Pratheesh K.S v State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` WEDNESDAY, THE 20[TH] DAY OF DECEMBER 2023 / 29TH AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 5806 OF 2019 ``` ``` CRIME NO.71/2017 OF Kuruppampady Police Station, Ernakulam SC 381/2018 OF PRINCIPAL SESSIONS COURT, ERNAKULAM ``` ## **`PETITIONER/ACCUSED :`** ``` PRATHEESH K.S AGED 34 YEARS S/O. SASI.K.N., KURUNNANAKUDY HOUSE, ASAMANNOOR P.O., ASAMANNOOR VILLAGE, CHERUKUNNAM KARA, KUNNATHUNADU TALUK, ERNAKULAM DISTRICT, PIN-683 549 BY ADV K.SUNILKUMAR ``` ## **`RESPONDENT/COMPLAINANT :`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031 ADDL.R2SATHI @ DHANYA AGED 27 YEARS D/O.SUDHAKARAN, CHIRANGARAKUDY HOUSE MOSCO COLONY, KEEZHILLAM KARA, RAYAMANGALAM VILLAGE ERNAKULAM DISTICT, PIN-683541 ``` ``` IS IMPLEADED AS ADDL.R2 AS PER ORDER DATED 18.11.2019 IN CRL.MA NO.3/2019. ``` ``` BY ADVS. SRI.BINU PAUL ``` ## **`OTHER PRESENT:`** ``` SRI. G. SUDHEER (PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.5806 of 2019 2 ## **O R D E R** The petitioner is the accused in Crime No.71 of 2017 of Kuruppampady Police Station, which was registered alleging commission of offences under Section 376(1) of the Indian Penal Code (in short ‘IPC’) and Section 3(2)(V) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 2015(in short ‘SC/ST Act’). 2. The allegation against the petitioner is that, the petitioner got acquainted with the victim who is a divorcee and he had sexual relationship with the victim on the promise of marriage. Thereafter, he went abroad in connection with his work and resiled from the promise of marriage. On 22.08.2016, the victim attempted to commit suicide by pouring kerosene all over her body but got rescued. Thereafter, a complaint was registered on the basis of her statement alleging commission of offences under 306 and 376(1) of IPC and Section 3(2)(V) of the SC/ST Act, 2015. The petitioner was arrested and remanded to judicial custody Crl.M.C.No.5806 of 2019 3 and subsequently, he was enlarged on bail. A final report was filed alleging commission of offences under Section 376(1) IPC and Section 3(2)(V) of the SC/ST Act, 2015. The charges under Section 306 IPC were dropped. The matter is now pending as S.C.No.381 of 2018 on the file of the Principal Sessions Court, Ernakulam. 3. The learned counsel appearing for the petitioner would submit that, even according to the First Information Statement of the defacto complainant/victim, the petitioner and the defacto complainant/victim were in a relationship for about three and half years earlier to 10.01.2017. It is submitted that the relationship between the petitioner and the defacto complainant/victim was purely consensual and there was no element of rape. It is submitted that, since the offence of rape is not involved, the offence under the provisions of the SC/ST Act now involved will also not be sustainable against the petitioner. It is submitted that the defacto complainant/victim has executed an affidavit along with memo dated 01.12.2023 which indicates that the relationship between the petitioner and the defacto Crl.M.C.No.5806 of 2019 4 complainant/victim was purely consensual and there was no element of rape. It is submitted that the defacto complainant/victim subsequently got married and is living with her husband and family. It is submitted that the petitioner, who was unmarried at the relevant point of time, also got married. It is submitted that the defacto complainant/victim has clearly stated that she does not intend to continue with the proceedings. 4. The learned Public Prosecutor and the learned counsel appearing for the defacto complainant/victim/second respondent submits that the defacto complainant/victim/second respondent stands by the contents of the affidavit produced along with memo dated 01.12.2023. The learned Public Prosecutor submits that a statement was recorded from the defacto complainant/victim/second respondent where she has clearly stated that since she is now married and living with her family and since the entire issues between the petitioner and the defacto complainant/victim/second respondent have been settled, she does not wish to continue with the prosecution of the case. The learned Public Prosecutor Crl.M.C.No.5806 of 2019 5 submits that, going by the judgments of the Supreme Court in _**Gian Singh v. State of Punjab;** (2012) 10 SCC 303_ and _**State of M.P. v. Laxmi Narayan**_ ; _(2019) 5 SCC 688_ , a heinous offence like rape cannot be quashed on the basis of settlement. It is, however, submitted that, going by the affidavit produced along with memo dated 01.12.2023 and the statement given before the police on 04.12.2023, the offence of rape may not sustain against the petitioner. 5. Having heard the learned counsel for the petitioner, the learned Public Prosecutor and learned counsel appearing for the defacto complainant/victim/second respondent, I am of the opinion that the proceedings against the petitioner can be terminated in exercise of the jurisdiction vested in this Court under Section 482 of the Code of Criminal Procedure. The learned Public Prosecutor is right in contending that the decisions of the Supreme Court in _**Gian Singh**_ ’s case (supra) and _**State of M.P.’**_ s case (supra) are authorities for the proposition that heinous offences such as rape cannot be quashed on the ground of settlement. However, this is a case where, the victim herself has come Crl.M.C.No.5806 of 2019 6 forward and has stated before the Court (on affidavit) that any relationship between the petitioner and the defacto complainant/victim/second respondent was consensual and the complaint came to be filed only on account of some misunderstanding between the petitioner and the defacto complainant/victim/second respondent. That apart I must notice that even according to the FIS of the victim, the petitioner and the defacto complainant/victim/second respondent were in a relationship for about three and half years earlier to 10.01.2017. The Supreme Court had recently considered an almost identical issue in _**Mandar Deepak Pawar v. The State of Maharashtra & Anr.**_ ; [2022 LiveLaw (SC) 649] where it was held as follows; “xxx On hearing learned counsel for parties, we find _ex facie_ the registration of FIR in the present case is abuse of the criminal process. 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 No.2 decided to register a FIR. Crl.M.C.No.5806 of 2019 7 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. We are fortified to adopt this course of action by the judicial view in **(2019) 9 SCC 608** titled “ **Pramod** ## **Suryabhan Pawar Vs. State of Maharashtra &** **Anr.** ” where in the factual scenario where complainant was aware that there existed obstacles in marrying the accused and still continued to engage in sexual relations, the Supreme Court quashed the FIR. A distinction was made between a false promise to marriage which is given on understanding by the maker that it will be broken and a breach of promise which is made in good faith but subsequently not fulfilled. This was in the context of Section 375 Explanation 2 and Section 90 of the IPC, 1860”. That apart, as rightly pointed out by the learned counsel appearing for the petitioner, after the defacto complainant/victim/second respondent attempted to commit suicide, statements were recorded from her both under Section 161 Cr.P.C. as also under Section 164 Cr.P.C.. It is seen that in neither of those statements, the defacto Crl.M.C.No.5806 of 2019 8 complainant/victim/second respondent had a case that the petitioner had committed rape on her. 6. Taking all the aforesaid facts cumulatively into consideration, I am of the opinion that the Crl.M.C. can be allowed and the proceedings against the petitioner can be quashed. Accordingly, this Crl.M.C. is allowed and all further proceedings against the petitioner in S.C.No.381 of 2018 on the file of the Principal Sessions Court, Ernakulam will stand quashed. Sd/- **GOPINATH P., JUDGE** rkj Crl.M.C.No.5806 of 2019 9 ## **`APPENDIX OF CRL.MC 5806/2019`** ``` PETITIONER ANNEXURES ANNEXURE A1THE TRUE COPY OF THE FIR IN CRIME NO.71/2017 OF KURUPPAMPADY POLICE STATION. ANNEXURE A2THE CERTIFIED COPY OF THE FINAL REPORT DATED 16/08/2017 IN SC NO.381/2018 ON THE FILE OF PRINCIPAL SESSIONS COURT, ERNAKULAM. ```