Madras High Court

Gunasekaran vs The Deputy Superintendent Of ... on 19 April, 2023

                                                                            Crl OP No. 4611 / 2021

                              IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 19.04.2023

                                                    CORAM :

                                  THE HONOURABLE MR. JUSTICE SUNDER MOHAN

                                 Criminal Original Petition No. 4611 of 2021
                                                     and
                                         Crl.M.P. No. 2971 of 2021
                     Gunasekaran                                       ... Petitioner

                                                      Versus


                     1. The Deputy Superintendent of Police,
                        Investigation Officer,
                        Paramathai Velur,
                        Namakkal District.

                     2. The Inspector of Police,
                        Nallur Police Station,
                        Namakkal District,
                        Crime No.678 of 2020.

                     3. Usha                                     ... Respondents

                     PRAYER : Criminal Original Petition filed under Section 482 of the
                     Criminal Procedure Code seeking to call for the records relating to
                     charge sheet in Spl.S.C. No. 12 of 2021 on the file of the Special Court
                     for SC / ST cases / Principal District and Sessions Court, Namakkal.


                     (amended as per order dated 23.02.2023 in Crl.M.P. No. 13851 of 2022
                     in Crl.O.P. No. 4611 of 2021)

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                                                                                    Crl OP No. 4611 / 2021




                                    For petitioner   : Mr. A. Padmanabhan.

                                    For Respondents : Mr. S. Balaji,
                                             Government Advocate (Crl.Side) for R1 & R2

                                               No appearance for R3.


                                              ORDER

The Petition is to quash the final report in Spl.S.C. No. 12 of 2021

on the file of the Special Court for SC / ST cases, Namakkal for the

alleged offence under Sections 376 of the Indian Penal Code read with

Section 3 (2)(V) and 3 (1)(s) of the Schedule Caste and the Schedule

Tribes (Prevention of Atrocities) Amendment Act, 2015.

2.It is alleged in the final report that the defacto complainant

was married to one Mahalingam on 16.05.2010 and two children were

born out of the wedlock; that the defacto complainant did not live with

the said Mahalingam and lived with her parents and started a tailoring

business; that in the month of April 2018, she became acquainted with

the petitioner who was a financier; that she used to borrow money from

the petitioner for her tailoring business; that the petitioner promised that

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Crl OP No. 4611 / 2021

he will take care of her and induced her to have sexual intercourse; that

on 14.01.2020 at about 11.30 a.m., the petitioner tied thali on her neck;

that when the defacto complainant came to know that the petitioner was

attempted to marry another lady, she met him on 20.10.2020 at 04.00

p.m. and when she questioned him, the petitioner abused her by using

caste name within public view.

3. This petition was originally filed challenging the FIR in Crime

Number 678 of 2020. At the time of admission, this Court had passed an

order granting stay of the investigation in the said crime number.

However, the respondents in violation of the said order had filed the

impugned final report on 13.04.2021. The petitioner filed contempt

petition in Cont.P. No. 221 of 2022 for punishing the respondents for

contempt. This Court accepted the explanation offered by the

respondents and gave liberty to the petitioner to challenge the final report

by amending the prayer of this petition. The petitioner accordingly has

filed Crl.M.P. No. 13851 of 2022 to amend the prayer in Crl.O.P. No.

4611 of 2021. This Court by order dated 23.02.2023 has allowed the

said petition.

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Crl OP No. 4611 / 2021

4.The learned counsel for the petitioner would submit that the

allegations even if accepted to be true, do not attract the offence under

Section 376 of the Indian Penal Code. The third respondent is admittedly

a married woman and the mother of two children; that she was mature

enough to understand the significance and consequence of the act, she

was consenting to. She should not have expected the petitioner to marry

her. Therefore her consent cannot be said to be under a misconception.

The allegations are an after thought and in any event would not amount

to the offence under Section 376 of the Indian Penal Code. The learned

counsel relied upon the Judgment of the Hon'ble Supreme Court in Naim

Ahmed Vs. State (NCT of Delhi) reported in 2023 LiveLaw (SC) 66 and

the order of the High Court of Jharkhand, Ranchi in Manish Kumar

Sharma Vs.The State of Jharkhand in Cr.M.P. No. 488 of 2022 dated

06.12.2022 in support of his submissions. The learned counsel would

further submit that the allegation with regard to abusing the third

respondent using her caste name is false and the third respondent cannot

be believed.

5.The learned Additional Public Prosecutor appearing for the

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Crl OP No. 4611 / 2021

respondents 1 and 2 submitted that the question as to whether the consent

of the third respondent was voluntary or obtained by false representation

has to be adjudicated only before the trial Court. Further there are

allegations in the impugned final report stating that the petitioner has

abused the third respondent by caste name, attracting the offence under

Section 3 (1)(s) of the Schedule Caste and the Schedule Tribes

(Prevention of Atrocities) Amendment Act, 2015. Hence, he prayed for

dismissal of the quash petition.

6. Though notice was served on the third respondent / defacto

complainant, none has entered appearance on her behalf.

7. This Court on perusal of the impugned final report finds that the

third respondent is a married woman and was admittedly living away

from her husband. She has two children out of the said wedlock. In such

circumstances, she became friendly with the petitioner. It is her case that

the petitioner promised to take care of her and forced himself on her and

committed sexual intercourse on several occasions. It is also her case

that on 14.01.2020, he tied a thali and represented that he was married to

her. The above facts would clearly show that the consent was not https://www.mhc.tn.gov.in/judis

Crl OP No. 4611 / 2021

obtained by any misrepresentation by the petitioner. The third

respondent who is a married lady having two children would not have

expected the petitioner to marry her. The facts are squarely covered by

the Judgment of the Hon'ble Supreme Court in Naim Ahmed Vs. State

(NCT of Delhi) reported in 2023 LiveLaw (SC) 66. The relevant

observations are extracted as follows;

“21. In the instant case, the prosecutrix who herself was a married woman having three children, could not be said to have acted under the alleged false promise given by the appellant or under the misconception of fact while giving the consent to have sexual relationship with the appellant. Undisputedly, she continued to have such relationship with him at least for about five years till she gave complaint in the year 2015....”

In the instant case admittedly she was in relationship with the petitioner

for nearly two years. Further, this Court had occasion to consider the

question of consent given under a misconception of fact in Ravi Vs. The

State rep., by the Inspector of Police in Crl.R.C. No. 126 of 2017 dated

29.07.2022. The relevant observations are extracted here for better

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understanding;

“20.Thus from the above Judgments, we can see that though the Hon'ble Apex Court in Deelip Singh's case (cited supra) felt that Section 90 IPC cannot be construed as exhaustive definition of consent for the purpose of IPC, however, in the later portion of the said Judgment discussed the legal aspects bearing on the interpretation of the term consent with reference to Section 90 IPC. The subsequent judgments of the Hon’ble Apex Court also considered the validity of the consent of the victim only with reference to Section 90 IPC. The Hon'ble Apex Court further held that misrepresentation or false promise made in certain cases may be regarded as leading to misconception of fact. In Pramod's case the Hon'ble Supreme Court summed up legal principles which we have extracted in the earlier part of this judgment. In that case the Hon'ble Apex Court held that for a consent to be vitiated because of a false promise to marry two conditions have to satisfied. Firstly, the promise of marriage must have been a false promise given in bad faith with no intention of fulfilling it. Secondly, the false promise must bear a direct nexus to the women’s decision to engage in the sexual act. In Maheshwar Tigga's case https://www.mhc.tn.gov.in/judis

Crl OP No. 4611 / 2021

(cited supra), the Hon'ble Apex Court held that the misconception of fact has to be proximate to the time of occurrence. If the occurrence is spread over a long period of time, then the consent cannot be said to have been obtained under a misconception of fact.“

In the facts of this case, it cannot be said that the third respondent gave

her consent under a misconception of fact, in view of her marital status

and the fact that the alleged occurrence was spread over a long period of

time. For all the above reasons, this Court is of the view that the offence

under Section 376 of the Indian Penal Code is not made out in the facts

of the instant case. Hence the offence under Section 3(2)(v) of the

Schedule Caste and the Schedule Tribes (Prevention of Atrocities)

Amendment Act, 2015 is also not made out.

8. As regards the offence under Section 3 (1)(s) of the Schedule

Caste and the Schedule Tribes (Prevention of Atrocities) Amendment

Act, 2015, this Court finds that the said allegation has been made out

only to arm twist the petitioner. On an over all reading of the allegations

in the impugned final report, this Court is of the view that the third

respondent's grievance is that the petitioner had deserted her after having

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relationship for nearly two years. In view of the intimate relationship

between the parties for a long time, the allegations with regard to the

abuse clearly appears to be an after thought and improbable. Hence, this

Court is of the view that the impugned proceedings are liable to be

quashed.