Agreement To Withdraw Prosecution In Rape Case Is Opposed To Public Policy: Kerala High Court Declines To Quash Proceedings

As per Section 23 of the Contract, if the court regards that the object of an agreement is opposed to public policy, the agreement is void. Here the Court held that the agreement will stifle prosecution of public offence and it is opposed to public policy.

Justice A. Badharudeen observed:

“That it is well settled law that any agreement or contract would be void for the reason that its consideration is opposed to public policy. In the same manner, the contract or agreement for withdrawing from prosecution is nothing but stifling the prosecution involving public offence and the same is opposed to public policy.”

As per the complaint, the complainant who was an employee of Vengallur Panchayat office was subjected to rape by the Assistant Secretary of the Panchayat.

The complainant had been living separately from her husband for the last 23 years. Before the alleged incident, the complainant had complained to the Secretary of the Panchayat that the accused disturbed her from doing her assigned job and compelled her to do the job along with him.

It was submitted that when she was called to the office to clear some urgent work on a Sunday, the accused took her to his cabin and subjected her to forceful sexual intercourse. Later when she met a doctor due to pain, the accused offered to marry her. Thereafter, on the promise of marriage, the accused continued sexual assault.

The petitioner/ accused approached the High Court to quash the final report and all further proceedings in the case. He relied on the agreement of settlement entered into between the accused and the complainant to allege that the petitioner was implicated in this crime to get money from him.

He added that even if the allegation of sexual intercourse is found to be true, the same was the outcome of consent.

The prosecution opposed the plea saying that such an agreement would not erase the allegation of the prosecution as the materials would prima facie show that the accused committed offences punishable under Sections 376(2)(b) and 376(2)(n) of Indian Penal Code.

The Court thus held that the allegation in the complaint could not be prima facie held to one which rose out of consent. It observed that the matter should be sent to trial where the prosecution can adduce evidence. Hence, the case was dismissed.

Counsel for the Petitioner: Advocates A. Ranjith Narayanan, A. Simi

Counsel for the Respondents: Public Prosecutor Adv. M. P. Prasanth, Adv. K. K. Razia

Case No: Crl. M. C. 401 of 2020

Case Title: Abdul Jaleel v State of Kerala and Another

Citation: 2024 LiveLaw (Ker) 542