IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940
Crl.MC.No. 2010 of 2018
AGAINST THE ORDER/JUDGMENT IN CRMC 101/2018 of D.C. SESSIONS
COURT,KOLLAM DATED 09-02-2018
CRIME NO. 25/2018 OF Sooranadu Police Station , Kollam
PETITIONER/DEFACTO COMPLAINANT:
VICTIM
….
BY ADV. SRI.SHARAN SHAHIER
RESPONDENT/DEFACTO COMPLAINANT:
1 STATE OF KERALA
REP. BY THE SUB INSPECTOR OF POLICE, SOORNAD POLICE
STATION, KOLLAM, THROUGH THE PUBLIC PROSECUTOR, HIGH
COURT OF KERALA, ERNAKULAM-682031.
2 ARUN ARAVIND,
AGED 27 YEARS, S/O.ARAVINDKSHAN PILLAI,KOCHUKOYIPURATHU
KIZHAKKATHIL, ERAVICHIRA EAST, SOORNAD SOUTH, KOLLAM
DISTRICT-690522.
BY ADVS.
SRI.R.ANIL
SRI.B.RAMAN PILLAI (SR.)
SRI.E.VIJIN KARTHIK
SRI.M.SUNILKUMAR
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
OTHER PRESENT:
PP. SRI. RAMESH CHAND
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.9.2018,
ALONG WITH Crl.MC.2973/2018, THE COURT ON 16/11/2018 PASSED THE
FOLLOWING:
Crl.M.C.No.2010 2973/2018 2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SUNIL THOMAS
FRIDAY ,THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940
Crl.MC.No. 2973 of 2018
AGAINST THE ORDER/JUDGMENT IN CRMC 101/2018 of D.C. SESSIONS
COURT,KOLLAM DATED 09-02-2018
AGAINST THE ORDER/JUDGMENT IN CMP 21/2018 of J.M.F.C., SASTHAMCOTTA
CRIME NO. 25/2018 OF Sooranadu Police Station , Kollam
PETITIONER/ACCUSED:
ARUN ARAVIND,
AGED 27 YEARS, S/O.ARAVINDAKASHAN PILLAI,
KOCHUKOYIPURATHU KIZHAKKATHIL, ERAVICHIRA EAST,
SOORANADU SOUTH, KOLLAM DISTRICT, PIN-690 522.
BY ADVS.
SRI.B.RAMAN PILLAI (SR.)
SRI.E.VIJIN KARTHIK
SRI.M.SUNILKUMAR
SRI.R.ANIL
SRI.SUJESH MENON V.B.
SRI.T.ANIL KUMAR
SRI.THOMAS ABRAHAM (NILACKAPPILLIL)
SRI.THOMAS SABU VADAKEKUT
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-682 031.
2 VICTIM.
…
BY ADV. SRI.SHARAN SHAHIER
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.9.2018,
ALONG WITH Crl.MC.2010/2018, THE COURT ON 16/11/2018 PASSED THE
FOLLOWING:
Crl.M.C.No.2010 2973/2018 3
O R D E R
[ Crl.MC 2010/2018 Crl.MC.2973/2018 ]
Crl.M.C. 2970/2018 is filed by the accused, who is facing
prosecution in Crime No.25/2018 of Sooranadu Police station for
offences punishable under section 376 (2) (n) IPC.
2. The second respondent is the defacto complainant. She laid
CMP No.2/2018 before JFMC, Sasthamkotta, alleging that, the
petitioner herein promised to marry her and, on the basis of the above
promise, sexually abused her. Later, he retracted from the promise.
According to her, accused got acquaintanted with the defacto
complainant in 2014. Both fell in love and the accused herein promised
to marry her. Some time in July 2016, she was invited to Delhi where
the accused was working as pilot in airlines. After dinner she was
given fruit juice and after consuming it, she fell asleep. When she
woke up, it was found that the accused had raped her. The petitioner
assured that, it was done by him to ensure that she will not leave the
accused.
3. Thereafter, the accused started delaying the marriage by
stating one reason or other. They stayed thereafter in a hotel at
Crl.M.C.No.2010 2973/2018 4
Bombay in September 2016 and also on 24 th and 25th October 2016 .
On the basis of re-assurance given by the accused, they had physical
relationship. On 17/12/2016, she was invited to the house of the
accused at Kollam. She went there and had physical relationship there
also. In March, June and October, 2017, they stayed on different dates
in the apartment of the accused at Ernakulam and had physical
relationship. The relationship continued even thereafter and had
stayed together at a hotel in Thiruvananthapurm on 6/4/2017. Both
agreed to get married on 8/12/2017 under the Special Marriage Act.
Notice was given under the Special Marriage Act. According to the
defacto complainant, she waited at Sub Registrar’s Office at Chala,
Thiruvananthapuram. However, the accused did not turn up. She went
to the house of the accused on 11/12/2017. His parents abused her and
sent her back asserting that they were not agreeable for the
marriage. Complaint was laid by her to the various police officers.
According to her, since no action was taken, private complaint was laid
on 16/12/2017. Crime was registered as Crime No.25/2018 by
Sooranadu Police station on 5/1/2018.
4. Alleging that investigation was not properly and effectively
conducted, Crl.M.C.2010/2010 was filed by the defacto complainant.
It was contended that, accused had filed an application for pre arrest
bail as BA No.101/2018 before the Sessions Court, Kollam. That court
granted anticipatory bail to the accused without imposing any
Crl.M.C.No.2010 2973/2018 5
stringent condition. It was contended that, custodial interrogation of
the accused was essential and she sought to cancel the anticipatory
bail.
5. In the meanwhile, the accused filed Crl.M.C.No. 2973/2018 to
quash the criminal proceedings against him on the premise that
offence alleged against him will not survive and that, even assuming
that all the allegations are true, it only indicated consensual physical
relationship.
6. Pending the proceeding, Crl.M.A.No.6399/2018 was filed by
the defacto complainant in Cri.M.C.No.2973/2018. It was stated that,
complaint was laid by her under considerable stress and
misunderstanding. She stated that, in the meanwhile, with the
intervention of elders, all the outstanding disputes between the parties
were settled and she does not propose to prosecute the criminal
proceedings. She asserted that, she intended to lead her own life.
Affidavit dated 11/6/2018 affirmed in support of the above settlement
was produced along with Crl.M.A. In the affidavit, it was stated that
both the parties were in love and had decided to marry each other.
With the passage of time, relationship deteriorated due to various
factors due to incompatibility and insensitivity to each other’s
feelings. Hence, she requested that criminal proceedings may be
quashed.
7. Since the allegations were serious and since this court was
Crl.M.C.No.2010 2973/2018 6
not inclined to quash the criminal proceedings on consent,petitioner
was directed to argue the matter on merits.
8. Learned senior counsel for the accused contended that,
ingredients of section 376 IPC were not brought out. It was contended
that, crux of the allegation was that, there was a false promise to
marry.
9. Evidently, parties are well educated. Both of them are now
working as pilot in Airlines Companies. Both knew consequences of
entering into physical relationship. Materials on record clearly show
that, they were in love and the relationship spanned over a long period
of four years. It is also on record that both had initially decided to
proceed with the marriage. Both had stayed at different hotels in
various places and had shared bed room.
10. Evidently, to establish that the accused had given a false
promise to marry and the consent was obtained on the basis of a
mistake of facts or misconception of facts to attract Section 90 of the
Indian Penal Code, it is essential that there should be an allegation
that promise was false from the very inception. It is also to be
established that, the consent was obtained on the basis of the false
promise to marry. In the complaint, there is absolutely no allegation
that, promise, that was made, was false from its very inception. Even
though there is an allegation that petitioner’s first physical
relationship in July 2013 was without her consent, when she slept
Crl.M.C.No.2010 2973/2018 7
after drinking the fruit juice, it seems that even thereafter, they stayed
at various hotels and had physical relationship. Each time, the
accused allegedly reiterated the promise. It cannot be stated that an
adult woman who is well educated and well aware of the consequences
can be carried away several times by repeated assurances.
11. It is also brought on record that, once the defacto
complainant had gone to the house of the accused wherein, the mother
of the accused ridiculed her and asserted that they will not permit the
accused to marry her. In spite of this, they continued their physical
relationship. It is seen that ultimately both sides fixed the date of
marriage under the Special Marriage Act and notice was given. It
indicates that both were proceeding as if they agreed to marry. What
transpired thereafter is not clear.
12. The facts narrated above and sought to be established
through the statement of the victim does not indicate that there was a
promise which was false from its very inception to attract section 90
IPC. In Uday v State of Karnataka(2003) 4 SCC 46), it has been
reiterated that, misconception of facts under section 90 IPC arises
only if there is a false promise and sufficient materials to establish that
consent was obtained on the basis of a false promise to marry were
produced. Such an ingredient evidently is not available in the case at
hand.
13. Having considered the above facts, I am satisfied that
Crl.M.C.No.2010 2973/2018 8
successful prosecution of the accused is not possible in the case at
hand. Hence, I am inclined to invoke the jurisdiction of this court
under section 482 Cr.P.C.to quash the criminal proceedings against
the petitioner herein.
In the result, Crl.M.C.No.2973/2018 is allowed and all further
proceedings in Crime No.25/2018 of Sooranadu Police Station stands
quashed. Crl.M.C.No.2010/2018 is closed in the above
circumstances.
Sd/-
SUNIL THOMAS
dpk JUDGE
Crl.M.C.No.2010 2973/2018 9
APPENDIX OF Crl.MC 2010/2018
PETITIONER’S/S EXHIBITS:
ANNEXURE 1 A TRUE COPY OF THE ENTRY DATED 24-10-
2016 MADE BY THE PETITIONER AND THE 2ND
RESPONDENT DURING THEIR STAY IN ARTUS
HOTEL, MUMBAI.
ANNEXURE 2 A TRUE COPY OF THE ENTRY DATED 29-09-
2016 MADE BY THE PETITIONER AND THE 2ND
RESPONDENT DURING THEIR STAY IN HOTEL
STAR SUITE, MUMBAI.
ANNEXURE 3 A TRUE COPY OF THE ENTRY DATED 14-03-
2017 MADE BY THE PETITIONER AND THE 2ND
RESPONDENT DURING THEIR STAY IN IMPERIAL
HOTEL, MUMBAI.
ANNEXURE 4 A TRUE COPY OF THE NOTICE NO.P7204148 OF
INTENDED MARRIAGE.
ANNEXURE 5 COPY OF FIR IN CRIME NO.101/2018 OF
SOORANAD POLICE STATION, KOLLAM
DISTRICT.
ANNEXURE 6 CERTIFIED COPY OF THE ORDER IN
ANTICIPATORY BAIL APPLICATION 101/2018
DATED 09-02-2018 BEFORE THE COURT OF
SESSIONS JUDGE, KOLLAM.
Crl.M.C.No.2010 2973/2018 10
APPENDIX OF Crl.MC 2973/2018
PETITIONER’S/S EXHIBITS:
ANNEXURE-A. THE TRUE COPIES OF WHATS APP MESSAGES RECEIVED
BY THE PETITIONER
ANNEXURE-B. TRUE COPY OF THE PETITION DATED 16/12/2017.
ANNEXURE-C. TRUE COPY OF THE E-MAIL DATED 2/1/2018.
ANNEXURE-D. THE CERTIFIED COPY OF THE FIR IN CRIME
NO.25/2018 OF SOORANADU POLICE STATION
ANNEXURE-E. THE TRUE COPY OF THE ORDER OF THE SESSIONS
COURT, KOLLAM IN CRL.MC NO.101/2018.
ANNEXURE-F. THE CERTIFIED COPY OF THE COMPLAINT PREFERRED
BY THE 2ND RESPONDENT FILED BEFORE THE JFCM-
SASTHAMCOTTA AS CMP NO.21/2018.
ANNEXURE-G. THE TRUE COPY OF THE REPROT DATED 6/1/2018 OF
SUB INSPECTOR OF POLICE, SOORANADU POLICE
STATION.
ANNEXURE-H. TRUE COPY OF THE LAWYER NOTICE DATED 19/3/2018
ANNEXURE-I. TRUE COPY OF THE REPLY NOTICE
ANNEXURE-J. TRUE CERTIFIED COPY OF THE CRL.MC NO.2010/2018
FILED BY THE 2ND RESPONDENT BEFORE THIS
HONOURABLE COURT.
ANNEXURE R2(A): THE ORIGINAL OF THE SETTLEMENT AFFIDAVIT DATD 11/6/2018