ORDER :

This Crl.M.C has been filed to quash Annexures A1 FIR and A2 Final Report in Crime No.3516/2017 of Kollam East Police Station u/s 482 of the Code of Criminal Procedure (Cr.P.C).

2. The petitioner is the accused. The 2nd respondent is the victim/defacto complainant. The offences alleged against the petitioner are punishable under Sections 417, 354 A, 354B and 376 of IPC.

3. The prosecution case in short is that the petitioner by giving false promise of marriage to the 2nd respondent, sexually assaulted her at several places in Palakkad and Coimbatore. It is further alleged that the petitioner later on withdrew from his promise to marry the 2nd respondent and also made preparation to marry another girl.

4. I have heard Sri C.S. Sumesh, the learned counsel for the petitioner, Smt K.V. Rashmi, the learned counsel for the 2nd respondent and Sri C.N. Prabhakaran, the learned senior public prosecutor.

5. The learned counsel for the petitioner Sri C.S. Sumesh submitted that even if the entire allegations in the FI statement together with the materials collected during investigation are believed in its entirety, no offence under Sections 376, 354A, 354B and 417 of IPC is made out. The learned counsel further submitted that the statement given by the victim reveals that the petitioner and the 2nd respondent were in love and the alleged sexual relationship they had was only consensual in nature. The learned Public Prosecutor submitted that the FI statement given by the victim would show that the ingredients of the offence of rape and cheating have been attracted and when prima facie case is made out, the jurisdiction vested with this Court under Section 482 of Cr.P.C cannot be invoked.

6. I went through the FI statement in detail. The reading of the FI statement would show that both the petitioner and the 2nd respondent worked together in a T.V. serial called ‘Akashadooth’ and fell in love. The statement would further show that they voluntarily went to several places and stayed in hotels at Palakkad and Coimbatore and had consensual sexual relationship. In the meanwhile, petitioner went abroad, gradually relation broke down, thereafter the 2nd respondent came to know about the marriage of the petitioner with another girl, the 2nd respondent was strained on account of the same and lodged the complaint.

7. Section 375 of IPC, inter alia states that a man commits rape if he has had any form of sexual intercourse with a woman without her consent. Consent is at the center of the offence of rape. If we analyze Section 375 of IPC, there is no such mention of the consent obtained under the false promise of marriage. Section 90 of IPC refers to the expression ‘consent’. Section 90, though, does not define ‘consent’, describes what is not consent. It says that ‘consent’ is not consent if it is given by a person under a misconception of fact and if the person doing the act knows or has reason to believe that the consent was given in consequence of such misconception. Relying on this, the courts have interpreted the word ‘consent’ in the description 'secondly' under Section 375 of IPC, i.e., 'without her consent', and held that any consent given under a misconception of fact is vitiated. Explanation 2 to Section 375 of IPC refers to the form of consent. It specifically says that consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act. Thus, if the consent as described in Explanation 2 could be made out from the statement of the victim, the offence under Section 375 of IPC cannot be said to be attracted. The Apex Court in Deepak Gulati v. State of Haryana [(2013) 7 SCC 675] and in Dhruvaram Murlidhar Sonar (Dr) v. State of Maharashtra (AIR 2019 SC 327) drawing distinction between rape and consensual sex observed that the court must very carefully examine whether the complainant had actually wanted to marry