Safeer v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 20TH DAY OF FEBRUARY 2019 / 1ST PHALGUNA, 1940** ## **Crl.MC.No. 7969 of 2017** **CRIME NO. 77/2017 OF Nedumangad Police Station, Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **SAFEER, S/O. SUBAIRKUNJU, AGED 30 YEARS, VADAKKUMKARA PUTHEN VEEDU, CHEKKAKKONAM P.O., KARAKULAM, THIRUVANANTHAPURAM - 695 564.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/STATE & COMPLAINANT:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031.**| |**2**|**SUB INSPECTOR OF POLICE,**| ||**NEDUMANGAD POLICE STATION,**| ||**THIRUVANANTHAPURAM DISTRICT-695 615.**| |**3**|**ASHITHA BEEVI,**| ||**D/O. ARIFA BEEVI, AGED 27 YEARS,**| ||**ASHITHA MANZIL, NEDUVELY, NEAR NEDUVELY HIGHER**| ||**SECONDARY SCHOOL, KONCHIRA P.O., VEMBAYAM VILLAGE,**| ||**NEDUMANGAD TALUK, THIRUVANANTHAPURAM - 695 615.**| ||**R3 BY ADV. SRI.R.ARUN**| ||**R1 & R2 BY SRI T R RENJITH, PUBLIC PROSECUTOR**| **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7969 of 2017** **2** ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure, seeking to quash the proceedings against the petitioner pending as Crime No.77 of 2017 of the Nedumangad Police Station. He faces accusation of having committed offences punishable under Sections 376 and 312 of the IPC. 2. In the statement lodged by the de facto complainant on 10.01.2017, she alleges that she is a married woman and the mother of two children. Her first marriage was solemnized on 04.06.2006. In the month of 2012, she started residing in a new house. The petitioner was residing in the adjacent house and they became friends. Her husband was working in various concerns at Thiruvananthapuram as a Driver. Her husband was not at home on most of the days. In the course of time, the relationship developed into a love affair. It is alleged that the petitioner made her to believe that he would marry her. While her husband was not at home, on multiple occasions, the petitioner is alleged to have entered her house and subjected her to rape. She also alleged that **Crl.MC.No. 7969 of 2017** **3** on one occasion, while her husband was in an inebriated state, the petitioner entered the house and subjected her to physical abuse. In the month of June, 2014, she became pregnant. However, she disclosed to her husband that he was responsible for the pregnancy and she underwent an abortion. According to her, it was at the instance of the petitioner that she was forced to abort the fetus. Even thereafter, she became pregnant on more than one occasion. However, the petitioner handed over certain pills to ensure that the pregnancy did not go forward. Later, the relationship between the petitioner and the de facto complainant came to the notice of her husband. Her relatives were alerted and she was asked to leave the matrimonial home. She further alleges that sometime in the month of September, 2016, the petitioner entered her apartment and subjected her to sexual abuse. She again become pregnant. She was forced to undergo an abortion by the petitioner. Later, in the month of December, 2016, her husband pronounced talaq. Immediately thereafter, she lodged a complaint against the petitioner alleging that he had subjected her to rape on a false promise of marriage. A crime was registered and investigation is still pending. Later, the de facto complainant realised her folly and has **Crl.MC.No. 7969 of 2017** **4** come forward and filed an affidavit stating that it is not in her best interest to prosecute the petitioner. 3. The learned counsel appearing for the petitioner would contend that a perusal of the statement given by the lady would reveal that the parties had an extra-marital relationship which was consensual in nature. The de facto complainant was a married woman who was staying with her husband. The allegation that the petitioner assured her that he would marry her and obtained her consent for a sexual relationship cannot be believed, contends the learned counsel. According to the learned counsel, when the husband of the de facto complainant pronounced talaq, she approached the petitioner and demanded that he should marry her. When he refused, the crime was registered on false allegations. The learned counsel would rely on the decision of the Apex Court in **Dhruvaram Murlidhar Sonar (Dr.)** v. **State of Maharashtra and Others** [2019 (1) KHC 403] and contended that there is a clear distinction between rape and consensual sex and in the case on hand, it is evident that the relationship was consensual. According to the learned counsel, the criminal proceedings against the **Crl.MC.No. 7969 of 2017** **5** petitioner is a clear abuse of process and the same is liable to be quashed. 4. The learned Public Prosecutor, on instructions, submitted that a statement has been recorded and the lady has stated that it was under some misconception of fact that she had lodged a complaint as against the petitioner herein. 5. The de facto complainant has entered appearance through her counsel. The learned counsel would contend that the pendency of the criminal proceedings is now proving to be a stumbling block preventing the 3[rd] respondent from reuniting with her husband. The learned counsel would refer to the affidavit sworn to by the 3[rd] respondent and also the statement recorded by the investigating officer during the pendency of this proceedings to canvass support for the prayer sought for by the petitioner. 6. I have considered the submissions advanced and have gone through the entire case diary. The case of the 3[rd] respondent is that she had an affair with the petitioner herein which lasted for **Crl.MC.No. 7969 of 2017** **6** seven years. During this period, she was living with her husband. The relationship was concealed from her husband and when he finally came to know about the same, he pronounced talaq and she was asked to leave the matrimonial home. It was thereafter, that she had filed the complaint alleging the offence of rape. In ## **Shivashankar @ Shiva v. State of Karnataka & Another** (judgment dated 6.4.2018 in Criminal Appeal No.504 of 2018), the Hon'ble Supreme Court had observed that it is difficult to hold that sexual intercourse in the course of a relationship which has continued for eight years is 'rape'. 7. In **Dhruvaram Murlidhar Sonar** (Supra), the Apex Court had occasion to elucidate the principles and it was laid down that there is a clear distinction between rape and consensual sex. It was observed that there is 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. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the Indian **Crl.MC.No. 7969 of 2017** **7** Penal Code. Insofar as the offence under Section 312 of the IPC is concerned, even according to the 3[rd] respondent, she had become pregnant while she was living with her husband. The drugs were allegedly consumed by her to save her own skin. The offence under Section 312 of the IPC have no application in the instant case. Furthermore, the 3[rd] respondent has filed an affidavit stating that the crime was registered due to the situation prevailing then and she has no grievance. 8. Having considered all the relevant aspects, there is no case for anyone that the dignity of the 3[rd] respondent was violated by a wanton act of the petitioner. This is not one of those cases, wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 3[rd] respondent and her children, if the prosecution is permitted to continue. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case is proceeded with. Furthermore, the 3[rd] **Crl.MC.No. 7969 of 2017** **8** respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-A1 FIR in Crime No.77 of 2017 of the Nedumangad Police Station and all proceedings pursuant thereto pending against the petitioner are quashed. **SD/-** ## **RAJA VIJAYARAGHAVAN V.,** ## **JUDGE** //TRUE COPY// P.A. TO JUDGE DSV/21.2.19 **Crl.MC.No. 7969 of 2017** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIR IN CRIME NO. 77/2017 OF NEDUMANGAD POLICE STATION. ANNEXURE A2 AFFIDAVIT OF 3RD RESPONDENT.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**