VIDHUN V. v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942** ## **Crl.MC.No.8464 OF 2019(G)** **CRIME NO.111/2019 OF Chevayoor Police Station, Kozhikode** ## **PETITIONER/ACCUSED:** **VIDHUN.V., AGED 32 YEARS, S/O.VIJAYA KUMAR, VAISHNAVAM HOUSE, VELLANGARA PARAMPU, EAST MOOZHIKKAL, CHEVAYOOR P.O., KOZHIKODE DISTRICT-673 017.** **BY ADVS. SHRI.K.K.JAYARAJ NAMBIAR SHRI.SIDHARTH J NAMBIAR** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA (REPRESENTED BY STATION HOUSE OFFICER, CHEVAYOOR POLICE STATION-CR.NO.111/2019 OF CHEVAYOOR POLICE STATION), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 STATION HOUSE OFFICER, CHEVAYOOR POLICE STATION, (CR.NO.111/2019 OF CHEVAYOOR POLICE STATION, KOZHIKODE DISTRICT-673 017.** - **3 VICTIM X** **R3 BY ADV. SRI.T.R.HARIKUMAR R3 BY ADV. SRI.ADITHYA RAJEEV** **SRI.RAMESH CHAND PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07-** **07-2020, THE COURT ON 15-07-2020 PASSED THE FOLLOWING:** 2 Crl.M.C.No.8464 of 2019 ## **P.B.SURESH KUMAR, J.** ## **-----------------------------------------------** ## **Criminal M.C. No.8464 of 2019** ## **-----------------------------------------------** ## **Dated this the 15[th] day of July, 2020.** ## **O R D E R** This is a proceedings under Section 482 the Code of Criminal Procedure seeking orders quashing Annexure A1 first information report and all further proceedings in Crime No. 111 of 2019 of Chevayoor Police Station. The petitioner is the accused in the said case. 2. The case aforesaid is one registered under Sections 376 and 376(2) (n) of the Indian Penal Code, at the instance of the third respondent. The allegations in the first information statement, on the basis of which the crime is registered, in essence, is that the third respondent fell in love with the petitioner who was studying along with her; that they had physical relationship on a few occasions on an assurance given by the accused that he would marry her; that the accused borrowed from her on different 3 Crl.M.C.No.8464 of 2019 occasions around Rs.2.5 lakhs and that he has cheated her by refusing to marry her and not returning the amount borrowed from her. The case set out by the petitioner in the proceedings is that the allegations made in the first information statement do not make out the offences alleged. 3. Heard the learned counsel for the petitioner, the learned counsel for the third respondent as also the learned Public Prosecutor. 4. The learned counsel for the petitioner vehemently contended, placing reliance on the decisions of the Apex Court in **Dr.Dhruvaram Murlidhar Sonar** v. **State of Maharashtra** and Ors., AIR 2019 SC 327 and **Pramod Suryabhan Pawar** v. **State of Maharashtra** and Anr., AIR 2019 SC 4010, that the first information report in the case on hand is an abuse of the process of the court. According to the learned counsel, the allegations in the first information statement do not reveal that the third respondent has consented for sex on the false promise of the accused that he will marry her. It was also contended by the learned counsel that though it was alleged by the third respondent in the first information 4 Crl.M.C.No.8464 of 2019 statement that the accused has cheated her, appropriate offences in the Indian Penal Code are not attributed against the accused in the first information report, for, the police did not find prima facie materials to attribute such offences against the accused. 5. Per contra, the learned counsel for the third respondent submitted that the allegations in the first information statement would certainly disclose a case of misconception of facts arising out of a promise to marry, which vitiates the consent given by the the de facto complainant for physical relationship with the petitioner. It was also contended by the learned counsel that the investigation in the case is only at its preliminary stage and it may not be appropriate in the peculiar facts of this case to consider the question as to whether a case as alleged is made out solely based on the statement of the de facto complainant. According to the learned counsel, the prayer of the petitioner is, therefore, premature. As regards the non inclusion of the appropriate offences in the first information report on the basis of the allegation of cheating made by the de facto complainant, it was argued by the learned counsel that it would be well within the powers of the Crl.M.C.No.8464 of 2019 5 investigating agency to attribute appropriate offences in the course of the investigation, and merely for the reason that all the offences are not shown in the first information report at the time of its registration itself, it cannot be said that the said offences are not made out. 6. The learned Public Prosecutor submitted that in the light of the interim order passed in this matter, investigation is not conducted in the case, and if the court permits, the investigation in the case can be completed in two months. ## 7. In **Dhruvaram Murlidhar Sonar,** 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 6 Crl.M.C.No.8464 of 2019 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 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.” In **Pramod Suryabhan Pawar,** the Apex Court held that in order to show that the “consent” was vitiated by “misconception of fact” arising out of a promise to marry, it must be established that the promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given and the false promise itself must be of some immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act. The relevant passage in the said judgment reads thus: “To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards Crl.M.C.No.8464 of 2019 7 the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.” The question to be examined, therefore, is as to whether the first information statement would show that the accused has given to the third respondent a promise to marry her without there being any intention to marry, in order to satisfy his lust. The following are the relevant averments in the first information statement: “2009 നവ�ബർ മതൽ ഞ�ൻ എന� കന� പഠ�ച�രന വ�ധൻ, 32 yrs, S/o.വ�ജയകമ�ർ, 6/3, ഈസ� മഴ�കൽ, ന#ലവർ (PO) Ph.9895839034, എന�ളമ�യ� ഇഷത�ല�യ�രന. കല,�ണ� കഴ�ക�നമന ഉറപ�ന2ൽ അവൻ എനന ന�ർബന�ച പല സലങള�ല� നക�ണ� നപ�യ� ഞ�നമ�യ� ശ�ര>ര�ക . ബനത�നലർനപട�ടണ� **==> picture [88 x 6] intentionally omitted <==** കല,�ണ� കഴ�ക�നമന ഉറപ�ല�ണ� അവൻ എനനനക�ണ� 8 Crl.M.C.No.8464 of 2019 . സമത�പ�ച ഞ�നമ�യ� ലല�ഗ�ക ബനത�നലർനപടത� **==> picture [84 x 14] intentionally omitted <==** എനന കല,�ണ� കഴ�ക�നമന പറഞ വ�ശFസ�പ�ച കഴ�ക�നത ലല�ഗ�കമ�യ� പ>ഡ�പ�കകയ� എന� പണ� ത�ര�നകതര�നത വ�ശF�സവഞന ക�ണ�കകയ� ന#യ ക�ര,ത�ൽ എന�ക� പര�ത�യണ�.” True, the third respondent has not averred in the first information statement without ambiguity that the accused had no intention to marry her at the time when he assured her that he would marry her. But, on a reading of the entire first information statement, it is clear that the grievance of the third respondent in the first information statement is that the accused had no intention to marry her when he had sex with her. I take this view also for the reason that the investigation in the case is only at its preliminary stage and it may not be appropriate in all cases to consider questions of the aforesaid nature merely by looking at the first information statement and by giving a literal interpretation for the same. In cases where there are ambiguities in the statement of the victim, according to me, one has 9 Crl.M.C.No.8464 of 2019 to wait until the investigation is over, to examine the true purport of the statement made by the victim for the purpose of striking of the proceedings at the threshold, or else, grave prejudice will be caused to the victim. In the said view of the matter, according to me, this Criminal M.C. is premature. Nevertheless, I deem it appropriate to dispose of the Criminal M.C. with a direction to the Investigating Officer concerned to complete the investigation in the case within two months and file appropriate report in the case. Ordered accordingly. It is made clear that if the Investigating Officer chooses to file final report holding that the offences alleged are made out against the petitioner, the petitioner will be free to challenge the final report in appropriate proceedings. Sd/- ## **P.B.SURESH KUMAR, JUDGE** tgs 10 Crl.M.C.No.8464 of 2019 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A1** **CERTIFIED COPY OF THE FIR IN CR.NO.111/2019 OF CHEVAYOOR POLICE STATION, ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT-I, KOZHIKODE.** **ANNEXURE A2 TRUE COPY OF THE ORDER DATED 05.03.2019 IN BA NO.1342/2019 OF THE HIGH COURT OF KERALA.** **RESPONDENT'S/S EXHIBITS:** ## **NIL** **//TRUE COPY//** **PA TO JUDGE**