Roopak Chandran @ Chikku v. State of Kerala and Sreeja

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **TUESDAY, THE 30[TH] DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943** ## **CRL.MC NO. 7546 OF 2017** **AGAINST THE ORDER/JUDGMENT IN CP 43/2016 OF ADDITIONAL CHIEF JUDICIAL** ## **MAGISTRATE, THIRUVANANTHAPURAM** **CRIME NO.434/2016 OF POOJAPPURA POLICE STATION, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **ROOPAK CHANDRAN @ CHIKKU S/O. CHANDRAN, KEEZHE INCHIPULLUVILA VEEDU, 64/2061, NEAR NEDUMOM COUNTRY CLUB RESORT, THIRUVALLOM, PIN - 695 027. BY ADVS. SRI.J.R.PREM NAVAZ SRI.P.T.SHEEJISH** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN - 682 031. 2 SREEJA AGED 22 YEARS D/O. SHEELA, RESIDING AT AMBADI HOUSE, T.C. 19/1854, PAI ROAD, POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN - 695 012.** **BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION** ## **OTHER PRESENT:** **PP RENJIT GEORGE,SR GP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.11.2021,** **THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.7546 of 2017 2 ## **O R D E R** This Crl.M.C. has been filed seeking to quash the entire further proceedings against the petitioner in crime No.434/2016 of Poojappura Police Station, registered for the offence punishable u/s.376 IPC, now pending as CP No.43/2016 on the file of Additional Chief Judicial Magistrate Court, Thiruvananthapuram. 2. Prosecution case is that on 16.04.2015 accused forcefully had sexual intercourse with the defacto complainant at her residence and subsequently on several occasions till 14.11.2015 committed forceful sexual intercourse, promising to marry her. Thereafter, he withdraw from the promise and thereby committed the offence aforementioned. 3. According to the learned counsel for the petitioner, the defacto complainant is a married woman and at the time of the alleged offence, admittedly by her, the marriage was subsisting. Hence the question of rape on the promise of marriage does not arise. 4. Notice was issued to the 2[nd] respondent. The learned Crl.M.C.No.7546 of 2017 3 Public Prosecutor appeared on behalf of the first respondent. He produced report of the Sub Inspector of Police, Poojappura Police Station along with the signed statement of the defacto complainant. 5. In the report filed by the SHO, it has been stated that the defacto complainant was contacted and she was summoned to the police station and her statement was recorded and she is not interested to proceed with the matter. It is also reported that the petitioner herein is not involved in any other crime. 6. The learned counsel for the petitioner drew my attention to report of the Medical Officer attached to the Final Report, in which, victim has categorically stated that in February, 2013, her marriage was conducted with one Sujith at the instance of family members and after one year they separated but divorce has not been obtained. For the last one year, she was in love with Roopak (petitioner herein). She got acquaintance with him through Facebook. Further it is stated, offering to marry her, he had sexual contact with her and subsequently he withdraw from the promise. 7. It is borne out from the records that the defacto complainant is a Hindu. As per the statement, her marriage was Crl.M.C.No.7546 of 2017 4 originally solemnized with one Sujith Kumar, S/o. Viyajan Nair on 07.02.2013 and their relationship strained and she started living separate in her house. 8. Hindu Marriage Act, 1955 is the law relating to marriage among Hindus. Section 5 in Chapter II of the said Act deals with conditions for a Hindu Marriage. Section 5(i) provides that a marriage may be solemnized between any two Hindus, if neither party has a spouse living at the time of marriage. So the defacto complainant cannot solemnize a marriage at the time of the alleged promise by the petitioner since her spouse has been living. So her allegation that petitioner committed rape upon her promising to marry her is not sustainable in law. 9. The learned counsel drew my attention to Anilkumar v. State of Kerala & Ors. [2021 (1) KHC 435] wherein while dealing with an identical situation this Court held that promise allegedly made by accused to a married woman, that he would marry her, is a promise, not enforceable in law and such an unenforceable and illegal promise cannot be the basis for prosecution to contend that consent of woman, who has sexual relationship with accused, has been obtained on the basis of misconception of fact. So in such circumstances, it can only be held that incident Crl.M.C.No.7546 of 2017 5 happened only on the basis of consent between the parties and no offence of rape is made out. 10. Sonu @ Subhash Kumar v. State of Uttar Pradesh & Anr [2021 (2) KHC 314 (SC) : AIR 2021 SC 1405] is also relied on. In that case, the petitioner developed some friendship with the defacto complainant and it is alleged that he assured to marry her and further he alleged to have exploited her and ultimately he withdraw from the promise. In the said circumstances, it was held that the relationship happened to be consensual and spread over a period of one and a half years and FIR filed when accused expressed a disinclination to marry the victim. In such circumstances, no offence is established, High Court fell in error in not quashing the FIR. In Pramod Suryabhan Pawar v. State of Maharashtra & Anr. [2019 KHC 6829 : AIR 2019 SC 4010] also the complainant's allegation was that accused engaged in sexual relations with her on false promise of marrying her, and therefore her “consent”, being on the premise of “misconception of fact”. In the said circumstances it was held that in the absence of an allegation in the FIR that when accused promised to marry the complainant, it was done in bad faith or with an intention to deceive her, it cannot be said that any Crl.M.C.No.7546 of 2017 6 offence u/s.376 is made out. 11. In the present case, the specific allegation of the defacto complainant is that she got acquaintance with the petitioner through Facebook and thereafter they had sexual contact and at that time he alleged to have promised to marry her. But defacto complainant is a married lady, whose marriage is subsisting, got acquaintance with the petitioner, who is a bachelor and subsequently they had sexual contact at her house and that according to her is on the basis of a promise to marry. Since she is already a married woman and her marriage is in subsistence, she cannot enter into a valid marriage with the petitioner. Hence the contention of rape on promise to marry is not at all substantiate in law. 12. Moreover, she has given a statement to the SHO that she is not interested to prosecute the case further against the petitioner. As per her statement dated 28.10.2018, she married Anandu from Thirumala and is living peacefully with him. She and her family is not intending to prosecute the case also. So even if the trial is allowed to be continued, the possibility of the case ending in conviction is very remote. In otherwords, the continuation of the proceedings against the petitioner would be Crl.M.C.No.7546 of 2017 7 an empty formality without achieving any useful purpose and it would amount to an abuse of process of court. In the result, Crl.M.C allowed. The entire further proceedings against the petitioner in crime No.434/2016 of Poojappura Police Station, which is now pending as CP No.43/2016 on the file of the Additional Chief Judicial Magistrate Court, Thiruvananthapuram is hereby quashed. **Sd/M.R.ANITHA JUDGE** shg Crl.M.C.No.7546 of 2017 8 |**PETITIONER ANNEXURE**<br>**ANNEXURE A**<br>**ANNEXURE B**|**APPENDIX OF CRL.MC 7546/2017**<br>**THE TRUE COPY OF THE FIRST INFORMATION REPORT IN**<br>**CRIME NO. 434/2016 OF POOJAPPURA POLICE STATION,**<br>**THIRUVANANTHAPURAM DISTRICT.**<br>**THE TRUE COPY OF THE FINAL REPORT/CHARGE SHEET IN**<br>**CRIME NO. 434/2016 OF POOJAPPURA POLICE STATION,**<br>**THIRUVANANTHAPURAM DISTRICT.**| |---|---|