RODHIN K. v. STATE OF KERALA AND OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 09TH DAY OF SEPTEMBER 2020 / 18TH BHADRA, 1942** ## **CRL.MC.NO.7263 OF 2018(G)** **CRIME NO.448/2018 OF NADAPURAM POLICE STATION, KOZHIKODE** ## **PETITIONER/ACCUSED:** **RODHIN K., AGED 26 YEARS, S/O DINESAN, KAREKANDI HOUSE, NADAPURAM POST, KOZHIKODE DISTRICT, PIN-673 504.** **BY ADVS. SRI.K.N.ABHILASH SRI.SUNIL NAIR PALAKKAT** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM- 682 031.**| |**2**|**THE STATION HOUSE OFFICER,**| ||**NADAPURAM POLICE STATION,**| ||**KOZHIKODE DISTRICT, PION-673 504.**| |**3**|**VICTIM**| ||**ADV. SRI.K.B.ARUNKUMAR FOR R3**| ||**SRI.B.JAYASURYA, PUBLIC PROSECUTOR**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 09.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. ------------------------------------Crl.M.C. No. 7263 of 2018 ------------------------------------Dated this the 9[th] day of September, 2020 ## O R D E R The prayers in the above Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C. are as follows: “ - _i. To quash the Annexure A3 FIR No.448/2018 dated 17.10.2018 of the Nadapuram Police Station, Kozhikode District._ - _ii. Issue any other order or direction, which this Hon'ble Court may deem fit and proper from time to time for the Petitioner to attain the ends of justice.”_ 2. According to the petitioner, he and the 3[rd] respondent are spouses and their marriage was solemnized on 30.4.2018 as per the Hindu rites. Their marriage became strained when the petitioner allegedly came to know that the 3[rd] respondent was having an affair with another person, and the petitioner has obtained the phone conversation between the 3[rd] respondent and the abovesaid person. The said conversation was taken place after the marriage. That, the petitioner tried to settle the dispute, but the 3[rd] respondent was adamant in the matter and therefore the petitioner had no other alternative, but to file Anx.A-1 O.P. No.575/2018 on the file of the Family Court, Vatakara, seeking for dissolution of marriage. Further that, immediately after coming Crl.M.C. No. 7263 of 2018 ..3.. to know about the filing of Anx.A-1, the 3[rd] respondent has preferred two complaints against the petitioner, the first of which is that the petitioner allegedly committed offences under Secs.498A & 406 of the IPC, which has resulted in Anx.A-2 FIR in Crime No.449/2018 on 17.10.2018 of the Nadapuram Police Station, Kozhikode district. The latter complaint is the one given by the 3[rd] respondent before the learned Magistrate alleging that the petitioner has committed the offence of rape as per Sec.376 of the IPC on 8.12.2017 before the solemnization of their marriage on 30.4.2018. The petitioner would strongly urge that, it is only when marital relationship between the parties have become strained that the 3[rd] respondent has chosen to file the abovesaid two complaints, the latter of which has resulted in Anx.A-3 FIR in Crime No.448/2018 on 17.10.2018 of the Nadapuram Police Station, Kozhikode district. 3. From a reading of Anx.A-3 private criminal complaint filed by the 3[rd] respondent before the learned Magistrate which has resulted in Anx.A-3 Crime No.448/2018 of the Nadapuram Police Station, Kozhikode district, it is seen that the allegations are Crl.M.C. No. 7263 of 2018 ..4.. to the effect that prior to the solemnization of marriage on 30.4.2018, the engagement function of the petitioner and the 3[rd] respondent was conducted on 30.3.2016 and the parties have exchanged bangles. Thereafter the petitioner had come to the place where the 3[rd] respondent was working and had told that he has exchanged ring with her and she should come with him in order to have discussion about certain aspects for the conduct of marriage, and under that guise he had taken the 3[rd] respondent in his motor cycle to a party office where he had committed forceful sexual intercourse with her. Anx.A-3 private criminal complaint has been filed by the 3[rd] respondent on 11.10.2018, and on the same day the 3[rd] respondent has filed yet another private criminal complaint alleging offence as per Secs.498A & 406 of the IPC, which has resulted in Anx.A-2 Crime No.449/2018 of the Nadapuram Police Station, Kozhikode district. 4. Going by the admitted case of the prosecution it is seen that the engagement function regarding the proposed marriage of the petitioner and the 3[rd] respondent was conducted on 30.3.2016 and later solemnization of marriage was on 30.4.2018. After the Crl.M.C. No. 7263 of 2018 ..5.. conduct of engagement, the petitioner had exchanged bangles with the 3[rd] respondent and had told her that since the engagement function is already over she should come with her and taken her in his motor cycle to a party office where he had committed forceful sexual intercourse with her. It is not disputed by the 3[rd] respondent that later the petitioner had married her on 30.4.2018. There is also no dispute that the marital relationship between the petitioner and the 3[rd] respondent was under strain. The abovesaid private criminal complaints have been filed by the 3[rd] respondent after the petitioner had filed Anx.A-1 O.P.No.575/2018 on the file of the Family Court, Vatakara, Kozhikode district on 17.10.2018. 5. It has been held by the Apex Court and various High Courts in various decisions as in _**Uday v. State of Karnataka [(2003) 4 SCC 46], Deelip Singh @ Dilip Kumar v. State of Bihar [2005 (1) SCC 88]**_ etc that the submission of a woman to her lover to have physical relationship or physical relationship entered into between two persons who have attained the age of majority on an expectation to marry on future date, by itself cannot constitute a mistake of facts as envisaged under Sec.90 of the IPC Crl.M.C. No. 7263 of 2018 ..6.. so as to constitute the offence punishable under Sec.376 of the IPC. Going by the conduct of the 3[rd] respondent it is seen that, the allegations regarding rape has been made for the first time by her as per Anx.A-3 is in October, 2018, whereas the alleged incident of rape has taken place on 8.12.2017. The abovesaid two criminal complaints have been triggered after the strained marital relationship between the spouses. Therefore it is quite reasonable to infer that the alleged incident of sexual relationship between the parties which occurred on 8.12.2017 and that too after the engagement of their proposed marriage would have been only on the basis of consent between both sides. If as a matter of fact, the conduct of the 3[rd] respondent in even having her marriage with the petitioner solemnized subsequently on 30.4.2018, is also a relevant circumstances to infer that even if the alleged sexual incident had actually occurred on 8.12.2017 she had no serious objection thereto on account of the affair and engagement of the marriage etc. 6. In the light of these aspects going by the conduct of parties it is only reasonable to take the view that the alleged incident of sexual incident would have happened only on the basis Crl.M.C. No. 7263 of 2018 ..7.. of consent between the parties. That apart, there is long and unexplained delay on the part of the 3[rd] respondent in having initiated Anx.A-3 crime as late as on October, 2018, in respect of the alleged incident which happened on 8.12.2017. 7. It is by now well established by a series of rulings of the Apex Court and various High Courts as in the case in _**State of Andra Pradesh v. M.Madusudhan Rao**_ **[(2008) 15 SCC 582]** that the delay in lodging of FIR will more often than not, result in embellishments and exaggerations which are a creation of afterthought. Delayed report, not only gets bereft of the advantages of spontaneity, but the danger of introduction of coloured version, exaggerated account of incident or a concocted story as a result of deliberations and consultations also creeps in, casting a serious doubt on its veracity. Therefore, it has been held that it is highly essential that delay in lodging the FIR should be satisfactorily explained by the prosecution. Resultantly, when the substratum of evidence given by the complainant is found to be unreliable, the prosecution case has to be rejected in its entirety, etc. 8. In the light of abovesaid long and unexplained delay Crl.M.C. No. 7263 of 2018 ..8.. initiating and lodging of FIR and also in the light of abovesaid aspects mentioned herein above about the nature of relationship, this Court is inclined to take the view that the very initiation and continuance of the impugned criminal proceedings for the offence of rape will amount to abuse of process of Court and is liable for interdiction at the hands of this Court in exercise with the powers conferred under Section 482 of the Cr.P.C. 9. This Court had admitted this case on 21.11.2018 and has passed an order dated 21.11.2018 in Crl.M.A. No. 1/2018, which reads as follows: _“Heard the learned counsel for the petitioner and the learned Public Prosecutor._ _2. The 3[rd] respondent is the wife of the petitioner herein and their marriage was solemnized on 30.4.2018. They fell apart and the allegation in the subject crime which is sought to be quashed is that four months prior to the solemnization of the marriage, the petitioner subjected her to rape._ _3. The learned counsel contends that the allegations leveled against the petitioner are absurd and inherently improbable. He submits that the criminal proceedings is manifestly attended with mala fides to wreck vengeance against him. He refers to the various proceedings pending between the parties before the Family Court including the petition for divorce filed by the petitioner on the ground of cruelty. He also points out that Crime No.449 of 2018 has been registered under Sections 498A and 406 of the IPC and the wife has also invoked the provisions of the Protection of Women from Domestic Violence Act, 2005._ _4. Having gone through Annexures-A1 to A3, I am of the view that the petitioner has made out a prima facie case for issuance of an interim order._ _There shall be an interim order as prayed for, for a period of two months.”_ Crl.M.C. No. 7263 of 2018 ..9.. 10. The said stay order has been extended till further orders as per order dated 11.2.2020. Accordingly it is ordered that the impugned Anx.A-3 FIR in Crime No.448/2018 of Nadapuram Police Station, Kozhikode district, in which the petitioner has been arrayed as the sole accused for the offence as per Sec.376 of the IPC and all consequent proceedings emanating therefrom will stand quashed and set aside. 11. The petitioner will produce a certified copy of this order before the JFCM, Nadapuram, as well as before the Investigating Officer concerned, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 7263 of 2018 ..10.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1:** **THE TRUE COPY OF THE APPLICATION DATED 17.10.2018 FILED BY THE PETITIONER IN OP NO.575/2018 ON THE FILES OF FAMILY COURT, VATAKARA, KOZHIKODE DISTRICT.** **ANNEXURE A2: THE TRUE COPY OF THE FIR NO.449/2018 OF THE NADAPURAM POLICE STATION, KOZHIKODE DISTRICT.** **ANNEXURE A3:** **CERTIFIED COPY OF THE FIR NO.448/2018 DATED 17.10.2018 OF THE NADAPURAM POLICE STATION, KOZHIKODE DISTRICT.**