IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 30TH MAY 2011 / 9TH JYAISHTA 1933 Crl.MC.No. 4624 of 2010() ---------------------------------------- CRIME NO.1265/2010 OF NJARAKKAL POLICE STATION. .......... PETITIONER(S): ----------------------- FR. MARTIN KUTTIKATT, VICAR, ST. GEORGE CHURCH, EROOR, THRIPUNITHURA ERNAKULAM. BY ADV. SRI.M.M.MATHEW RESPONDENT(S): ----------------------- 1. S.I. OF POLICE, NARAKKAL POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT ERNAKULAM. 2. ANNIE GRACY @ OMANA, W/O. LATE JAMES, MALIEKKAL, ELEAMKUNNAPUZHA, PERUMPALLY.P.O., ERNAKULAM DISTRICT. R1 BY PUBLIC PROSECUTOR SRI.MANU R2 BY ADVS. SRI.A.X.VARGHESE, SRI.A.V.JOJO. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss THOMAS P. JOSEPH, J. -------------------------------------- Crl.M.C. No.4624 of 2010 -------------------------------------- Dated this the 30th day of May, 2011. ORDER At a time when petitioner was the Vicar of St.George Church, Eroor to which the second respondent, married and mother of two children belonged, he allegedly developed intimacy with the second respondent which grew into an illicit affair. It is alleged by the second respondent that while so, petitioner asked her to come for an outing, at the agreed spot petitioner came riding a motor cycle and took her to a lodge at Alappuzha on August 22, 2005 where petitioner committed rape on her. Such incidents followed on later occasions also and when she restricted, it is alleged that petitioner offered to maintain her if necessary divesting himself of his Holy robe. While so, her husband committed suicide on 26.01.2007. She delivered a male child on 05.05.2007. It is the further case of second respondent that even thereafter the alleged intimacy between herself and petitioner continued. Petitioner was providing maintenance for herself and children. After death of her husband, petitioner allegedly promised to marry her and on that promise also, petitioner had sexual intercourse with her. While so, second respondent learnt that petitioner developed intimacy with another woman and thereon she lost no time to lodge first information with the Njarakkal Police on 16.11.2010 at 12.30 p.m. alleging offence as above stated. Njarakkal Police registered Crime No.1265 of 2010 for Crl.MC No.4624/2010 2 offence punishable under Section 376 of the Indian Penal Code (for short, “the IPC”). At that stage petitioner approached this Court seeking to quash proceeding against him contending that no offence under Section 376 of the IPC is made out in so far as even a consideration of the FIS and attending circumstances would show that the alleged act, if at all true is consented. Learned counsel for petitioner has contended that in the above circumstances, this Court is justified in interfering with the on going investigation and quashing the FIR. Learned counsel has placed reliance on the decision in State of West Bengal and others v. Swapan Kumar Guha and others (AIR 1982 SC 949). It is also contended that immediately after registration of the case at the instance of the sister of second respondent, a Police Constable reports were given in the local vernacular dailies about registration of the case and the proposal of Police to conduct DNA test to find whether the third child of second respondent is born to the petitioner. Learned counsel contended that since, admittedly the third child was begotten at a time when the lawful marriage between second respondent and her husband was subsisting, no DNA test is possible in view of the conclusive presumption under Section 112 of the Evidence Act. Reliance is placed on the decision in Smt.Kamti Devi and another v. Poshi Ram (AIR 2001 SC 2226). 2. Learned counsel for second respondent contended that it is only in rare situations where absolutely no offence is made out or the allegations Crl.MC No.4624/2010 3 are false or totally improbable that the High Court is justified in interfering with the FIR and stopping investigation of the case. Reliance is placed on the decisions in R.Kalyani v. Janak C. Mehta and others ((2009) 1 SCC 516) and State of Maharashtra v. Sayed Mohammed Masood and another ((2009) 8 SCC 787). Reliance is also placed on the decision in State of Maharashtra v. Mohd. Sajid Husain Mohd. S.Husain (2008 (1) SCC 213) where in paragraph 30 it was observed that in cases of this nature the High Court shall not interfere with the investigation. 3. I have been taken through Annexure-I, FIR. The first information statement of second respondent is attached to it. The contention of petitioner in short is that the allegations if at all accepted would not make an offence punishable under Section 376 of the IPC. That argument is based on the contention that the act if any was with the consent of second respondent. I must bear in mind that if consent is obtained by fraud, that is no consent and that act would amount to contributory under Section 376 of the IPC. It is the contention of second respondent that at the first instance, it was a clean case of forcible sexual intercourse followed by petitioner allegedly giving certain promises to her and on that promise, subjecting her to sexual intercourse. Whether there was any such incidents, if so it was on any promise and assuming so, the promise was only a hoax to elicit consent from the second respondent are all matters for investigation. Learned counsel for petitioner has drawn my attention to Crl.MC No.4624/2010 4 Annexure-II, notice issued to the petitioner on behalf of the second respondent where, it is stated that petitioner used to pay maintenance to the second respondent and her third child till August, 2010. According to the learned counsel, second respondent had no complaint of rape till then. Even as per the first information statement, it would appear that except the first (alleged) incident, all other incidents (allegedly) occurred on the basis of consent procured from the second respondent, according to the latter, on false pretext. 4. True, that if offence is made out or allegations are palpably wrong, absured or totally improper it is within the power of the High Court to interfere and quash the proceeding. But, I am not inclined to think that the present case falls in that category so that, this Court is required to interfere and quash. 5. So far as validity of conducting DNA test is concerned it is not necessary for me to go into that question in this proceeding since it is not in challenge of any such step. I must bear in mind that this is not a dispute between the husband and wife. The second respondent alleges that petitioner is the father of her third child. I do not however consider it necessary to decide that issue in this proceeding. 6. Having gone through the records and hearing learned counsel I find no reason to interfere with the matter at this stage and quash the proceeding against petitioner. Resultantly this Criminal Miscellaneous Case fails. It is dismissed. The investigation shall be continued untrammelled by any observation contained Crl.MC No.4624/2010 5 in this order. I make it clear that as to acceptability or otherwise of the case pleaded by the second respondent, it is a matter which the Investigating Agency has to look into in the course of investigation. THOMAS P.JOSEPH, Judge. cks