K. Sarath v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **Crl.MC.No.3675 OF 2020(H)** **CRIME NO.433/2019 OF Nadakkavu Police Station , Kozhikode** ## **PETITIONER:** **K.SARATH AGED 29 YEARS S/O. VENU, RESIDING AT 27/111, KOTTAKATH HOUSE, PUTHIYARA PADANNAYIL, P.O. PUTHIYARA, KOZHIKODE DISTRICT.** **BY ADVS. SRI.E.G.GORDEN SRI.S.K.KRISHNAKUMAR** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031** **2 XX XX** **R2 BY ADV. SHRI.MANEKSHA D. SRI.RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 3675 of 2020 2 ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 3675 of 2020 -----------------------------------Dated this the 4[th ] day of November, 2020 ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the instant Anx.A1 FIR in crime No.433/2019 of Nadakkavu Police Station, Kozhikode for offence punishable under Sec.376 of the IPC on the basis of the First Information Statement of the 2[nd] respondent lady defacto complainant given on 01-05-2019 at about 6.45 p.m, in respect of the alleged incidents which had happened for the period from 01-01-2016 to 09-04-2019. 2. One of the contentions urged by the learned counsel for the petitioner is that the petitioner and the 2[nd] respondent, who were having a long standing love affair and the allegations have been made by the 2[nd] respondent only out of misunderstandings as the petitioner was forced to go to the USA for his employment purpose and could not return back to India immediately and that now the entire disputes between the parties have been resolved and that the 2[nd] respondent has now filed an affidavit dated 11-08-2020 through her Crl.M.C No. 3675 of 2020 3 learned counsel, stating that the disputes between the parties have been resolved and that the allegations have been made out of misunderstandings and that the relationship entered between the lady defacto complainant and the petitioner was consensual one and that the petitioner had never involved in the sexual relationship with her without her consent and that the parties have now agreed that they would solemnise their marriage by August 2021 and that she is not interested to continue the impugned criminal proceedings any further, etc. 3. It is by now well settled that it may not be right and proper for this Court in exercise of the powers under Sec.482 of Cr.PC, to consider quashment of grave and serious offence of rape as per Sec.376 of the IPC, solely on the ground of settlement between the parties. [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.]. However, this Court has held in various decisions including those in _**Freddy @ Antony Francis & Others v. State of Kerala &**_ Crl.M.C No. 3675 of 2020 4 _**Another**_ [2017 KHC 344 = 2018 (1) KLD558 , _**Denu P. Thampi v. Ms.X & Another**_ [2019 (3) KHC 199 = 2019(2) KLT 996], that an exception to the above approach should be made in cases where the accused had married the _de facto_ complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the _de facto_ complainant/victim, to ensure her better future life. It is only just and proper that this Court in exercise of the extra ordinary inherent powers conferred under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings in view of the solemnisation of the marriage between the accused and the lady victim, concerned. In the instant case, there is no dispute that the marriage was solemnised not only on the basis of compromise between the petitioner and the 3rd respondent victim but also on the basis of the concurrence and blessings of the parents of both of them. 4. However, the main ground urged by the petitioner is that, even going by the admitted prosecution materials, more particularly, in Anx.A1 FIR & FIS given by none other than the 2[nd] respondent lady defacto complainant, it can be seen that even if it is assumed that the alleged sexual incidents narrated therein are broadly true, then the Crl.M.C No. 3675 of 2020 5 same could have happened only on the basis of consent between the parties and also it does not constitute the vital ingredients of offence of rape as per Sec.375 of the IPC, which is punishable as per Sec.376 thereof, and that the proceedings are liable for quashment, etc. 5. 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 in the matter of distinction of rape as per Sec.376 I.P.C and consensual sexual relationship between the parties. It is by now well established that there is a fine and substantial distinction between rape as understood in Sec.376 of the 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**_ , reported in (2003) 4 SCC 46 and _**Deelip Singh @ Dilip Kumar v. State of Bihar**_ , reported in (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 Crl.M.C No. 3675 of 2020 6 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.**_ , reported in 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 it will 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 elucidated the principles in that regard and it has 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 Crl.M.C No. 3675 of 2020 7 understood in Sec.90 of the IPC. 6. The Division Bench of the Kolkata High Court in decision in ## _**Jayanthi Rani Panda v. State of West Bengal and another**_ (1984 CriLJ, 1535) = (1984 KHC 1148), held that in a case set up by the prosecution that the sexual relationship was entered into by the lady on the basis of the assurance made by the accused that he would marry her, then in such cases, prosecution should have materials to show that the accused had no intention to keep that promise and that the failure to keep the promise to marry at a future uncertain date due to reasons that may not be very clear does not always amount to misconception of fact at the inception of the act itself, as understood in explanation No.2 of Sec.375 of the IPC and Sec.90 of the IPC and that in order to come within the meaning of misconception of act as understood in explanation No.2 of Sec.375 of IPC and Sec.90 of the IPC fact must have an immediate relevance. It has been held that if two full grown adults consents to the act of sexual intercourse on a promise to marry at a future uncertain date and continues to indulge in such activity, then it may be on account of a love affair as well as the promiscuity and passions on their part and it need not be seen as Crl.M.C No. 3675 of 2020 8 an act induced by misconception of fact and that Sec.90 of IPC cannot be called in aid in such as case and unless the court can be assured that from the very inception the accused had never really intended to marry her, etc. 7. A Three Judge Bench of the Apex Court has recently rendered a judgment on 28-09-2020 in Crl.Appeal No.635/2020 in the case in _**Maheshwar Tigga v. Sate of Jharkhand**_ [(2020) 2 KLD 589 (SC)], wherein various aspects regarding the issues relating to sexual relationship entered into, on the basis of the alleged promise to marry has been considered in detail. It has been held therein Para.17 thereof that, where a relationship originated in a love affair, developed over a period of time accompanied by physical relationship, consensual in nature, but the parties could not fructify due to various other reasons, then there is no question of commission of the offence of rape as per Sec.375 of the IPC, etc. 8. A reading of the impugned Anx.A1 First Information Statement would make it clear that the petitioner/accused was then aged 28 years and the 2[nd] respondent was also then aged 28 years and that she was working as a Teacher/Instructor in an academy and that Crl.M.C No. 3675 of 2020 9 she is a MBA degree holder and the petitioner is a professional Engineer and that they were having a love affair for quite sometime and that decided to get married and that on a day in September, 2015, the petitioner's parents had come to her house and discussed the marriage proposal with her parents and both sides had agreed for conducting the marriage after the petitioner return back from the USA. That on 1[st] January, 2016, the petitioner had taken her to a room in a lodge in Kannur and that he had forcible sexual relationship with her. Later, the parties continued to have sexual relationship on three other occasions at various places. In most of the allegations, it is reiterated by the 2[nd] respondent that in all those incidents when she had voluntarily gone with the petitioner on those occasions, petitioner had forcible sexual intercourse with her. From a overall reading of the FIS, it can be seen that the parties had a love affair for a very long time and the alleged sexual relationship started sometime from January, 2016 and the petitioner had taken her to various places and the 2[nd] respondent had voluntarily gone with him in the rooms taken by him. 9. The common version is that, on all those four occasions, Crl.M.C No. 3675 of 2020 10 petitioner had taken her either to a room in a lodge or to an apartment and that she had voluntarily gone there and that there they had sexual relationship and that it is alleged that on all those occasions, the petitioner had sexual relationship with her without her consent. An overall reading of the contents of the FIS would indicate that on all those occasions she had gone to the lodge or apartment as the case may be, voluntarily and there they had sexual relationship. It is the constant refrain of the 2[nd] respondent is that the petitioner had forcible sexual intercourse with her on those occasions. 10. 2[nd] respondent has further alleged that later petitioner had lost interest in her, as he was seeking permanent residence in the USA and she felt cheated as the petitioner was not keeping his word to marry her, etc. Of course, there are allegations that the petitioner had taken her intimate photos in his mobile in the course of those intimate relationship and that he used to threaten her that he would divulge the same, etc. 11. After hearing both sides, where appears to be a strong force in the contention of the counsel for the petitioner that in between the line reading of the prosecution materials would make it clear like the Crl.M.C No. 3675 of 2020 11 day light that even if it is assumed that the alleged sexual incidents are broadly true, then the same could have happened only on the basis of consent of the parties and in the course of their long standing love affair and that when the petitioner had to go back to USA for pursuing his permanent residence, the 2[nd] respondent would have developed misunderstandings and she has given the instant complaint. 12. By applying the legal principles laid down in the aforementioned decisions rendered herein above, this Court is inclined to take the view that the petitioner has made out a strong probable case that the alleged sexual relationship between the parties if true, which would have happened only on the basis of consent between the parties and in the course of their long standing love affair and later misunderstandings have occurred between them. 13. Accordingly, this Court is of the considered view that the continuance of the impugned criminal proceedings is an abuse of the process of a Court, as it would inevitably lead to wastage of precious time and resources of the judicial organs of the State as well as the prosecution and investigation machinery. In that view of the matter, Crl.M.C No. 3675 of 2020 12 it is ordered that the impugned Anx.A1 FIR in Crime No.433/2019 of Nadakkavu Police Station as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 14. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the Judicial First Class Magistrate Court-IV, Kozhikode for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 3675 of 2020 13 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A1** **CERTIFIED COPY OF F.I.R IN CRIME NO. 433 OF 2019 OF NADAKKAVE POLICE STATION, KOZHIKODE.** **RESPONDENT'S/S EXHIBITS: NIL**