Quashed

Vishnu.U.B. v. State of Kerala

Kerala HC12 Dec 2022Crl.MC/3854/2022

Case brief

AI extract

What is this about?

Kerala High Court suspended magistrate and prosecution appearing in the FIR. The offence alleged under law was rape. The court held that the relationship appeared to be purely consensual due to evidence failed to disclose malafide or no intention being adhered to any facts. All proceedings in FIR No. 185/2021 of Museum Police Station, Thiruvananthapuram is hereby quashed. The Crl.M.C. is allowed.

What did the court decide?

All further proceedings in FIR No. 185/2021 of Museum Police Station, Thiruvananthapuram are hereby quashed.

Vishnu.U.B. Vs State of Kerala — Quashing and FIR | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH

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MONDAY, THE 12^TH DAY OF DECEMBER 2022 / 21ST AGRAHAYANA, 1944

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CRL.MC NO. 3854 OF 2022

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[IN FIR NO. 185/2022 OF MUSEUM POLICE STATION, THIRUVANANTHAPURAM DISTRICT)

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PETITIONER/ACCUSED:

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VISHNU.U.B. AGED 27 YEARS S/O UNNIKRISHNAN, BLOCK NO. 31, EX-SERVICE COLONY.P.O., THIRUVANANTHAPURAM, PIN – 695562

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BY ADVS. A.RAJASIMHAN VYKHARI.K.U

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RESPONDENTS/ STATE AND THE DEFACTO COMPLAINANT:

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1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031

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2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV NIRMALAN K

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SRI C N PRABHAKARAN -SR PP

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THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.12.2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

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Crl.M.C.No.3854 / 2022

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O R D E R

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Dated this the 12^th day of December, 2022

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This Crl.M.C. has been filed to quash all further proceedings

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in FIR No.185/2021 of Museum Police Station,

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Thiruvananthapuram.

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The petitioner is the accused. The 2^nd respondent is the defacto complainant.

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

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The prosecution case in short is that, the petitioner committed sexual intercourse on the victim by giving a false promise of marriage and thereafter withdrew from the promise and cheated the victim.

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I have heard Sri. A. Rajasimhan, the learned counsel for the petitioner and Sri. Nirmalan.K., the learned counsel for the respondent as well as Sri.C.N.Prabhakaran, the learned Senior Public Prosecutor.

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The learned counsel for the petitioner submitted that, even if the entire allegations in the FIS together with the materials collected during investigation are believed in toto no offence under

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Crl.M.C.No.3854 / 2022

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section 376(2)(n) of IPC is attracted.

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The learned counsel for the victim submitted that, the matter has been settled between the petitioner and the victim and the victim has no further grievance. The learned Public Prosecutor submits that the FIS would disclose the ingredients of Section 376(2)(n) of the IPC and when prima facie case is made out, the jurisdiction vested with this court under section 482 of Cr.P.C. cannot be invoked even if the matter has been settled between the parties.

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I went through the F.I.S. A reading of the F.I.S. would show that the petitioner and the victim were in love and they together went to various places voluntarily, stayed in lodges and had consensual sexual intercourse. According to the victim, she was persuaded by the promise given by the petitioner that he would marry her and thus gave consent. It is settled that, if a man retracts his promise to marry a woman, consensual sex they had will not constitute an offence of rape under section 376 of IPC unless it is established that the consent for such sexual act was obtained by him, by giving false promise of marriage with no intention of being adhered to it, and that promise made was false

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Crl.M.C.No.3854 / 2022

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to his knowledge.

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Admittedly, the petitioner and the victim were in love and they had consensual sexual intercourse many times. A reading of the F.I.S. would further show that the victim lodged the F.I.S. after she came to know that the petitioner’s marriage with another lady was fixed. There is nothing in the F.I. Statement to indicate that the petitioner made any promise with the sole intention to seduce the victim to indulge in sexual intercourse. On a perusal of F.I.Statement it is apparent that the petitioner had no malafide intention or clandestine motive to conduct the alleged rape under the pretext of marriage. The relationship between the petitioner and the victim appears to be purely consensual in nature. There is no allegation in the FIS that when the petitioner promised to marry the victim, it was done in bad faith or with the intention to deceive her. In short, the alleged sex can only be termed as one on account of love and passion for the petitioner and not on account of misrepresentation made to her by the petitioner. Thus, even if the facts set out in the F.I.S. are accepted in totality, no offence under Section 376(2)(n) has been made out. That apart, the

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Crl.M.C.No.3854 / 2022

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affidavit sworn in by the victim would show that the entire matter has been settled between the parties and she has no intention to proceed further with the matter.

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Accordingly, all further proceedings in FIR No.185/2021 of Museum Police Station, Thiruvananthapuram is hereby quashed. The Crl.M.C. is allowed.

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Sd/- DR. KAUSER EDAPPAGATH, JUDGE

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APA

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Crl.M.C.No.3854 / 2022

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APPENDIX OF CRL.MC 3854/ 2022

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PETITIONER'S ANNEXURES

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Annexure A1	CERTIFIED 5/2/2022	COPY OF CHIT	OF HAR	THE A PO	FIR LICE	NO. 123/2022 STATION	DATED
Annexure A2	CERTIFIED 21/2/2022 THIRUVANA	COPY OF NTHAPUR	OF AM	THE MUSE	FIR UM	NO. 185/2022 POLICE ST	DATED ATION,
Annexure A3	ORIGINAL 13/6/2022	AFFIDA	VIT	OF	THE	2ND RESPONDENT	DATED

Vishnu.U.B. v. State of Kerala

Case brief

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Vishnu.U.B. v. State of Kerala

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