The court cannot quash a case merely by holding the relationship as consensual without allowing the prosecution to adduce evidence, as the distinction between rape and consensual sex is a matter of evidence.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash all further proceedings in Annexure B Final Report in Crime No.71/2021 of Vazhakkad Police Station, now pending as S.C.No.1075/2022 on the files of the Fast Track Special Court- II, Manjeri. The petitioner herein is the sole accused in the above case.

2.Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the relevant documents.

3.The prosecution allegation is that the accused, who made acquaintance with the defacto complainant, after having maintained a relationship, offered to marry her, and on the said promise, she was subjected to sexual molestation at 6.30 pm on 11.12.2020 by kissing her face, neck and private parts. Thereafter, again at 9 pm on 21.12.2020, the accused subjected the defacto complainant to sexual molestation on promise of marriage. Further allegation is that on 26.12.2020 also, the accused repeated the same. Accordingly, the prosecution alleges commission of offence punishable under Section 354A and 354D of IPC .

4.While assailing the final report, the learned counsel for the petitioner argued that the petitioner is innocent and the allegations are false. According to the learned counsel for the petitioner, the only allegation is kissing on the face, neck and private parts of the defacto complainant. He submitted further that, going by the decision in Dhruvaram Murlidhar Sonar Vs. State of Maharashtra, reported in (2019) AIR (SC) 327 , there is a clear distinction between rape and consensual sex.

The Apex Court, in the said decision, after referring a catena of decisions, held as under:

“20.Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under Section 376 of IPC.”

It is also submitted by the learned counsel for the petitioner that when the prosecution allegations taken together, element of consent is foreseeable. In such a case, the entire prosecution is an abuse of process of law and therefore, quashment sought for under Section 482 of Cr.P.C. to be considered in this case. He also placed the decision in Maheshwar Tigga Vs. The State of Jharkhand reported in 2020 (4) KLJ 999 in support of his contention.

5.Whereas the learned Public Prosecutor would submit that going by the allegations, the prosecution case is well made out, prima facie, so as to attract the offence under Section 354A and 354D of IPC and in such view of the matter, the matter would require trial.

6.I have perused the First Information Statement given by the defacto complainant, and the same would recite that while the defacto complainant was studying at MCT Law College, Melmuri, the accused herein, who was a teacher therein, made acquaintance with her and pretended love towards her. Thereafter, he promised to marry her. It was thereafter,