between 'rape' and 'consensual sex' thus: “Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also 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. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.” The question to be examined, therefore, is as to whether the second respondent was acting under any misconception while **Crl.MC.No.2517 OF 2020** **6** having sex with the petitioner. The materials on record would indicate that the petitioner and the second respondent were on intimate relationship for several years and the sexual acts committed by them was out of mutual passion and the case happened to be registered on account of some misunderstanding between them which arose later. It can also be inferred from the materials that the petitioner and the second respondent have decided to marry and they were moving accordingly, and the marriage did not take place on account of the misunderstanding. A case of this nature, according to me, will not constitute the offence of rape. 9. In the circumstances, I am of the view that the continuance of the proceedings aforesaid against the petitioner is an abuse of the process of the court. It is unnecessary to consider whether the remaining offences namely the offences punishable under Sections 506(i) and 201 of the IPC and Section 119(b) of the Kerala Police Act are made out in the final report, for this Court would be justified in quashing the final report in so far as it relates to the said offences, in the light of the settlement arrived at between the parties, invoking the power of this Court under Section 482 of the Code of Criminal Procedure. In the result, the Crl.M.C. is allowed and Annexure – A2 **Crl.MC.No.2517 OF 2020** **7** final report in Crime No.697 of 2017 of Pala Police Station now pending trial in S.C.No.471 of 2018 on the files of the Additional District and Sessions Court, Pala and all further proceedings are quashed. **Sd/P.B.SURESH KUMAR, JUDGE.** PV **Crl.MC.No.2517 OF 2020** **8** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF THE FIR DATED**| |---|---| ||**17.02.2017 IN CRIME NO.697 OF 2017 OF**| ||**PALA POLICE STATION.**| |**ANNEXURE A2**|**CERTIFIED COPY OF THE FINAL REPORT DATED**| ||**29.04.2017 IN CRIME NO.697 OF 2017 AS**| ||**NUMBERED AS C.P.NO.23/2017 ON THE FILE**| ||**OF THE JUDICIAL FIRST CLASS MAGISTRATE**| ||**COURT, PALA**| |**ANNEXURE A3**|**A TRUE COPY OF THE AFFIDAVIT DATED**| ||**11.03.2020 SIGNED BEFORE AN ADVOCATE**| ||**NOTARY BY THE CW1/RESPONDENT NO.2 ALONG**| ||**WITH A COPY OF HER AADHAR CARD**| ## **RESPONDENTS' EXHIBITS: NIL**