Kerala High Court
Xxxxxx vs State Of Kerala on 25 October, 2024
2024:KER:78080
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.MC NO. 7742 OF 2023
CRIME NO.572/2023 OF CHERTHALA POLICE STATION, ALAPPUZHA
IN C.P. NO.37 OF 2023 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHERTHALA
PETITIONER/ACCUSED:
XXXXXXXXXX
BY ADV VIVEK VENUGOPAL
RESPONDENTS/STATE & DEFACTO COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682031
2 XXXXXXXXXX
XXXXXXXXXX XXXXXXXXXX
BY ADV ANEESH K.R
SR PP - RENJIT GEORGE
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.10.2024,
THE COURT ON 25.10.2024 PASSED THE FOLLOWING:
2024:KER:78080
Crl.M.C. No. 7742 of 2023
2
ORDER
Dated this the 25th day of October, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, to quash all further proceedings pursuant to Annexure-1 Final Report in C.P. No.37 of 2023 on the files of the Judicial First Class Magistrate Court-I, Cherthala [now pending as S.C. No.1239/2023 on the files of the Fast Track Special Court, Cherthala] arose out of Crime No.572/2023 of Cherthala Police Station, Alappuzha. The petitioner herein is the accused in the above case.
2. Heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant, in detail. Perused the relevant materials available.
3. The prosecution case is that, the accused, who maintained love affair with the defacto complainant, promised to marry her and on the said promise, the accused used to take her for dance programs. While so, the affair was informed to the family members of both parties 2024:KER:78080 Crl.M.C. No. 7742 of 2023 3 and accordingly both of them agreed to solemnize their marriage. In continuance of the affair, the accused tied 'thali' to the defacto complainant infront of a temple in Thrissur. On that day, the accused compelled the defacto complainant to stay at a lodge. While staying together, the accused subjected her to sexual intercourse on the promise of marriage, after giving her alcohol. He repeated the overt acts on several occasions, on the promise of marriage. Thereafter, the defacto complainant informed the accused that she need some time to continue her studies. But the accused reached the house of the defacto complainant and insisted for the marriage, immediately. Later, the accused left the place stating that no further time would be given to solemnize the marriage. Then, during the month of April, 2021, it is understood that, the marriage of the accused was fixed with another lady and the same was later solemnized on 14.07.2022. Thus, the prosecution alleges commission of offence punishable under Section 376(2)(n) of Indian Penal Code, by the petitioner.
4. While seeking quashment of the proceedings, the learned counsel for the petitioner would submit that, going 2024:KER:78080 Crl.M.C. No. 7742 of 2023 4 by the 161 statement given by the defacto complainant itself, readiness of the petitioner/accused to marry her has been stated and the marriage could not be solemnized because of time sought for by the defacto complainant and her mother. According to the learned counsel for the petitioner, since the petitioner was ready to marry the defacto complainant and time sought for by the mother of the defacto complainant are the reasons for non performance of the marriage with defacto complainant as offered and subsequent marriage of the accused with another lady, therefore consent obtained on the promise of marriage to have coitus is not vitiated. He also would submit that, though the defacto complainant came to know about the fixation of marriage of the accused during April, 2021 and the same was solemnized on 14.07.2022, she did not lodge any complaint then. Later, the wife of the petitioner filed a complaint against the defacto complainant regarding her threat and in this connection the Police called all the parties and recorded an entry in the petition register to the effect that the defacto complainant would not disturb the wife of the petitioner and family members. Annexure.4 2024:KER:78080 Crl.M.C. No. 7742 of 2023 5 is the copy of the petition register. The learned counsel for the petitioner also would submit that, after recording the entry in Annexure.4 as on 04.02.2023, at a belated stage i.e. on 26.04.2023, complaint has been lodged by the defacto complainant. The learned counsel for the petitioner submitted that the relationship between the defacto complainant and the accused and the sexual intercourse, if any, are the outcome of consent. Therefore, the offence punishable under Section 376(2)(n) would not attract, prima facie. He has placed a decision of the Apex Court reported in Sonu v. State of Uttar Pradesh [2021 ICO 308 : AIR 2021 SC 4105 : (2021) 18 SCC 517] with reference to paragraph Nos. 8 to 11. In the said decision the Apex Court summarized the legal position as under:
"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 2024:KER:78080 Crl.M.C. No. 7742 of 2023 6 itself must be of immediate relevance, or bear a direct nexus to the woman's decision to engage in the sexual act.
Bearing in mind the tests which have been enunciated in the above decision, we are of the view that even assuming that all the allegations in the FIR are correct for the purposes of considering the application for quashing Under Section 482 of Code of Criminal Procedure, no offence has been established. There is no allegation to the effect that the promise to marry given to the second Respondent was false at the inception. On the contrary, it would appear from the contents of the FIR that there was a subsequent refusal on the part of the Appellant to marry the second Respondent which gave rise to the registration of the FIR. On these facts, we are of the view that the High Court was in error in declining to entertain the petition Under Section 482 of Code of Criminal Procedure on the basis that it was only the evidence at trial which would lead to a determination as to whether an offence was established.
5. Zealously opposing quashment of the proceedings, it is submitted by the learned counsel for the defacto complainant that, the petitioner herein maintained 2024:KER:78080 Crl.M.C. No. 7742 of 2023 7 love affair with the defacto complainant and promised to marry her. In continuation of the said promise, she was subjected to sexual intercourse by the petitioner/accused. Even though the petitioner demanded immediate marriage, the mother of the defacto complainant sought for a short gap and in the meantime, infuriated by the immediate demand for marriage, the petitioner fixed his marriage with another lady, during April, 2021 and accordingly he married another lady on 14.07.2022.
6. The learned counsel for the defacto complainant would further submit that, since the sexual intercourse is the outcome of promise of marriage and the petitioner who insisted for marriage, without providing time for the defacto complainant's mother to solemnize the same, gone in search of another alliance and married another lady on 14.07.2021, the consent is vitiated by misconception of facts and in such a case, the quashment of the proceedings sought for could not be considered.
7. The learned Public Prosecutor also shared the argument of the learned counsel for the defacto complainant and submitted that, going by the allegations, 2024:KER:78080 Crl.M.C. No. 7742 of 2023 8 consent is a matter of evidence and in such a case, quashment of the proceedings, arresting the prosecution to let in evidence could not be considered.
8. On perusal of the prosecution case, it is discernible that the accused/petitioner maintained love affair with the defacto complainant and promised to marry her. On the said promise, the accused used to take her for dance programs. While so, the affair was informed to the family members of both parties and accordingly both of them agreed to solemnize their marriage. In continuance of the affair, the accused tied 'thali' to the defacto complainant infront of a temple in Thrissur. On that day, the accused compelled the defacto complainant to stay at a lodge. While staying together, the accused subjected her to sexual intercourse on the promise of marriage, after giving her alcohol. He repeated the overt acts on several occasions, on the promise of marriage. Thereafter, the defacto complainant informed the accused that she need some time to continue her studies. But the accused reached the house of the defacto complainant and insisted for the marriage, immediately. Later, the accused left the 2024:KER:78080 Crl.M.C. No. 7742 of 2023 9 place stating that no further time would be given to solemnize the marriage. Even though, the learned counsel for the petitioner would submit that, the petitioner expressed his readiness to marry the defacto complainant and therefore, there is no vitiation of consent for the coitus in between the petitioner and the defacto complainant, it is discernible from the materials that, the accused/petitioner married another lady, ignoring the short time sought for by the mother of the defacto complainant to solemnize the marriage in a hurry-burry manner.
9. In such a case, it could not be held that the readiness shown by the accused/petitioner to marry the defacto complainant is bonafide and in fact, he made use of the time sought for by the mother to conduct the marriage as an opportunity to leave the defacto complainant and to marry another lady. In such view of the matter, consent is a matter of evidence and this Court cannot consider the same in a proceedings under Section 482 of the Cr.P.C. Therefore, this petition would necessarily fail.
10. In the result, this petition stands dismissed. Interim order of stay in this matter stands vacated.
2024:KER:78080 Crl.M.C. No. 7742 of 2023 10 Registry is directed to forward a copy of this order to the trial court, within three days, for information.
Sd/-
A. BADHARUDEEN JUDGE SK