Kerala High Court
Ravi.O.K vs State Of Kerala on 9 September, 2020
Author: Alexander Thomas
Bench: Alexander Thomas
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020 / 18TH BHADRA, 1942
Crl.MC.No.7743 OF 2018(G)
CRIME NO.2765/2018 OF MUVATTUPUZHA POLICE STATION, ERNAKULAM
PETITIONER/ACCUSED:
RAVI.O.K
AGED 52 YEARS
S/O KUTTAPPAN, ORAVAKKUZHIYIL (H), VAZHAPPILLI,
MUVATTUPUZHA
BY ADVS.
SRI.M.B.SANDEEP
SMT.R.PRIYA
SMT.SHERIN VARGHESE
SRI.B.SURJITH
SMT.K.P.SREEJA
SRI.M.J.KIRANKUMAR
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
MUVATTUPUZHA POLICE STATION, THROUGH THE PUBLIC
PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031
2 VICTIM
R2 BY ADV. SRI.K.NANDAKUMAR
SRI.B.JAYASURYA, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
09.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.7743 of 2018
2
ALEXANDER THOMAS, J.
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Crl.M.C.No.7743 of 2018
===========================
Dated this the 09th day of September, 2020
ORDER
The prayer in the above Crl.Miscellaneous case filed under Sec.482 of the Code of Criminal Procedure is as follows :
"...............to allow this criminal miscellaneous case thereby to quash ANNEXURE A3 First Information Report and further proceedings in F.I.R No.2765/2018 of the Muvattupuzha police station, Ernakulam District pending on the files of Principal Sessions Court, Ernakulam in the interest of justice."
2. Heard Sri.M.B.Sandeep, learned counsel appearing for the petitioner (accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for the 1st respondent-State of Kerala and Sri.K.Nandakumar, learned counsel appearing for the 2 nd respondent (lady de facto complainant). The petitioner has been arrayed as the sole accused in the impugned Annexure- A3 First Information Report (FIR) in Crime No.2765/208 of Muvattupuzha Police Station, Ernakulam District, for the offences punishable under Secs.406 & 420 of the Indian Penal Code (IPC) on the basis of the First Information Statement (FIS) furnished by the 2 nd respondent-lady de facto complainant on 29.09.2018. Later, in the abovesaid investigation, the Crl.M.C.No.7743 of 2018 3 police has added offences as per Sec.376 of the IPC and Sec.3(2)(v) of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act 1989.
3. The gist of the allegations of the 2 nd respondent-lady de facto complainant aged 41 years in the abovesaid impugned criminal proceedings is to the effect that she had earlier married to a person and in which wedlock, a daughter was born and that later, she secured divorce about 22 years back and in December, 2007 and that she was employed as a class-IV employee in a Scheduled Bank. She had developed intimacy and friendship with the petitioner/accused now aged 52 years and in the said love affair they had lived as husband and wife in a living in relationship for the past ten years and that the petitioner is a married man having two children and that he used to frequently promise to the 2 nd respondent that he would marry her after securing divorce from his present wife and that he had taken money from the 2 nd respondent on various occasions totalling to about Rs.4.5 lakhs and that of late, the petitioner has developed cold feet and has been staying away from her, etc. Initially, the Annexure-A3 crime has been registered only for offences punishable under Sec.406 & 420 of the I.P.C and further that, the 2nd respondent belongs to Scheduled Caste community. Later, the police had added the offences as per Sec.376 of the IPC (rape) and Sec.3(2)(v) of the SC/ST (Prevention of Crl.M.C.No.7743 of 2018 4 Atrocities) Act.
4. Both parties have been heard. The main contentions raised by the petitioner is that going by the admitted allegations of the 2nd respondent, it can be seen that even if, the allegations raised by her are assumed to be true, still the alleged sexual incidents would have happened only on the basis of consent between the parties and that therefore, the vital ingredients of offence of rape as per Sec.376 of the I.P.C are not made out. Further that, the petitioner has also made certain contentions on the basis of Annexures-A1 & A2 to reinforce the abovesaid primary contentions, whereas, the learned Public Prosecutor appearing for the 1st respondent-State and the learned Advocate appearing for the 2nd respondent-lady de-facto complainant would submit that the said contention of the petitioner is not tenable and that the matter would require evidence and therefore, interdiction at this stage under Sec.482 of the Cr.P.C would amount to short circuiting the trial process, which is not right and proper course of action to be resorted to by the Court in a case like this.
5. At the outset, it has been borne in mind that before dealing with the facts of the case, it will be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts in the matter of Crl.M.C.No.7743 of 2018 5 distinction of rape as per Sec.376 I.P.C and consensual sexual relationship between the parties. It is by now well established that there is a fine and substantial distinction between rape as understood in Sec.376 of the IPC and consensual sexual relationship between parties and this has been the subject matter of detailed consideration of various judgments of the Apex Court and various High Courts, including this Court. The said issue is the subject matter of a catena of rulings of the Apex Court in decisions as in Uday v. State of Karnataka, reported in (2003) 4 SCC 46 and Deelip Singh @ Dilip Kumar v. State of Bihar, reported in (2005) 1 SCC 88, where it has been held that where the woman has voluntarily and consciously consented to have a sexual relationship with the accused, then her consent cannot be said to be in consequence of any misconception of fact as envisaged in Sec.90 of the IPC. In Dr.Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors., reported in 2019 (1) SCALE 64, the Apex Court has again highlighted about the substantial distinction between rape and consensual sexual relationship. In Shivshankar @ Shiva v. State of Karnataka & another (judgment dated 06.04.2018 of the Apex Court in Crl.Appeal No.504/2018), it has been held that it will be rather difficult to hold sexual intercourse in the course of a relationship which was continued for several years is 'rape', especially in the face of the complainant's own Crl.M.C.No.7743 of 2018 6 allegation that they lived together. In Dhruvaram Murlidhar Sonar's case (supra), the Apex Court had elucidated the principles in that regard and it has laid down the clear distinction between rape and consensual sexual relationship and that the acknowledged consensual physical relationship between the parties would not constitute an offence under Sec.376 of the IPC. It has also been held that breach of promise to marry in such cases will not by itself lead to a scenario, whereby it can be held that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC.
6. Now, it will be pertinent to refer to the nature of the allegations raised by the 2nd respondent-de facto complainant in Annexure-I FIR, more particularly, the FI Statement attached thereto. From a reading of the FI Statement given by the 2 nd respondent, it can be seen that it is an admitted case that the 2nd respondent now aged 41 years was earlier married to a man in which wedlock, a daughter was born to them and later, she has secured divorce in respect of that matter in issue. Further that, the 2nd respondent is employed as a class-IV employee in a scheduled Bank. Later, in December, 2007, she became friendly with the petitioner/accused aged 52 years, who was an aged, selling lottery tickets and that this developed into a love affair between them and both of them started living Crl.M.C.No.7743 of 2018 7 in the residence of the 2nd respondent in a living in relationship for 10 years. Later, the only daughter of the 2 nd respondent was married of. That though, the petitioner is a married man having children, he had assured her that he would divorce the present wife and would marry the 2nd respondent. That in the course of the said relationship and under the guise of the said problems, the petitioner had received more than about Rs.4.5 lakhs from the 2nd respondent. Later, the petitioner developed cold feet and started living separately from the 2 nd respondent and she felt cheated, which has constrained her to submit the abovesaid FIS, which led to the registration of the instant crime.
7. The learned counsel for the 2 nd respondent would point out that the 2nd respondent was not earlier aware that the petitioner was a married man and much later, she came to know of it, etc. Whereas, the petitioner would assert that even going by the case of the 2 nd respondent, it was an intimate relationship and both of them were living openly as man and wife under the same roof and that the 2nd respondent was always aware right to the commencement of the relationship that the petitioner aged 51 years is a married man having children and her case is that the petitioner had assured her that he would marry her after divorcing the present wife, etc. Crl.M.C.No.7743 of 2018 8
8. The learned counsel for the petitioner would also point out that the allegations of rape, cheating and victimisation of Scheduled Caste member, etc. are all belated cases and that Annexure-A1 is the register of petitions for the Muvattupuzha Police Station, which would show that a petition was given by the 2nd respondent, which was registered as 1018/2018 on 26.09.2018, in which the complainant therein was the 2nd respondent and the respondent therein was the petitioner herein and that the petitioner was threatening her. Annexure-A2 is the further endorsement of the police authorities in regard to Annexure-A1, wherein it is stated that on 27.09.2018, both sides had apprised the police officers that they have mutually discussed and amicably settled the issues and that the 2nd respondent will continue to reside in her residential unit and that the 2nd respondent has informed the police that no further action is to be taken on the complaint given by her on 26.09.2018. It is pointed out that it is two days thereafter, that the 2nd respondent has given Annexure-A3 FIS on 29.09.2018 raising the alleged incidents of cheating. Later, in which the police had initially included only the offences as per Secs.406 & 420 0f the IPC and had later included the offences as per Sec.376 of the IPC and Sec.3(2)(v) of the SC/ST (Prevention of Atrocities) Act, etc. Crl.M.C.No.7743 of 2018 9
9. After hearing both sides, it is seen that going by the admitted pleas of the 2nd respondent, she is a working lady aged more than 41 years and she had a daughter who has subsequently married off and she had divorced her husband and from December, 2007, she had struck a friendship and intimacy with the petitioner aged 52 years and both of them had started living openly as husband and wife under the same roof and they were continued to do so for about 10 long years. Therefore, at least after the commencement of the relationship, it is only reasonable to infer that the 2nd respondent would have certainly come to know the fact that the petitioner is a married man having children. Therefore, the alleged promise said to have been made by the petitioner as a married man that he would divorce his first wife and then marry the 2nd respondent, is not the promise which has got any legal efficacy in the eye of law. That apart, going by the predominant nature of the allegations made in the FIS, it can be seen, that with wide and open eyes the 2nd respondent has chosen to live with the petitioner as man and wife under the same roof and that too for 10 long years. It is also pointed out that in the meanwhile, the daughter of the 2nd respondent was also married off. Therefore, in the light of these aspects, it cannot be held that the alleged false promise of marriage said to have been made by the petitioner will constitute the ingredients of Crl.M.C.No.7743 of 2018 10 misconception of facts under Sec.90 of the I.P.C, so as to bring him the ingredients of Sec.376 of the I.P.C. There is a substantial distinction between forcible sexual intercourse (rape) as well as consensual sexual relationship and therefore, it cannot be said that the offence of rape is involved in this case on account of any misconception of facts, as conceived in Sec.90 of the I.P.C. in the facts and circumstances of the case. Moreover, there is force in the contentions of the petitioner that two days prior to the submission of the FIS dated 29.09.2018, the 2 nd respondent has approached the Muvattupuzha Police authorities with a complaint on 26.09.2018, wherein the main allegation of the petitioner was threatening her and then it appears that there was no allegation of cheating or victimisation as a Scheduled Caste or of forcible sexual intercourse or consent for intercourse obtained on the basis of misconception of facts, etc. Annexure-A2 would show that Annexure-A1 complaint has been settled between the parties and that the 2nd respondent herself has stated before the police authorities that she is not interested to pursue with the said complaint/petition and that both parties have arrived at amicable settlement and that the 2nd respondent was continued to reside at her residential unit, etc. It is two days later that the 2 nd respondent has chosen to submit Annexure-A3 FIS on 29.09.2018 raising these allegations. Crl.M.C.No.7743 of 2018 11 Therefore, adjudging the overall context of the totality of the facts and circumstances of the case, it is only to be held that in view of Annexures-A1 & A2, it can be seen that the allegations of cheating, rape, victimisation as Scheduled Caste, etc. have been belatedly made and such allegations were not raised by the 2nd respondent at any earlier point of time as in Annexures-A1 & A2 and at quick point of time, the sole allegation made by her was that the petitioner had threatened her, etc.
10. Hence, in the light of the totality of the facts and circumstances of the case, this Court is constrained to take the view that even if it is assumed that the allegations of sexual incidents are broadly true, then the same could have been occurred only on the basis of consent between parties and therefore, it cannot be contended by the prosecution that the consent to have sexual intercourse was given by the 2 nd respondent on the basis of mistake of facts as conceived in Sec.90 of the I.P.C. Hence, the very investigation and continuance of the impugned criminal proceedings is an abuse to the process of this Court and so, the interdiction of this Court is called for. In that view of the matter, it is ordered that the impugned Annexure-A3 FIR in Crime No.2765/2018 of Muvattupuzha Police Station, in which the petitioner has been arrayed as accused for the abovesaid offences and all consequent proceedings arising therefrom will stand Crl.M.C.No.7743 of 2018 12 quashed and set aside.
11. The petitioner will produce certified copies of this order before the competent criminal court concerned as well as the Investigating Officer concerned. It is made clear that the abovesaid findings and observations have been made by this Court only in the context of deciding the issue relating to the quashment of the impugned criminal proceedings and nothing in this judgment will preclude the 2 nd respondent from initiating any civil proceedings as against the petitioner, in accordance with law and subject to the law of limitation, in which case, such civil proceedings will have to be adjudicated and decided, in accordance with law and uninfluenced and untrammelled in any manner by the observations and findings made by this Court hereinabove.
With these observations and directions, the above Crl.M.C will stand disposed of.
Sd/-
ALEXANDER THOMAS JUDGE vgd Crl.M.C.No.7743 of 2018 13 APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A1 TRUE COPY OF THE RELEVANT EXTRACT OF
REGISTER OF PETITIONS KEPT AT MUVATTUPUZHA
POLICE STATION ISSUED UNDER RIGHT TO
INFORMATION ACT.
ANNEXURE A2 TRUE COPY OF THE EXTRACT OF GENERAL DIARY
ENTRY KEPT AT MUVATTUPUZHA POLICE STATION
ISSUED UNDER RIGHT TO INFORMATION ACT.
ANNEXURE A3 TRUE COPY OF THE FIRST INFORMATION REPORT
DATED 29-09-2018 IN CRIME NO 2765/2018 OF
MUVATTUPUZHA POLICE STATION, ERNAKULAM
DISTRICT.