Kerala High Court
Inshad vs State Of Kerala on 21 February, 2019
Author: V Raja Vijayaraghavan
Bench: V Raja Vijayaraghavan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
THURSDAY, THE 21ST DAY OF FEBRUARY 2019 / 2ND PHALGUNA, 1940
Crl.MC.No. 5682 of 2018
IN SC NO.566/2018 ON THE FILES OF THE DISTRICT COURT & SESSIONS
COURT, THIRUVANANTHAPURAM
CRIME NO. 2097/2017 OF VARKALA POLICE STATION, THIRUVANANTHAPURAM
PETITIONER/ACCUSED:
INSHAD,
AGED 29 YEARS,
S/O. MUHAMMAD ILLIAS,
IRSHAD MANZIL,
VELAMANOOR,
NETTAYAM CHERI,
PARIPPALLY VILLAGE,
THIRUVANANTHAPURAM DISTRICT.
BY ADVS.
SRI.P.ANOOP (MULAVANA)
SRI.A.CHANDRA BABU
RESPONDENTS/STATE & DE FACTO COMPLAINANT:
1 STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
2 SENIYA.M., AGED 23 YEARS
D/O. SEENATH, CHEKKUVETTY HOUSE,
NEAR MOONNUMALA JUNCTION, VENKULAM,
EDAVA VILLAGE, VARKALA TALUK,
THIRUVANANTHAPURAM DISTRICT-695001.
R1 BY SR. PUBLIC PROSECUTOR SRI.AMJAD ALI
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
21.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
CRL.MC:5682/18 2
ORDER
This petition is filed under Section 482 of the Cr.P.C.
2. The petitioner herein is the accused in S.C. No.566/2018 on the file of the Sessions Court, Thiruvananthapuram. The aforesaid case has arisen from Crime No.2097 of 2017 of the Varkala Police Station, registered at the instance of the 2 nd respondent herein on 20.11.2017 under Section 376(n) of the IPC.
3. In her statement which was lodged on 19.11.2017, the 2 nd respondent alleges that she met the petitioner herein through the social network. They fell in love. Sometime in the month of February, 2017, the petitioner called her up and invited her to a hotel at Thiruvananthapuram. She was assured that he would marry her and on that basis, her consent for sexual intercourse was obtained. Thereafter the petitioner went back to the place of his employment in the Gulf countries. He returned in the month of July, 2017. On 15.7.2017, she was taken to a resort at Varkala. They took a room and it is alleged that they had sexual intercourse. Later, when he stopped contacting the lady, she let the law in motion.
4. The learned counsel appearing for the petitioner submitted that there is no truth in the allegations levelled by the 2 nd respondent. CRL.MC:5682/18 3 According to the learned counsel, the relationship that the petitioner had with the 2nd respondent was consensual. Neither of the parties wanted to get married and their relationship was also known to their respective parents. Later, their relationship became strained. When the petitioner was on the look out for prospective brides for getting married, the 2nd respondent has come up with the allegation of rape. The learned counsel would contend that after the crime was registered, the 2nd respondent was examined by the doctor. She has clearly stated that the relationship that she had with the petitioner was consensual.
5. The learned counsel would rely on the decision of the Apex Court in Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra and Others [2019 (1) KHC 403 (SC)] and contended that there is a clear distinction between rape and consensual sex and in the case on hand, it is evident that the relationship was consensual. According to the learned counsel, the criminal proceedings against the petitioner is a clear abuse of process and the same is liable to be quashed.
6. The 2nd respondent has appeared through counsel. She has filed an affidavit, wherein she asserts that she is a post graduate and CRL.MC:5682/18 4 that she had developed acquaintance with the petitioner while she was working in a private firm. They fell in love and had consensual sex twice. Later, when they parted ways, she was forced to divulge the nature of her relationship to her near relatives. They prodded her to set the law in motion by alleging that the petitioner had subjected her to rape on a promise of marriage. She asserts that the relationship was consensual and no assurance was given by the petitioner. According to her, she wants to get married and start a new life and the pendency of a case registered at her instance in her capacity as a victim of rape would hamper her matrimonial prospects. The learned counsel contends that she has no objection in quashing the proceedings as the ingredients of the offence of rape are clearly absent.
7. The learned Public Prosecutor on instructions, submitted that the statement of the 2nd respondent has been recorded. From her statement it appears that she does not want to prosecute the petitioner herein. According to her, it would be in her best interest to terminate the criminal proceedings.
8. I have considered the submissions advanced and have gone through the materials made available.
CRL.MC:5682/18 5
9. The instant crime was registered on the allegation that the petitioner herein subjected the 2nd respondent to rape on a false promise of marriage. On 19.11.2017, the 2 nd respondent was taken to the Women and Child Hospital, Thycaud. To the doctor, the 2 nd respondent stated that the relationship was consensual. Even before this Court the 2nd respondent has filed an affidavit stating that the relationship between the parties was consensual and that she had levelled allegations of rape due to the situation prevailing at her home. The statement of the 2nd respondent has also been recorded by the investigating officer during the pendency of this petition. She has reiterated her request to terminate the proceedings. Apparently, her desire to start a new life is impeded by the pendency of the criminal prosecution. As has been held by the Apex Court in Dhruvaram (supra) there is a clear distinction between rape and consensual sex. 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 CRL.MC:5682/18 6 his control, was unable to marry her despite having every intention to do. Such cases will have to be treated differently. In the case on hand, it does not appear that the petitioner had any mala fide intention. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of the IPC.
10. Having considered all the relevant facts, I am of the view that this is a fit case in which this Court will be justified in quashing the criminal proceedings holding that the pendency of the proceedings would be a clear abuse of process.
In the result, this petition will stand allowed. Annexure-A1 Final report and all proceedings pursuant thereto against the petitioner herein now pending as SC No.566 of 2018 on the files of the Sessions Court, Thiruvananthapuram are quashed.
sd/-
RAJA VIJAYARAGHAVAN V.,
JUDGE
KRJ //TRUE COPY// P.A.TO JUDGE
CRL.MC:5682/18 7
APPENDIX
PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE FINAL REPORT IN
SC.566/2018 OF SESSIONS COURT,
THIRUVANANTHAPURAM.
ANNEXURE A2 TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND
RESPONDENT.