Mansoor S v. Inspector of Police, Manjeshwar Police Station, Kasaragod & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 24TH DAY OF NOVEMBER 2020 / 3RD AGRAHAYANA, 1942** ## **Crl.MC.No.3930 OF 2020(A)** **AGAINST THE ORDER/JUDGMENT IN CP 6/2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KASARAGOD** **CRIME NO.576/2018 OF MANJESHWAR POLICE STATION, KASARGOD** ## **PETITIONER/ACCUSED:** **MANSOOR S AGED 30 YEARS S/O.ABDUL KADER, SUNKATHAKATTA, MEENJA, KALIYOOR VILLAGE, MANJESHWAR TALUK, KASARAGOD DISTRICT-671323.** ## **BY ADV. SMT.ANN SUSAN GEORGE** ## **RESPONDENTS/COMPLAINANT AND STATE:** - **1 THE INSPECTOR OF POLICE MANJESHWAR POLICE STATION, KASARAGOD DISTRICT-671323.** - **2 VICTIM** - **3 THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR, R2 SRI.V.JAYAPRADEEP,** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.3930 of 2020 2 # **ALEXANDER THOMAS, J.** ## **=========================== Crl.M.C No.3930 of 2020** **===========================** Dated this the 24[th] day of November, 2020 ## **ORDER** The prayer in the aforecaptioned Crl.M.C filed under Sec.482 of the Cr.P.C is as follows : _“................. the proceedings as against the Petitioner in C.P.No.06/2020 on the files of the Judicial First Class Magistrate Court-II, Kasaragod, in Crime No.576/2018 of Manjeshwar Police Station, Kasaragod, may be quashed in the interest of justice.”_ 2. Heard Smt.Ann Susan George, learned counsel appearing for the petitioner, Sri.V.Jayapradeep, learned counsel for the 2[nd] respondent and Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the official respondents. 3. The petitioner herein has been arrayed as the sole accused in the instant Annexure-I First Information Report in Crime No.576/2018 of Manjeshwar Police Station, Kasaragod, which has been registered for offences punishable under Secs.376(2)(n), 376 (2) (f), 417 of the Indian Penal Code, on the basis of the First Information Statement given by the 2[nd] respondent-lady de facto complainant on 11.12.2018 at about 6 p.m., in respect of the alleged incidents which Crl.M.C No.3930 of 2020 3 happened for the period from 01.07.2016 to 01.10.2018. The police after investigation have filed the impugned Annexure-I final report/charge sheet in the said Crime No.576/2018 of Manjeshwar Police Station, which has now led to the pendency of committal proceedings C.P No.6/2020 on the file of the Judicial First Class Magistrate’s Court-II, Kasaragod. It is this proceeding at Annexure-I, which has led to the abovesaid committal proceedings before the learned Magistrate that is essentially under challenge in this petition filed under Sec.482 of the Cr.P.C. 4. The main ground urged by the petitioner is that even if it is assumed that the entire allegations of the alleged sexual incident narrated in Annexure-I impugned criminal proceedings are assumed to be broadly correct, still no criminal offence, as alleged therein are made out in the instant case. Further that, now the parties are close relatives and the 2[nd] respondent (lady de facto complainant) has resolved her entire disputes with the petitioner/accused and the 2[nd] respondent has filed Annexure-II affidavit dated 23.01.2020 before this Court stating that she has no subsisting grievance against the petitioner and that she has made the abovesaid allegations, which led to the impugned criminal proceedings at Annexure-I on the basis of Crl.M.C No.3930 of 2020 4 misunderstandings and that the continuance of the impugned criminal proceedings may detrimentally affect her married life and that the impugned criminal proceedings may be quashed, etc. 5. It is by now well settled that ordinarily it may not be right and proper for this Court to quash serious offence of rape as per Sec.375 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 decisions as in _**Freddy @ Antony Francis v. State of Kerala**_ [2017 KHC 344 = 2018 (1) KLD 558], _**Denu P.Thampi v. Ms.X**_ [2019 (3) KHC 199 = 2019 (2) KLT 996] that in a case where the petitioner/accused has married the respondent-lady victim and they have started their married life, then in appropriate cases, this Court could exercise its discretion conferred under Sec.482 of the Cr.P.C to quash offences, as per Sec.376 of the IPC on the ground that the victim has subsequently married the accused, as otherwise and where it is ascertained that the marriage was on the basis of consent of the parties and not on the basis of any Crl.M.C No.3930 of 2020 5 coercion or threat on the victim, etc. However, the main ground urged by the petitioner is that even going by the admitted prosecution materials made at Annexure-I including FIS given by none other than the 2[nd] respondent-lady de facto complainant, even if it is assumed to be true, the incidents alleged would have been happened only on the basis of consent of the parties. Hence, the vital ingredients of the offence of rape as per Sec.375 of the IPC, which is punishable under Sec.376 of the IPC are not made out in the instant case. 6. Before dealing with the facts of this case, it will be pertinent to refer to the legal principles laid down by the Apex Court and the various High Courts in the matter of the substantial distinction between forcible sexual intercourse, so as to constitute the offence of rape as per Sec.375 of the IPC, which is punishable as per Sec.376 of the IPC thereof on the one hand, and the consensual sexual relationship between the parties. 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 Crl.M.C No.3930 of 2020 6 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 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 Crl.M.C No.3930 of 2020 7 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 understood in Sec.90 of the IPC. 7. Reference in this connection may also be appose it to the dictum laid down by the Division Bench of the Calcutta High Court in the case in _**Jayanti Rani Panda v. State of West Bengal & anr.**_ [1984 CriLJ 1535 = 1984 KHC 1148], wherein their Lordships in the Division Bench of the High Court has held, more particularly in paragraph No.7 thereof that to make out a case of misconception of fact as understood in Sec.90 of the IPC to content that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact, etc., then it is necessary that to make out a case that the accused has no intention of keeping the alleged promise to marry and that the accused had no intention of marrying the complainant even if, he had held out the promise, as alleged and that Crl.M.C No.3930 of 2020 8 failure to keep the promise at a future uncertain day due to reasons that may not be very clear, does not always amount to misconception of fact, as understood in Sec.90 of the IPC at the inception of the Act itself and in order to come within the meaning of misconception of fact, as understood in Sec.90 of the IPC, the fact must have an immediate relevance. Further that, if two full grown adults consent to have sexual intercourse and continuously indulge in such activity for quite some time, then the said Act can be seen only as the voluntary acts of two full grown adults made out of their passion and promiscuity on their part to enjoy physical relationship and the company of each other and in such case, the said Act cannot be said to be the one induced by misconception of fact and that Sec.90 of the IPC cannot be broadly made in such a case, unless the court can be assured from the very inception that the accused never really intended to marry the lady de facto complainant, etc. Reference to this connection could also be made to the recent three Judge Bench decisions of the Apex Court in the case _**Pramod Suryabhan Pawar v. State of Maharashtra & anr.**_ [(2019) 9 SCC 608], _**Maheshwar Tigga v. State of Jharkhand**_ [ **2020 (2) KLT 589** = **2020 (5) KHC 322** ], etc. Now coming to the facts of this case, it can be seen that the very case set up Crl.M.C No.3930 of 2020 9 by the 2[nd] respondent-lady de facto complainant in Annexure-I is to the effect that, more particularly, the FIS given by her, that the petitioner/accused happens to be her husband’s father’s younger brother’s son and that the 2[nd] respondent is a married lady aged 27 years and having a son aged 5 years and that she was living in the present residence for the last four years and that her husband has been employed in a Gulf country. Further that, the petitioner/accused used to regularly come to her house since the year 2016. Earlier he used to telephonically contact her and that he told her that he is in love with her and used to send her messages. Later, she had sent her photographs to him, as requested by him. Later, he used to make various video calls to her. During those times, the petitioner was also in a Gulf country. Further that, the petitioner had come down from the Gulf country in July, 2016 and had come to her house in the midnight and threatened her that she should open the door, otherwise he will divulge the relationship and thereby he had forcible sexual intercourse with her. Later, they had sexual relationship for a very long time and that after three months he had returned back to the Gulf country. Subsequently also, she used to frequently contacted her over telephone. Later, she came back to Kerala after six months, after Crl.M.C No.3930 of 2020 10 getting 20 days leave from his Gulf employer. At that time also, the petitioner used to frequently come to her house and then he used to tell her that he would marry her and that the 2[nd] respondent should divorce her husband, so that they could marry and he used to have sexual relationship with her and he had assured her that he would take care of her whatever be the consequences, which she believed. Later, when he had come back to her house on 01.10.2018, he used to come to her house on frequent occasions and then he told her that he is not interested to marry her. By that time, her family members came to know about it and the petitioner told her that he is not in a position to marry her and that she should forget him. When this was known to her husband, she was sent to her parental home. Thereafter, she has come to the police station to submit the abovesaid FIS, etc. Therefore, a bare reading of the materials made available at the impugned Annexure-A criminal proceedings would show that the 2[nd] respondent is a married woman having a child and she was having an affair with the petitioner, who is her husband’s first cousin for a quite long time from 2016. The alleged promise is said to have been made by the petitioner, not initially, but at a subsequent point of time. The case set up by the 2[nd] respondent is that at the earlier point of time, he had Crl.M.C No.3930 of 2020 11 requested her deep love for her and they continued to have sexual relationship. Of course, there is an allegation that the first occasion arose on account of the petitioner threatening her that he would divulge the love affair and that he had requested her for sexual relationship. But a reading of the FIS would make it clear that even after the first incident, the sexual relationship continued between the parties for a very long time. The alleged promise to marry said to have been made some time after 01.10.2018. The FIS is given on 11.12.2018. Of course, there is an averment in Annexure-I that after the abovesaid assurance of the petitioner that he would marry her, she had continued to have sexual relationship based on the said promise made by the petitioner, etc. It may not require any judicial authority to hold that the alleged promise said to have been made by the accused to a married lady that he would marry her later, presumably after she gets divorce, etc., cannot be a promise which is enforceable in law, as the same is unenforceable in view of the provisions contained in Sec.23 of the Indian Contract Act. Such an unenforceable promise cannot be the basis to content that the consent of the woman was obtained on the basis of misconception of fact and therefore, the alleged sexual incident will get the colour of forcible sexual intercourse, so as to fulfil Crl.M.C No.3930 of 2020 12 the vital ingredients of the offence of rape as per Sec.375 of the IPC. We are living in an age when people even in the third world countries are continuing to imitate the western culture. Because of the information and video explosion, more particularly, the one at the social media level and the exponential growth of internet, the overall culture is one having not much deference to the old age conventional Victorian morality. A grown up adult can certainly take the contention that even adultery is now decriminalized and at best, it is only a ground for dissolution of marriage as understood in civil law. Therefore, if two full grown adults continued to have promiscuous relationship and even if both or one of them are married, there may not risk incurring any criminal culpability for such an action. But a stage may have reached, whereby it may not be possible for the society to enforce the old age conventional victorian morality on people, who are strongly attracted to imitate the western culture. But the fact of the matter is that every person is certainly entitled to make their ethical and moral choices, but the corollary thereof is that just as one is capable of taking one’s own moral and ethical choices, the consequences thereof will also have to be borne by the parties concerned. It appears that with wide and open eyes, the Crl.M.C No.3930 of 2020 13 2[nd] respondent who is a married lady, has entered into a love affair and sexual relationship with her husband’s first cousin for a long period of more than two years. The alleged promise said to have been made by the accused that he would subsequently marry and the 2[nd] respondent is already a married lady and that too at an uncertain future date and that too subject to the uncertain contingencies of the lady subsequently securing divorce, in the manner known to law, cannot be the basis to contend that the consent of the lady to enter into a sexual relationship was obtained on the basis of misconception of fact, as understood in Sec.90 of the IPC, in a case of this nature. The corollary is that the 2[nd] respondent has entered into the sexual relationship with the petitioner/accused with wide and open eyes and both parties have made their own ethical and moral choices. May be the society cannot adjudge and enforce victorian morality on such people. But such persons who make their own ethical and moral choices, will have to bear the blunt of the consequences of the karmas done by them. But such voluntary action cannot be the basis to invite criminal culpability to one of the partners of such a joint volitional venture. Now it is brought to the notice of this Court that the petitioner/accused was already married even before the commencement of the love affair between the parties. If that be so, it Crl.M.C No.3930 of 2020 14 is only prudent and reasonable to infer that all throughout the 2[nd] respondent would have known that the petitioner/accused is already married, as the petitioner is none other than her husband’s first cousin. Therefore, in such a situation if the accused is already married, then certainly it may not be far of the mark to impute that the de facto complainant would have the knowledge that her first cousin would have already been married right from the commencement of the affair. If that be so, althroughout it was an affair between two grown up adults who are already married to their respective spouses. Whether anybody can term it as licit or illicit affair, may depend upon one’s own value in their own moral and ethical universes. But to invite criminal culpability in such a case, will not be legally justifiable. So, the upshot of the discussion is that the allegations of sexual incidents if assumed to be broadly correct, would have occurred only on the basis of consent of two full grown adults, who have chosen out of their own moral and ethical choices to have an affair and to have sexual relationship out of their passions and promiscuity and to enjoy each other’s company. As noted hereinabove, the same cannot be the subject matter of criminal culpability and it is only to be held that the vital ingredients of the offence of forcible sexual intercourse, so as to constitute rape as per Sec.375 of the IPC are not made out in the instant case. Therefore, this Court need not examine the issue of settlement between the parties. Crl.M.C No.3930 of 2020 15 8. Hence, it is only to be held that the very initiation and continuance of the impugned criminal proceedings is an abuse of the process of the court and as it will inevitably lead to the mere wastage of the precious resources and time of the judicial organs of the State, the prosecution machinery and the investigating agency. In that view of the matter, it is ordered that the impugned Annexure-I final report/charge sheet filed in Crime No.576/2018 of Manjeshwar Police Station, Kasaragod, which has led to the pendency of committal proceedings C.P.No.6/2020 on the file of the Judicial First Class Magistrate’s Court-II, Kasaragod, as against the petitioner/accused and all consequential proceedings arising therefrom, as against the petitioner/accused, will stand set aside and quashed. 9. The petitioner will produce the certified copies of this order before the Investigating Officer concerned as well as the Judicial First Class Magistrate’s Court-II, Kasaragod, who is dealing with C.P.No.6/2020, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd Crl.M.C No.3930 of 2020 16 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **THE CERTIFIED COPY OF THE FINAL REPORT IN C.P.NO.06/2020 ON THE FILES OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTII, KASARAGOD, IN CRIME NO.576/2018 OF MANJESHWAR POLICE STATION, KASARAGOD.** ## **ANNEXURE II** **THE TRUE COPY OF THE AFFIDAVIT DATED 23.1.2020 SWORN IN BY THE 2ND RESPONDENT.**