IN THE HIGH COURT OF KERALA AT ERNAKULAM
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
MONDAY ,THE 15TH DAY OF OCTOBER 2018 / 23RD ASWINA, 1940
Crl.MC.No. 5675 of 2018
AGAINST THE ORDER/JUDGMENT IN CP 12/2017 of JMFC – VIII, ERNAKULAM
CRIME NO. 1184/2016 OF Kadavanthra Police Station , Ernakulam
AGED 50 YEARS,
RESPONDENT/STATE, COMPLAINANT AND DEFACTO COMPLAINANT (VICTIM):
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
THE CIRCLE INSPECTOR OF POLICE
ERNAKULAM CENTRAL POLICE STATION,
BY ADV. SRI.R.B.RAJESH
PP.SRI. T.R. RENJITH
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 15.10.2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
O R D E R
The petitioner herein is facing trial in CP No.12/2017 of JFMC-VIII,
Ernakulam arising from Crime No.1184/2016 of Kadavanthra police
station for offences punishable under section 376 IPC read with section
55 (E) of the IT Act.
2. The third respondent defacto complainant alleged that, the
petitioner herein, promising to arrange job abroad and also to take care
of educational expenses of her daughter, had physical relationship with
her during the period from 2007 to 2016. Thereafter, without arranging
the job, he retracted from the promise and thereby committed the
offence of rape. Pursuant to FIS laid by the defacto complainant, crime
was registered and after investigation, final report was laid.
3. Pending the proceedings, the parties are stated to have resolved
their disputes. To substantiate their settlement, the petitioner relied on
Annexure-II affidavit stated to be affirmed by the third respondent.
Learned counsel for the third respondent acknowledged the due execution
of the above affidavit and also submitted that, she does not propose to
pursue the criminal proceedings.
4. Learned Public Prosecutor also submitted that the parties have
settled their disputes and it has been communicated to the investigating
5. Since the allegation is one under section 376 IPC, this court was
not inclined to quash the criminal proceedings on consent. Learned
counsel for the third respondent chose to argue the matter on merits.
6. Learned counsel for the petitioner invited my attention to the
statement given by the defacto complainant. She had asserted that, both
the parties were married and leading separate matrimonial relation, They
got acquainted each other and were maintaining good family relationship.
The 3rd respondent wanted to go to Gulf to start beauty parlor. The
petitioner herein allegedly promised to help her. On the basis of the above
promise and also assurance to maintain children, he used to take her to
his flat, where they had physical relationship. It was also stated by the
third respondent that, she had financial transaction with the petitioner
also. Thereafter, they fell apart which led to the registration of crime.
7. Crux of the allegation is that, the petitioner herein made promise
and had physical relationship with the defacto complainant. Thereafter,
by not complying with the promise, he committed the offence.
Essentially, contention is based on a premise that her consent was
obtained on the basis of false promise which amounts to misconception of
facts and consequently the consent for rape was obtained on the basis of
misconception of facts as contemplated under section 90 IPC. Learned
counsel for the petitioner points out that, the facts narrated disclose that
they had voluntarily entered into the physical relationship. Even
according to the defacto complainant, though certain promises were
made, the petitioner herein allegedly paid some amounts towards
educational expenses of the daughter. Even assuming that, he could not
help the defacto complainant to set up a business abroad that itself
cannot be considered as a false promise . It was pointed out that even in
the complaint 3rd respondent had not alleged that, promises made by the
petitioner were false from the very inception and consent was obtained on
the basis of a false promise.
8. Learned counsel for the petitioner invited my attention to the
decision reported in Uday v. Statte of Karnataka ((2003) 4 Supreme
Court Cases 46), wherein the court had held that for the application of
section 90 IPC, it must be shown that consent was given under
misconception of facts and it must be proved that the person who
obtained the consent knew or had reason to believe that the consent was
given in consequence of such misconception. Both the ingredients are
absent in the present case. Further, long cohabitation spanning several
years itself militates against the case of the petitioner that the permission
was obtained on the basis of wrong promise to marry.
9. In Deepak Gulati v. State of Haryana ( 2013) (2) KLT
762(SC), the Supreme Court had held that, failure to keep promise with
respect to future uncertain dates due to reason beyond that are not clear
from the evidence available does not always amounts to misconception of
facts. This principle was reiterated by the Division Bench of this Court in
Babu v. State of Kerala (2013 (2) KLT 574) and Jinu Thomas v. State
of Kerala and Others (2018 (3) KHC 263).
10. In Annexure – II affidavit, the third respondent has asserted
that physical relationship was consensual. Having considered the above
facts, I am inclined to hold that allegation of rape is not discernible from
the facts disclosed and having regard to that there is no chance of
successful prosecution of the petitioner. Hence, no purpose will be served
by prosecuting the petitioner herein. Criminal proceeding is liable to be
Accordingly, Crl.M.C.is allowed. All further proceedings pursuant to
Crime No.1184/2016 of Kadavanthra Police station pending as CP No.
12/2017 of the Judicial First Class Magistrate Court – VIII, stand quashed.
ANNEXURE 1 TRUE COPY OF THE FINAL REPORT IN CRIME
NO.1184/2016 OF KADAVANTHRA POLICE
ANNEXURE 2 TRUE COPY OF THE AFFIDAVIT DATED 9.8.2018
EXECUTED BY THE 3RD RESPONDENT BEFORE