Jothiragawan vs The State Rep. By The Inspector Of Police

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO…………..OF 2025 [@ SPECIAL LEAVE PETITION (CRL) NO.6821 OF 2024]

JOTHIRAGAWAN …APPELLANT

VERSUS

STATE REP. BY THE INSPECTOR OF POLICE & ANR. …RESPONDENTS

JUDGMENT

K. VINOD CHANDRAN, J.

Leave Granted.

2. An application made under Section 482 of the

Code of Criminal Procedure1 was rejected by the High Signature Not Verified Digitally signed by Jayant Kumar Arora Date: 2025.03.24 17:05:17 IST Reason:

1 For brevity ‘Cr.P.C.’

Page 1 of 12 Court of Judicature at Madras; which is impugned

herein.

3. We heard Mr. M. P. Parthiban, learned

Counsel for the petitioner, Mr. Sabarish Subramanian,

learned Counsel for the State and Mr. Vairawan A.S.

learned Counsel for the complainant.

4. The learned Counsel for the appellant

submitted that there were multiple interactions by the

complainant and the accused, who were both major

individuals, which clearly indicates consent on the part

of the complainant, the alleged victim. It is argued that

there was never a promise of marriage given by the

accused so as to induce the complainant into a physical

relationship. This is also not evident from the

statements of the victim in the complaint that was given

before the police; whereas consent is evident therefrom.

There can be no prosecution lodged for rape based on

the complaint. Insofar as the allegation of promise of

Page 2 of 12 marriage to induce the complainant to consent, the

learned Counsel relies on a judgment of this Court in

“Prithvirajan vs. The State Represented by the Inspector

of Police & Another2” passed on 20.01.2025.

5. Learned Standing Counsel appearing for the

State points out that there is no reason to interfere at

this stage, especially since the statements given by the

victim clearly indicates that she was coerced into a

physical relationship. Only a trial would reveal what

actually transpired and there is no reason to now invoke

the extraordinary jurisdiction under Section 482 of the

Cr.P.C. Learned Counsel appearing for the victim,

however, asserts that the victim has specifically alleged

inducement on the promise of marriage, which brings it

under Section 90 of the Indian Penal Code 3 being a

consent on clear misrepresentation and misconception.

The charge is of rape and cheating; the fraudulent

2 Criminal Appeal No.282 of 2025 @ SLP(Crl.) No.12663 of 2022 3 For brevity ‘I.P.C.’

Page 3 of 12 inducement being evident from the promise which was

not kept.

6. The High Court had relied on a decision of

this Court and found that the victim and the accused

were aged about 22 years, were close relatives and the

complaint given by the victim clearly indicates that the

accused obtained a forced consent from her by giving a

promise to marry her. It was also found that the victim

had categorically stated that subsequently the accused

had refused to marry her. Whether the accused had

duped the victim to have sexual intercourse with him on

the promise of marriage, was a matter of trial, held the

Learned Sessions Judge. The application hence, was

dismissed.

7. We have gone through the First Information

Statement made by the complainant and the statement

given before the Police which would form the basis of the

trial. Unless the ingredients of an offence under Section

Page 4 of 12 376 of the I.P.C. comes forth from these documents;

which read together reveal identical statements, there

cannot be any continuation of the prosecution. In this

context, we also have to notice Prithivirajan2 from which

paragraph 7 is extracted hereunder:

“7. The instant case is one of consensual relationship between the appellant and prosecutrix. Even otherwise, it does not appear from the record that the initial promise to marry allegedly made by the appellant was false to begin with. Perusal of FIR itself suggests that the alleged promise to marry could not be fulfilled by the appellant due to intervening circumstances. Consequently, the relationship ended because of which the present FIR came to be registered. Under these circumstances, letting the appellant face trial would be nothing short of an abuse of the process of the Court. This cannot be permitted.”

Page 5 of 12

8. As per the complaint and the statement given

by the victim, the couple had sexual intercourse thrice.

They first met in a family function, where they both

exchanged their phone numbers. After a few days, the

accused expressed his desire to marry the victim, when

the victim categorically told him that she was studying

and she would think it over, after completing her

studies. Thus, started a relationship which resulted in

frequent conversations and exchange of messages over

the mobile phone and intermittent visits by the accused,

to the house of the victim’s grandmother, where she was

residing; as stated by the complainant herself. On

17.04.2021, at the request of the accused, the victim

accompanied him to a movie after which, she felt dizzy

and they took a room in a hotel where according to the

victim, there was an ‘abrupt and unexpected’ sexual

intercourse, under coercion against her wish. Despite

Page 6 of 12 protesting and crying out the accused continued the act,

after which she told him that he had ruined her life. It

was at this juncture, that a promise was made by the

accused, putting his hand on her head, that he would

marry her. From the statements recorded we do not find

any inducement by the accused, with a promise of

marriage, before the alleged crime, leading to the sexual

intercourse. The marriage proposal was not accepted by

the victim and there is not even a statement that she

succumbed to the sexual intercourse on such proposal;

being made. It is the definite case put forth by the

victim that the accused had acted unexpectedly and she

was coerced into a sexual intercourse despite her

protests. The promise as stated, if at all, was after the

intercourse.

9. The complaint proceeds that again on the

pretext of discussing marriage, the accused called the

victim and she willingly accompanied him to the very

Page 7 of 12 same hotel. It was stated that the accused made entries

in the hotel register, falsifying their names. On entering

the room when the victim wanted to talk about marriage,

it is the specific statement that the accused refused to

talk about it till they had an intercourse and thus again

the victim was coerced into a sexual intercourse. At this

stage also, there is no promise of marriage or any

inducement thereby and the allegation was that the

accused threatened her that he would not marry, if she

did not have sexual intercourse with him and then

forcibly had such intercourse. These are mutually

destructive contentions, since, if there is consent, there

cannot be alleged forceful intercourse and it could only

be contended that consent was obtained on

misrepresentation or coercion.

10. It is also the categoric statement of the victim

that after both instances the victim was mentally upset

but this did not prevent her from, still again going to the

Page 8 of 12 very same hotel at the request of the accused, a third

time. The story was repeated, of the talk of marriage

having been kept aside till the sexual intercourse had

been carried out, again forcefully. There is also an

allegation of threat and coercion before they had

physical relationship. It is the victim’s case that after

the three incidents, the complainant refused to pick up

the telephone and when the victim eventually could

contact him, he refused to solemnise their relationship

by a valid marriage.

11. We have already found that there is no

promise of marriage to coerce consent from the victim for

sexual intercourse; as forthcoming from the statements

made by the victim. The promise if any was after the first

physical intercourse and even later the allegation was

forceful intercourse without any consent. In all the three

instances it was the allegation that, the intercourse was

on threat and coercion and there is no consent spoken of

Page 9 of 12 by the victim, in which case there cannot be any

inducement found, on a promise held out. The allegation

of forceful intercourse on threat and coercion is also not

believable, given the relationship admitted between the

parties and the willing and repeated excursions to hotel

rooms.

12. On a reading of the statements made by the

victim before the Police, both the First Information

Statement and that recorded later on, we are not

convinced that the sexual relationship admitted by both

the parties was without the consent of the victim. That

they were closely related and were in a relationship is

admitted by the victim. The allegation is also of threat

and coercion against the victim, to have sexual

intercourse with the accused, which even as per the

victim’s statement was repeated thrice in the same

manner, when she willingly accompanied the accused to

a hotel room. The victim had also categorically stated

Page 10 of 12 that after the first incident and the second incident she

was mentally upset, but that did not caution her from

again accompanying the accused to hotel rooms.

13. Having heard both sides in this case, we have

absolutely no doubt in our mind that the criminal

proceedings initiated against the present appellant are

nothing but an abuse of process of the court. This is

precisely a case where the High Court should have

interfered in exercise of its inherent and extraordinary

powers under Section 482 of the Cr.P.C. These

proceedings cannot go on. Hence, we direct that the

proceedings initiated at the instance of the complainant

which are presently going on before Sessions Judge

(Mahila Court), Erode in S.C. No. 49 of 2022, be hereby

quashed.

14. Accordingly, the appeal stands allowed on the

aforesaid terms.

Page 11 of 12

15. Pending application(s), if any, shall stand

disposed of.

……………………..……………, J.

[SUDHANSHU DHULIA]

……………………..……………, J.

[K. VINOD CHANDRAN]

NEW DELHI;

March 24, 2025.

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