MANUAL AUGUSTINE @ MANU PURAIKKAL v. STATE OF KERALA and VICTIM X

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941** **Crl.MC.No.3694 of 2019** **AGAINST THE ORDER/JUDGMENT IN CP 24/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM** **CRIME NO.2563/2018 OF Ernakulam Central Police Station , Ernakulam** ## **PETITIONER/S:** **MANUAL AUGUSTINE @ MANU PURAIKKAL AGED 28 YEARS, S/O ARNOLD, PUTHENPURACKAL HOSUE, NEAR S.B. COLLEGE, CHENGANASSERY P.O., KOTTAYAM, PIN-686 101.** **BY ADVS. SRI.SAM ISAAC POTHIYIL SHRI.VISHNU DAS SMT.ANILA UMESH SRI. SRUTHI DAS** **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 VICTIM X BY ADV. SMT.K.J.GISHA** ## **OTHER PRESENT:** **SRI.S.A.SAJJU, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.06.2019, A THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 3694 of 2019 ================== Dated this the 18[th] day of June, 2019 ## **O R D E R** The petitioner herein has been arrayed as the sole accused in the impugned Anx. A-1 Crime No. 2563/2017 of Ernakulam Central Police Station, which has been registered for offences punishable under Sec.376 of the I.P.C. on the basis of the FI statement/ complaint dated 7.9.2017 given by the 2[nd] respondent lady defacto complainant in respect of the incidents, which have allegedly occurred for the period from 31.3.2016 to 7.9.2017. The Police, after investigation has filed the impugned Anx. A-2 final report/charge sheet in the said Crime No.2563/2017 of Ernakulam Central Police Station,, which has now led to the pendency of the committal proceedings, C.P.No. 24/2018 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam. 2. The petitioner seeks quashment of the impugned criminal proceedings, which has now resulted in C.P.No. 24/2018 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam, mainly on the ground that, even if the incidents alleged in the admitted prosecution materials are assumed to be true, then it could have happened only on the basis of the consent of the parties and therefore Crl.M.C.3694/19 - : 3 :- the vital requirements of the offence of forcible sexual intercourse of rape as per Sec. 376 of the I.P.C. are not made out. 3. Of course, the petitioner has also submitted that by now the entire disputes between the petitioner and the 2[nd] respondent defacto complainant have been satisfactorily resolved and that the 2[nd] respondent defacto complainant has now sworn to Anx. A-4 affidavit stating that the disputes between the parties have been fully resolved and that she is no longer interested to prosecute the matter any further against the petitioner, etc. 4. It is by now well established that in the case of serious and grave offences as in Sec.376 I.P.C. it may not right and proper for this Court to exercise its extra ordinary inherent powers conferred under Sec.482 of the Cr.P.C. to quash the impugned proceedings for such grave offences on the ground of the settlement between the accused and the defacto complainant {see _**Shimbhu & Anr. 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.}. 5. In the light of the abovesaid well settled legal position, the so-called settlement between the parties as reflected in Anx. A-4 Crl.M.C.3694/19 - : 4 :- affidavit sworn to by the 2[nd] respondent cannot be the basis for quashment of the impugned criminal proceedings. The main issue to be decided in this case is as to whether even going by the admitted prosecution allegations, the offence under Sec. 376 of the I.P.C. is made out, or whether acts complained of could have happened only on the basis of the consent of the parties. 6. Before dealing with the factual aspects of the matter for determining the abovesaid issue, it will be pertinent to note the legal principles laid down by the Apex Court and various High Courts including this Court, as to the vital and substantial distinction between forceful sexual intercourse of rape as per Sec. 376 of the I.P.C. and consensual sexual relationship between the parties. 7. 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**_ [(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 Crl.M.C.3694/19 - : 5 :- 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 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. Crl.M.C.3694/19 - : 6 :- 8. Now coming to the facts of this case, the prime prosecution material for triggering the impugned criminal proceedings is on the basis of Anx. A-1 FI statement given by the lady defacto complainant on 7.9.2017, which is contained in pages 10 to 18 of the paper book of this Crl.M.C. A mere reading of the said FI statement of the lady defacto complainant would disclose that she is a post graduate having MBA degree and that she is a married lady and that she was having issues with her husband and was living separately from him at the relevant time and that her husband was involved in many criminal cases and he used to treat her with cruelty. That earlier she had studied for BBA course along with the petitioner herein and during the student days, his offer for love affair was rejected by her and they continued to be friends through Whastsup, Facebook and such other social media, et. That whenever, she was in need of money, the petitioner used to help her financially and they became close and by then, he was working in BNP Paripas, Chennai, and he has assured her that he would marry her, if he she secures dissolution of her marriage with her husband and that based on his request, she had gone with the petitioner to Chennai and had gone to his room, where he had forcible sexual intercourse with her. Thereafter, they used to have frequent sexual relationship between Crl.M.C.3694/19 - : 7 :- them and stayed in 2-3 hotels and she came back to Palakkad and they continued their relationship and later, he made online booking of a hotel and they had sexual relationship in that hotel room and he had helped her to see an Advocate for solving her legal disputes regarding marital disputes and even thereafter, in various other hotels, they used to have sexual relationship. They had also gone to Bangalore and stayed in a place called Madivala and Koramabgala, where they had sexual relationship. In all those times, he used to assure her that he would marry her. Thereafter issues started straining her relationship with the petitioner and as requested by him, she had gone again to a hotel facility booked by his company (BNP Paripas) and had sexual relationship in that hotel. Thereafter, disputes again arose between them. That by 27.5.2017, she had given petition for divorce in the Family Court and she got the divorce decree on 17.8.2017. By that time, the petitioner started avoiding her. Later again they had sexual relationship in his flat. Again issues started between them and later they had again stayed in a hotel in Pondicherry, where they had sexual relationship. Again he started neglecting her, which she felt to be a mental harassment. That when he started neglecting her, she realised that his assurance to marry her was not genuine, etc. It is in the light of these factual allegations, that Crl.M.C.3694/19 - : 8 :- the 2[nd] respondent defacto complainant has submitted her first information statement, which led to the triggering of the impugned criminal proceedings on the basis of the Anx. A1 crime. The Police, after investigation has filed the impugned Anx. A2 final report/charge sheet, which has now led to the institution of committal proceedings, C.P.No. 24/2018 on the file of the Judicial First Class Magistrate's Court-II, Ernakulam. 9. From a reading of the abovesaid admitted prosecution materials as per Anxs.A-1 and A-2, more particularly and crucially, first information statement/complaint given by none other than the 2[nd] respondent defacto complainant, one thing is manifestly clear that even if the major allegations raised are assumed to be true, then the incidents would have happened only on the basis of the consensual sexual relationship between the parties. True that the 2[nd] respondent appears to make an allegation that the first incident of sexual relationship happened on account of the petitioner forcing it on her. But the fact of the matter is that even according to her, she was invited by the petitioner to go the room and she voluntarily went there and being a lady of high educational qualification and employed lady, as well as a married lady, the 2[nd] respondent certainly should be knowing the consequences of accepting the invitation of the Crl.M.C.3694/19 - : 9 :- petitioner in going alone to his room and staying there and that in all likelihood, it would lead to sexual relationship. But all the other incidents of sexual relationship between the parties appear to be a series of intense love affair, along with intense sexual relationship between the parties and off and on she complains that there are issues between them, yet she had gone to various places like, Bangalore, Chennai, Pondichery,, etc. where she had sex with the petitioner in the rooms taken by him. Therefore, the inevitable inference is that the allegations if true, could have happened only on the basis of the consent of both the parties. Both the parties are adults and it has to be borne in mind that the 2[nd] respondent is a highly educated and employed lady and is also a married lady. Both parties should be treated to have made their own moral and ethical choices knowing fully well the consequences of the same. 10. It has now been held by the abovesaid judgments of the Apex Court and various High Courts, where a man and woman continues to have sexual relationship for quite some time, then it is rather difficult to say that it would amount to forcible sexual intercourse of rape as per Sec. 376 of the I.P.C. and that mere breach of promise to marry cannot be the basis to contend that the consent of the woman was obtained on the basis of the misconception of facts as Crl.M.C.3694/19 - : 10 :- understood in Sec. 90 of the I.P.C. Moreover, throughout the relationship from its commencement upto the day she obtained divorce from her husband, on 17.8.2017, the lady's marital relationship was subsisting with her first husband and the promise said to have been made by the petitioner at the commencement of the relationship and such a promise made by an unmarried man to a married lady that he would marry the latter cannot have any legal efficacy. The inevitable conclusion is that the alleged incidents, if proved, would have happened only on the basis of the consensual sexual relationship between the parties. Therefore, the vital ingredients of the forcible sexual intercourse of rape as per Sec. 376 are not made out in this case. Any further continuance of the impugned criminal proceedings would be nothing but abuse of the process of the court as it would amount to wastage of precious time and resources of the prosecution machinery as well as the judicial fora. 11. Accordingly, it is ordered in the interest of justice that all further proceedings pursuant to the impugned Anx.A-2 final report/charge sheet filed in Crime No. 2563/2017 of Ernakulam Central Police Station, which has now led to the pendency of committal proceedings, C.P.No. 24/2018 on the file of the Judicial Crl.M.C.3694/19 - : 11 :- First Class Magistrate's Court-II, Ernakulam, as against the petitioner accused all further proceedings emanated therefrom against the petitioner accused will sand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.3694/19 - : 12 :- ## **APPENDIX OF Crl.MC 3694/2019** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF THE FIR IN C.P.NO.24/2018**| |---|---| ||**IN CR.2563/2018 ON THE FILE OF JFMC-II,**| ||**ERNAKULAM.**| |**ANNEXURE A2**|**CERTIFIED COPY OF THE FINAL REPORT IN CP**| ||**NO.24/2018 IN CR.2563/2018 ON THE FILE OF**| ||**JFMC-II, ERNAKULAM.**| |**ANNEXURE A3**|**COPY OF THE ORDER DATED 20.10.2017 IN CRL.MC**| ||**1916/2017 OF THE SESSIONS COURT, ERNAKULAM.**| |**ANNEXURE A4**|**AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT/**| ||**DEFACTO COMPLAINANT**| |**ANNEXURE A5**|**COPY OF THE ORDER DATED 9.4.2019 IN CRL.M.C.**| ||**NO.8586/ 2018 OF THIS HON'BLE COURT.**|