Rasal Paul v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` # **`WEDNESDAY, THE 29[TH] DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945`** # **`CRL.MC NO. 7773 OF 2023`** ``` CRIME NO.942/2023 OF TOWN EAST POLICE STATION, THRISSUR S.C.NO.1095/2023 ON THE FILE OF THE FAST TRACK SPECIAL COURT-II, THRISSUR ``` ## **`PETITIONER/ACCUSED:`** ``` RASAL PAUL AGED 30 YEARS, S/O PAUL, KALLINGAL HOUSE KUTTUR, THRISSUR, PIN – 680 013. BY ADVS. RAPHAEL THEKKAN T.SAJI RAPHEL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031. 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS. SRI VIPIN NARAYAN (SR PP) SRI CHRISTINE MATHEW (R2) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 29.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.7773 OF 2023 2 ``` ## **ORDER** Petitioner is the accused in Crime No.942/2023 of Thrissur East Police Station, Thrissur District, alleging commission of offences under Section 376(2)(n) of the Indian Penal Code. 2. The allegation against the petitioner is that while the petitioner and the alleged victim were working together in an establishment, they became very close friends and the petitioner proposed to the victim stating that he would marry her and take care of her and her child. It is alleged that on the said promise the petitioner sexually abused the victim on several occasions and thereby he committed the offence alleged against him. 3. Learned counsel for the petitioner would submit that following investigation a final report was filed and the matter is now pending as S.C.No.1095/2023 on the file of the Fast Track Special Court-II, Thrissur. It is submitted that, the allegation that the petitioner had obtained consent for sexual relationships on the false promise of marriage cannot sustain on account of the fact that the ``` Crl.M.C. NO.7773 OF 2023 3 ``` alleged victim was in a subsisting marriage at the time when the petitioner is alleged to have had sexual relationships with her. It is submitted that the petitioner was also in a subsisting marriage at the relevant time. Learned counsel places reliance on the judgment of the Supreme Court in **Shambhu Kharwar v. State of Uttar Pradesh and Another;** AIR **2022 SC 3901** , as also on the judgment of this Court in **Ranjith v. State of Kerala; 2022 (1) KLT 19** , to contend that, when a reading of the First Information Statement of the victim as also the final report indicate that the relationship between the petitioner and the victim can only be stated to be consensual, the petitioner cannot be prosecuted for having committed an offence punishable under Section 376 of the Indian Penal Code. The learned counsel also states that the alleged victim has now executed Annexure-3 affidavit stating that she does not wish to prosecute the complaint against the petitioner in any manner. 4. Heard the learned Senior Public Prosecutor and the learned counsel appearing for the 2[nd] respondent/defacto complainant/ victim. The learned ``` Crl.M.C. NO.7773 OF 2023 4 ``` Senior Public Prosecutor has taken me through the First Information Statement of the 2[nd] respondent/defacto complainant/ victim as also through the final report filed in the case. He states that since the offence involved is one punishable under Section 376 of the Indian Penal Code, the proceedings cannot be quashed on the ground of settlement going by the judgments of the Supreme Court in **Gian Singh v. State of Punjab and Another; (2012) 10 SCC 303,** and **State of Madhya Pradesh v. Laxmi Narayan and Others; (2019) 5 SCC 688.** 5. The leaned counsel appearing for the 2[nd] respondent/defacto complainant/ victim would submit that the 2[nd] respondent/defacto complainant/ victim does not wish to continue with the proceedings against the petitioner in any manner. 6. Having heard the learned counsel for the petitioner, learned Senior Public Prosecutor and the learned counsel for the 2[nd] respondent/defacto complainant/ victim, I am of the view that the petitioner is entitled to succeed. The learned Public Prosecutor is right in pointing out on the authority of **Gian Singh (supra)** ``` Crl.M.C. NO.7773 OF 2023 5 ``` and **State of Madhya Pradesh v. Laxmi Narayan and Others (Supra)** that the proceedings cannot be quashed on the ground of settlement, as the offence alleged is one of rape. However, the proceedings can be quashed on merits if there is sufficient material before the Court to conclude that the offence has not been committed. A reading of the First Information Statement as well as the final report will indicate that the petitioner had developed an intimate friendship with the 2[nd] respondent/defacto complainant/ victim while they were working together. It is also clear from the First Information Statement of the 2[nd] respondent/defacto complainant/ victim that she was in a subsisting marriage at the time when she had entered into sexual relationships with the petitioner. According to the petitioner, the petitioner was also in a subsisting marriage at the relevant time and this fact was also known to the 2[nd] respondent/defacto complainant/ victim. Though there is nothing on record to suggest that the 2[nd] respondent/defacto complainant/ victim was aware that the petitioner was also a married man, it is clear from her own First Information Statement that she was in a ``` Crl.M.C. NO.7773 OF 2023 6 ``` subsisting marriage at a time when she had entered into a relationship with the petitioner. An identical situation was considered by this Court in **XXX v. State of Kerala and Another, 2022 KHC 296,** where after referring to the judgments of this Court in **Anilkumar v. State of Kerala, 2021(1) KHC 435, Deepak Gulati v. State of Haryana; 2013 KHC 4423, Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra; 2019 (1) KHC 403** and **Ranjith v. State of Kerala; 2022 (1) KHC 195,** this Court took the view that when a married woman entered into sexual relationships with another man at a time when her marriage was subsisting, it cannot be said that consent for sexual relationships have been obtained on the false promise of marriage. In such an event, offence under Section 376 of the Indian Penal Code would not be attracted. It is clear that when two persons who have attained the age of majority enter into sexual relationships and one party alleges that it is on the false promise of marriage, the Court must ascertain as to whether the promise was one capable of being fulfilled. When it is clear that the promise is not one capable of ``` Crl.M.C. NO.7773 OF 2023 7 ``` being fulfilled on account of the fact that one of the parties or both of them are in a subsisting marriage, it must be held that the consent for sexual relationships was not obtained on the basis of a false promise, as there could not have been a marriage solemnized between the accused and the victim. In **Shambhu Kharwar (Supra),** the Supreme Court referred to the parameters for exercise of jurisdiction under Section 482 of Cr.P.C as laid down in **State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335** , as also the judgment in **Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra; 2019 (18) SCC 191,** and after analysing the provisions of Section 375 of IPC held as follows: “ **8.** In **Bhajan Lal (supra)** this Court formulated the parameters in terms of which the powers in Section 482 of Cr.P.C may be exercised. While it is not necessary to revisit all these parameters again, a few that are relevant to the present case may be set out. The Court held that quashing may be appropriate : “102. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first ## `Crl.M.C. NO.7773 OF 2023 8` information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2). [….] (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” **9** . In **Dhruvaram Murlidhar Sonar v. State of Maharashtra, 2019 (18) SCC 191,** a two Judge Bench of this Court while dealing with similar facts as the present case reiterated the parameters laid down in **Bhajan Lal (supra)** held that: “13. It is clear that for quashing the proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers.” ## (emphasis supplied) **10** . An offence is punishable under Section 376 of the IPC if the offence of rape is established in terms of Section 375 which sets out the ingredients of the offence. In the present case, the second description of Section 375 along with Section 90 of the IPC is relevant which is set out ``` Crl.M.C. NO.7773 OF 2023 9 ``` below. “375. Rape – A man is said to commit “rape” if he – […] under the circumstances falling under any of the following seven descriptions Firstly … Secondly. – Without her consent. […] Explanation 2. – Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. ## XXX 90. Consent known to be given under fear or misconception - A consent is not such a consent as is intended by any section of this Code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or…” **11** . In Pramod Suryabhan Pawar v. State of Maharashtra **, 2019 (9) SCC 608,** a two Judge Bench of this Court of which one ## `Crl.M.C. NO.7773 OF 2023 10` of us was a part (D.Y. Chandrachud J.), held in **Sonu @ Subhash Kumar v. State of Uttar Pradesh, AIR 2021 SC 1405** observed that : “12. This Court has repeatedly held that consent with respect to Section 375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action… […] 14. […] Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled… […] 16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such ``` Crl.M.C. NO.7773 OF 2023 11 ``` ## misconception was the basis for her choosing to engage in the said act… […] 18. 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. ## (emphasis supplied) **12** . In the present case, the issue which had to be addressed by the High Court was whether, assuming all the allegations in the charge-sheet are correct as they stand, an offence punishable under Section 376 IPC was made out. Admittedly, the appellant and the second respondent were in a consensual relationship from 2013 until December 2017. They are both educated adults. The second respondent, during the course of this period, got married on 12 June 2014 to someone else. The marriage ended in a decree of divorce by mutual consent on 17 September 2017. The allegations of the second respondent indicate that her relationship with the appellant continued prior to her marriage, during the subsistence of the marriage and after the grant of divorce by mutual consent.” ``` Crl.M.C. NO.7773 OF 2023 12 ``` On application of the law laid down in **XXX v. State of Kerala and Another (Supra),** and **Shambhu Kharwar (Supra),** I am of the view that it cannot be said that the petitioner had committed the offence of rape on the false promise of marriage and it can only be held that the relationship between the petitioner and the 2[nd] respondent/defacto complainant/ victim was consensual. Therefore, this Crl.M.C. is allowed and all further proceedings in S.C.No.1095/2023 on the file of the Fast Track Special Court-II, Thrissur (arising out of Crime No.942/2023 of Thrissur East Police Station, Thrissur District), will stand quashed as against the petitioner. **Sd/GOPINATH P. JUDGE** ats