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2020 DIGILAW 894 (KER)

Santhosh, S/o Chandran v. State Of Kerala

2020-10-23

ALEXANDER THOMAS

body2020
ORDER : The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C is as follows: “To quash Annexure A1 final report in Crime No.159 /2019 of Kollengode Police Station and all further proceedings in SC 783/2019 of Special Court for SC/ST (POA), Mannarkad and orders may be passed accordingly.” 2. Heard Sri.K. Mohanakannan, learned counsel appearing for the petitioner (accused), Sri.B. Jayasurya, learned Public Prosecutor appearing for R1-State of Kerala and Sri.Navaneeth D. Pai, learned counsel appearing for contesting respondent No.2 (lady de facto complainant). 3. The petitioner herein has been arrayed as the sole accused in the instant crime No.159 of 2019 of Kollengode Police Station, Palakkad District for offences punishable under Section 376(2)(n) of the IPC and Sections 3(1)(w)(i) and 3(2)(v) of Scheduled Castes /Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended in 2015, on the basis of the First Information Statement given by the 2nd respondent (lady de facto complainant) on 06.04.2019 in respect of the alleged incidents which are said to have taken place for the period from July 2012 to February 2019. The Police after investigation have filed the impugned Annexure A1 final report/ charge sheet in the abovesaid crime No.159 of 2019 of Kollengode Police Station for the abovesaid offences, which is now pending as SC No.783 of 2019 on the files of Special Court for SC/ST (POA Act) cases, Mannarkkad, Palakkad District. 4. Section 3 (1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended reads as follows: “3. 4. Section 3 (1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended reads as follows: “3. Punishments for offences of atrocities -(1) whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx (f) xxx (g) xxx (h) xxx (i) xxx (j) xxx (k) xxx (l) xxx (m) xxx (n) xxx (o) xxx (p) xxx (q) xxx (r) xxx (s) xxx (t) xxx (u) xxx (v) xxx (w)(i) Intentionally touches a woman belonging to a Scheduled Caste or a Scheduled Tribe, knowing that she belongs to a Scheduled Caste or a Scheduled Tribe, when such act of touching is of a sexual nature and is without the recipient's consent;” Section 3(2)(v) of the abovesaid Act reads as follows: “(2) Whoever, not being a member of a Scheduled Caste or a Scheduled Tribe,- (i) xxx (ii) xxx (iii) xxx (iv) xxx (v) commits any offence under the Indian Penal Code (45 of 1860) punishable with imprisonment for a term of ten years or more against a person or property knowing that such person is a member of a Scheduled Caste or a Scheduled Tribe or such property belongs to such member, shall be punishable with imprisonment for life and with fine;” 5. The petitioner seeks quashment of the impugned criminal proceedings on two main grounds. The petitioner seeks quashment of the impugned criminal proceedings on two main grounds. The first ground is that even if it is assumed that the alleged sexual incidents made out in the impugned Annexure A1 final report/charge sheet as well as the FIR are broadly assumed to be true, then it can be seen that the said incidents would have happened only on the basis of consent between parties and that the contention that the consent of the woman was obtained on the basis of misconception of facts, as understood in Explanation 2 of Section 376 of the IPC and Section 90 of the IPC, is untenable for the simple reason that even going with the version of the 2nd respondent, she was married at the time of the alleged relationship between her and the petitioner/accused and that therefore, the alleged promise made to a married woman that the accused would marry her after she secures divorce from her husband, is a promise which is not enforceable in law and would be an agreement, which would go against public policy and morals as envisaged in Section 23 of the Indian Contract Act, etc. The second contention is that subsequently, the disputes between the parties have been satisfactorily resolved and that the petitioner has now married the 2nd respondent and that in view of these extenuating circumstances, the impugned criminal proceedings is liable for quashment etc. 6. Before dealing with the facts of the case, as regards the first contention, it will be pertinent to refer to the legal principles laid down by the Apex Court and various High Courts including this Court about the fine and substantial distinction between forcible sexual intercourse so as to constitute the offence of rape as per Section 375 of the IPC which is punishable as per Section 376 of the IPC on the one hand, and consensual sexual relationship between parties. 7. 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. 7. 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 , wherein it has been held that where a 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 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. 8. A Division Bench of the Calcutta High Court in the case in Jayanti Rani Panda v. State Of W.B. & anr. 8. A Division Bench of the Calcutta High Court in the case in Jayanti Rani Panda v. State Of W.B. & anr. [1984 Cri LJ 1535 = 1984 KHC 1148] has held (paragraph No.7 thereof) that unless a strong case is made out to show that the accused had no intention to marry the complainant right from the commencement of the relationship, it may not be tenable to put up a case that the consent to have sexual relationship was obtained on the basis of misconception of fact and further that when two full grown adults consent to act sexual intercourse on the basis of an alleged promise of marriage and continue to indulge in such activities, then ordinarily it is to be only held that said relationship is only on account of the promiscuity of such persons and cannot be said that such act has been induced on the woman by misconception of fact and that Section 90 of the IPC cannot be called in aid in such a case unless the court can be assured that from the very inception the accused never really intended to marry her etc. 9. Now it will be pertinent to refer to the nature of the allegations raised in the impugned criminal proceedings at Annexure A1. The specific case of the 2nd respondent in the impugned criminal proceedings at Annexure A1 is to the effect that she had already married another person and had a child in that marital relationship and that some time from July 2012 onwards, the petitioner/accused had befriended her and after knowing fully well that the 2nd respondent is a married lady having a child and also knowing that the 2nd respondent belongs to SC Community and that the petitioner does not belong to the Scheduled Caste Community, had assured and given a promise to her that he would marry her after she secures divorce from her husband and that based on the said assurance, they had entered into sexual relationship for quite some time for the period from July 2012 to February 2019 on various occasions as on a day in July 2012, on a day in the last week of August 2017, on a day in February 2019, etc. and that later the petitioner had stopped the affair and that she had given her consent to have sexual relationship with the petitioner on the assurance of the petitioner that he would marry her, etc. and that petitioner has thus committed the abovesaid offences. Even going by the admitted case of the 2nd respondent, she is already a married woman having a child and that the petitioner knew that she was already married and that she belongs to Scheduled Caste Community and that it is only on the basis of his promise that he would marry her after she secures divorce from her husband that she had entered into sexual relationship with the petitioner on various occasions as narrated in the impugned criminal proceedings etc. Even if it is assumed that the abovesaid allegations are broadly true, then it has to be noted that the alleged promise said to have been made by the accused to a married woman having a child and that too, during the subsistence of her marital issue with her husband that the accused would marry her after she secures divorce and that on the basis of this assurance, they had entered into sexual relationship etc., would clearly lead to a situation, wherein it has to be held that such an alleged promise said to have been made by the accused to a married lady that he would marry her after she secures divorce and that on this basis, they had entered into sexual relationship etc. cannot be said to be an agreement which is enforceable in law, as such an agreement, if any, arrived at between the parties is certainly opposed to public policy and morals and is unconscionable as envisaged in Section 23 of the Indian Contract Act. Such an unenforceable promise cannot be the basis for the de facto complainant and the prosecution to contend that the consent of the woman was obtained on the basis of misconception of facts as understood in Section 90 of the IPC. Therefore, the entire case built up by the prosecution that the consent of the woman was obtained on the basis of misconception of facts, would crumble to ground in view of the admitted case of the prosecution that the understanding was arrived at between the accused and the 2nd respondent who is a married woman having a child, etc. Therefore, the entire case built up by the prosecution that the consent of the woman was obtained on the basis of misconception of facts, would crumble to ground in view of the admitted case of the prosecution that the understanding was arrived at between the accused and the 2nd respondent who is a married woman having a child, etc. Therefore, going by the totality of the facts and circumstances of the case, it is only to be held that even if it is assumed that the allegations of sexual incidents are broadly true, then it is to be only held that such incidents would have happened only on the basis of consent between the parties. So it is only to be held that the very foundation of the allegations to sustain the offence as per Section 375 of the IPC will crumble to the ground. In the light of these aspects, it is only to be held that the initiation and continuance of the impugned criminal proceedings at Annexure A1 is thus liable for interdiction at the hands of this Court in exercise of the inherent powers under Section 482 of the Cr.P.C for the simple reason that otherwise the continuance of the impugned criminal proceedings would be nothing but an abuse of the process of court and would amount to sheer wastage of the precious resources and time of the judicial organs, the prosecution machinery and the investigation machinery. Hence, the plea of the petitioner for quashment of the impugned criminal proceedings is to be allowed only on this short ground. 10. Now it is to be noted that the second contention of the petitioner is that the impugned criminal proceedings be quashed in view of the extenuating circumstances arising out of the subsequent marriage between the petitioner and the 2nd respondent. The submission is made on behalf of the petitioner and the respondents that the petitioner has subsequently married the 2nd respondent after she has obtained divorce from her first husband and that their marriage has been solemnized on 31.05.2019 at the Sree Ramapuram Vishnu Temple, Vadakkanthara, Palakkad and the said solemnized marriage has been duly registered before the local Marriage Registrar in terms of Rule 11(1) of the Kerala Registration of Marriages (Common) Rules, 2008. Annexure A2 is the copy of the said marriage certificate dated 31.05.2019 issued by the local Registrar of Marriages under the provisions of the said Rules evidencing the factum of the solemnization of the marriage between the parties on 31.05.2019. Further it is submitted by the counsel for the petitioner and the counsel for the 2nd respondent that the 2nd respondent has sworn to an affidavit as per Annexure A3 on 31.07.2020 stating that her entire disputes and grievances with the petitioner have been resolved and that subsequently she has married the petitioner on 31.05.2019 as aforestated and that they are leading a happy married life and that she has no objections in the quashment of the impugned criminal proceedings and that otherwise her future marital life with the petitioner may be detrimentally affected if the petitioner, who is now her husband, is prosecuted etc. 11. The learned Public Prosecutor was requested to get instructions in the matter and today, when the matter was taken for consideration, Sri.B.Jayasurya, learned Prosecutor would submit that he has been instructed by the investigating officer to submit that the investigating officer has conducted an enquiry and has recorded the statement of the 2nd respondent, who has stated that the facts stated in Annexure A3 affidavit are true and that she has already married the petitioner on 31.05.2019 and that she is now leading a happy married life with him and that she is now pregnant and is thus in the family way. 12. In this regard, it has to be borne in mind that it is by now well settled that ordinarily it may not be right and proper for this Court to consider the quashment of serious and grave offence of rape as envisaged under Section 376 of the IPC solely on the ground of settlement between parties [see Shimbhu v. State of Haryana (2014) 13 SCC 318 , Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641 , Anita Maria Dias v. State of Maharashtra, (2018) 3 SCC 290 , Sebastian @ Solly v. State of Kerala, 2015 (1) KLJ 384 , etc.]. 13. 13. However, this Court has held that there could be certain exceptional and extenuating circumstances, where the accused has promised the woman, the lady de facto complainant, that he would marry her and that in a case where the allegation is that the accused had sexual relationship after giving assurance to the lady regarding marriage, etc., then where the accused subsequently marries the lady de facto complainant and such marriage is on the basis of the volition and consent of the lady without any fraud or coercion, then the plea for quashment of the offence as per Section 376 of IPC could be considered in appropriate cases. (see Freddy @ Antony Francis & Another v. State of Kerala & Another [ 2017 KHC 344 = 2018 (1) KLD 558 ] and Denu P Thampi v. Ms.X & Another [ 2019 (3) KHC 199 = 2019 (2) KLT 996 ]). Hence, the plea for quashment could also be considered on the basis of extenuating circumstances now stated by the petitioner and the 2nd respondent that they are subsequently married as evident from Annexure A2 marriage registration certificate etc. 14. For all these reasons and taking into account the totality of the facts and circumstances of this case, it is thus ordered in the interest of justice that the impugned Annexure A1 final report/charge sheet filed in crime No.159 of 2019 of Kollengode Police Station, Palakkad district, which has now led to the pendency of Sessions case SC No.783 of 2019 on the files of Special Court for SC/ST (POA Act) cases, Mannarkad, Palakkad district as against the petitioner and all further proceedings emanating therefrom, as against the petitioner/accused will stand quashed and set aside. The Petitioner will produce certified copies of this order before the investigating officer concerned as well as the abovesaid Special Sessions Court concerned for necessary information. With these observations and directions, the abovesaid Criminal Miscellaneous Case will stand disposed of.