Manish Jayan vs State Of Kerala

A. Badharudeen, J

This Criminal Miscellaneous Case has been filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023, seeking the following relief:

“(i) To call for the records relating to Anx – A1 FIR and Anx – A2 Final Report in SC No.850 of 2019 on the file of District and Session’s Court-II, Ernakulam, and quash the same as prima facie untenable, illegal, abuse of process of law and court and result in a miss carriage of justice if proceeded with.”

Heard the learned counsel for the petitioner and the learned Public Prosecutor on admission. Perused the relevant documents.

In this matter, the prosecution alleges commission of offence punishable under Section 376(1) of the Indian Penal Code and the allegation is that the accused, who assured to marry the defacto complainant, brought her to a lodge with intention to commit rape against her, and accordingly, she was forcefully subjected to sexual intercourse at 5.15 hours on 21.11.2018. But thereafter he retracted from the marriage and thereby committed the above offence.

While seeking quashment of the proceedings, the learned counsel for the petitioner taken attention of this Court to Annexure A5, the extract of complaint register maintained before the Sub Inspector of Police, Marayamuttam, wherein after the occurrence, when the accused and the defacto complainant were brought before the police station, consensus reached in between the defacto complainant, the petitioner and their parents respectively to solemnize the marriage after one year.

According to the learned counsel for the petitioner, thereafter FIR was initially registered before Marayamuttam Police Station on 08.12.2018 (copy of the same is produced as Annexure A3) and later, the same was transferred to Ernakulam Central Police Station and renumbered as crime No.72/2019 on 10.01.2019. According to the learned counsel for the petitioner, the marriage could not be solemnized as agreed in Annexure A5 since the defacto complainant lodged complaint and registered crime without waiting one year. Now the defacto complainant was married to another man. The sum and substance of the argument by the learned counsel for the petitioner is that the relationship and the sexual intercourse are the outcome of consent and therefore, no offence under Section 376(1) would attract in the facts of the case.

Quashment of this case is strongly opposed by the learned Public Prosecutor mainly urging that the relationship started and continued for a while on the promise of marriage. Thereafter, there was sexual intercourse between them on the promise of marriage, as borne out from the prosecution records. According to the learned Public Prosecutor, even though the genuineness of Annexure A5 is a matter to be proved during evidence, it is submitted that the reluctance on the part of the petitioner to marry the defacto complainant had tempted the defacto complainant to lodge FIR on 08.12.2018. According to the learned Public Prosecutor, whether the sexual intercourse is consensual or not is a matter of evidence prima facie the same is only to be held as one vitiated by misconception of fact on the promise of marriage.

Going through the First Information Statement, it is discernible that as on 20.11.2018, the defacto complainant was found missing and a complaint was lodged by her mother before the Sub Inspector of Police, Marayamuttam. As on 21.11.2018, the defacto complainant and the accused were brought to the police station and according to the learned counsel for the petitioner, the defacto complainant and the petitioner along with their parents agreed to solemnize the marriage after one year. As per the First Information Statement, it is stated by the defacto complainant that the defacto complainant is a member of Christian Nadar community and the accused is a member of Hindu Nair community and they maintained love relationship for a period of one year and the petitioner used to visit the house of the defacto complainant and at about 12.15 hours on 20.11.2018, the accused reached the house and the defacto complainant was taken outside on promise of marriage and then taken to a lodge and had sexual intercourse on promise of marriage. Thereafter, they reached the police station in view of the complaint lodged by the mother of the victim.

Now the question falls for consideration is, whether the relationship is purely consensual, to hold that the entire prosecution is unwarranted, or the same is vitiated by misconception of fact on promise of marriage?.

It is discernible that the relationship between the de facto complainant and the accused started on the basis of promise and assurance given by the accused to marry the de facto complainant. While continuing the relationship for a while, on the promise of marriage, the accused subjected the de facto complainant to sexual intercourse at 5.15 hours on 21.11.2018. But he willfully retracted there from as an after-thought.

A consensual sexual relationship in between a woman and a man, who attained majority, would not come within the purview of the offence of rape. But as dealt under Section 90 of IPC, when consent is given under fear or misconception, a consent is not a consent as intended by any section of criminal procedure, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception. When a man promises to marry a woman and on the said promise, performs sexual intercourse and thereafter retracted from the same is obtaining consent by misconception on the promise of marriage. if so, the said consent is vitiated. In so far as the facts of the case are concerned, whether the relationship is consensual or the same is vitiated by misconception of fact could be arrived at only after adducing evidence. If so, quashment of crime in the given facts could not be considered, arresting the prosecution from tendering evidence in support of the prosecution allegations, and the same would be fatal to the interest of the victim. In view of the above, quashment prayer fails. Accordingly, this Criminal Miscellaneous Case stands dismissed.

The petitioner is at liberty to raise his contentions independently before the trial court during trial.

Registry is directed to forward a copy of this order to the jurisdictional court for information and further steps.