IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P.

WEDNESDAY, THE 29^TH DAY OF NOVEMBER 2023 / 8TH AGRAHAYANA, 1945 CRL.MC NO. 7773 OF 2023 CRIME NO.942/2023 OF TOWN EAST POLICE STATION, THRISSUR S.C.NO.1095/2023 ON THE FILE OF THE FAST TRACK SPECIAL COURT-II, THRISSUR PETITIONER/ACCUSED:

RASAL PAUL AGED 30 YEARS, S/O PAUL, KALLINGAL HOUSE KUTTUR, THRISSUR, PIN – 680 013.

BY ADVS.

RAPHAEL THEKKAN T.SAJI RAPHEL RESPONDENT/COMPLAINANT:

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682 031.

2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADVS.

SRI VIPIN NARAYAN (SR PP) SRI CHRISTINE MATHEW (R2)

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

29.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

ORDER

Petitioner is the accused in Crime No.942/2023 of Thrissur East Police Station, Thrissur District, alleging commission of offences under Section 376(2)(n) of the Indian Penal Code.

2. The allegation against the petitioner is that while the petitioner and the alleged victim were working together in an establishment, they became very close friends and the petitioner proposed to the victim stating that he would marry her and take care of her and her child. It is alleged that on the said promise the petitioner sexually abused the victim on several occasions and thereby he committed the offence alleged against him. 3. Learned counsel for the petitioner would submit that following investigation a final report was filed and the matter is now pending as S.C.No.1095/2023 on the file of the Fast Track Special Court-II, Thrissur. It is submitted that, the allegation that the petitioner had obtained consent for sexual relationships on the false promise of marriage cannot sustain on account of the fact that the alleged victim was in a subsisting marriage at the time when the petitioner is alleged to have had sexual relationships with her. It is submitted that the petitioner was also in a subsisting marriage at the relevant time. Learned counsel places reliance on the judgment of the Supreme Court in Shambhu Kharwar v. State of Uttar Pradesh and Another; AIR 2022 SC 3901, as also on the judgment of this Court in Ranjith v. State of Kerala; 2022 (1) KLT 19, to contend that, when a reading of the First Information Statement of the victim as also the final report indicate that the relationship between the petitioner and the victim can only be stated to be consensual, the petitioner cannot be prosecuted for having committed an offence punishable under Section 376 of the Indian Penal Code. The learned counsel also states that the alleged victim has now executed Annexure-3 affidavit stating that she does not wish to prosecute the complaint against the petitioner in any manner.

4. Heard the learned Senior Public Prosecutor and the learned counsel appearing for the 2^nd respondent/defacto complainant/ victim. The learned Senior Public Prosecutor has taken me through the First Information Statement of the 2^nd respondent/defacto complainant/ victim as also through the final report filed in the case. He states that since the offence involved is one punishable under Section 376 of the Indian Penal Code, the proceedings cannot be quashed on the ground of settlement going by the judgments of the Supreme Court in Gian Singh v. State of Punjab and Another; (2012) 10 SCC 303, and State of Madhya Pradesh v. Laxmi Narayan and Others; (2019) 5 SCC 688.

5. The leaned counsel appearing for the 2^nd respondent/defacto complainant/ victim would submit that the 2^nd respondent/defacto complainant/ victim does not wish to continue with the proceedings against the petitioner in any manner.

6. Having heard the learned counsel for the petitioner, learned Senior Public Prosecutor and the learned counsel for the 2^nd respondent/defacto complainant/ victim, I am of the view that the petitioner is entitled to succeed. The learned Public Prosecutor is right in pointing out on the authority of Gian Singh (supra)

and State of