RANJU SIVARAJAN v. STATE OF KERALA & VICTIM

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 26TH DAY OF AUGUST 2020 / 4TH BHADRA, 1942** **Crl.MC.No.8408 OF 2019(A)** **AGAINST FINAL REPORT IN C.P.NO.25/2018 ON THE FILES OF JUDICIAL FIRST CLASS MAGISTRATE COURT -III,NEYYATINKARA CRIME NO.696/2015 OF NEYYATTINKARA POLICE STATION** ## **PETITIONER/ACCUSED:** **RANJU SIVARAJAN AGED 27 YEARS S/O. SIVARAJAN, MANALUVEEDU HOUSE, AVANAKUZHI, NEYYATTINKARA, THIRUVANANTHAPURAM DISTRICT, PIN-685123.** **BY ADVS. SRI.T.P.PRADEEP SRI.S.SREEDEV SMT.MANEESHA KUMAR SMT.NITHYA VIJAYAN** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 VICTIM** **R1 BY SMT. PPUSHPALATHA.M.K, SR. PUBLIC PROSECUTOR R2 BY ADV.SRI. P.K.SATHEESHAN** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 14-08-2020, THE COURT ON 26-08-2020 PASSED THE FOLLOWING:** Crl.M.C No.8408 of 2019 2 ## **O R D E R** This Criminal M.C. is instituted invoking the power of this Court under Section 482 of the Code of Criminal Procedure (the Code) seeking orders quashing Annexure A3 Final Report in Crime No.696 of 2015 of Neyyanttinkara Police Station. 2. Crime No.696 of 2015 is one registered for offences punishable under Sections 500, 509, 506(1) of the Indian Penal Code (the IPC), Section 119(b) of the Kerala Police Act and Section 67A of the Information Technology Act. The petitioner is the sole accused in the crime. After investigation, Annexure A3 Final Report has been filed in the case alleging offences punishable under Sections 500, 509, 506(1) and 376 of the IPC, Section 119(b) of the Kerala Police Act and Section 67(A) of the Information Technology Act. The crime was registered on the basis of Annexure A1 complaint lodged by the second respondent to the District Police Chief, Thiruvananthapuram Rural. Annexure A1 complaint is treated Crl.M.C No.8408 of 2019 3 as the First Information Statement in the said case. In the course of the investigation, an additional statement was given by the second respondent. The essence of Annexure A1 complaint and the additional statement given by the second respondent is that while the second respondent was studying for B.Sc Renal Dialysis Technology course at A.J. Medical College, Mangalore, she met the petitioner; that they liked each other; that her mother agreed to give her in marriage to the petitioner, if he secures an employment; that the petitioner secured an employment thereafter in Gulf; that the second respondent was maintaining constant touch with the petitioner; that difference of opinion arose among them of late and the second respondent has accordingly decided to sever the relationship with the petitioner. It was alleged by the second respondent that thereafter the petitioner started threatening her with dire consequences and started posting defamatory statements about her in social media. The case set out by the petitioner in the Crl.M.C. is that the materials placed on record along with Annexure-A3 final report do not make out any of the offences alleged against him. Crl.M.C No.8408 of 2019 4 3. When the matter was taken up, the learned counsel for the petitioner submitted that the disputes between the parties have been settled amicably and an affidavit to that effect has been filed by the second respondent. The learned counsel for the second respondent endorsed the stand of the petitioner and submitted that the second respondent has no objection in quashing the complaint against the petitioner. 4. Though the matter is settled between the parties, in so far as the Final Report sought to be quashed is one preferred alleging commission of the offence punishable under Section 376 of the IPC also, the learned Public Prosecutor was directed to explain the reason for filing the final report alleging commission of offence under Section 376 of the IPC, when the statements given by the second respondent do not disclose such an offence. 5. The learned Public Prosecutor then submitted that in the course of the investigation, the statement of the second respondent has been recorded under Section 164 of the Code of Criminal Procedure and the same makes out a case of Crl.M.C No.8408 of 2019 5 rape as well. The learned Public Prosecutor has made available the 164 statement of the second respondent. 6. I have perused the statement given by the second respondent, and it is stated therein by the second respondent that when the petitioner and the second respondent were maintaining intimate relationship, they had sex also, once in a hotel at Bangalore. The relevant portion of the statement reads thus: " – ഞഞാന്‍ അവവിടടെ പപഞായവി. ബഞാബാംഗ്ളുരവിലുളള ഒരു lodge ല്‍ ഞഞാനബാം . . രഞ്ജുവുമഞായവി പപഞായവി ഒരു മുറവിടയടുത അനന്ന് രഞാതവി അവവിടടെ തഞാമസവിച . അനന്ന് രഞാതവി ഞഞാന്‍ അയഞാളുമഞായവി ലലബാംഗവികമഞായവി ബന്ധടപ്പെട ഞങള ഒരുമവിച തടന നഞാടവിപലകന്ന് ടടയവിനവിൽ വന. രണ്ടു മൂനഞാഴ . കഴവിഞന്ന് രഞ്ജു ഗളഫവില്‍ പപഞായവി വവിവഞാഹബാം കഴവികബാം എനത . ടകഞാണഞാണന്ന് ഞഞാന്‍ ലലബാംഗവികമഞായവി ബന്ധടപ്പെടതന്ന് അയഞാള ഗളഫവില്‍” . പപഞായതവിന പശേഷവുബാം ഞങള തമവിലുളള ബന്ധബാം തടെര്‍ന ## 7. In **Dr.Dhruvaram Murlidhar Sonar** v. **State** **of Maharashtra** and Ors., AIR 2019 SC 327 **,** the Apex Court explained the distinction between rape and consensual sex thus: “Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to Crl.M.C No.8408 of 2019 6 this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. 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. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.” ## In **Pramod Suryabhan Pawar** v. **State of Maharashtra** and Anr., AIR 2019 SC 4010 **,** the Apex Court held that in order to show that the “consent” was vitiated by “misconception of fact” arising out of a promise to marry, it must be established that the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given and the false promise itself must be of some immediate relevance, or bear a direct nexus to the Crl.M.C No.8408 of 2019 7 ## woman’s decision to engage in the sexual act. The relevant passage in the said judgment reads thus: “To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.” 8. The question to be examined, therefore, is as to whether the statement of the second respondent as extracted in Paragraph 6 above would show that the petitioner has given to the second respondent a promise to marry her without there being any intention to marry, in order to satisfy his lust. The statement aforesaid, according to me, does not show that the petitioner has given to the second respondent a promise to marry her without there being any intention to marry, in order to satisfy his lust. On the other hand, the statement aforesaid would only show that the second 8 Crl.M.C No.8408 of 2019 respondent has agreed to have sexual intercourse with the petitioner on account of her love and passion for the petitioner. Annexure-A3 final report, in the circumstances, is an abuse of the process of the court and the same is liable to be quashed. In the result, the Crl.M.C. is allowed and Annexure A3 Final Report and all further proceedings in Crime No.696 of 2015 of Neyyanttinkara Police Station are quashed. Sd/- **P.B.SURESH KUMAR, JUDGE.** DK Crl.M.C No.8408 of 2019 9 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 A CERTIFIED COPY OF THE COMPLAINT DATED 14.05.2015 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE DISTRICT POLICE CHIEF.** **ANNEXURE A2 A CERTIFIED COPY OF THE FIR IN CRIME NO.696 OF 2015 OF NEYYATTINKARA POLICE STATION.** ## **ANNEXURE A3** **A CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.696 OF 2015 OF NEYYATTINKARA POLICE STATION WHICH IS NOW PENDING CONSIDERATION OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTIII, NEYYATTINKARA AS C.P 25/2018.** **ANNEXURE A4** **AFFIDAVIT DATED 20.11.2019 AFFIRMED BY THE 2ND RESPONDENT.** **RESPONDENTS'S EXHIBITS: NIL** **//TRUE COPY//** **PA TO JUDGE** **DK**