SAHIR.M.V. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 04TH DAY OF JUNE 2019 / 14TH JYAISHTA, 1941** ## **Crl.MC.No.6281 of 2018** **AGAINST THE ORDER/JUDGMENT IN CP 67/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS ,PAYYANNUR** **CRIME NO.43/2017 OF Payangadi Police Station , Kannur** ## **PETITIONER/S:** **SAHIR.M.V. AGED 28 YEARS, S/O HAMZA K.V. MADATHIL VALAPPIL HOUSE, KHADEEJA MANZIL, STATION ROAD, PAPPINISSERI P.O, PAPPINISSERI AMSOM KANNUR DISTRICT -670561** **BY ADVS. SRI.V.A.SATHEESH SRI.V.T.MADHAVANUNNI** ## **RESPONDENT/S:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM THROUGH S. H. O PAZHAYANGADI POLICE STATION, PAZHAYANGADI P.O,KANNUR DISTRICT -670307** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.No. 6281 of 2018 ================== Dated this the 4[th] day of June, 2019 ## **O R D E R** The prayer in the above Criminal Miscellaneous Case filed under the enabling provisions contained in Sec.482 of the Code of Criminal Procedure is as follows: _“..... to quash Annexure A5 prosecution in C.P.No. 67/2018 on the file of J.F.C.M., Court, Payyannur in Crime No. 43/2017 of Pazhayangadi Police Station, Kannur District against the petitioner.”_ 2. Heard Sri.V.A.Satheesh, learned counsel appearing for the petitioner/accused and Smt.Priya Shanvas, learned Prosecutor appearing for the respondent State. 3. The petitioner has been arrayed as accused in Anx. A-1 Crime No.43/2017 of Pazhayangadi Police Station for offences punishable under Sec.376(2)(n) of the I.P.C. The Police, after investigation has filed the impugned Anx.A5 final report/charge sheet in the above crime, which has now led to the institution of committal proceedings, C.P.No.67/2018 on the file of the Judicial First Class Magistrate's Court, Payyannur. The petitioner seeks quashment of the impugned criminal proceedings mainly on the ground that, even going by the admitted prosecution allegations, it can be seen that if the incidents alleged therein are true, then it could Crl.M.C.6281/18 - : 3 :- have happened only on the basis of the consent between the parties and that therefore, no offence of forcible sexual intercourse as per Sec. 376 has been made out in the instant case and that the impugned criminal proceedings are liable to be quashed on that ground, as otherwise it would amount to abuse of the process of the court. 4. Before dealing with the facts of this case, it will be pertinent to deal with the cardinal legal principles laid down by the Apex Court and various High Courts including this Court as to fine and substantial distinction between rape as understood in Sec.376 of the IPC and consensual sexual relationship between the parties. 5. It is by now well established that there is a fine and substantial distinction between rape as understood in Sec.376 of the IPC and consensual sexual relationship between parties and this has been the subject matter of detailed consideration of various judgments of the Apex Court and various High Courts, including this Court. The said issue is the subject matter of a catena of rulings of the Apex Court in decisions as in _**Uday v. State of Karnataka**_ [(2003) 4 SCC 46] and _**Deelip Singh @ Dilip Kumar v. State of Bihar**_ [(2005) 1 SCC 88], where it has been held that where the woman has voluntarily and consciously consented to have a sexual Crl.M.C.6281/18 - : 4 :- relationship with the accused, then her consent cannot be said to be in consequence of any misconception of fact as envisaged in Sec.90 of the IPC. In _**Dr.Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors.**_ [2019 (1) SCALE 64), the Apex Court has again highlighted about the substantial distinction between rape and consensual sexual relationship. In _**Shivshankar @ Shiva v. State of Karnataka & another**_ (judgment dated 06.04.2018 of the Apex Court in Crl.Appeal No.504/2018), it has been held that be rather difficult to hold sexual intercourse in the course of a relationship which was continued for several years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together. In _**Dhruvaram Murlidhar Sonar’s**_ case (supra), the Apex Court had elucidated the principles in that regard and it has been laid down the clear distinction between rape and consensual sexual relationship and that the acknowledged consensual physical relationship between the parties would not constitute an offence under Sec.376 of the IPC. It has also been held that breach of promise to marry in such cases will not by itself lead to a scenario, whereby it can be held that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. Crl.M.C.6281/18 - : 5 :- 6. From a mere reading of Anx.A-1/3 FI statement given by the lady defacto complainant on 24.1.2018, which has led to the institution of the abovesaid crime, following factual aspects are evident:- The alleged incidents are said to have happened from October, 2012 onwards, whereas the FI statement is given only as late as on 24.1.2017. It is the admitted case of the lady defacto complainant (hereinafter referred for short as “lady”) that she is a married lady having a daughter of 8 years and that she is separated from her husband due to difference of opinion between them and that the petitioner accused is known to her as he is related in the family and that both of them became intimate and started a intense love affair and that he had assured her that he will marry her and that they had indulged in sexual relationship on various occasions starting from October, 2012. Thereafter, they have been living as husband and wife and later, in connection with the employment purpose she had also lived in the house of the petitioner, where also they had sexual relationship. Later, she shifted her residence to a rented house so as to live together with the petitioner. There also, the parties had sexual relationship. That after coming to know the abovesaid relationship, her family members had kept her away from the family circles, etc. Crl.M.C.6281/18 - : 6 :- Much later, she came to know that marriage proposal is being mooted for the petitioner accused and thereafter he started neglecting her and had abandoned her and that she felt cheated and that she has given the abovesaid complaint of rape in the instant FI statement, which has been given as late as on 24.1.2017. 7. From a mere reading of the abovesaid FI statement it can be seen that the parties have voluntarily chosen to enter into a intimate love affair, which has also culminated in a intense sexual relationship between the parties and that they had sexual relationships on various occasions and they had lived together as man and wife. It is the admitted case of the lady that she is a married lady with a 8 year old daughter and that she has been separated from her due to matrimonial disputes. In such case, the alleged promise to marry said to have been made by the accused, cannot be said to have any legal efficacy, since the lady has no case that she has secured lawful dissolution of her marriage from the first husband. That apart, even assuming that she had secured divorce later, mere promise to marriage and breach of promise to marriage cannot be the legal basis to contend that consent was obtained to have sexual intercourse on the basis of misconception of facts as understood in Sec. 90 of the Crl.M.C.6281/18 - : 7 :- I.P.C. 8. From a mere reading of the FI statement and other prosecution materials, it is crystal clear that both the persons have chosen to have a love affair and intense sexual relationship after having consciously made their moral and ethical choices. Even according to the lady, she had lived together with the petitioner accused as man and wife for quite some time. In the light of the abovesaid rulings of the Apex Court and various High Courts it can be seen that if the alleged incidents are true, then it could have happened only on the basis of the consensual sexual relationship between the parties. Hence no offence of forcible intercourse of rape as per Sec. 376 has been made out in the instant case. If the matter is sent for trial, it will inevitably lead to the acquittal of the accused and therefore, permitting further continuance of the impugned criminal proceedings in this case would be a mere abuse of the process of the court inasmuch as it will lead to unnecessary wastage of time and precious resources of the Police investigation machinery and the judicial forum. 9. Accordingly, it is ordered in the interest of justice that the impugned Anx. A-1 FIR in Crime No. 43/2017 of Pazhavangadi Police Crl.M.C.6281/18 - : 8 :- Station, which has led to the institution of committal proceedings, C.P.No.67/2018 on the file of the Judicial First Class Magistrate's Court, Payyannur, and all further proceedings arising therefrom pending against the petitioner accused will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. sdk+ Sd/- **ALEXANDER THOMAS, JUDGE** Crl.M.C.6281/18 - : 9 :- ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE- A1 TRUE CERTIFIED COPY OF THE FIR IN CRIME NO.43/2017 OF PAZHAYANGADI POLICE STATION** **ANNEXURE- A2 TRUE CERTIFIED COPY OF THE 161 STATEMENT OF THE DEFACTO COMPLAINANT** **ANNEXURE- A3 TRUE CERTIFIED COPY OF THE FURTHER STATEMENT OF THE DEFACTO COMPLAINANT** **ANNEXURE-A4 TRUE CERTIFIED COPY OF THE 164 STATEMENT OF THE DEFACTO COMPLAINANT** **ANNEXURE-A5 TRUE CERTIFIED COPY OF T HE FINAL REPORT IN CRIME NO.43/2017 OF PAZHAYANGADI POLICE STATION** - **ANNEXURE-A6 TRUE CERTIFIED COPY OF THE MEMO OF EVIDENCE IN CRIME NO.43/2017 OF PAZHAYANGADI POLICE STATION**