Important points:
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.

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. 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 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