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KERALA HIGH COURT
Dr. Kauser Edappagath, J.
Sreekanth Sasidharan – Petitioner
versus
State of Kerala represented by the
Public Prosecutor and Ors. – Respondents
Crl.M.C.No.9201 of 2019
Decided on 6.10.2022
(A) Criminal Procedure Code, 1973 – Section 482 read with Article 226 of Constitution of India – Quashing of criminal case – Ends of justice are higher than ends of mere law though justice has got to be administered according to laws made by Legislature – While exercising inherent power of quashing under S.482, it is for High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in interest of justice to permit a prosecution to continue – Where in opinion of Court, chances of ultimate conviction are bleak and no useful purpose is likely to be served by allowing criminal prosecution to continue, Court may, while taking into consideration special facts of a case, also quash proceedings. (Paras 6 and 7)
(B) Indian Penal Code, 1860 – Sections 375/376, 406 and 420 read with Section 90 – Criminal Procedure Code, 1973 – Section 482 read with Article 226 of Constitution of India – Quashing of criminal case – Rape on false promise of marriage, criminal breach of trust and cheating – Misconception of fact – If a man retracts his promise to marry a woman, consensual sex they had will not constitute offence of rape under Section 376 of IPC unless it is established that consent for such sexual act was obtained by him by giving false promise of marriage with no intention of being adhered to and that promise made was false to his knowledge – Prosecution must lead positive evidence to give rise to inference beyond reasonable doubt that accused had no intention to marry prosecutrix at all from very inception – Fact that respondent is having relationship with petitioner since 2010 and she continued relationship knowing about his marriage from 2013 onwards would nullify story regarding sexual intercourse on false pretext of marrying her – Alleged sex can only be termed as one on account of love and passion for petitioner and not on account of misrepresentation made to her by petitioner – Even if facts set out in FI Statement are accepted in totality, no offence u/s 375 of IPC has been made out – There is no allegation that there was intention to deceive on part of petitioner at the time of handing over money and gold ornaments – No fraudulent or dishonest inducement under pretext of marriage can be revealed to attract offence under Section 406 or 420 of IPC – Offences under Sections 406 and 420 of IPC are also not attracted – No useful purpose will be served by allowing criminal prosecution against petitioner to continue – All further proceedings quashed. (Paras 11, 15 and 16)
Result: Criminal Miscellaneous Petition allowed.
The allegations indicate that both the petitioner and the de facto complainant, being adults, voluntarily engaged in a relationship and maintained it over a significant period. There is no evidence of force, coercion, or undue influence at the outset. Criminal proceedings should not be initiated solely because a relationship fails or does not result in a marriage. When the relationship is consensual and both parties are adults, such matters do not amount to an offence under criminal law, as the law recognizes the autonomy of adults to enter into consensual relationships.
ORDER
This Crl.M.C has been filed to quash Annexure A1 FIR in Crime No.401/2019 of Peramangalam Police Station u/s 482 of the Code of Criminal Procedure (Cr.P.C.).
2. The petitioner is the accused. The 4th respondent is the victim/defacto complainant. The offences alleged against the petitioner are punishable under Sections 406, 420 and 376 of IPC.
3. The prosecution case, in short, is that during the period between 2010 to 31st March 2019, the petitioner, by giving a false promise of marriage to the 4th respondent, had sexual intercourse with her in several places in India and abroad and thereby committed the offence of rape. It is further alleged that during the period of their good relationship, the petitioner dishonestly induced the 4th respondent to deliver an amount of Rs.15,00,000/- and five sovereigns of gold and committed the offence of cheating and criminal breach by not returning the money and gold.
4. I have heard Sri.Lal K.Joseph, the learned counsel for the petitioner, Sri.S.Sreekumar, the learned Senior Counsel for the 4th respondent and Smt.T.V.Neema, the learned Senior Public Prosecutor.
5. The learned counsel for the petitioner Sri. Lal K. Joseph submitted that the criminal proceedings in Annexure A1 FIR has been initiated against the petitioner falsely and maliciously with an ulterior motive and not based on real facts. The counsel further submitted that the allegations made in Annexure A1(a) FI statement together with the materials collected during investigation, even if taken at their face value, do not prima facie constitute any offence or did not make any case against the petitioner. Per contra, Sri.S.Sreekumar, the learned Senior Counsel for the 4th respondent submitted that Annexure A1(a) FI statement discloses serious allegations of sexual assault against the petitioner and that it is impermissible to quash criminal proceedings u/s 482 of Cr.P.C when there are serious triable allegations in the complaint. The learned Senior Public Prosecutor Smt. T.V. Neema submitted that the ingredients of the offences alleged are attracted and when a prima facie case is made out, the jurisdiction vested with this court u/s 482 of Cr.P.C cannot be invoked.
6. The scope and ambit of the power by the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India to quash the FIR/investigation has been expounded by the Apex Court in a catena of decisions. In Kurukshetra University v. State of Haryana (1977 KHC 711), the Apex Court observed and held that inherent powers under Section 482 Cr.P.C. do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice; that statutory power has to be exercised sparingly, with circumspection and in the rarest of rare cases. In State of Karnataka v. L. Muniswamy and Others [(1977) 2 SCC 699], considering the scope of inherent power of quashing under S.482, the Apex Court held that in the exercise of this wholesome power, the High Court is entitled to quash proceedings if it concludes that ends of justice so require. It was observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. In Madhavrao Jiwajirao Scindia and Others v. Sambhajirao Chandrojirao Angre and Others [(1988) 1 SCC 692], it was held that while exercising inherent power of quashing under S.482, it is for the High Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. Where in the opinion of the Court, chances of an ultimate conviction are bleak and, therefore, no useful purpose is
(1) Quashing of criminal case – Ends of justice are higher than ends of mere law though justice has got to be administered according to laws made by Legislature.(2) Misconception of fact – If a man r....
Consent obtained under a misconception of fact does not constitute valid consent under Section 90 IPC; a consensual relationship does not amount to rape.
Section 375 of IPC states that a man is said to commit rape if he has had any form of sexual intercourse without consent of a woman.
(1) Exercise of inherent jurisdiction – High Court does not have to go in detail by way of minute examination about correctness or otherwise of facts alleged – Court has to examine the same by taking....
Consent under Section 375 cannot be considered valid if based on a false promise of marriage if the promise was not made with fraudulent intent from the outset. Subsequently, a prolonged consensual r....
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