PRADEEP M.P @ MANU v STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR.JUSTICE KAUSER EDAPPAGATH MONDAY, THE 21[ST] DAY OF FEBRUARY 2022/ 2ND PHALGUNA, 1943** ## **WP(C) NO. 3693 OF 2021** ## **PETITIONER:** PRADEEP M.P @ MANU AGED 36 YEARS S/O PEETHAMBARAN, MANGALASSERIL (H), SEETHATHODE P.O.AND VILLAGE, KONNI TALUK, PATHANAMTHITTA DISTRICT-689 667. BY ADVS. MANU RAMACHANDRAN M.KIRANLAL R.RAJESH T.S.SARATH SAMEER M NAIR ## **RESPONDENTS:** 1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 THE STATION HOUSE OFFICER, MOOZHIYAR POLICE STATION, PATHANAMTHITTA DISTRICT-689 662. 3 VICTIM xxx R1 & R2 BY SRI.SANGEETHA RAJ Public Prosecutor THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21.02.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No.3693 of 2021 ..2.. ## **JUDGMENT** This writ petition has been filed to quash all further proceedings in Crime No.303 of 2020 of Moozhiyar Police Station, Pathanamthitta. 2. The petitioner is the accused. The 3[rd] respondent is the victim. The petitioner is alleged to have committed offences punishable under Sections 342, 354C, 366, 376(2)(n) of the IPC and 119(b) of the Kerala Police Act. 3. The 3[rd] respondent is a nursing student. The petitioner is a close friend of the father of the 3[rd] respondent. Admittedly, the petitioner and the 3[rd] respondent were known to each other. According to the 3[rd] respondent, on 14.4.2020, the petitioner sent an SMS to her mobile phone. Thereafter, they started to interact with each other and they fell in love. It is the case of the 3[rd] respondent that the petitioner agreed to marry her. According to the prosecution, at the instance of the petitioner, the 3[rd] respondent went to a quarantine centre at Nilakkal, Angamoozhy for duty. The petitioner was also at the quarantine centre for duty. It is alleged that, on 27.5.2020, the petitioner forcefully caught hold of the 3[rd] respondent and W.P.(C).No.3693 of 2021 **==> picture [22 x 8] intentionally omitted <==** took their photographs. It is further alleged that, while undergoing quarantine in the same centre from 18.6.2020 to 1.7.2020, they had sexual intercourse several times on a promise of marriage given by the petitioner and further the petitioner copied the image of their sexual act in his mobile phone. This is the sum and substance of the prosecution allegation. 4. Even though notice has been issued to the 3[rd] respondent, there is no appearance. I have heard Sri.Manu Ramachandran, the learned counsel for the petitioner and Sri.Sangeetha Raj, the learned Public Prosecutor for the respondent Nos.1 and 2. 5. The learned counsel for the petitioner submitted that, even if the entire allegations in the First Information Statement are taken at its face value, they do not constitute the offences alleged against the petitioner. The learned counsel further submitted that initiation of the proceedings against the petitioner is nothing but malicious act. On the other hand, the learned Public Prosecutor submitted that, prima facie, the offences alleged against the petitioner are made out and, W.P.(C).No.3693 of 2021 ..4.. hence, there is no justification in invoking Article 226 of the Constitution of India. 6. I have gone through the FIS in detail. The alleged occurrence had taken place at the quarantine centre for the period from 18.6.2020 to 1.7.2020. Admittedly, both of them were at the quarantine centre during the said period. Even according to the 3[rd] respondent they were in love prior to that and she went to the quarantine centre voluntarily of her own volition. Thus, I am of the view that neither Section 342 of the IPC nor Section 366 of the IPC would get attracted. A reading of FIS would show that there is no wrongful confinement and there is no abduction or kidnapping as such so as to attract either of the above Sections. 7. The learned counsel for the petitioner vehemently argued that, even if the case of the 3[rd] respondent is believed to be true, it was nothing but a case of consensual sex and, as such, Section 376(2)(n) or Section 354C of the IPC is attracted. It is settled that, if a man retracts from his promise to marry a woman, consensual sex they had, would constitute an offence of rape under Section 376 of the IPC if it is W.P.(C).No.3693 of 2021 ..5.. established that the consent for such sexual act was obtained by him by giving false promise of marriage. 8. The Apex Court in **Deepak Gulati v. State of Haryana** [(2013) 7 SCC 675] and in **Dhruvaram Murlidhar Sonar v. State of Maharashtra** [AIR 2019 SC 327], drawing distinction between rape and consensual sex observed that the court must 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. In drawing distinction between mere breach of promise and not fulfilling the false promise, it was further observed that, 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 and that if the accused had mala fide intention or had clandestine motives, it is a clear case of rape. A reading of FIS would show that the 3[rd] respondent has clearly stated that, persuaded by the promise of marriage given by the petitioner, she consented for sexual intercourse. The learned counsel for the petitioner vehemently argued that Ext.P3 marriage certificate would show that the petitioner had W.P.(C).No.3693 of 2021 ..6.. already married a person and, hence, there was no question of giving a false promise of marriage. Nowhere in the FIS is it stated that the 3[rd] respondent knew that the petitioner was a married person. Whether the petitioner suppressed his marriage with the 3[rd] respondent is a matter of evidence. So also whether the consent given by the 3[rd] respondent for sex is vitiated by misconception of fact is also a matter of evidence. However, the fact remains that there is clear allegation in the FIS that the petitioner gave promise of marriage and believing such promise of marriage, the 3[rd] respondent consented for sex. According to me, these are sufficient to attract Section 376 of the IPC. 9. Section 354C of the IPC is attracted when any person captures the image of a woman engaging in a private act in circumstance where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image. It is true that there is nothing on record to show that the petitioner has disseminated the image allegedly captured by him. In the FIS, the 3[rd] respondent has W.P.(C).No.3693 of 2021 ..7.. clearly stated that, on 27.5.2020, against her wish, the petitioner caught hold of her and took her photographs. She also stated that the sexual intercourse they had also was copied by the petitioner in his mobile phone. Hence, I am of the view that Section 354C of the IPC also is attracted. What remains is Section 119(b) of the Kerala Police Act. Section 119(b) of the Kerala Police Act gets attracted when a person takes photographs or records videos or propagates them at any place in a manner affecting the reasonable privacy of woman. The 3[rd] respondent has stated that the petitioner had taken her photographs as well as the video of their sexual act. It is her case that consent was obtained by giving false promise of marriage. In these circumstances, I am of the view that the said act of the petitioner would fall within the ambit of Section 119(b) of the Kerala Police Act. 10. It is trite that the jurisdiction under Section 482 of the Cr.P.C. or under Article 226 of the Constitution of India to quash the criminal proceedings has to be exercised sparingly and with circumspection. When prima facie the offence is made out, there is no justification in invoking the said jurisdiction. W.P.(C).No.3693 of 2021 **==> picture [22 x 8] intentionally omitted <==** 11. For the reasons stated above, I am of the view that the offences under Sections 342 and 366 of the IPC are not prima facie attracted against the petitioner. Hence, no purpose will be served in proceeding against the petitioner for the said offences. However, offences under Sections 354C, 376(2)(n) of the IPC and 119(b) of the Kerala Police Act are squarely attracted. The further proceedings in FIR in Crime No.303 of 2020 of Moozhiyar Police Station, Pathanamthitta against the petitioner for the offences under Sections 342 and 366 of the IPC alone are hereby quashed. The W.P.(C) is allowed in part as above. Sd/- **DR.KAUSER EDAPPAGATH, JUDGE** skj W.P.(C).No.3693 of 2021 ..9.. ## APPENDIX OF WP(C) 3693/2021 PETITIONER'S EXHIBITS EXHIBIT P1 THE TRUE COPY OF THE FIR IN CRIME NO 303/2020 OF MOOZHIYAR POLICE STATION, PATHANAMTHITTA DISTRICT EXHIBIT P2 THE TRUE COPY OF THE ORDER DATED 28.1.2021 OF THIS COURT IN CRL MC NO 5676/2020 EXHIBIT P3 THE TRUE COPY OF THE MARRIAGE CERTIFICATE NO 1744/2014 DATED 30.5.2014 OF THE PETITIONER ISSUED BY CHITTAR GRAMA PANCHAYAT EXHIBIT P4 THE TRUE COPY OF THE BIRTH CERTIFICATE OF ELDER SON OF THE PETITIONER VIDE REGISTRATION NO 1074/2012 DATED 14.5.2012, PATHANAMTHITTA MUNICIPALITY EXHIBIT P5 THE TRUE COPY OF THE BIRTH CERTIFICATE OF YOUNGER DAUGHTER OF THE PETITIONER VIDE REGISTRATION NO 104/2017 DATED 26.10.2017 , ERUMELY GRAMA PANCHAYAT