IMPORTANT POINT
Consent in sexual offences cannot be deemed vitiated unless the promise to marry was false at inception and intended to deceive, which was not established in this case.

ORDER :

(C. JAYACHANDRAN, J.)

The petitioners herein are accused nos.1 to 3 in Crime No.867/2023 of Kannapuram Police Station, Kannur. The offences alleged are under Section 376, 376(2)(l), 376(2) (n), 417 and 420, read with Section 34 of the Penal Code. The petitioners seek quashment of the crime and all further proceedings therein, including the Final Report, on the premise that the matter has been settled by and between the petitioners and the defacto complainant/3^rd respondent. It is also the contention raised by the learned counsel for the petitioners that the allegations in the Final Report, taken on its face value, will not constitute the offences alleged.

2. Heard the learned counsel for the petitioners; learned counsel for the 3^rd respondent/defacto complainant and the learned Public Prosecutor.

3. Learned counsel for the petitioners submitted that there was an intimate love affair between the 1^st petitioner and the 3^rd respondent for a period of more than two years and that their marriage was about tobe solemnized, at which point of time, there arose a difference of opinion between the families. The physical relationship between the 1st petitioner and the 3rd respondent was nothing, but consensual. It is a misconception to allege that the consent was vitiated by a promise to marry extended by the 1st petitioner. Such contention is squarely in the teeth of the judgment of the Hon'ble Supreme Court in Pramod Suryabhan Pawar v. State of Maharashtra and another [(2019) 9 SCC 608]. Above all, learned counsel would submit that the issue has been settled by and between the petitioners and the 3rd respondent in the mediation conducted pursuant to the directions issued by this Court, when the petitioners sought pre-arrest bail. A sum of Rs.4.5 lakhs was given by the petitioners to the 3rd respondent, as per the terms of the mediation settlement. An affidavit has been sworn to by the 3rd respondent indicating the factum of settlement and also acknowledging the receipt of the sum above referred. Moreover, a statement was recorded by the Investigating Officer pursuant to the direction of this Court, which would also vouch the factum of settlement and also receipt of the money. In such circumstances, no profitable purpose is going to be served by continuing the prosecution, except an abuse of process of Court, is the submission made by the learned counsel for the petitioners. On such premise, petitioners seek, the crime and all further proceedings thereto to be quashed.

4. Learned Public Prosecutor had not opposed, as such, the above submissions made by the learned counsel for the petitioners. The factum of settlement was also endorsed by the learned Public Prosecutor. Learned Public Prosecutor would, however, point out that, it is a matter for deliberation as to whether an offence under Section 376 can be quashed on the settlement between the parties.

5. Learned counsel for the 3^rd respondent would completely support the arguments raised by the learned counsel for the petitioners, besides specifically acknowledging the factum of settlement between the parties.

6. Having heard the learned counsel appearing for the respective parties, this Court will first have a look at the First Information Statement given by the 3^rd respondent. The 3^rd respondent is physically challenged, who according to the learned counsel for the petitioners, is suffering from cerebral palsy. A perusal of the F.I.S in its entirety would indicate that there was an intimate relationship between the 1^st petitioner and the 3^rd respondent during the period from 2018 to 2023; that the matter was known to the family of both; that the engagement was about to take place on 30.07.2023; that there were discussions between the family as regards the solemnization of the marriage; and that the same could not proceed on account of certain financial concerns of the parents of the 1^st petitioner (petitioners 2 and 3 herein). The F.I.S would also indicate that there were physical re