Important points:
The sexual relationship entered into by two full grown adults, can be only on the basis of promiscuity and passions to have their mutual companionship, which also is inclusive of sexual relationship. Such a scenario cannot be the basis to contend that the vital ingredients of rape as per Sec.375 of the IPC are fulfilled and that the accused is to be prosecuted for the said offence.

ORDER :

1. The prayers in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C are as follows:

“(i) quash all further proceedings against the petitioner in Annexure-A final report in Crime No.2002/2018 of Kadakkal Police Station, now pending before the Assistant Sessions Court, Kottarakkara as S.C.No.1324/2019 as it is an abuse of process of court or

(ii) issue such other order or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”

2. Heard Sri.K.V.Anil Kumar, learned counsel appearing for the petitioner/accused, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1st respondent and Sri.M.K.Mohanan, learned counsel appearing for contesting respondent No.3 (lady de facto complainant).

3. The petitioner has been arrayed as the sole accused in the instant Crime No.2002/2018 of Kadakkal Police Station, Kollam, which has been registered for offences punishable under Sec.376 of the Indian Penal Code on 14.11.2018 on the basis of the First Information Statement given by the 3rd respondent-lady de facto complainant on that day in respect of the alleged incidents, which were said to have happened about six years prior to 16.04.2018. The police after investigation has filed the impugned Annexure-A final report/charge sheet in the abovesaid crime No.2002/2018 of Kadakkal Police Station and the case has been committed to the sessions court concerned and thereafter, the case is now pending as sessions case S.C.No.1324/2019 on the file of the Assistant Sessions Court, Kottarakkara. The petitioner seeks quashment of the impugned criminal proceedings. Now it is submitted by the petitioner that the entire disputes between the petitioner and the 3rd respondent have been resolved and that the 3rd respondent has filed Annexure-B affidavit dated 20.12.2019 stating that she does not wish to continue with the impugned proceedings and that the petitioner has agreed to give maintenance to her and to the child, etc. Further, the learned counsel for the petitioner would point out that even if, the allegations raised in the impugned criminal proceedings by the 3rd respondent are assumed to be broadly correct, then it can be seen that the said sexual incidents if any, would have occurred only on the basis of consent between the parties and not otherwise.

4. It is by now well settled that it may not be right and proper for this Court ordinarily quash serious and grave offence of rape as per Sec.375 of the IPC, solely on the ground of settlement between the 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.]. However, this Court has held in decisions as in Freddy @ Antony Francis v. State of Kerala [2017 KHC 344 = 2018 (1) KLD 558], Denu P.Thampi v. Ms.X [2019 (3) KHC 199 = 2019 (2) KLT 996] that in a case where the petitioner/accused has married the respondent-lady victim and they have started their married life, then in appropriate cases, this Court could exercise its discretion conferred under Sec.482 of the Cr.P.C to quash offences, as per Sec.376 of the IPC on the ground that the victim has subsequently married the accused, as otherwise and where it is ascertained that the marriage was on the basis of consent of the parties and not on the basis of any coercion or threat on the victim, etc.

5. However, the main ground urged by the petitioner is that even going by the admitted prosecution materials, more particularly, the statements of the 3rd respondent given to the District Agency, it can be seen that even if, it is assumed that the alleged sexual incidents are broadly correct, then it would have happened only on the basis of consent between the parties and therefore, it does not constitute the vital ingredients of the offence of rape as per Sec.375 of the IPC, which is punishable und