Sreejith T.P. v. State of Kerala and Ors.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 02ND DAY OF DECEMBER 2020 / 11TH AGRAHAYANA, 1942** ## **CRL.A.No.658 OF 2020** **AGAINST THE ORDER IN CRMC 755/2020 DATED 03-08-2020 OF DISTRICT COURT & SESSIONS COURT,KOZHIKODE** **CRIME NO.512/2020 OF Vellayil Police Station , Kozhikode** ## **APPELLANT/PETITIONER/ACCUSED:** **SREEJITH T.P. AGED 42 YEARS S/O. SUNDARAN, VELATHIPADIKKAL HOUSE, ATHANIKKAL, WEST HILL P.O., KOZHIKODE-673 005.** **BY ADV. SRI.SUVIN.R.MENON** ## **RESPONDENTS/RESPONDENT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA-682 031.** - **2 STATION HOUSE OFFICER VELLAYIL POLICE STATION, KOZHIKODE, KERALA-673 005 REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **3 ADDL.3RD RESPONDENT XXX VICTIM IMPLEADED AS PER ORDER DATED 26.08.2020 IN CRL.MA NO.1/2020.** **R1 BY SMT.AMBIKA DEVI S, SPL.GP ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C R3 BY ADV. SRI.M.G.SREEJITH** ## **SRI.C.M.KAMAPPU, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No. 658 of 2020 2 ALEXANDER THOMAS, J. -----------------------------------Criminal Appeal No. 658 of 2020 -----------------------------------Dated this the 2[nd] day of December, 2020 ## **JUDGMENT** The appellant herein has been arrayed as the sole accused in the instant impugned Annexure-A2 crime No.512/2020 of Vellayil Police Station, Kozhikode for offences punishable under Secs. 376(2) (n), 313 and 417 of the IPC and Sec.3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 as amended on the basis of Annexure-A1 First Information Statement given by the 3[rd] respondent-lady defacto complainant on 20.7.2020 in respect of the alleged incidents which happened during the last 15 years. The appellant had filed application as Crl.M.C. No.755/2020 before the Sessions Court, Kozhikode seeking grant of anticipatory bail in terms of Sec.438 of the Cr.P.C in relation to his involvement in the abovesaid impugned crime. The Sessions Court, Kozhikode as per the impugned Annexure-A3 order rendered on 3.8.2020 has dismissed the said plea of the appellant for anticipatory bail on the ground that as a prima facie case is made out, the statutory bar engrafted in Secs.18 and 18A of the SC/ST (POA) Act, 1989 as 3 Crl.Appeal No. 658 of 2020 amended would apply and therefore, the court has no jurisdiction to consider the plea of anticipatory bail on merits. Being aggrieved by the said rejection of the plea for anticipatory bail, the appellant has filed the instant Crl.Appeal under Sec. 14A of the SC/ST (POA) Act, 1989 as amended. 2. Heard Sri.Suvin.R.Menon, learned counsel appearing for the appellant/accused, Sri.C.M.Kamappu, learned Public Prosecutor appearing for R1 and R2 and Sri.M.G.Sreejith, learned advocate appearing for additional respondent No.3 (lady defacto complainant). 3. The main contentions urged by Sri.Suvin.R.Menon, learned counsel appearing for the appellant are two fold. Firstly, there is not even a remote of whisper anywhere in Annexure-A2 FIS or in the impugned criminal proceedings that the appellant knew that the 3[rd] respondent-lady defacto complainant belongs to scheduled caste and that therefore, no _prima facie_ case as per SC/ST (POA) Act, 1989 would lie. The 2[nd] contention which is also linked up with the first one is that even assuming that the allegations raised in Annexure-A1 FIS are broadly assumed to be correct, then the inevitable conclusion is that, the alleged sexual incidents would have happened on the 4 Crl.Appeal No. 658 of 2020 basis of consent between two full grown adults, who were having an affair for about 15 long years and further that, it is admitted by the 3[rd] respondent that the alleged incident of miscarriage has been done with her own consent and further that, none of the ingredients of cheating as per Sec.417 of the IPC is also made out in the instant case. 4. It is further pointed out that the other offence alleged against the appellant is the one as per Sec.3(2)(v) of the SC/ST (POA) Act, 1989 as amended, and it is only to the extent that since the appellant has been alleged of the offence as per Sec. 376 of the IPC, for which the sentence could extend for a prison term of 10 years or more. The said section has been invoked on the plea that the appellant has committed the offence as per Sec. 376 of the IPC on the defacto complainant, who belongs to the scheduled caste community. Hence, it is pointed out that since the main substantive offence alleged against the appellant do not have any factual foundation or stand, the offence as per Sec.3(2)(v) of the other Act is not an independent or substantive offence and no _prima facie_ case is disclosed in the facts and circumstances of this case. 5. Per contra, Sri.C.M.Kamappu, learned Public Prosecutor appearing for official respondents 1 and 2 and Sri.M.G.Sreejith, 5 Crl.Appeal No. 658 of 2020 learned advocate appearing for respondent No.3 would point out that the allegations in Annexure-A1 FIS would certainly disclose a _prima facie_ case of the offences alleged and that therefore, the statutory bar under Secs.18 or 18A of the SC/ST (POA) Act, 1989 as amended would apply and hence, the original court, which is the sessions court and consequently, this Court as the appellate court will be denuded of jurisdiction to consider the plea of anticipatory bail under Sec.438 of the Cr.P.C. etc. 6. It is by now well settled by a series of rulings of the Apex Court and that of various High Courts that if no _prima facie_ case is disclosed in the impugned criminal proceedings the set in motion in the impugned criminal proceedings relating to SC/ST (POA) Act, 1989 as amended, then the statutory bar under Secs.18 & 18A of the abovesaid Act will not apply and hence, the courts will have the jurisdiction to consider the plea of anticipatory bail on merits in such cases. 7. The three judge bench of the Apex Court in the case in _**Parthvi Raj Chauhan v.UOI and others**_ [(2020) 4 SCC 727] has held, more particularly, in para No.10 thereof (See AIR report) that if the complaint does not make out a _prima facie_ case for 6 Crl.Appeal No. 658 of 2020 applicability of the provisions of the said Act, then the statutory bar created both under Secs.18A and 18A(i) shall not apply and that therefore, the courts will have the jurisdiction to consider the plea for anticipatory bail in terms of Sec.432 of the Cr.P.C in such cases. So, the crucial issue to be determined in this case is as to whether a _prima facie_ case is made out. Since the crime investigation is pending investigation, it has to be made clear at the outset that, the limited task of this Court is to only determine the issue as to whether a _prima facie_ case is made out for the limited purpose of consideration of the application for anticipatory bail. Since both parties have raised rival contentions regarding the applicability or otherwise of the statutory bars under Secs.18 and 18A, this Court has no alternative, but to decide the said issue. Hence, any findings made by this Court on the said issue regarding as to whether the _prima facie_ case or not has to be understood only in the limited context of the issues arising as to whether or not the application for anticipatory bail could be granted or not. 8. Before dealing with the facts and circumstances of this case for the purpose of the plea for anticipatory bail, it will be pertinent to refer to the legal principles laid down by the Apex Court and various 7 Crl.Appeal No. 658 of 2020 High Courts in the matter of substantial distinction between forcible sexual intercourse which constitute the offence of rape as per Sec. 375 of the IPC, which is punishable as per Sec.376 thereof, on the one hand and consensual sexual relationship between the parties. 9. It is by now well established that there is a fine and substantial distinction between rape as understood in Sec.376 of the IPC and consensual sexual relationship between parties and this has been the subject matter of detailed consideration of various judgments of the Apex Court and various High Courts, including this Court. The said issue is the subject matter of a catena of rulings of the Apex Court in decisions as in _**Uday v. State of Karnataka**_ , reported in (2003) 4 SCC 46 and _**Deelip Singh @ Dilip Kumar v. State of Bihar**_ , reported in (2005) 1 SCC 88, where it has been held that where the woman has voluntarily and consciously consented to have a sexual relationship with the accused, then her consent cannot be said to be in consequence of any misconception of fact as envisaged in Sec.90 of the IPC. In _**Dr.Dhruvaram Murlidhar Sonar v. The State of Maharashtra & Ors.**_ , reported in 2019 (1) SCALE 64, the Apex Court has again highlighted about the substantial distinction between rape and consensual sexual relationship. In _**Shivshankar @ Shiva**_ 8 Crl.Appeal No. 658 of 2020 _**v. State of Karnataka & another**_ (judgment dated 06.04.2018 of the Apex Court in Crl.Appeal No.504/2018), it has been held that it will be rather difficult to hold sexual intercourse in the course of a relationship which was continued for several years is ‘rape’, especially in the face of the complainant’s own allegation that they lived together. In _**Dhruvaram Murlidhar Sonar’s**_ case (supra), the Apex Court had elucidated the principles in that regard and it has laid down the clear distinction between rape and consensual sexual relationship and that the acknowledged consensual physical relationship between the parties would not constitute an offence under Sec.376 of the IPC. It has also been held that breach of promise to marry in such cases will not by itself lead to a scenario, whereby it can be held that the consent of the woman to undergo sexual relationship was obtained on the basis of misconception of fact as understood in Sec.90 of the IPC. 10. The Division Bench of Calcutta High Court in the decision in J _**ayanti Rani Panda v. State of West Bengal and another**_ . 1984 Crl.LJ 1535 = 1984 KHC 1148 has _inter alia_ held in para No.7 that the consent of the woman to have sexual relationship was obtained on the basis of misconception of fact as understood in Sec. 9 Crl.Appeal No. 658 of 2020 90 of the IPC. The prosecution should bring strong materials to show that the accused had no intention to keep the alleged promise to marry right from the commencement of the relationship and that the failure to keep the promise at a future uncertain date due to reasons that may not be very clear does not always amount to misconception of fact at the inception of the fact itself. That in order to come within the meaning of misconception of fact as understood in Sec. 9o of the IPC, the fact must have an immediate relevance. Further that, where two full grown adults continue to have an affair and have a relationship including sexual relationship for quite some time and indulge with that activity accordingly, it has to be essentially seen as an act out of their passionate affair and their promiscuity and also their desire to enjoy each other’s company and in such a case, criminal culpability cannot be fastened on the ground that the consent was obtained on the basis of misconception of fact pursuant to promise to marry etc, unless the Court can be assured that right from the very inception the accused never really intended to marry her. 11. The three judge bench of the Apex Court in a recent judgment rendered in the case in _**Maheswar Tigga v. State of**_ 10 Crl.Appeal No. 658 of 2020 _**Jharkhand**_ [AIR (2020) SC 4535] (see AIR), has held therein more particularly, in para No.14 thereof that under Sec.90 of the IPC, a consent given under a misconception of fact is no consent in the eye of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of 4 years. It will be profitable to refer to para Nos.14 and 15 of the abovesaid decision of the Apex Court in _**Maheswar Tigga’s**_ case (supra) [AIR (2020) SC 4535] which reads as follows: _“14. Under Section 90 IPC, a consent given under a misconception of fact is no consent in the eyes of law. But the misconception of fact has to be in proximity of time to the occurrence and cannot be spread over a period of four years. It hardly needs any elaboration that the consent by the appellant was a conscious and informed choice made by her after due deliberation, it being spread over a long period of time coupled with a conscious positive action not to protest. The prosecutrix in her letters to the appellant also mentions that there would often be quarrels at her home with her family members with regard to the relationship, and beatings given to her._ _15. In Uday (supra), the appellant and the prosecutrix resided in the same neighbourhood. As they belonged to different castes, a matrimonial relationship could not fructify even while physical relations continued between them on the understanding and assurance of marriage. This Court observed as follows:_ _“21. It therefore appears that the consensus of judicial opinion is in favour of the view that the consent given by the prosecutrix to sexual intercourse with a person with whom she is deeply in love on a promise that he would marry her on a later date, cannot be said to be given under a misconception of fact. A false promise is not a fact within the meaning of the Code. We are_ Crl.Appeal No. 658 of 2020 11 _inclined to agree with this view, but we must add that there is no straitjacket formula for determining whether consent given by the prosecutrix to sexual intercourse is voluntary, or whether it is given under a misconception of fact. In the ultimate analysis, the tests laid down by the courts provide at best guidance to the judicial mind while considering a question of consent, but the court must, in each case, consider the evidence before it and the surrounding circumstances, before reaching a conclusion, because each case has its own peculiar facts which may have a bearing on the question whether the consent was voluntary, or was given under a misconception of fact. It must also weigh the evidence keeping in view the fact that the burden is on the prosecution to prove each and every ingredient of the offence, absence of consent being one of them.”_ 12. Yet another three judge bench of the Apex Court in the case in _**Pramod Suryabhan Pawar v. State of Maharashtra and**_ _**anr.**_ [(2019) 9 SCC 608] = [AIR 2019 SC 4010] has also reiterated that in order to come within the meaning of misconception of fact as understood in Sec.90 of IPC, the fact must have an immediate relevance. It has been _inter alia_ held by the Apex Court in _**Pramod Suryabhan Pawar**_ (supra) in para Nos. 14 to 18 thereof that to establish whether consent was vitiated by misconception of fact arising out of a promise to marry, two propositions must be established. Firstly that the promise of marriage must have been a false promise given in bad faith with no intention of being adhered to at the time it was given. Secondly, the false promise itself must be of Crl.Appeal No. 658 of 2020 12 immediate relevance or bear a direct nexus to the woman’s decision to engage in the sexual act. It will be profitable to refer to para Nos. 14 to 18 of the Three Judge Bench decision of the Apex Court in _**Pramod Suryabhan Pawar’s**_ case (supra) [2019 (9) SCC 608], which reads as follows : _“14. In the present case, the “misconception of fact” alleged by the complainant is the appellant’s promise to marry her. Specifically in the context of a promise to marry, this Court has observed that there is a distinction between a false promise given on the understanding by the maker that it will be broken, and the breach of a promise which is made in good faith but subsequently not fulfilled. In Anurag Soni v State of Chhattisgarh9, this Court held:_ _“37. The sum and substance of the aforesaid decisions would be that if it is established and proved that from the inception the accused who gave the promise to the prosecutrix to marry, did not have any intention to marry and the prosecutrix gave the consent for sexual intercourse on such an assurance by the accused that he would marry her, such a consent can be said to be a consent obtained on a misconception of fact as per Section 90 of the IPC and, in such a case, such a consent would not excuse the offender and such an offender can be said to have committed the rape as defined under Sections 375 of the IPC and can be convicted for the offence under Section 376 of the IPC.” Similar observations were made by this Court in Deepak Gulati v State of Haryana10 (“Deepak Gulati”):_ _“21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused…”_ _15. In Yedla Srinivasa Rao v State of Andhra Pradesh11 the accused forcibly established sexual relations with the complainant. When she asked the accused why he had spoiled her life, he promised to marry her. On this premise, the accused_ Crl.Appeal No. 658 of 2020 13 _repeatedly had sexual intercourse with the complainant. When the complainant became pregnant, the accused refused to marry her. When the matter was brought to the panchayat, the accused admitted to having had sexual intercourse with the complainant but subsequently absconded. Given this factual background, the court observed:_ _“10. It appears that the intention of the accused as per the testimony of PW 1 was, right from the beginning, not honest and he kept on promising that he will marry her, till she became pregnant. This kind of consent obtained by the accused cannot be said to be any consent because she was under a misconception of fact that the accused intends to marry her, therefore, she had submitted to sexual intercourse with him. This fact is also admitted by the accused that he had committed sexual intercourse which is apparent from the testimony of PWs 1, 2 and 3 and before the panchayat of elders of the village. It is more than clear that the accused made a false promise that he would marry her. Therefore, the intention of the accused right from the beginning was not bona fide and the poor girl submitted to the lust of the accused, completely being misled by the accused who held out the promise for marriage. This kind of consent taken by the accused with clear intention not to fulfil the promise and persuading the girl to believe that he is going to marry her and obtained her consent for the sexual intercourse under total misconception, cannot be treated to be a consent….”_ _16. Where the promise to marry is false and the intention of the maker at the time of making the promise itself was not to abide by it but to deceive the woman to convince her to engage in sexual relations, there is a “misconception of fact” that vitiates the woman’s “consent”. On the other hand, a breach of a promise cannot be said to be a false promise. To establish a false promise, the maker of the promise should have had no intention of upholding his word at the time of giving it. The “consent” of a woman under Section 375 is vitiated on the ground of a “misconception of fact” where such misconception was the basis for her choosing to engage in the said act. In Deepak Gulati this Court observed:_ Crl.Appeal No. 658 of 2020 14 _“21. … There is a distinction between the mere breach of a promise, and not fulfilling a false promise. Thus, the court must examine whether there was made, at an early stage a false promise of marriage by the accused; and whether the consent involved was given after wholly understanding the nature and consequences of sexual indulgence. There may be a case where the prosecutrix agrees to have sexual intercourse on account of her love and passion for the accused, and not solely on account of misrepresentation made to her by the accused, or where an accused on account of circumstances which he could not have foreseen, or which were beyond his control, was unable to marry her, despite having every intention to do so. Such cases must be treated differently._ _24. Hence, it is evident that there must be adequate evidence to show that at the relevant time i.e. at the initial stage itself, the accused had no intention whatsoever, of keeping his promise to marry the victim. There may, of course, be circumstances, when a person having the best of intentions is unable to marry the victim owing to various unavoidable circumstances. The “failure to keep a promise made with respect to a future uncertain date, due to reasons that are not very clear from the evidence available, does not always amount to misconception of fact. In order to come within the meaning of the term “misconception of fact”, the fact must have an immediate relevance”. Section 90 IPC cannot be called into aid in such a situation, to pardon the act of a girl in entirety, and fasten criminal liability on the other, unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her.”_ _17. In Uday v State of Karnataka12 the complainant was a college going student when the accused promised to marry her. In the complainant’s statement, she admitted that she was aware that there would be significant opposition from both the complainant’s and accused’s families to the proposed marriage. She engaged in sexual intercourse with the accused but nonetheless kept the relationship secret from her family._ Crl.Appeal No. 658 of 2020 15 _The court observed that in these circumstances the accused’s promise to marry the complainant was not of immediate relevance to the complainant’s decision to engage in sexual intercourse with the accused, which was motivated by other factors:_ _“25. There is yet another difficulty which faces the prosecution in this case. In a case of this nature two conditions must be fulfilled for the application of Section 90 IPC. Firstly, it must be shown that the consent was given under a misconception of fact. Secondly, it must be proved that the person who obtained the consent knew, or had reason to believe that the consent was given in consequence of such misconception. We have serious doubts that the promise to marry induced the prosecutrix to consent to having sexual intercourse with the appellant. She knew, as we have observed earlier, that her marriage with the appellant was difficult on account of caste considerations. The proposal was bound to meet with stiff opposition from members of both families. There was therefore a distinct possibility, of which she was clearly conscious, that the marriage may not take place at all despite the promise of the appellant. The question still remains whether even if it were so, the appellant knew, or had reason to believe, that the prosecutrix had consented to having sexual intercourse with him only as a consequence of her belief, based on his promise, that they will get married in due course. There is hardly any evidence to prove this fact. On the contrary, the circumstances of the case tend to support the conclusion that the appellant had reason to believe that the consent given by the prosecutrix was the result of their deep love for each other. It is not disputed that they were deeply in love. They met often, and it does appear that the prosecutrix permitted him liberties which, if at all, are permitted only to a person with whom one is in deep love. It is also not without significance that the prosecutrix stealthily went out with the appellant to a lonely place at 12 o'clock in the night. It usually happens in such cases, when two young persons are madly in love, that they_ Crl.Appeal No. 658 of 2020 16 _promise to each other several times that come what may, they will get married…”_ _18. To summarise the legal position that emerges from the above cases, the “consent” of a woman with respect to Section 375 must involve an active and reasoned deliberation towards the proposed act. To establish whether the “consent” was vitiated by a “misconception of fact” arising out of a promise to marry, two propositions must be established. The promise of marriage must have been a false promise, given in bad faith and with no intention of being adhered to at the time it was given. The false promise itself must be of immediate relevance, or bear a direct nexus to the woman’s decision to engage in the sexual act.”_ 13. Now, it will be pertinent to deal with the facts of the case. A reading of the FIS would make it clear that the version of the 3[rd] respondent is that, she belongs to scheduled caste and that the appellant/accused is now aged about 42 years and that they were having a love affair for about 15 long years and that the appellant had assured her that he would marry her and that on the basis of said assurance, both of them had sexual relationships. Of course, there is a stray averment therein that at times, he used to have sexual relationship with her, without her consent etc. Further that, after July, 2011, she became pregnant and when she demanded that he should marry her, he asked her to take some medications and pills to undergo abortion. Being assured of the marriage, she had taken the pills, which resulted in bleeding and later, she was taken to a hospital for abortion. Later, the appellant assured that both of them would go 17 Crl.Appeal No. 658 of 2020 to Nagaland and live together. Whenever she used to insist about the marriage, he used to postpone it. Thereafter, for the last 8 years, presumably after 2012 onwards, they have been living together in a house in a colony and that both of them used to have sexual relationship for a very long time. Ultimately that on 5.5.2020, when she insisted that the appellant should marry her, he had evaded from that. Then there is an allegation that thereafter the appellant had forced her to have sex, etc. Later, she came to know that the appellant had married another lady on 24.5.2020 and she felt cheated and she has given the abovesaid complaint to the police, which has led to the registration of the instant crime. 14. Taking into account the totality of the facts and circumstances emerging from Annexure-A1 FIS, it can be seen that, it is the admitted case of the 3[rd] respondent that the couple were having an affair for about 15 long years. That the appellant had assured her that he would marry her and that is how, she had entered into the sexual relationship. Further case is that, some time after July, 2011 she became pregnant and the abortion was done on January, 2012. When exactly, the 3[rd] respondent has become pregnant is not clear from the case set up in the FIS. But the specific case is that, the 18 Crl.Appeal No. 658 of 2020 appellant had told her to take pills to abort the foetus and based on his assurance that he would marry her, she had taken the pills which resulted in bleeding and ultimately she was taken to the hospital for abortion on 28.01.2012. Later, he used to assure her that both of them would go to Nagaland and live together and after 2012, they lived together in a house in a colony for last 8 years, etc. Also, there is an allegation that in May 2020, the appellant had forced her to have sex. Later, she came to know that the appellant has married another lady on 24.5.2020 and hence, she felt cheated. 15. In the first part of the FIS, there is a stray allegation that on some occasions, the appellant used to have sex with her, though she did not want it. So also in the latter part of the FIS, there is a case that in May, 2020 he had sex with her forcibly. But for this stray scenario, the overall totality of the facts and circumstances of this case would suggest that the couple were having an affair for a very long time for the last 15 years. The first series of incidents is upto 2012 including the incident of alleged abortion. Thereafter, even after the alleged incident of abortion which has said to have taken place in January, 2012, the couple had stayed together for the next 8 years going by the admitted case of the 3[rd] respondent. 19 Crl.Appeal No. 658 of 2020 16. From the impugned materials judging and evaluating the facts and circumstances of this case with reference to the legal principles laid down in the aforecited judgments, it cannot be said that the prosecution has made out a strong case that the very assurance of the appellant was a false promise with the intention to deceive the lady and never to keep the said promise, right from the inception of the transactions, which commenced about 15 years ago. The overall facts would suggest that though the appellant had persuaded to take pills, the decision to take pills and then to go to the hospital for abortion was with her own consent. Section 313 of the IPC deals with miscarriage without the consent of the woman. But for the abovesaid stray case set up in the first part of the FIS and the latter part of the FIS, overall flow of the facts and circumstances of this case would show that if the alleged sexual incidents are assumed to be broadly true, then the same would have happened only on the basis of consent of two full grown adults, who decided to have a passionate love affair and to live together as man and woman. 17. Hence, only for the limited purpose of consideration of the plea for anticipatory bail, this Court is inclined to take the view that, the appellant has made out a strong probable case that if the alleged 20 Crl.Appeal No. 658 of 2020 sexual incidents narrated in the FIS are assumed to be broadly true, then the same could have happened only on the basis of consent of two full grown adults in the course of their love affair, which has lasted for the last 15 years. It is by now well established that misconception of fact has to be in proximity of time to the occurrence and cannot spread over a long period of time. Even a period of 4 years has been held by the Apex Court in _**Maheswar Tigga’s**_ case (supra) as long, so as not to attract misconception of fact. 18. It has also been considerably held by the Apex Court and various High Courts that in order to come within the meaning of the term misconception of fact as understood in Sec. 90 of the IPC, the fact must have an immediate relevance and Sec. 90 of the IPC cannot be called into question in such a case to pardon the act of the woman in its entirety and fasten criminal liability on the other unless the court is assured of the fact that from the very beginning, the accused had never really intended to marry her. {See para No.24 of _**Deepak Bulati v. State of Haryana**_ [2013 (7) SCC 765] which in turn has been relied and reaffirmed in para No.16 of the three bench judge decision in _**Pramod Suryabhan Pawar’s**_ case (supra) [2019 (9) SCC 608]}. 21 Crl.Appeal No. 658 of 2020 19. The upshot of the above discussion is that, only for the limited purpose of considering the plea of the appellant for grant of anticipatory bail, it can be seen that if the sexual incidents narrated in the FIR are assumed to be broadly true, then the same could have happened only on the basis of consent between the parties, as there are no reliable prosecution materials to show that the alleged promise to marry was fraudulent and with the dishonest intention to deceive the woman right from the commencement of the relationship which happened about 15 years ago. So also, the period of 15 years cannot said to be proximate in time for the alleged misconception of fact with the occurrences in question. So also, it broadly appears that the miscarriage if true, would have happened only with the consent of the woman. That there is yet another allegation in the FIS that when the 3[rd] respondent was hospitalized for the abortion purposes, in order to meet her medical expenses, her gold chain was taken by the appellant to be pledged with a financial institution to get money and after getting the money and paying the medical expenses, the appellant has not returned back the pledged gold ornament to the 3[rd] respondent, etc. There is no case for the 3[rd] respondent in the FIS that the money so obtained after pledging the gold ornament has not 22 Crl.Appeal No. 658 of 2020 been paid to the hospital to take care of her medical expenses. Even otherwise, the offence alleged in that regard is one as per Sec. 417 of the IPC, which is a bailable offence. As mentioned hereinabove, the offence as per Sec. 3(2)(v) of the SC/ST (POA) Act cases is not an independent and substantive offence and is seen included in the FIR only because of the inclusion of the offence as per Sec. 376 of the IPC. 20. The upshot of the discussion is that, for the limited purpose of consideration of the grant of anticipatory bail, this Court is inclined to take the view that, no _prima facie_ case is made out in the facts and circumstances of this case as made out in the impugned prosecution materials. Hence, the resultant corollary thereof is that the statutory bar engrafted under Secs. 18 and 18 A of the SC/ST (POA) Act, 1989 will not arise in this case and hence, the plea of the appellant for anticipatory bail under Sec.438 of the Cr.P.C could be considered by this Court. In view of the abovesaid discussion, this Court has already taken the view that no _prima facie_ case is made out for the abovesaid limited purpose. This Court is also of the view that, the appellant has made out a strong probable case that in view of the aforementioned aspects, his custodial interrogation may not be really necessary or imperative for the conduct of the fair and appropriate 23 Crl.Appeal No. 658 of 2020 investigation of this case. The prosecution does not have any case that the appellant would abscond from the said area or he would not co-operate with the investigation, etc. 21. This court has been constrained to make the abovesaid findings and observations hereinabove, only in the limited context of the plea for anticipatory bail on account of the stand taken by the rival party, and all other proceedings in this case shall not in any manner be trammelled or influenced by any of the observations and findings made by this Court hereinabove. 22. the light of these aspects, the sessions court has seriously erred in holding that a statutory bar under Secs.18 and 18A of the abovesaid Act would come into play in this case. Resultantly, the impugned order dated 3.8.2020 of the Sessions court, Kozhikode in Crl.M.C. No.755/2020 will stand set aside. Conseuqenlty, it is ordered that in the event of the appellant being arrested in relation to his involvement in the instant crime No. 512/2020 of Vellayil Police Station, Kozhikode, then he shall be released on bail on his executing bond for Rs. 50,000/- (Rupees Fifty Thousand only) and on his furnishing two solvent sureties for the like sum both to the satisfaction of the investigating officer concerned. Necessary and 24 Crl.Appeal No. 658 of 2020 strict conditions have to be imposed to ensure that the appellant does not in any manner threaten or intimidate the witnesses, including the 3[rd] respondent – lady defacto complainant. 23. Accordingly, it is ordered that grant of bail will be subject to the following conditions. - _(i) The appellant shall not involve in any criminal offences of similar nature._ - _(ii) The appellant shall report before the Investigating Officer as and when required in that connection._ - _(iii) The appellant will fully co-operate with the Investigating Officer in the conduct of the above interrogation process._ - _(iv) The appellant shall not influence the witness or shall not tamper or attempt to tamper evidence in any manner, whatsoever._ - _(v) The appellant shall not visit or go anywhere near the residence or workplace of the 3[rd] respondent, until the conclusion of the trial in this case._ - _(vi) The investigating officer will depute a police constable preferably a woman constable to the residence of the 3[rd] respondent for next 6 months to ascertain from her and her family members whether she has been subjected to any serious threat or intimidation by the appellant or his men. If anything adverse is brought to the notice of the IO, he will immediately conduct a proper enquiry to ascertain the correctness of the said allegations and if he is convinced, he may file a requisite application before the competent court below concerned seeking cancellation of bail granted to the appellant hereby, in which case such application shall be considered_ Crl.Appeal No. 658 of 2020 25 _by the competent court below concerned after affording opportunity of being heard to the prosecution, the appellant and the lady defacto complainant._ With these observations and directions, the above Criminal Appeal will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.Appeal No. 658 of 2020 26 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A TRUE COPY OF THE COMPLAINT FILED BY THE DE-FACTO COMPLAINANT BEFORE THE 2ND RESPONDENT.** **ANNEXURE A2 A TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.512 OF 2020 ON THE FILES OF VELLAYIL POLICE STATION, KOZHIKODE. ANNEXURE A3 CERTIFIED COPY OF THE ORDER DATED 3.8.2020 OF THE COURT OF SESSIONS, KOZHIKODE IN CRIMINAL MISCELLANEOUS CASE NO.755 OF 2020.** **RESPONDENT'S/S EXHIBITS: NIL**