Kerala High Court
Roopak Chandran @ Chikku vs State Of Kerala on 30 November, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE M.R.ANITHA
TUESDAY, THE 30TH DAY OF NOVEMBER 2021 / 9TH AGRAHAYANA, 1943
CRL.MC NO. 7546 OF 2017
AGAINST THE ORDER/JUDGMENT IN CP 43/2016 OF ADDITIONAL CHIEF JUDICIAL
MAGISTRATE, THIRUVANANTHAPURAM
CRIME NO.434/2016 OF POOJAPPURA POLICE STATION, THIRUVANANTHAPURAM
PETITIONER/S:
ROOPAK CHANDRAN @ CHIKKU
S/O. CHANDRAN, KEEZHE INCHIPULLUVILA VEEDU, 64/2061, NEAR
NEDUMOM COUNTRY CLUB RESORT, THIRUVALLOM, PIN - 695 027.
BY ADVS.
SRI.J.R.PREM NAVAZ
SRI.P.T.SHEEJISH
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM, PIN - 682 031.
2 SREEJA
AGED 22 YEARS
D/O. SHEELA, RESIDING AT AMBADI HOUSE, T.C. 19/1854, PAI ROAD,
POOJAPPURA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN
- 695 012.
BY ADV ADDL.DIRECTOR GENERAL OF PROSECUTION
OTHER PRESENT:
PP RENJIT GEORGE,SR GP
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30.11.2021,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.M.C.No.7546 of 2017
2
ORDER
This Crl.M.C. has been filed seeking to quash the entire
further proceedings against the petitioner in crime No.434/2016
of Poojappura Police Station, registered for the offence
punishable u/s.376 IPC, now pending as CP No.43/2016 on the
file of Additional Chief Judicial Magistrate Court,
Thiruvananthapuram.
2. Prosecution case is that on 16.04.2015 accused
forcefully had sexual intercourse with the defacto complainant at
her residence and subsequently on several occasions till
14.11.2015 committed forceful sexual intercourse, promising to
marry her. Thereafter, he withdraw from the promise and
thereby committed the offence aforementioned.
3. According to the learned counsel for the petitioner, the
defacto complainant is a married woman and at the time of the
alleged offence, admittedly by her, the marriage was subsisting.
Hence the question of rape on the promise of marriage does not
arise.
4. Notice was issued to the 2 nd respondent. The learned
Crl.M.C.No.7546 of 2017
Public Prosecutor appeared on behalf of the first respondent. He
produced report of the Sub Inspector of Police, Poojappura Police
Station along with the signed statement of the defacto
complainant.
5. In the report filed by the SHO, it has been stated that
the defacto complainant was contacted and she was summoned
to the police station and her statement was recorded and she is
not interested to proceed with the matter. It is also reported that
the petitioner herein is not involved in any other crime.
6. The learned counsel for the petitioner drew my
attention to report of the Medical Officer attached to the Final
Report, in which, victim has categorically stated that in February,
2013, her marriage was conducted with one Sujith at the
instance of family members and after one year they separated
but divorce has not been obtained. For the last one year, she was
in love with Roopak (petitioner herein). She got acquaintance
with him through Facebook. Further it is stated, offering to
marry her, he had sexual contact with her and subsequently he
withdraw from the promise.
7. It is borne out from the records that the defacto
complainant is a Hindu. As per the statement, her marriage was
Crl.M.C.No.7546 of 2017
originally solemnized with one Sujith Kumar, S/o. Viyajan Nair on
07.02.2013 and their relationship strained and she started living
separate in her house.
8. Hindu Marriage Act, 1955 is the law relating to
marriage among Hindus. Section 5 in Chapter II of the said Act
deals with conditions for a Hindu Marriage. Section 5(i) provides
that a marriage may be solemnized between any two Hindus, if
neither party has a spouse living at the time of marriage. So the
defacto complainant cannot solemnize a marriage at the time of
the alleged promise by the petitioner since her spouse has been
living. So her allegation that petitioner committed rape upon her
promising to marry her is not sustainable in law.
9. The learned counsel drew my attention to Anilkumar v.
State of Kerala & Ors. [2021 (1) KHC 435] wherein while dealing
with an identical situation this Court held that promise allegedly
made by accused to a married woman, that he would marry her,
is a promise, not enforceable in law and such an unenforceable
and illegal promise cannot be the basis for prosecution to
contend that consent of woman, who has sexual relationship with
accused, has been obtained on the basis of misconception of fact.
So in such circumstances, it can only be held that incident
Crl.M.C.No.7546 of 2017
happened only on the basis of consent between the parties and
no offence of rape is made out.
10. Sonu @ Subhash Kumar v. State of Uttar Pradesh &
Anr [2021 (2) KHC 314 (SC) : AIR 2021 SC 1405] is also relied
on. In that case, the petitioner developed some friendship with
the defacto complainant and it is alleged that he assured to
marry her and further he alleged to have exploited her and
ultimately he withdraw from the promise. In the said
circumstances, it was held that the relationship happened to be
consensual and spread over a period of one and a half years and
FIR filed when accused expressed a disinclination to marry the
victim. In such circumstances, no offence is established, High
Court fell in error in not quashing the FIR. In Pramod Suryabhan
Pawar v. State of Maharashtra & Anr. [2019 KHC 6829 : AIR
2019 SC 4010] also the complainant's allegation was that
accused engaged in sexual relations with her on false promise of
marrying her, and therefore her "consent", being on the premise
of "misconception of fact". In the said circumstances it was held
that in the absence of an allegation in the FIR that when accused
promised to marry the complainant, it was done in bad faith or
with an intention to deceive her, it cannot be said that any
Crl.M.C.No.7546 of 2017
offence u/s.376 is made out.
11. In the present case, the specific allegation of the
defacto complainant is that she got acquaintance with the
petitioner through Facebook and thereafter they had sexual
contact and at that time he alleged to have promised to marry
her. But defacto complainant is a married lady, whose marriage
is subsisting, got acquaintance with the petitioner, who is a
bachelor and subsequently they had sexual contact at her house
and that according to her is on the basis of a promise to marry.
Since she is already a married woman and her marriage is in
subsistence, she cannot enter into a valid marriage with the
petitioner. Hence the contention of rape on promise to marry is
not at all substantiate in law.
12. Moreover, she has given a statement to the SHO that
she is not interested to prosecute the case further against the
petitioner. As per her statement dated 28.10.2018, she married
Anandu from Thirumala and is living peacefully with him. She
and her family is not intending to prosecute the case also. So
even if the trial is allowed to be continued, the possibility of the
case ending in conviction is very remote. In otherwords, the
continuation of the proceedings against the petitioner would be
Crl.M.C.No.7546 of 2017
an empty formality without achieving any useful purpose and it
would amount to an abuse of process of court.
In the result, Crl.M.C allowed. The entire further
proceedings against the petitioner in crime No.434/2016 of
Poojappura Police Station, which is now pending as CP
No.43/2016 on the file of the Additional Chief Judicial Magistrate
Court, Thiruvananthapuram is hereby quashed.
Sd/-
M.R.ANITHA
JUDGE
shg
Crl.M.C.No.7546 of 2017
APPENDIX OF CRL.MC 7546/2017
PETITIONER ANNEXURE
ANNEXURE A THE TRUE COPY OF THE FIRST INFORMATION REPORT IN
CRIME NO. 434/2016 OF POOJAPPURA POLICE STATION,
THIRUVANANTHAPURAM DISTRICT.
ANNEXURE B THE TRUE COPY OF THE FINAL REPORT/CHARGE SHEET IN
CRIME NO. 434/2016 OF POOJAPPURA POLICE STATION,
THIRUVANANTHAPURAM DISTRICT.
