## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR**
**TUESDAY, THE 15TH DAY OF SEPTEMBER 2020 / 24TH BHADRA, 1942**
## **Crl.MC.No.1359 OF 2020(H)**
**CRIME NO.906/2019 OF Kadavanthra Police Station , Ernakulam**
## **PETITIONER/ACCUSED:**
**SUJITHKUMAR, AGED 40 YEARS S/O.SUDHAKARAN, CHERIYATHARA HOUSE, POURASAMIDHI ROAD, KADAVANTHRA, ELAMKULAM VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT.**
**BY ADVS. SRI.A.C.DEVY SRI.A.M.ABDULLA SRI.D.KISHORE**
## **RESPONDENTS/COMPLAINANT & STATE:**
**1 X X X 2 THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.**
**R1 BY ADV. SRI.SAJAN MANNALI R1 BY ADV. SRI.AADITHYAN S.MANNALI R2 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER**
**THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **P.B.SURESH KUMAR, J.**
**------------------------------------Criminal M.C. No.1359 of 2020 -------------------------------------Dated this the 15[th] day of September, 2020**
## **ORDER**
This is a proceedings under Section 482 of the Code of Criminal Procedure (the Code) seeking orders quashing Annexure-C final report and all further proceedings in Crime No.906 of 2019 of Kadavanthra Police Station. The said crime was one registered on a reference from Maradu Police Station where the crime was initially registered as Crime No.967 of 2019. The crime aforesaid was registered at the instance of the first respondent. The petitioner is the sole accused in the said case.
2. After investigation, Annexure-C final report has been filed in Crime No.906 of 2019. The essence of the allegations in Annexure-C final report against the petitioner is that with the intention of having sexual intercourse with the first respondent, the accused pretended love towards her and had sex with her on various occasions at different places from the year 2014 and thereby committed the offences punishable under Sections 323,
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376(2)(n) and 506 of the Indian Penal Code (the IPC). The case set out by the petitioner in the Crl.M.C. is that the allegations in Annexure-C final report do not reveal any of the offences alleged against him. According to the petitioner, Annexure-C final report is therefore, an abuse of the process of the court and liable to be set aside, exercising the power of this court under Section 482 of the Code.
3. When this matter was taken up, the learned counsel for the petitioner submitted that the petitioner was having a long term intimate relationship with the first respondent and the case happened to be registered on account of a misunderstanding. It was also submitted by the learned counsel that the misunderstanding between the petitioner and the first respondent has been sorted out and the first respondent no longer requires the case to be proceeded with.
4. The learned counsel for the first respondent has endorsed the aforesaid submission made by the learned counsel for the petitioner as regards the settlement, and submitted that an affidavit to that effect also is filed in the matter by the first respondent.
5. It is seen that an affidavit has been filed by the first respondent in this matter stating that the crime happened to be
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registered on account of a misunderstanding with the petitioner, and that the first respondent has sorted out her disputes with the petitioner. It is also stated by the first respondent in the affidavit that she does not intend to proceed with the case any further.
6. Though the parties have settled their disputes, in so far as the offences alleged are heinous in nature, which the parties cannot settle out of court, I have examined the merits of the case. In **Dhruvaram Murlidhar Sonar** v. **State of Maharashtra and Ors,** AIR 2019 SC 327 **,** the Apex Court explained the distinction between rape and consensual sex thus:
“Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also 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. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and
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if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.”
7. The essence of the allegations, on the basis of which Annexure-C final report is filed, as stated in the final report reads thus:
“പത�ക� 1 ആ� സ�ക�യ� ല��ഗ�കമ��� പ�ഡ�പ�കണയമനള ഉദ�ശ�ദ��ട� കരതദ��ട� കട� 2014 മതൽ 1 ആ� സ�ക�യ� ദ&ഹ� നട�ച� പ�സ�ത� കട�യക�ണദപ�വകയ� 2015 മ�ർച� മ�സ� 1 ആ� ത��ത� ഒര ദ�വസ� ബ�മ��� പത�യയട AP 31 BF 2152 Xylo ക�റ�ൽ യക�ണദപ��� പനമ�ള�നഗറ�യ� ഒര ഒഴ�ഞ പറമ�ൽ ക�റ�നള�ൽ വച� ബ��ൽസ�ഗ� 2016-2017 ക���ളവ�ൽ പ� തവണ യ;യ� കടവന��ല�, പനമ�ള�നഗറ�ല� അമത യമഡ�കൽ ദക�ദളജ� ആശപത�യയട പ�ർക��ഗ� സ��� ക�റ�നള�ൽ വച� ബ��ൽസ�ഗ� യ;യ� 2019 ജൺമ�സ�11 ആ� ത��ത� ര�ത� 08.00 മണ�ക� എളങള� വ�ദJജ�, എളങള� കര��ൽ ക�ഴക� പട�ഞ�റ��� ക�ടകന സദഹ�ദരൻ അയപൻ ദറ�ഡ�ൽ ;��വനർ പ����ന� 200 മ�റർ പട�ഞ�റമ�റ� ദറ�ഡ�ന� ക�ഴക� അരക�ൽ യതക� ദർശന��ൽ പണ�ത�ടള Radison Blue ദഹ�ട��യR 14 ആ� ന����യ� വടക� പട�ഞ�റ� മ���ലള 1409-ആ� നമർ റമ�ൽ യവച� ബ��ൽസ�ഗ� യ;യ� പത�യയട പവർ��കള�ൽ എത�ർപ� പകട�പ�ച പ� അവസരങള�ല� സ�ക�യ� ലകയക�ണ� അട�ച� ഇട�ച� പര�ദകൽപ�ച� മ�നദകടണ�കയമന� നശ�പ�ചകളയയമന� പറഞ� ഭ�ഷണ�യപട��യ� പത� ദമൽവകപ� പക�ര� ശ�ക�ർഹകമ�� കറ� യ;യ എനത�."
As revealed from the extracted allegations in the final report, the petitioner had sex with the first respondent on very many occasions at different places right from the year 2014 upto June 2019. Further, the various materials produced by the petitioner along with the Crl.M.C. which are not disputed by the first respondent, especially the photographs taken by the petitioner and the first
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respondent together as also the print outs of the WhatsApp messages exchanged between them, would show that they were maintaining a very intimate relationship upto December 2018. As held by the Apex Court in **Dhruvaram Murlidhar Sonar,** what is to be seen by the court in a case of this nature is as to whether the accused had any _mala fide_ motive or made any false promise to the victim for the purpose of having sex with her to satisfy his lust. It is also held by the Apex Court in the said case that if the accused had not made any promise to the victim with the sole intention of seducing her to indulge in sexual acts, the sexual acts between them would not amount to rape. It is seen that the parties to this proceedings are not illiterate persons. The first respondent is an Engineering graduate. Having regard to the materials on record, I am of the view that the physical relationship between the parties in the case was on account of their mutual love and passion and the same would not constitute rape punishable under Section 376 of the IPC. I take this view having regard to the background of the parties and the admitted physical relationship they had, spreading over a period of almost five years. Above all, in the light of the settlement, no fruitful purpose would be served by proceeding with the case. In the aforesaid circumstances, according to me, Annexure-C final report is one to be quashed by this Court invoking the power of this
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Court under Section 482 of the Code.
In the result, the Crl.M.C. is allowed and Annexure - C Final Report and all further proceedings in Crime No.906 of 2019 of Kadavanthra Police Station are quashed. The registry shall return the documents produced by the petitioner in the sealed envelope to the counsel for the first respondent.
**Sd/P.B.SURESH KUMAR JUDGE**
ds 16.09.2020
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## **APPENDIX**
## **PETITIONER'S/S EXHIBITS:**
**ANNEXURE A A TRUE COPY OF THE FIR NO.967/2019 DATED 17.06.2019 REGISTERED BY MARADU POLICE STATION IN A SEALED COVER.**
**ANNEXURE B A TRUE COPY OF THE FIR IN CRIME NO.906/2019 DATED 18.06.2019 REGISTERED BY KADAVANTHRA POLICE STATION IN A SEALED COVER.**
**ANNEXURE C A PHOTOCOPY OF THE FINAL REPORT SUBMITTED BY THE KADAVANTHRA POLICE DATED 18.06.2019 IN A SEALED COVER.**
**ANNEXURE D A TRUE JOINT PHOTOGRAPHS OF THE PETITIONER AND THE DEFACTO COMPLAINANT IN DIFFERENT DATES IN A SEALED COVER.**
**ANNEXURE E A TRUE PHOTOCOPY OF THE WHATSAPP MESSAGE SHARED IN BETWEEN THE PETITIONER AND DEFACTO COMPLAINANT IN A SEALED COVER.**
**ANNEXURE F A TRUE NOTARIZED AFFIDAVIT SWORN BY 1ST RESPONDENT DATED 07.09.2020.**
