Allowed

Jahangeer P.T v. State of Kerala

Kerala HC17 Oct 2022Crl.MC/2671/2022

Case brief

AI extract

What is this about?

The High Court allowed a petition to quash criminal proceedings under Section 376(2)(n) IPC. The court held that allegations of consensual sex based on an unenforceable promise of marriage to a married woman do not constitute rape, especially when the prosecutrix is not proceeding with the case.

What did the court decide?

All further proceedings in Crime No.108/2022 of Nadakkavu Police Station are hereby quashed.

Jahangeer P.T Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

¶4

MONDAY, THE 17^TH DAY OF OCTOBER 2022 / 25TH ASWINA, 1944

¶5

CRL.MC NO. 2671 OF 2022

¶6

Crime No.108/2022 of Nadakkavu Police Station

¶7

PETITIONER:

¶8

JAHANGEER P.T AGED 39 YEARS PALERY HOUSE, MUNDERY P.O, POTHUKAL VILLAGE, NILAMBUR, MALAPPURAM DISTRICT, PIN - 679334 BY ADVS. KURIAN K JOSE JOBY CYRIAC

¶9

RESPONDENTS:

¶10

1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2 STATION HOUSE OFFICER NADAKKAVU POLICE STATION, KOZHIKODE, PIN - 673011 3 XXX XXX

¶11

OTHER PRESENT:

¶12

SMT T V NEEMA -SR Public Prosecutor

¶13

THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.10.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

¶14

Crl.M.C.No.2671 of 2022

¶15

..2..

¶16

ORDER

¶17

This Crl.M.C. has been filed to quash all further proceedings in Crime No.108/2022 of Nadakkavu Police Station.

¶18

The petitioner is the sole accused. The 3^rd respondent is the de facto complainant.

¶19

The offence alleged against the petitioner is punishable under Section 376(2)(n) of the IPC.

¶20

The prosecution case in short is that, the petitioner

¶21

after giving false promise of marriage sexually assaulted the 3^rd respondent on several occasions from March, 2021 to October, 2021.

¶22

I have heard Sri.Kurian K.Jose, the learned counsel for the petitioner and Smt.T.V.Neema, the learned Senior Public Prosecutor.

¶23

The learned counsel for the petitioner submitted that, even if the entire allegations in the FIS are taken at its face value, they do not constitute the offence alleged against the petitioner.

¶24

I have gone through the FIS given by the victim. There is absolutely nothing to attract the basic ingredients of

¶25

..3..

¶26

Crl.M.C.No.2671 of 2022

¶27

the offence under Section 376(2)(n) of the IPC. A reading of the FIS would show that the 3^rd respondent is a married woman and having a child aged 12 years. The said marriage is still subsisting. According to her, she is not in good relationship with her husband. It is alleged that the petitioner was her teacher while she was studying for BA at Nadakkavu National College and later on they fell in love and had consensual sexual intercourse on several occasions. According to the 3^rd respondent, she consented for sex only because of the fact that the petitioner promised that he would marry her.

¶28

There is no case for the 3^rd respondent that the sex

¶29

she had with the petitioner was a forcible one. But, according to her, she consented for sex persuaded by the promise of marriage given by the petitioner. It is settled that the promise alleged to have been made by the accused to a married woman that he would marry her is a promise which is not enforceable in law and such an unenforceable and illegal promise cannot be the basis for the prosecution to contend that, the consent of that woman for sexual relationship with the accused was obtained on the basis of misconception of fact as understood in Explanation 2 of Section 376 of the IPC and

¶30

..4..

¶31

Crl.M.C.No.2671 of 2022

¶32

Section 90 of the IPC. [See Shahul Satheesh v. State of Kerala (2022 (2) KLT OnLine 1095)].

¶33

The Apex Court in Deepak Gulati v. State of Haryana [(2013) 7 SCC 675] and in Dhruvaram Murlidhar Sonar (Dr.) v. State of Maharashtra [AIR 2019 SC 327], drawing distinction between rape and consensual sex observed that the court must very carefully examine whether the accused 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. In drawing distinction between mere breach of a promise and not fulfilling a false promise, it was further observed that, 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 and that if the accused had any mala fide intention or had clandestine motives, it is a clear case of rape.

¶34

Even though notice has been issued to the 3^rd respondent, there is no appearance. The learned Senior Public Prosecutor, on instruction, submitted that the 3^rd respondent has stated that she is not intending to proceed with the case further. She has also given a signed statement to that effect to

¶35

Crl.M.C.No.2671 of 2022 ..5..

¶36

the investigating officer. As already stated, the sex the petitioner and the victim had was purely consensual in nature. There is nothing on record to show that the petitioner had made a false promise of marriage only to satisfy his lust. No question of promise to marry arises inasmuch as the 3^rd respondent is a married woman and she knew that legal marriage with the petitioner was not possible under law. The offence of rape cannot be constituted on the basis of the allegations in the FIS. That apart, the 3^rd respondent is not intending to proceed with the case any further.

¶37

11. In these circumstances, I am of the view that no

¶38

purpose will be served in proceeding with the matter further. Hence, all further proceedings in Crime No.108/2022 of Nadakkavu Police Station are hereby quashed.

¶39

The Crl.M.C. is allowed.

¶40

Sd/-

¶41

DR.KAUSER EDAPPAGATH, JUDGE

¶42

skj

¶43

Crl.M.C.No.2671 of 2022

¶44

..6..

¶45

APPENDIX OF CRL.MC 2671/2022

¶46

PETITIONER'S ANNEXURES

¶47

ANNEXURE A1(a) COPY OF THE FIR No.108/2022 dtd.29.1.2022 OF NADAKKAVU POLICE STATION, KOZHIKODE ANNEXURE A1(b) COPY OF THE FIS IN FIR No.108/2022 dtd.29.1.2022 OF NADAKKAVU POLICE STATION, KOZHIKODE Annexure A2 TRUE COPY OF THE JUDGMENT OF THIS COURT IN CRL.MC NO.4933 OF 2021, DATED 29/03/2022

Jahangeer P.T v. State of Kerala

Case brief

What is this about?

What did the court decide?

Jahangeer P.T v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Afeefa V.K Vs the Station House Officer

Vipinsad Vs the State of Kerala Represented by the Public Prosecutor

Mini Haris Vs Hanna Haris

Aakash Simon Mohan, Vs State of Kerala

Usama Vs State of Kerala

Binu Krishnan Vs State of Kerala