ORDER :

1. This Crl.M.C. has been filed seeking to quash Annexure-A4 final report in Crime No.165/2019 of Kasargod Police Station. Petitioner is the sole accused in the said crime which has been registered under Sections 366, 376 and 506(1) of IPC.

2. It is alleged that the accused got acquaintance through face book with the defacto complainant, who has been living separate from her husband. Thereafter, he made her believe that he would give parental protection to her child. Subsequently, on 02.3.2019 he took her from Neeleswaram on his bike bearing registration No.59 S-179 to Kasaragod at Anakkuur to a lodge. Thereafter, he took room No.205 in the said lodge and had sexual intercourse with the defacto complainant in between 12.00 hours and 16.30 hours on several occasions. Thereby, the accused committed offences punishable under Sections 366, 376 and 506(1) of IPC.

3. Annexure-A1 is the copy of FIR. Annexure-A2 is a copy of complaint given to the Police. Annexure-A3 is the copy of FIS. Annexure-A4 is the certified copy of the final report.

4. According to the learned counsel for the petitioner, even if the entire allegations made in the FIR, FIS and her statement are accepted, an offence under Section 376 IPC will not attract. She is a married woman having a daughter. The prosecution case itself is that though she had been living separate from her husband, no divorce has been obtained. According to him the allegations in the complaint and FIS would only go to show that there exists consensual act of sexual intercourse between the petitioner and defacto complainant. Hence, the alleged offence will not attract.

5. The learned Public Prosecutor on the other hand would contend that there is no delay in filing the complaint and she was living separate from her husband and there was a promise of marriage by the petitioner and thereafter a forceful act has been committed. There are materials to attract the offence against the petitioner.

6. Learned counsel for the petitioner placed reliance on Maheshwar Tigga v. Sate of Jharkhand [2020(10) SCC 108]. In that case accused was charged under Sections 90, 375, 376, 323 and 341 of the I.P.C. where in it has been held that consent given under misconception of fact is no consent in the eye of law. In that case prosecution was that before 4 years of lodging the FIS accused outraged the modesty of victim at point of a knife. He had since been promising to marry her and on that pretext continued to establish physical relations with her as husband and wife. Paragraph No.20 and 25 of the above decision was highlighted by the learned counsel which reads thus:

“20. We have no hesitation in concluding that the consent of the prosecutrix was but a conscious and deliberated choice, as distinct from an involuntary action or denial and which opportunity was available to her, because of her deepseated love for the appellant leading her to willingly permit him liberties with her body, which according to normal human behaviour are permitted only to a person with whom one is deeply in love. The observations in this regard in Uday (supra) are considered relevant:

25. It usually happens in such cases, when two young persons are madly in love, that they promise to each other several times that come what may, they will get married. As stated by the prosecutrix the appellant also made such a promise on more than one occasion. In such circumstances the promise loses all significance, particularly when they are overcome with emotions and passion and find themselves in situations and circumstances where they, in a weak moment, succumb to the temptation of having sexual relationship. This is what appears to have happened in this case as well, and the prosecutrix willingly consented to having sexual intercourse with the appellant with whom she was deeply in love, not because he promised to marry her, but because she also desired it. In these circumstances it would be very difficult to impute to the appellant knowled