Dr. Luckson Francis Augustine vs The State Of Kerala
2021 Latest Caselaw 20595 Ker

                  IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                   THE HONOURABLE MRS. JUSTICE M.R.ANITHA
         TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                        BAIL APPL. NO. 4781 OF 2021
 CRIME NO.384/2021 OF Ernakulam Town North Police Station, Ernakulam
PETITIONER/ACCUSED

             DR. LUCKSON FRANCIS AUGUSTINE
             AGED 42 YEARS
             S/O.LATE K.FRANCIS, KALLUMADICKAL HOUSE, THURUTHY P.O.,
             CHANGANASSERY, KOTTAYAM DISTRICT - 686 635.
             BY ADVS.
             RAAJESH S.SUBRAHMANIAN
             V.R.RAJESH
             R.RAJALEKSHMI
             T.R.RAJENDRAN (THAZHATHETHIL)
             S.RAJEEV
             K.K.DHEERENDRAKRISHNAN
             V.VINAY
             M.S.ANEER

RESPONDENTS/STATE AND COMPLAINANT

     1       THE STATE OF KERALA
             REPRESENTED BY ITS PUBLIC PROSECUTOR, ERNAKULAM - 682
             031.
     2       STATION HOUSE OFFICER
             ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT -
             682 018.
     3       ADDL.R3 XXXX
             IS IMPLEADED AS ADDL R3 AS PER ORDER DATED 5/7/2021 IN
             CRL MA 1/2021
             BY ADV K.R.SUNIL
             PP   SRI.C.N. PRABHAKARAN

     THIS     BAIL    APPLICATION     HAVING   BEEN   FINALLY   HEARD   ON
28.9.2021, THE COURT ON 5.10.2021, DELIVERED THE FOLLOWING:
 BA.4781/2021
                                       2




                                  ORDER

Dated : 5th October, 2021

1. Petitioner is the sole accused in Crime No.3840/2021 of Ernakulam

Town North police station, which is registered for the offence

punishable under Sections 376(2)(n), 420, 506 and 500 of IPC. It is

alleged that accused with the intention of committing rape upon

the de facto complainant after promise to marry her, had sexual

intercourse with her from October, 2018 onwards at the rented

house at Edappally, and at the house of accused at

Changanassery, on several occasions. It is also alleged that he

obtained an amount of Rs.12 Lakhs on several occasions from the

de facto complainant and also defamed her through social media

and intimidated to circulate her nude photos through social media

and thereby committed the offence aforementioned. Apprehending

arrest, petitioner approached this Court.

2. According to the learned counsel for the petitioner, the petitioner is

an Engineering graduate holding Ph.D and has been in UK along

with his wife and children. Later he obtained a decree of divorce

since the matrimonial relationship strained, from a competent court BA.4781/2021

in UK. He gave his profile in Shadi.com matrimonial website in

order to re-marry. He received a request from the de facto

complainant from that portal. Subsequently he contacted the

parents of the de factoo complainant and they expressed their

willingness for the marriage and he come down to India on

4.10.2018. Petitioner was made to believe that the de facto

complainant already obtained decree of divorce from her earlier

husband. It is also informed that she is running a beauty parlor in

Kochi due to her interest in the profession. It is further alleged that

even before he reached india he send Rs.1,50,000/- to the de facto

complainant on her demand by way of account transfer from the

Bank. A total amount of Rs.45 Lakhs was obtained by her from him.

Though the petitioner was willing to marry her, she was not having

the document pertaining to the decree of divorce. Later he noticed

that de facto complainant used to travel to various places outside

Kerala and to various other foreign countries without informing the

petitioner and that created suspicion. She also started behaving

strangely and on enquiry, it was revealed that she had treated for

some mental issues earlier. Petitioner is actively involved in

political activities. The de facto complainant filed a frivolous BA.4781/2021

complaint against the petitioner in January, 2021 due to her

influence in police. Petitioner filed a detailed complaint to the

District Police Chief about the transaction with the de facto

complainant and further that she is threatening him to implicate in

various crimes and accordingly this complaint has been filed and

he is totally innocent of the allegations levelled against him. Crime

has been registered only to pressurize the petitioner as the de

facto complainant owes huge amount to him.

3. The learned Public Prosecutor produced report of the Inspector,

SHO of E.T.North police station along with copy of FIS. The de facto

complainant got impleaded as additional third respondent and filed

affidavit along with Annexures-R3 to R9. Heard the learned counsel

for the petitioner, de facto complainant and also the Public

Prosecutor.

4. The learned Public Prosecutor would contend that the investigation

is at the preliminary stage and the custodial interrogation of the

petitioner is absolutely necessary to recover the mobile phone in

which the nude pictures of the de facto complainant have been

video-graphed and to be sent to Forensic Science Laboratory. There

is possibility of accused publishing the pictures of the de facto BA.4781/2021

complainant in social media. Aadhar copy, passport and cheque

books of the de facto complainant have to be recovered. The

accused is highly influential and he has got high contact in the

society and also in politics and hence there is every possibility of

influencing and threatening the witnesses and destroying the

evidence. Since the first accused has got a British passport, there is

possibility of accused absconding to foreign countries. Accused is

also cheating people by various illegal ways. There is a case

pending as S.T.6409/2016 for cheating with respect to Rs.45 Lakhs.

Accused has been found guilty by the Manchestor area Magistrate

Court in January 2018 in a complaint filed by his first wife in a

domestic violation complaint in the year 2017. So the learned

Public prosecutor strongly objects in considering the petition for pre

arrest bail filed by the petitioner.

5. The learned counsel for the de facto complainant would contend

that the de facto complainant earlier had filed Annexure-R3(b)

complaint against the petitioner before North Police, Inspector,

Ernakulam on 29.1.2021 in which she has alleged about the sexual

intercourse by the petitioner on several occasions promissing to

marry her and it is also alleged that it is with the intention of BA.4781/2021

cheating her and to make unlawful enrichment, that he approached

her and made an offer for marriage. As per Annexure-R3(c),

petitioner and the de facto complainant have arrived at a

settlement and agreed to settle the issue and the first condition in

the agreement was that the petitioner herein voluntarily agree to

marry the de facto complainant and the marriage would be

registered before the Sub Registrar under the Special Marriage Act

within one week. The de facto complainant also gave a reciprocal

agreement to marry the petitioner and further agreed to withdraw

the complaint filed by her in condition No.4 is further stated that if

the first party withdrew his consent for marriage, the second party,

ie, the de facto complainant is at liberty to proceed with the police

complaint against the petitioner herein.

6. According to the learned counsel for the petitioner, the present

complaint has been filed by the de facto complainant, after the

petitioner filed a complaint to the Superintendent of Police on

16.4.2021. But prima facie the documents produced from the side

of the 3rd respondent would prove that the earlier complaint filed by

the de facto complainant alleging almost all the allegations against

the petitioner was mediated with the intervention of mediators and BA.4781/2021

Annexure-R3(c) agreement was executed between the petitioner

and the de facto complainant. There is a specific condition in

Annexure-A3(c) that if at all first party withdrew the consent for

marriage, after having having applied to register the marriage, the

de facto complainant would be at liberty to proceed with the police

complaint.

7. The learned counsel for the petitioner placed reliance on Uday v.

State of Karnataka (2003 (4) SCC 46 = 2003 KHC 943 = AIR

2003 SC 1639), Deelip Singh v. State of Bihar (2005 (1) SCC

88 = 2005 KHC 189), Shivashankar v. State of Karnataka

and Others (2019 18 SCC 204 = 2018 ICO 3044) and also

Dhruvaram Muridhr Sonar (Dr.) v. State of Maharashtra and

Others (2019 (18) SCC 191 = 2019 (1) KHC 403).

8. Uday v. State of Karnataka, arises out of an appeal on special

leave which is directed against a judgment and order of the High

Court of Karnataka at Bangalore whereby the High Court while

dismissing and upholding the conviction of the appellant under

Section 376 IPC reduced the sentence. The question arose as to

whether consent given by the Prosecutrix to sexual intercourse on

a promise that he would marry will come under a misconception of BA.4781/2021

fact and it was held that a false promise is not a fact within the

meaning of the IPC and conviction and sentence under Section 376

was set aside.

9. Paragraph 25 of the said decision was highlighted by the learned

counsel wherein it has been held that in a case of this nature two

conditions must be fulfilled for the application of Section 90 IPC.

Firstly it must be shown that the consent was given under a

misconception of fact. Secondly it must be proved that the person

who obtained the consent know or had reason to believe that the

consent given is in consequence of such misconception and it was

found that there are serious doubts that the promise to marry

induced the prosecutrix to consent to having sexual intercourse

with the appellant, because she knew that her marriage with the

appellant was difficult on account of caste considerations and the

proposal was bound to meet with stiff opposition from members of

both families. So there was distinctive possibility of which she was

clearly conscious that the marriage may not take place at all

despite the promise of the appellant. Then the question remains

would be whether even if it were so the appellant knew or had

reason to believe, that the prosecutrix had consented to having BA.4781/2021

sexual intercourse with him only as a consequence of her belief,

based on his promise that they will get married in due course and

there was hardly any evidence to prove that fact in that case. It

was further found that the circumstances of the case tended to

support the conclusion that the appellant had reason to believe

that the consent given by the prosecutrix was the result of their

deep love of each other and it is also not disputed that they were

deeply in love.

10. On going through the above paragraph itself, it would go to

show that the fact situation of that case is entirely different. Here

admittedly by both parties, there was a proposal for marriage and

the agreement Annexure-R3(c) produced from the side of the

respondent would prima facie show that after filing the first

complaint by the de facto complainant with the intervention of

mediators an agreement was executed by both parties and among

them one of the conditions was that they will marry each other and

if at all the petitioner herein failed to conduct the marriage as

agreed, the right has been given to the de facto complainant to

continue with the legal proceedings initiated against the petitioner.

It is also admitted by the petitioner himself that he registered a BA.4781/2021

profile in Shadi.com and request was received from the de facto

complainant and it is also admitted that he contacted her parents

and they were also willing for the marriage and it is thereafter that

he came down to India.

11. Deelip Singh was relied on by the learned counsel to

contend that the consent obtained on the basis of promise to

marry which was not acted upon could not be regarded as consent

for the purpose of Section 375 IPC. He highlighted paragraph 27 of

the said decision which reads thus :

"On the specific question whether the consent obtained on the basis of promise to marry which was not acted upon, could be regarded as consent for the purpose of Section 375 IPC, we have the decision of the Division Bench of the Calcutta High Court in Jayanti Rani Panda v. State of W.B (1984 CriLJ 1535 : 1983 (2) CHN 290 (cal). The relevant passage in this case has been cited in several other decisions. This is one of the cases referred to by this Court in Uday (2003 (4) SCC 46 : 2003 SCC (Cri) 775 : 2003 (2) Scale 329) approvingly. Without going into the details of that case, the crux of the case can be discerned from the following summary given at para 7 (Cri LJ pp. 1537-38) "Here the allegation of the complainant is that the accused used to visit her house and proposed to marry her. She consented to have sexual intercourse with the accused on a belief that the accused would really marry her. But one BA.4781/2021

thing that strikes us is . why should she keep it a secret from her parents if really she had belief in that promise. Assuming that she had believed the accused when he held out a promise, if he did at all, there is no evidence that at that time the accused had no intention of keeping that promise. It may be that subsequently when the girl conceived the accused might have felt otherwise. But even then the case in the petition of complainant is that the accused did not till then back out. Therefore it cannot be said that till then the accused had no intention of marrying the complainant even if he had held out any promise at all as alleged."

The discussion that follows the above passage is important and is extracted hereunder:

"The failure to keep the promise at a future uncertain date due to reasons not very clear on the evidence does not always amount to a misconception of fact at the inception of the act itself. In order to come within the meaning of misconception of fact, the fact must have an immediate relevance. The matter would have been different if the consent was obtained by creating a belief that they were already married. In such a case the consent could be said to result from a misconception of fact. But here the fact alleged is a promise to marry we do not know when. If a full grown girl consents to the act of sexual intercourse on a promise of marriage and continues to indulge in such activity until she becomes pregnant it is an act of promiscuity on her part and not an act induced by BA.4781/2021

misconception of fact. S. 90 IPC cannot be called in aid in such a case to pardon the act of the girl and fasten criminal liability on the other, unless the Court can be assured that from the very inception the accused never really intended to marry her." (emphasis supplied) The learned Judges referred to the decision of Chancery Court in Edgomgtpm vs. Fotz,airoce (1885) 29 Ch.D 459 and observed thus:

"This decision lays down that a misstatement of the intention of the defendant in doing a particular act may be a misstatement of fact, and if the plaintiff was misled by it, an action of deceit may be founded on it. The particular observation at p. 483 runs to the following effect: "There must be a misstatement of an existing fact." Therefore, in order to amount to a misstatement of fact the existing state of things and a misstatement as to that becomes relevant. In the absence of such evidence Sec. 90 cannot be called in aid in support of the contention that the consent of the complainant was obtained on a misconception of fact."

After referring to the case law on the subject, it was observed in Uday, supra at paragraph 21:

"It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are inclined to agree with this view, but we must add that there is no strait jacket formula BA.4781/2021

for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the Courts provide at best guidance to the judicial mind while considering a question of consent, but the Court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them."

12. On going through the above proposition of law what could be

gathered is that failure to keep promise to marry on a future

uncertain date, due to reasons not very clear on the evidence does

not always amount to a misconception of facts at the inception of

the act itself. It also lays down the proposition that consent given

by the Prosecutrix to sexual intercourse with a person with whom

she is deeply in love on a promise that he would marry her on a

later date cannot be said to be given under a misconception of

fact. It is also held that a false promise is not a fact within the BA.4781/2021

meaning of the Code. But the following decision in Uday referred

above, it is further added that there is no strait jacket formula for

determining whether consent given by the prosecutrix to sexual

intercourse is voluntary, or whether it is given under a

misconception of fact. It is also held that the Court in each case to

consider the evidence before it and the surrounding circumstances

before reaching a conclusion because each case has its own

peculiar facts which may have a bearing on the question whether

the consent was voluntary, or was given under a misconception of

fact.

13. Paragraph 20 and 21 of Dhruvaram Muridhr Sonar were

highlighted by the learned counsel which read thus :

"20. Thus, there is a clear distinction between rape and consensual sex. The court, in such cases, must very carefully examine whether the complainant 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, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such BA.4781/2021

an act would not amount to rape. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused and not solely on account of the misconception created by accused, or where an accused, on account of circumstances which he could not have foreseen or which were beyond his control, was unable to marry her despite having every intention to do. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship be- tween the parties would not constitute an offence under Section 376 of the IPC.

21. In the instant case, it is an admitted position that the appellant was serving as a Medical Officer in the Primary Health Centre and the complainant was working as an Assistant Nurse in the same health centre and that the is a widow. It was alleged by her that the appel- lant informed her that he is a married man and that he has differences with his wife. Admittedly, they belong to different communities. It is also alleged that the accused/appellant needed a month's time to get their marriage registered.

The complainant further states that she had fallen in love with the appellant and that she needed a companion as she was a widow. She has specifically stated that "as I was also a widow and I was also in need of a companion, I agreed to his proposal and since then we were having love affair and accordingly we started residing together. We used to reside sometimes at my home whereas some time BA.4781/2021

at his home." Thus, they were living together, sometimes at her house and sometimes at the residence of the appellant. They were in a relationship with each other for quite some time and enjoyed each other's company. It is also clear that they had been living as such for quite some time together. When she came to know that the appellant had married some other woman, she lodged the complaint. It is not her case that the complainant has forcibly raped her. She had taken a conscious decision after active application of mind to the things that had happened. It is not a case of a passive submission in the face of any psychological pressure exerted and there was a tacit consent and the tacit consent given by her was not the result of a misconception created in her mind. We are of the view that, even if the allegations made in the complaint are taken at their face value and accepted in their entirety, they do not make out a case against the appellant. We are also of the view that since complainant has failed to prima facie show the commission of rape, the complaint registered under Section 376(2)(b) cannot be sustained. "

14. So the above paragraph discussed the distinction between

rape and consensual sex and the court has to make careful

examination whether complainant had actually wanted to marry

the victim or had mala fide motive and had made a false promise BA.4781/2021

only to satisfy his lust which later falls within the ambit of cheating

or deception. It is also held that there is a distinction between mere

breach of promise and not fulfilling a false promise. So it is held

that if the accused had not made a promise with the sole intention

to seduce the prosecutrix to indulge in sexual acts, such acts will

not amount to rape. That was also a case in which the

appellant/accused was a serving medical Officer in a Primary

Health Centre and complainant was working as an Assistant Nurse

in the same Health Centre and she was a widow. The allegation was

that appellant informed her that he is a married man and has got

differences with his wife. They belonged to different communities

and accused needed a month's time to get their marriage

registered. Then the complainant states that she fell in love with

the accused and she needed a companion as she was a widow and

they were living together some times at her house and some times

at the residence of the appellant and they were in relationship with

each other for quite some time and enjoyed each others company.

So in such circumstances it has been found that the complainant

had taken a conscious decision after active application of mind to

the things that had happened and there was a tacit consent and BA.4781/2021

tacit consent given by her was not the result of a misconception

created in her mind. In such circumstances even if the allegations

made in the complaint are taken at their face value and accepted

in their entirety, they do not make out a case against the appellant

and in such circumstances, it was held that the complainant failed

to prima facie show the commission of rape and hence the

complaint registered under Section 376(2) (b) was held to be

unsustainable.But the allegations against the petitioner is quite

different in this case.

15. The learned counsel for the first respondent placed reliance

on State of Punjab v. Gurmit Singh and Others (1996 (2) SCC

384 = 1996 KHC 711) which lays down the law with regard to the

appreciation of the testimony of prosecutrix and its evidentiary

value, whether corroboration is necessary etc. State of M.P. v. Dal

Singh and Others (AIR 2013 SC 2059 = 2013 KHC 4427) was also

placed reliance which do not have any relevance to the case in

hand.

16. Coming to the allegations of the complainant against the

petitioner in this case, it has to be remembered that admittedly by

the accused the de facto complainant gave request to his BA.4781/2021

matrimonial profile in Shadi.com and he contacted the parents of

the de facto complainant and they were willing for the marriage

and thereafter he came down to India from UK. It is also his

contention that though he was willing to marry the de facto

complainant she was not having the documents pertaining to the

decree of divorce of her previous marriage and hence they could

not pursue that. Thereafter he raised allegations regarding strange

behavioural pattern of the de facto complainant and further that

she had earlier treated for mental ailments etc. The de facto

complainant produced Annexure-R3(b) which is a complaint dated

29.1.2021 raising the very same allegations against the petitioner

to the North Circle Inspector of Police and copy of agreement

alleged to have been executed between the petitioner and the de

facto complainant on 23.3.2021 wherein the petitioner voluntarily

agreed to marry the de facto complainant before the Sub Registrar

under the Special Marriage Act and it is also agreed that if at all the

first party withdrew from the consent after having applied for the

register marriage, the second party, ie, the de facto complainant

can proceed with the complaint filed by her against him for

cheating and rape. Annexure-R3(d) is the copy of the receipt dated BA.4781/2021

15.3.2021 submitted online to the Department of Registration to

show that the petitioner took initiative to register the marriage

under the Special Marriage Act. The specific allegation of the de

facto complainant is that when the petitioner came in October

2018 from UK he came to Vallarpadam Church on the same day

and a ring was adorned on her finger.

17. In the FIS also, the de facto complainant categorically stated

that both the family members fixed the marriage and ring

exchange was done in October, 2018. Then she has categorically

stated that after the engagement, the petitioner got her introduced

to Thrissur IG as a woman he is going to marry. While returning

from there, his mother was also in the car and they halted in her

rented house on that day. During night after 12 'O' clock petitioner

knocked at her door demanding water. When she went to his room

with water, he asked her to lie with him .When she refused, he

pulled her in and locked the door and gagged her and pushed her

to bed and she lost consciousness. When she got up, she was nude

and he was looking at the mobile without wearing anything. She

understood that she was raped. When she alarmed, he told her

that they are getting married and there is no need to make any BA.4781/2021

alarm and also threatened her stating that he would tell the people

that at her demand he came there and he will upload the nude

photos and videos in the net. Immediately on the next day she

disclosed the incident to his mother. Then mother also consoled her

stating that there is nothing to get worried since he is going to

marry her and mother assured to conduct their marriage . She was

taken to Alanchery father and he also introduced her as his fiance

to some prominent persons. Thereafter she was taken to his house

and due to his compulsion they lived together as husband and wife.

Further it is alleged that the first wife of the petitioner filed

complaint against the petitioner and the de facto complainant and

on further enquiry it was revealed that he had not filed any divorce

petition and she was being cheated and there was some quarrel in

between them. Again he threatened her. Subsequently he got

divorce in the year 2020. Then he refused to marry her stating that

she is a prostitute. Subsequently she filed complaint and again

accused undertook to marry her and steps also taken through

online to register the marriage on 15.3.2021 and based on an

agreement, complaint was withdrawn.

18. It has been alleged in the Bail Application that though he was BA.4781/2021

willing to marry the de facto complainant, she was not having

documents pertaining to decree of divorce of her previous

marriage. Specific case of de facto complainant is that she

obtained decree of divorce by mutual consent as early as on

31.12.2012 as per order in O.P.1121/2012 from the Family Court,

Ernakulam under Section 10(a)(2) of Indian Divorce Act. Copy of

that order has been produced in B.A.No.6185/2021 which was

heard along with this bail application.

19. Learned counsel for the de facto complainant produced

Annexure-R3(c) alleged to be a WhatsApp chat of the petitioner to

the de facto complainant wherein he has stated that he do not

want the de facto complainant any more and he is going to marry

another 31 year old lady.

20. So the materials produced from either side would prima facie

prove the prosecution allegation of the petitioner having forceful

sexual intercourse with the de facto complainant promising to

marry her. The investigation is at the preliminary stage, custodial

interrogation would be absolutely necessary in the facts and

circumstances of this case. Potency test would also have to be

conducted. The materials produced from the side of the de facto BA.4781/2021

complainant would prima facie establish the hold and influence of

the petitioner in the society. Hence in view of the grievous nature

of the offence alleged to have been committed by the petitioner

and prima facie materials in support of the allegations against the

petitioner, I do not think that this is a fit case to grant pre arrest

bail to the petitioner.

In the result, bail application dismissed.

M.R.Anitha, Judge

Mrcs/30.9.