XXXXX v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` WEDNESDAY, THE 11[TH] DAY OF OCTOBER 2023 / 19TH ASWINA, 1945 CRL.MC NO. 5144 OF 2021 ``` ## **`CRIME NO.763/2021 OF NALLALAM POLICE STATION, KOZHIKODE`** ## **`PETITIONER/ACCUSED :`** ``` XXXXX XXXXX BY ADVS. P.V.ANOOP PHIJO PRADEESH PHILIP M.P.PRIYESHKUMAR ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** ``` 1STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031. 2YYYYYY ``` ``` BY ADV K.V.SREERAJ ``` ## **`OTHER PRESENT:`** ``` SRI G.SUDHEER (PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.10.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.MC No.5144 of 2021 2 ## **O R D E R** The petitioner is the accused in Crime No.763 of 2020 of Nallalam Police Station, Kozhikode, alleging commission of offences under Section 450, 366, 376(2),(n), 506 and 406 of the Indian Penal Code. 2. The allegation against the petitioner is that, on the false promise of marriage, the petitioner entered into sexual relationships with the defacto complainant/victim. It is also alleged that the petitioner threatened the defacto complainant and obtained 2.5 sovereigns of gold and Rs.50,000/- and misappropriated the same, and thereby, he committed the offences alleged against him. 3. The learned counsel appearing for the petitioner would submit that all disputes between the petitioner and the defacto complainant/victim have been settled. It is submitted that, as per Annexure-B affidavit executed by the defacto complainant/victim, the defacto complainant has clearly stated that any sexual relationship between the petitioner and the defacto complainant was Crl.MC No.5144 of 2021 3 consensual and no element of rape was involved. It is submitted that it is also stated in the affidavit that the complaint was given on the basis of misunderstanding and the defacto complainant does not intend to proceed with the prosecution against the petitioner in any manner. 4. The learned Public Prosecutor would point out that in respect of heinous offences such as rape, the judgment of the Supreme Court in _**Gian Singh v. State of Punjab;** (2012) 10 SCC 303_ and all decisions following the same indicate that such offences cannot be quashed on the basis of settlement. However, he fairly points out that going by the affidavit executed by the defacto complainant/victim in this case, she specifically states that any relationship between the petitioner and the dafacto complainant was consensual and therefore, the element of rape may not be involved. 5. The learned counsel appearing for the defacto complainant/victim would state that any relationship between the petitioner and the defacto complainant was consensual and therefore, the defacto complainant/victim does not intend to prosecute the complaint in any manner. Crl.MC No.5144 of 2021 4 6. _**In Pramod Suryabhan Pawar v. State of**_ _**Maharashtra and Another**_ ; [(2019) 9 SCC 608], the Supreme Court considered the scope of the power exercised by this Court under Section 482 of the Code of Criminal Procedure and held in paragraph Nos.6 and 7 as under; “ **6.** Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 of the inherent jurisdiction of the court can be exercised (i) to give effect to an order under Cr.P.C.; (ii) to prevent the abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and reiterated by this Court. In _Inder Mohan Goswami v. State of Uttaranchal_ , this Court observed; (SCC p.10, paras 23-24) “23. This Court in a number of cases has laid down the scope and ambit of courts’ powers under Section 482 Cr.P.C. Every High Court has inherent powers to act _ex debito justitiae_ to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the Crl.MC No.5144 of 2021 5 process of the court. Inherent power under Section 482 Cr.P.C. can be exercised: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of the court, and (iii) to otherwise secure the ends of justice. 24. Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute.” **7.** Given the varied nature of cases that come before the High Courts, any strict test as to when the court’s extraordinary powers can be exercised is likely to tie the court’s hands in the face of future injustice. This Court in _State of Haryana v. Bhajan Lal_ conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The Court in _Bhajan Lal_ noted that quashing may be appropriate where: (SCC pp.378-79, para 102) “102. ...(1) Where the allegations made in the first information report or the complaint, even if they Crl.MC No.5144 of 2021 6 are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order a Magistrate within the purview of Section 155(2). (7) Where a criminal proceedings is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” ## Thereafter, considering the offence of rape as defined under Section 375 of IPC it was held as under; **11.** The primary contention advanced by the complainant is that the appellant engaged in sexual relations with her on the false promise of marrying her, and therefore her "consent", being premised on a "misconception of fact" (the promise to marry), stands vitiated. **12** . This Court has repeatedly held that consent with respect to Section 375 IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such Crl.MC No.5144 of 2021 7 action or inaction, consents to such action. In Dhruvaram Sonar which was a case involving the invoking of the jurisdiction under Section 482, this Court observed: (SCC para 15) "15.... An inference as to consent can be drawn if only based on evidence or probabilities of the case. "Consent" is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of." This understanding was also emphasised in the decision of this Court in _Kaini Rajan v. State of Kerala_ : (SCC p. 118, para 12) "12... "Consent", for the purpose of Section 375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between resistance and assent. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances." **13.** This understanding of consent has also been set out in Explanation 2 of Section 375 (reproduced above). Section 3(1)(w) of the SC/ST Act also incorporates this concept of consent: **“3. (1)** _**(w)(i)**_ intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that he belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of Crl.MC No.5144 of 2021 8 a sexual nature and is without the recipient's consent. Explanation-For the purposes of sub-clause (1), the expression “consent” means an unequivocal voluntary agreement when the person by words, gestures, or any form of non-verbal communication, communicates willingness to participate in the specific act: Provided that a woman belonging to a Scheduled Caste or a Scheduled Tribe who does not offer physical resistance to any act of a sexual nature is not by reason only of that fact, is to be regarded as consenting to the sexual activity: Provided further that a woman's sexual history, including with the offender shall not imply consent or mitigate the offence;" **14.** In the present case, the "misconception of fact" alleged by the complainant is the appellant's promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In _Amurag Soni v. State of Chhattisgarh_ , this Court held: (SC para 12) “12. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have Crl.MC No.5144 of 2021 9 any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 IPC and can be convicted for the offence under Section 36 IPC. Similar observations were made by this Court in _Deepak Gulati v. State of Haryana (Deepak Galat)_ : (SCC p. 682, para 21) “21……. There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused;" **15.** In _Yedla Srinivasa Rao v. State of A.P_ . the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the Court observed: (SCC pp. 620-21, para 10) Crl.MC No.5144 of 2021 10 “10. It appears that the intention of the accused as per the testimony of PW1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent." **16.** Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a "misconception of fact" that vitiates the woman's "consent". On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise Crl.MC No.5144 of 2021 11 should have had no intention of upholding his word at the time of giving it. The "consent" of a woman under Section 375 is vitiated on the ground of a "misconception of fact" where such misconception was the basis for her choosing to engage in the said act. In _Deepak Gulati_ this Court observed: (SCC pp. 682-84, paras 21 & 24) "21.... There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and _whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. 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 misrepresentation made to her by the 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 so. Such cases must be treated differently. 24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The "failure to keep a promise made Crl.MC No.5144 of 2021 12 with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. _In order to come within the meaning of the term "misconception of fact", the fact must have an immediate relevance"._ Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, _"unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her._ ” (emphasis supplied) **18.** 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 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.” 7. In the light of the contents of Annexure-B affidavit and in the facts of the present case, it is difficult to hold that there was no consent as defined in Section 90 of IPC. Therefore, the offence of rape cannot be said to be attracted in the facts and circumstances of the case. Insofar Crl.MC No.5144 of 2021 13 as the other allegations are concerned, they relate to the petitioner obtaining 2.5 sovereigns of gold and Rs.50,000/from the defacto complainant/victim under threat. AnnexureB affidavit of the defacto complainant/victim also indicates that even in respect of those allegations, she had filed a complaint owing to a misunderstanding between the petitioner and the defacto complainant/victim. 8. Having regard to the aforesaid facts, I am of the opinion that the proceedings against the petitioner can be quashed in exercise of the jurisdiction vested in this Court under Section 482 of Cr.P.C. Accordingly, this Crl.M.C. is allowed and all further proceedings against the petitioner in Crime No.763 of 2020 of Nallalam Police Station, Kozhikode will stand quashed. Sd/- ## **GOPINATH P., JUDGE** rkj Crl.MC No.5144 of 2021 14 ## **`APPENDIX OF CRL.MC 5144/2021`** ``` PETITIONER ANNEXURES ``` ``` Annexure ACOPY OF THE FIR IN CRIME NO.763 OF 2020 OF NALLALAM POLICE STATIN, KOZHIKODE. Annexure BAFFIDAVIT SWORN BY THE SECOND RESPONDENT DATED 04.10.2021. ```