Karthik v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** **WEDNESDAY, THE 4[TH] DAY OF OCTOBER 2023 / 12TH ASWINA, 1945** ## **CRL.MC NO. 5883 OF 2023** **TO QUASH FIR & CHARGE SHEET IN CRIME No.581/2018 OF AMBALAMEDU POLICE STATION, ERNAKULAM DISTRICT NOW PENDING AS SC NO.1046/2018 ON THE FILES OF THE ADDITIONAL DISTRICT COURT V (SPECIAL COURT EDAMALAYAR** ## **INVESTIGATION), ERNAKULAM** ## **PETITIONER/ACCUSED:** **1 KARTHIK AGED 30 YEARS S/O. SATHEESHKUMAR, MEPPURATH HOUSE, KARIMUGAL P.O, KARIMUGAL, PUTHENCRUZ, ERNAKULAM DISTRICT ., PIN - 682303 BY ADVS. BIJU .C. ABRAHAM THOMAS C.ABRAHAM BASIL MATHEW** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV SRI. VIPIN NARAYAN, SR PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.5883 of 2023 2 ## **ORDER** Petitioner is the accused in Crime No.581 of 2018 of Ambalamedu Police Station, Ernakulam District now pending as S.C. No.1046/2018 on the file of the Additional District Court V (Special Court, Edamalayar Investigation), Ernakulam. The petitioner faces allegations of having committed offence under Section 376 of the Indian Penal Code (IPC). 2. Learned counsel appearing for the petitioner would submit that the allegation raised by the de facto complainant/victim is that the petitioner entered into a relationship with the de facto complainant/victim on the false promise of marriage and on various occasions mentally and physically abused the de facto complainant. It is submitted that the petitioner and the de facto complainant were in a relationship from 2016 onwards. It is submitted that the de facto complainant/victim has now executed Crl.M.C.No.5883 of 2023 3 Annexure-A3 affidavit indicating that she does not wish to continue with the prosecution and she had filed the complaint on the basis of a misunderstanding. It is the contention of the learned counsel for the petitioner that even if the entire allegations in the FIS are accepted as true, the relationship between the petitioner and the de facto complainant/victim can only be termed to be consensual and no element of rape is involved. 3. Heard the learned Public Prosecutor and the the learned counsel appearing for the second respondent/de facto complainant/victim. 4. In _**Pramod Suryabhan Pawar**_ **v. State of Maharashtra and another** [2019 (9) SCC 608] the Supreme Court considered the question as to whether consent for sexual relationships given on the false promise to marry would be a consent given under misconception for the purpose of Section 90 of the Code. Paragraph Nos.19, 20 and 21 reads as follows: Crl.M.C.No.5883 of 2023 4 _“19 The allegations in the FIR indicate that in November 2009 the complainant initially refused to engage in sexual relations with the accused, but on the promise of marriage, he established sexual relations. However, the FIR includes a reference to several other allegations that are relevant for the present purpose. They are as follows:_ _19.1 The complainant and the appellant knew each other since 1998 and were intimate since 2004;_ _19.2 The complainant and the appellant met regularly, travelled great distances to meet each other, resided in each other’s houses on multiple occasions, engaged in sexual intercourse regularly over a course of five years and on multiple occasions visited the hospital jointly to check whether the complainant was pregnant;_ _19.3 The appellant expressed his reservations about marrying the complainant on 31.01.2014. This led to arguments between them. Despite this, the appellant and the complainant continued to engage in sexual intercourse until March 2015._ _20. The appellant is a Deputy Commandant in the CRPF while the complainant is an Assistant Commissioner of Sales Tax._ _21. The allegations in the FIR do not on their face indicate that the promise by the appellant was false, or that the complainant engaged in sexual relations on the basis of this promise. There is no allegation in the FIR that when the appellant_ Crl.M.C.No.5883 of 2023 5 _promised to marry the complainant, it was done in bad faith or with the intention to deceive her. The appellant’s failure in 2016 to fulfil his promise made in 2008 cannot be construed to mean the promise itself was false. The allegations in the FIR indicate that the complainant was aware that there existed obstacles to marrying the appellant since 2008, and that she and the appellant continued to engage in sexual relations long after their getting married had become a disputed matter. Even thereafter, the complainant travelled to visit and reside with the appellant at his postings and allowed him to spend his weekends at her residence. The allegations in the FIR belie the case that she was deceived by the appellant’s promise of marriage. Therefore, even if the facts set out in the complainant’s statements are accepted in totality, no offence under Section 375 of the IPC has occurred.”_ ## In **Mandar Deepak Pawar v. The State of** ## **Maharashtra and Others** ## **[MANU/SC/0999/2022]** , the Supreme Court ## considered a similar issue and held as follows: _“3. The parties chose to have physical relationship without marriage for a considerable period of time. For some reason, the parties fell apart. It can happen both before or after marriage. Thereafter also three years passed when Respondent_ Crl.M.C.No.5883 of 2023 6 _No.2 decided to register a FIR._ _4. The facts are so glaring as set out aforesaid by us that we have no hesitation in quashing the FIR dated 16.12.2016 and bringing the proceedings to a close. Permitting further proceedings under the FIR would amount to harassment to the Appellant through the criminal process itself.”_ 5. In the facts of the present case, it is clear from the affidavit executed by the de facto complainant/victim that she has filed the complaint on the basis of a misunderstanding. She has clearly stated that she does not wish to continue the prosecution. The First Information Statement of the de facto complainant/victim also indicates that the petitioner and the victim were in a relationship for a considerably long period of time. Therefore, the failure of the petitioner to abide by the promise of marriage could be on account of the falling apart of the parties as observed by the Supreme Court in **Mandar Deepak Pawar’s case** (Supra) **.** 6. Cumulatively, these reasons compel me to Crl.M.C.No.5883 of 2023 7 hold that the proceedings against the petitioner can be quashed in exercise of the jurisdiction vested in this Court under Section 482 Cr.P.C. Accordingly, the Crl.M.C. is allowed and all the proceedings in S.C. No.1046/2018 on the file of the Additional District Court V (Special Court, Edamalayar Investigation), Ernakulam will stand quashed. ## **Sd/-** **GOPINATH P.** **JUDGE** SSK/04/10 Crl.M.C.No.5883 of 2023 8 ## **APPENDIX OF CRL.MC 5883/2023** **PETITIONER’S ANNEXURES: ANNEXURE 1 CERTIFIED COPY OF THE FIR IN CRIME NO.581/2018 OF AMBALAMEDU POLICE STATION ANNEXURE 2 CERTIFIED COPY OF THE CHARGE SHEET IN CRIME NO.581/2018 OF AMBALAMEDU POLICE STATION ANNEXURE 3 AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 24.06.2023** **RESPONDENTS' EXHIBITS:NIL** ## **TRUE COPY** **P.A. TO JUDGE**