Sarath C.P. v. State of Kerala and Soumya

Crl.M.C. No. 6439 of 2015 ..1.. ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 29TH DAY OF OCTOBER 2019 / 7TH KARTHIKA, 1941** **CRL.MC.NO.6439 OF 2015** **CRIME NO.907/2015 OF KOVALAM POLICE STATION , THIRUVANANTHAPURAM** ## **PETITIONER/ACCUSED:** **SARATH C.P., AGED 22 YEARS, S/O.NARAYANANKUTTY, CHEENICKAPARAMBIL HOUSE, PADAYISKKARA POST, PERUNTHALMANNA, MALAPPURAM DISTRICT.** **BY ADV. SRI.ALEX.M.SCARIA** ## **RESPONDENTS/COMPLAINANT & DEFACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, 682031. 2 SOUMYA, AGED 23 YEARS, KIZHAKKUMKARA PUTHEN VEEDU, ANADU, PALODE VILLAGE,THIRUVANANTHAPURAM-695544.** **R1 BY SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR R2 BY ADV. SRI.G.BAIJURAJ** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.10.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------Crl.M.C. No. 6439 of 2015 ------------------------------------Dated this the 29[th] day of October, 2019 ## O R D E R This Court has passed an interim order dated 30.9.2015 ## which reads as follows: _“Learned P.P. takes notice, and seeks time to file statement. The complaint in this case shows that the complainant and the petitioner had lived for months as man and wife, and even an application for registration of marriage under the Special Marriage Act was submitted. In such a situation, the Investigating Officer will have to think wisely and properly whether this is in fact a case of rape, or whether everything that happened between them was consensual. He will report the stage and progress of investigation, having in mind the observations and directions made hereunder. Furnish a copy of this order to the learned P.P. for necessary action. Post after two weeks. Crl.M.A. No. 9606/15_ _Heard learned counsel and learned P.P., and also perused the complaint that led to the crime. It is really very suspicious whether this is in fact a case of rape. Admittedly, the parties had lived together as man and wife for a few months. In view of the direction made by the Court in the main proceedings, arrest of the petitioner as part of investigation will stand deferred for a short period of one month.”_ 2. The petitioner herein has been arrayed as the sole accused in the impugned Anx.A1 FIR in Crime No.907/2015 of Kovalam Police Station, Thiruvananthapuram, which has been registered for offences punishable under Secs.376(1) & 417 of the IPC, on the basis of the FIS given by the 2[nd] respondent defacto complainant on 6.8.2015 in respect of the alleged incidents which have happened for the period from 15.1.2014 to 5.8.2015. Crl.M.C. No. 6439 of 2015 ..3.. The petitioner has been granted anticipatory bail as per order dated 11.10.2019 rendered by this Court in B.A. No.7184/2019 in relation to this case. 3. It is submitted that, now the entire disputes between the petitioner and the 2[nd] respondent has been resolved, and the 2[nd] respondent has sworn to Anx.A4 affidavit dated 17.7.2019 stating that the allegations earlier made by her in the instant case were out of misunderstandings, and that the matters has been settled and she does not wish to proceed with the matter any further, and she has no objection for quashment of the impugned criminal proceedings on the ground of settlement between the parties. 4. It is now well settled by a series of rulings of the Apex Court including those in _**Shimbhu & Anr. v. State of Haryana [(2014) 13 SCC 318], Parbatbhai Aahir v. State of Gujarat [(2017) 9 SCC 641], Anita Maria Dias v. State of Maharashtra [(2018) 3 SCC 290], Sebastian @ Solly v. State of Kerala [(2015) 1 KLJ 384, etc.**_ that ordinarily grave and serious offences as the one under Sec.376 (rape) of the I.P.C. may not be amenable for quashment merely on the ground of settlement between the parties. However, now the main contention urged by the petitioner is that, even going by the admitted Crl.M.C. No. 6439 of 2015 ..4.. allegations in the impugned Anx.A7 FIS, and even if it is assumed that if the allegations narrated therein are broadly true, then the same would have happened only on the basis of consent between the parties and not otherwise, and therefore the vital ingredients of offence as per Sec.376 of the IPC are not made out in the instant case. 5. Heard Sri.Alex M.Scaria, learned advocate appearing for the petitioner accused, Sri.Saigi Jacob Palatty, learned advocate appearing for the 1[st] respondent State and Sri.G. Baijuraj, learned advocate appearing for R-2 (lady defacto complainant). 6. At the outset it may be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts including this Court regarding the substantial and vital distinction between rape as per Sec.376 of the IPC and consensual sexual relationship between the parties, and wherein it has been held that where the lady and man have sexual relationship for quite some time, then it cannot be said that, there is an element of rape involved as the relationship is mainly on the basis of consent between the parties, and that mere promise to marry and breach of such promise cannot be the basis to contend that the consent was Crl.M.C. No. 6439 of 2015 **==> picture [18 x 9] intentionally omitted <==** obtained on the basis of misconception of fact as envisaged under Sec.90 of the IPC. 7. Now the factual allegations made in the impugned Anx.A7 FIS could be examined in the light of the abovesaid legal principles. The petitioner has produced a legible typewritten version of Anx.A2 FIS as Anx.A7, which has been produced along with Crl.M.A. No.2/2019 filed in this Crl.M.C. A reading of the impugned FIS dated 6.8.2015 would make it clear that the 2[nd] respondent lady defacto complainant then aged 23 years, and the petitioner accused then aged 22 years are belonged to different religious communities, and they got acquainted and became friends through Facebook friendship, and other social media. The 2[nd] respondent had me the petitioner for the first time on 15.1.2014. Further that, he had asked whether he could take a lodge room in Kovalam and whether she is willing to come there and that the 2[nd] respondent initially shown her reluctance to go over there and that without heeding to her view the petitioner had taken lodge room in Kovalam and they had sexual relationship there atleast 3 or 4 times thereafter. Later they had sexual relationship in another lodge in Kovalam. On 13.7.2015, one of the 2[nd] respondent's neighbour had seen her at Kovalam along with the petitioner, and the said neighbour had informed the parents . On Crl.M.C. No. 6439 of 2015 **==> picture [19 x 9] intentionally omitted <==** sensing trouble the petitioner and the 2[nd] respondent had proceeded to Perinthalmanna by train, which appears to be the place of residence of the petitioner, and stayed in a lodge in Perinthalmanna, where the parents and family members of the petitioner had come there and thereupon, the petitioner and the 2[nd] respondent had submitted Sec.5 notice of intended marriage in terms of the provisions contained in the Special Marriage Act, for solemnization and registration of marriage in accordance with the said Special Marriage Act before the notified Marriage Registrar as per Anx.A5 notice given on 15.7.2015. A persual of Anx.A5 notice would make it clear that both the parties have signed it and the requisite formalities have also been completed thereby. Thereafter they had sexual relationship while staying in the petitioner's house. Later the petitioner had some dispute with his father and thereupon the petitioner and the 2[nd] respondent started living in a rented house, where also they had sexual relationship. On 5.8.2015, the petitioner and the 2[nd] respondent had quarreled a it was only then the 2[nd] respondent had told the petitioner that actually she has not passed the nursing course and she had discontinued the said professional course and that she is now studying for civil engineering course. On knowing that the information earlier gathered by the Crl.M.C. No. 6439 of 2015 **==> picture [18 x 9] intentionally omitted <==** petitioner about the professional status of the 2[nd] respondent is wrong, the petitioner had misunderstandings and he had lost trust in her. Thereafter he has abandoned the marriage proposal and that the 2[nd] respondent felt cheated and thereby the petitioner has committed the abovesaid offences. 8. A bare reading of Anx.A7 FIS would make it clear like the blue sky that both parties are adults in their early twenties and they had lived together as man and wife based on their ethical and moral choices. It appears that the hitch started when the 2[nd] respondent was seen in the company of the petitioner in Kovalam by a neighbour of the 2[nd] respondent, who had then informed the parents of the 2[nd] respondent, which constrained both of them to go to Perinthalmanna which is the residential place of the petitioner. At Perinthalmanna, they had stayed in the residence of the petitioner along with his parents and there also they had sexual relationship going by the admitted case in the FIS. Later both of them had set in motion Sec.5 notice of intended marriage under the Special Marriage Act before the notified Marriage Registrar for solemnization and registration of marriage as per the Act as evident from Anx.A5 notice dated 15.7.2015. Later it appears that the petitioner came to know that the earlier version given by the 2[nd] respondent that she is a Crl.M.C. No. 6439 of 2015 ..8.. nursing graduate is a wrong information given by her and actually she had discontinued the nursing course and is now studying for civil engineering course, and that going by the admitted allegations of the 2[nd] respondent this made the petitioner lose his trust in the 2[nd] respondent and thereafter he had broken the relationship. 9. Therefore in the instant case this Court is constrained to take the view that even if the entire incidents alleged in Anx.A7 FIS are assumed to be true, then the sexual incidents would have happened only on basis of consensual sexual relationship between the parties and not otherwise.. Even going by the admitted case of the 2[nd] respondent, the petitioner lost trust in the 2[nd] respondent as the earlier information given by her regarding her nursing professional status was found to be incorrect and wrong. Therefore no further detailed examination is required in this case, and it is only to be held that the vital ingredients of offence of rape as per Sec.376 of the IPC are conspicuously and fully absent in this case. In cases like this , the police should have conducted a fair investigation and could have easily filed a refer report instead of constraining this Court to adjudicate such simple and elementary issues. Further it is the case of the petitioner that actually he was willing for solemnization of marriage and it was at his instance that the Anx.A5 notice of intended Crl.M.C. No. 6439 of 2015 ..9.. marriage was set in motion, and that since the parties belonged to different religious communities, the parents of the 2[nd] respondent was against the solemnization of marriage, and it is on account of this that the marriage could not take place. Prima facie there appears to be some force in the abovesaid submission made by the petitioner inasmuch as Anx.A5 is the notice of intended marriage given under Sec.5 of the Special Marriage Act by the petitioner and the 2[nd] respondent on 15.7.2015 before the notified Marriage Registrar. Moreover, now the 2[nd] respondent would state in Anx.4 affidavit that the allegations made by her against the petitioner in the impugned criminal proceedings were out of misunderstandings, etc. 10. Taking note of the abovesaid crucial aspects, this Court is not in a position to hold that the initiation and continuation of the impugned criminal proceedings at Anx.A1 is nothing but a shere abuse of the process of Court, as it is a futile exercise and any further continuance would lead to unnecessary wastage of the precious time and energy of the investigation machinery, prosecution agency and the judicial organ of the State. Accordingly it is ordered in the interest of justice that the impugned Anx.A1 FIR in Crime No.907/2015 of Kovalam Police Station, in which the petitioner herein has been arrayed as the sole accused and all further proceedings originating Crl.M.C. No. 6439 of 2015 **==> picture [24 x 7] intentionally omitted <==** therefrom will stand quashed. The petitioner will produce certified copies of this order before the Investigating Officer concerned and the Judicial First Class Magistrate Court (Temporary), Neyyattinkara, who is dealing with the instant case. The Office of the Advocate General would also forward a copy of this order to the Investigating Officer concerned for necessary information. With these observations and directions the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 6439 of 2015 ..11.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE A1**|**CERTIFIED COPY OF FIR IN CRIME NO.907/2015 OF**| |---|---| ||**KOVALAM POLICE STATION.**| |**ANNEXURE A2**|**TRUE COPY OF THE F.I.S. IN CRIME NO.907/2015**| ||**OF KOVALAM POLICE STATION.**| |**ANNEXURE A3**|**TRUE COPY OF THE RECEIPT DATED 15/7/2015**| ||**ISSUED BY THE SUB REGISTRAR,PERINTHALMANNA.**| |**ANNEXURE A4**|**ORIGINALLY NOTARIZED AFFIDAVIT DATED 17.6.2019**| ||**SIGNED BY THE 2ND RESPONDENT/DEFACTO**| ||**COMPLAINANT.**| |**ANNEXURE A5**|**TRUE COPY OF THE NOTICE AS PER THE IIIRD**| ||**SCHEDULE OF THE SPECIAL MARRIAGE ACT.**| |**ANNEXURE A6**|**TRUE COPY OF THE DECLARATION MADE BY THE**| ||**PETITIONER AND THE 2ND RESPONDENT UNDER**| ||**SECTION 11 OF THE SPECIAL MARRIAGE ACT.**| |**ANNEXURE A7**|**TRUE COPY OF THE FIS ALONG WITH THE**| ||**TYPEWRITTEN COPY.**|