CRL.MC NO. 5609 OF 2022

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. MONDAY, THE 27[TH] DAY OF NOVEMBER 2023 / 6TH AGRAHAYANA, 1945 CRL.MC NO. 5609 OF 2022`** ## **`CRIME NO.83/2022 OF ERNAKULAM TOWN SOUTH POLICE STATION, ERNAKULAM PROCEEDINGS IN CP 19/2022 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES),ERNAKULAM`** ## **`PETITIONER/ACCUSED:`** ``` XXXXX XXXXX ``` ``` BY ADVS. RAMEEZ NOOH MILLU DANDAPANI ROY THOMAS (MUVATTUPUZHA) RONIT ZACHARIAH FATHIMA K. GOPIKA P.J. SIRAJ ABDUL SALAM P.RAFTHAS K.N.MUHAMMED THANVEER ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. 2XXXXXXXXXX XXXXXXXXXX BY ADV NAVEEN A.VARKEY SRI.NOUSHAD K A, SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` CRL.MC NO. 5609 OF 2022 2 ## ORDER The petitioner is the accused in Crime No.83 of 2022 of Ernakulam Town South Police Station, Ernakulam District, which is now pending as C.P.No.19 of 2022 on the file of the Additional Chief Judicial Magistrate Court (E & O), Ernakulam. The petitioner faces allegations of having committed offences under Sections 376(1), 420 and 506 of the Indian Penal Code. 2. The facts of the case are slightly peculiar. According to the de-facto complainant, she met the petitioner on a matrimonial website. She initially filed Annexure – H complaint through e-mail on 10.07.2021, alleging that the petitioner had mentally and physically abused her and had cheated her after meeting her on a matrimonial website and promising to marry her. A reading of Annexure – H complaint itself shows that the de-facto complainant/victim was a married woman at that point in time. However, no FIR was registered against the petitioner based on Annexure – H complaint. It appears that thereafter the de-facto complainant/victim shared some details of her issues with the petitioner on ‘Facebook Live’ essentially alleging that the petitioner CRL.MC NO. 5609 OF 2022 3 was in the habit of establishing relationships with women in the age group of 30 and more, over matrimonial websites and on the pretext that he was willing to marry them and that the petitioner is a regular offender, who should be severely punished etc. Following this, the petitioner filed a complaint against the de-facto complainant and Crime No.1729 of 2021 of Maradu Police Station was registered against the de-facto complainant, alleging commission of offences under Section 66(D) of the Information Technology Act, 2000 and Sections 406, 420 and 504 of the Indian Penal Code. The said FIR was registered on 11.11.2021. On 19.01.2022, the de-facto complainant/victim gave the First Information Statement leading to the registration of crime No.83 of 2022 of Ernakulam Town South Police Station, alleging that the petitioner had committed offences under Sections 376(1) of the Indian Penal Code. Since there were allegations that the petitioner had also misused her debit card etc, and had also threatened her, the offences under Sections 420 and 506 of the Indian Penal Code were later added. 3. The learned counsel appearing for the petitioner would submit that the entire proceedings leading to the registration of Crime No.83 of 2022, including the filing of the Final Report, which is now pending as C.P.No.19 of 2022 on the file of the Additional CRL.MC NO. 5609 OF 2022 4 Chief Judicial Magistrate Court (E & O), Ernakulam are liable to be quashed as they amount to an abuse of process of law. He relies on the judgment of the Supreme Court in State of Haryana v. Bhajan Lal (1992 KHC 600) to contend that where the proceedings are malafide and meant only to harass the accused, this Court would be justified in quashing the proceedings under Section 482 of the Cr.P.C. It is submitted that in the first complaint filed by the defacto complainant/victim as Annexure – H, there was absolutely no allegation of rape. It is submitted that it is only after the petitioner filed a complaint against the de-facto complainant/victim on 11.11.2021 that the de-facto complainant/victim gave a complaint against the petitioner, as already noticed above. It is submitted that even a reading of the First Information Statement leading to registration of crime No.83 of 2022 of Ernakulam Town South Police Station will show that the allegation against the petitioner is that while the de-facto complainant/victim was residing in a hotel in Panampilly Nagar, the petitioner forced her to move to another hotel in Kadavanthra and while the de-facto complainant/victim was staying there in between 23.08.2020 and 04.09.2020, the petitioner visited her on 25.08.2020 and demanded some money from her stating that at any rate the petitioner and the de-facto complainant/victim were to get married to each other. It is alleged CRL.MC NO. 5609 OF 2022 5 that the petitioner obtained the debit card of the de-facto complainant/victim and thereafter, forced himself on the de-facto complainant/victim, stating that anyway they were to get married to each other. There is also an allegation that the petitioner had threatened to reveal her photographs etc, and compelled her to agree to have sexual relationships with the petitioner. It is submitted that this Court, while declining to interfere with the anticipatory bail granted to the petitioner by the Sessions Court, had observed as follows:- “13. The case of the petitioner as revealed from her statements u/s 161 and 164 of Cr.P.C. are as follows: The marriage of the petitioner was solemnized in the year 2008. Due to the difference of opinion, she and her husband mutually decided to dissolve their marriage in 2020 and approached the court. During the pendency of the divorce proceedings, the petitioner registered herself on www.keralachristianmatrimony.com to find a better partner. Then the 2[nd] respondent approached her introducing him as a native of Kottayam and stating that his divorce proceedings are in process and that the papers to be obtained from the court are delayed due to covid. Thereafter the 2[nd] respondent constantly called the petitioner over the phone, WhatsApp and Botim and promised marriage. He also introduced her to relatives and friends. Thereafter on 16/8/2020 the petitioner who was employed at U.A.E came to Kerala for her divorce case and stayed in a hotel at Panampilly Nagar. At that time, 2[nd] respondent came and visited her and shifted her to Park Residency Luxury Business Hotel at Kadavanthra on 23/8/2020. The petitioner thereafter stayed in room No.207 at the said hotel from CRL.MC NO. 5609 OF 2022 6 23/8/2020 to 4/9/2020. While so, on 25/8/2020 at 11.00 a.m., the 2[nd] respondent came to the room and requested some money. Since the 2[nd] respondent gave the impression that he was going to marry her, she gave a debit card from the Federal Bank to him. Thereafter the 2[nd] respondent told her that it was four years since he had sexual intercourse with his ex-wife and therefore he badly wants to marry the petitioner at the earliest and requested the petitioner to have sexual intercourse with him which was turned down by her. The 2[nd] respondent then threatened her that he would publish her photos and videos and committed rape on her. Later, she came to know that the 2[nd] respondent is in a live-in relationship with another lady and the promise of marriage was made by him to her only to satisfy his sexual lust. 14. The allegation of sexual assault/rape levelled against the 2[nd] respondent is a single incident which is alleged to have taken place at room No.207 in Park Residency Luxury Business Hotel at Kadavanthra at 11 am on 25/8/2020 mentioned above. The version of the petitioner would show that she was staying in another hotel, and she accepted the request of the 2[nd] respondent and voluntarily moved to the said hotel room. In the statement u/s 161 as well as u/s 164 of Cr.P.C., the only allegation is that the 2[nd] respondent had sexual intercourse with her forcefully and against her will at the hotel room on the said day. At the same time, all along the petitioner has also maintained a case that she was sexually assaulted by giving a false promise of marriage. It is to be noted that even after the alleged incident on 25/8/2020, she continued her stay in the very same hotel and in the very same room till 4/9/2020. The FIS was given, and the crime was registered only on 19/1/2022. The statements of the petitioner would reveal that even after the alleged act of rape, she gave money to the 2[nd] respondent believing his words that he would marry her. The documents produced by the 2[nd] respondent as well as the materials CRL.MC NO. 5609 OF 2022 7 on record would show that between 25/8/2020 and 19/1/2022, the petitioner came to Kochi and stayed in the very same hotel. But no complaint was preferred during those periods. Annexure II tax invoices produced by the 2[nd] respondent would show that the petitioner stayed at the very same hotel and in the very same room where allegedly the rape was committed for 21 days from 31/10/2020 to 20/11/2020 and for two days from 6/2/2021 to 8/2/2021. The forceful argument of the learned counsel for the 2[nd] respondent that had there been rape as alleged by the petitioner on 25/8/2020 at the room No.207 in Park Residency Luxury Business Hotel at Kadavanthra, it was quite unlikely that she would again come and stay in the very same room for days together cannot be brushed aside lightly while considering the question whether the 2[nd] respondent has made out a case for anticipatory bail. That apart, Annexure III is a complaint given by the petitioner to the District Police Chief, Kochi against the 2[nd] respondent on 10/7/2021 through e-mail. In the said complaint also, there was no allegation of rape. It appears that thereafter the 2[nd] respondent filed a police complaint against the petitioner before the Cyber Crime Police, Kochi city and before the City Police Office, Kochi on 22/9/2021 as evident from Annexure IV alleging that the petitioner posted abusive and threatening language about him and his relatives in social media. Thereafter again the 2[nd] respondent filed a private complaint against the petitioner before the Judicial First Class Magistrate Court- VIII Ernakulam as CMP 2036/2021. The Magistrate forwarded the said complaint u/s 156(3) of Cr.P.C and an FIR has been registered as Crime No.1729/2021 against the petitioner u/s 406, 420, 504 of IPC and S.66D of the IT Act as evident from Annexure V. It was thereafter the FIS was given by the petitioner against the 2[nd] respondent on 19/1/2022 and a crime was registered against him. It was considering all this sequence of events and facts and circumstances, the court below granted anticipatory bail to the 2[nd] respondent. It is true CRL.MC NO. 5609 OF 2022 8 that the court below entered a wrong finding that the marriage of the petitioner was not dissolved. But it was not based on the said finding alone that the bail was granted.” It is submitted that though the said observations are in a petition filed seeking cancellation of the anticipatory bail granted to the petitioner, the said findings can be taken note of by this Court, especially in the light of the affidavit now executed by the de-facto complainant/victim that all issues between the petitioner and the de-facto complainant have been settled and she does not wish to prosecute the complaint in any manner. It is submitted that the essence of the complaint filed by the de-facto complainant/victim is that the petitioner had committed rape on the de-facto complainant/victim on the false promise of marriage. It is submitted that when the de-facto complainant/victim was already in a subsisting marriage, there cannot have been any complaint made that the petitioner had committed rape on the false promise of marriage. Reliance is placed in this regard on the judgment of this Court in Tino Thankachan v. State of Kerala and another [2022 (6) KLT 832] where this Court had taken the view that there could not have been an allegation of rape on the false promise of marriage when one of the parties was in an existing marriage and this fact was known to the other party as well. CRL.MC NO. 5609 OF 2022 9 4. The learned Public Prosecutor submits that it may not be possible for this Court to exercise jurisdiction under Section 482 of the Cr.P.C to quash the proceedings in Crime No.83 of 2022 of Ernakulam Town South Police Station, Ernakulam, now pending as C.P.No.19 of 2022 before the Additional Chief Judicial Magistrate Court (E&O), Ernakulam on the ground of settlement in the light of the decisions in Gian Singh v. State of Punjab and Another; (2012) 10 SCC 303, and State of Madhya Pradesh v. Laxmi Narayan and Others; (2019) 5 SCC 688. It is submitted that the offence of rape falls within the category of heinous offences, which cannot be quashed on the ground of settlement. It is submitted that in such circumstances, it is for the petitioner to face trial and to prove the essential facts, including the fact that the de-facto complainant/victim was in an existing marriage and, therefore, there could not have been any allegation of rape on the false promise of marriage. It is also pointed out that apart from the offence under Section 376 of the Indian Penal Code, there are allegations of the petitioner having committed the offence under Sections 420 and 506 of the Indian Penal Code and therefore, the petitioner has to face trial and prove his innocence in a manner known to law. CRL.MC NO. 5609 OF 2022 10 5. The learned counsel appearing for the de-facto complainant/victim (2[nd] respondent) would submit that the de-facto complainant/victim does not wish to continue with the proceedings against the petitioner. She also admits that at a time when she had entered into a relationship with the petitioner, her marriage was subsisting though proceedings for obtaining divorce were ongoing. 6. Having heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the de-facto complainant/victim / 2[nd] respondent, I believe that the proceedings against the petitioner can be quashed. As observed by this Court in Annexure – D order, a reading of the First Information Statement of the de-facto complainant leading to registration of Crime No.83 of 2022 essentially shows that according to the defacto complainant/victim, the petitioner had committed rape on her on the false promise of marriage. A reading of Annexure – H complaint filed by the de-facto complainant/victim (which is the first complaint filed by the de-facto complainant/victim against the petitioner) will show that she was in a subsisting marriage at the time when she had entered into a relationship with the petitioner. Therefore, applying the law laid down by this Court in Tino Thankachan (supra), no allegation of rape on the false promise of CRL.MC NO. 5609 OF 2022 11 marriage could be raised against the petitioner. The learned Public Prosecutor is, of course, right in contending on the authority of Gian Singh (supra), State of Madhya Pradesh (supra) v. Laxmi Narayan and Others (supra) and Tino Thankachan (supra) that the offence of rape cannot be quashed on the ground of settlement. However, I am of the view that since the de-facto complainant/victim was admittedly in a subsisting marriage at the time when she entered into the relationship with the petitioner, there cannot have been an allegation of rape on the false promise of marriage. Coming to the offences under Sections 420 and 506 of the Indian Penal Code [which are the other offences alleged against the petitioner] I am of the view that the settlement between the parties can be taken note of for the purpose of quashing the proceedings as those offences do not fall within the category of heinous offences, which would require this Court to refrain from exercising jurisdiction under Section 482 of the Cr.P.C. Accordingly, this Crl. M.C is allowed, and all further proceedings in C.P.No.19 of 2022 on the file of the Additional Chief Judicial Magistrate Court (E & O), Ernakulam, arising out of Crime No.83 of 2022 of Ernakulam Town South Police Station, Ernakulam, will stand quashed as against the petitioner making it CRL.MC NO. 5609 OF 2022 12 clear that the proceedings are being quashed not on the ground of settlement, but on merits and on the finding that an allegation of rape on the false promise of marriage cannot be raised when one of the parties was in a subsisting marriage and this fact was known to the other party as well. Sd/GOPINATH P. JUDGE DK