VYDYARAKATH MASOOD v. VICTIM XXX and STATE OF KERALA

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. MONDAY, THE 29[TH] DAY OF NOVEMBER 2021 / 8TH AGRAHAYANA, 1943 ## CRL.MC NO. 6116 OF 2018 [SC NO.17/2018 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS COURT (FOR TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE TOWARDS WOMEN AND CHILDREN, KOZHIKODE] ## PETITIONER/S: VYDYARAKATH MASOOD AGED 56 YEARS S/O.PANDOOTY, THIKKODI, KOYILANDI TALUK BY ADVS. V.S.CHANDRASEKHARAN M.V.DAS LEKSHMI SWAMINATHAN MARIAN G.M.THARAKAN S.JAYAKUMAR ## RESPONDENT/S: 1 VICTIM XXX XXX XXX 2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY SRI. SUDHEER GOPALAKRISHNAN, PP THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 16.11.2021, THE COURT ON 29.11.2021 PASSED THE FOLLOWING: CRL.MC No.6116 of 2018 2 ## O R D E R The petitioner herein is the sole accused in S.C.No.17/2018 on the file of the Additional District and Sessions Court (For Trial Of Cases Relating To Atrocities And Sexual Violence towards Women and Children), Kozhikode. 2. The aforesaid case is registered on the basis of a complaint submitted by the 1[st] respondent herein as C.M.P.No.1757/2016 before the Judicial First Class Magistrate Court, Payyoli alleging offence punishable under Section 376 of the Indian Penal Code (IPC). Later, after recording the statements of the 1[st] respondent and two witnesses, it was taken into file as C.P.No.37/2017. After completing the committal proceedings, the same was committed to the Sessions Court and it is numbered as S.C.No.17/2018. 3. The allegation against the petitioner is that the petitioner had induced the 1[st] respondent to have sexual intercourse with the 1[st] respondent CRL.MC No.6116 of 2018 3 on the basis of a promise of marriage. Later, the petitioner had withdrawn himself from the proposed marriage and the complaint was raised in the above circumstances. 4. The prayer sought for by the petitioner in this petition is to quash all further proceedings in Annexure A4 complaint in the above mentioned Sessions Case. 5. Heard Sri. V.S.Chandrasekharan, the learned counsel for the petitioner and Sri. Sudheer Gopalakrishnan, the learned Public Prosecutor for the 2[nd] respondent. Even though notice was served upon the 1[st] respondent as early as in the year, 2018, there is no appearance for her. 6. The specific case of the petitioner is that Annexure-A4 complaint and all the allegations contained therein are mere abuse of process of law and was intended only to harass the petitioner. It is pointed out that, initially, the 1[st] respondent had submitted Annexure-A1 complaint before the CRL.MC No.6116 of 2018 4 Police wherein the allegations made by her was as follows: The first respondent was married but she was living separately from her husband due to certain matrimonial disputes. The petitioner was working in America and both the parties used to meet whenever the petitioner comes to his native place on vacations. The aforesaid relationship developed and during the course of which the petitioner made a promise of marriage. It is also averred that, thereafter, whenever the petitioner comes to the native place, both of them used to reside together in the residence of the petitioner namely ‘Beach Hut’ at Theekodiyil. On all those occasions, the 1[st] respondent and her children were under the protection of the petitioner herein and even in his absence, the 1[st] respondent used to reside in the aforesaid residential building. The vehicle belonging to the petitioner was also being used by her for her own use. While so, on the basis of certain complaints lodged by some third parties, on CRL.MC No.6116 of 2018 5 26.5.2014, the 1[st] respondent was arrested by the police and she was in judicial custody for some time. It is also alleged that some gold ornaments which the 1[st] respondent received as a gift at the time of marriage of her daughter were also kept in the aforesaid house. When she was released from the judicial custody, after remand, the petitioner refused to hand over the keys of the said building and accordingly she was denied entry to the aforesaid building. In such circumstances, a complaint alleging offence of rape was submitted as evidenced by Annexure-A1 before the police. 7. On the basis of the said complaint Annexure A2 F.I.R. numbered as 752/2015 was registered by Payyoli Police Station and the investigation was conducted. After a detailed investigation, Annexure-A3 final report was submitted by the police, stating that in the investigation conducted by the police, it was revealed that the Annexure A1 complaint submitted was a false complaint and accordingly it was referred as a false case. The CRL.MC No.6116 of 2018 6 learned counsel for the petitioner further points out that in Annexure-A3 final report, it is specifically mentioned that, the petitioner is suffering from various ailments and he is living with the support of medicines. It was also mentioned in the said report that, the submission of Annexure-A1 complaint was made by the 1[st] respondent by fully knowing that the petitioner is a person having sound financial capacity and the allegations are raised with an intention to make unlawful gains by making false accusation against the petitioner. In Annexure-A3 refer report, the police has also taken note of the fact that, even after giving several opportunities to the 1[st] respondent, she did not specifically made available any details as to the date and time on which offence of rape was committed by the petitioner. 8. Annexure-A4 complaint was submitted by her thereafter. In the said complaint, it was specifically mentioned that during the month of February, 2014, the petitioner had forcible sexual CRL.MC No.6116 of 2018 7 intercourse with the 1[st] respondent. It is further stated that thereafter, they lived together like husband and wife as the petitioner had made a promise of marriage. It is also discernible from the averments contained in Annexure-A4 complaint that, they lived together in the residence of the petitioner until she was detained in the judicial custody on the basis of certain complaints submitted by other parties. The other allegations contained in Annexure-A1 were also re-iterated. 9. In the sworn statement of the petitioner recorded by the learned Magistrate as part of the proceedings in C.M.P.No.1757/2016 (Annexure-A5), the aforesaid allegations are re-iterated. However, the crucial aspect is that the allegation of forcible sexual intercourse is not mentioned in Annexure-A5. In support of her case, two witnesses were also examined whose statements are produced as Annexure-A6 and A7. Both the aforesaid witnesses have stated that, they were under the impression CRL.MC No.6116 of 2018 8 that the petitioner and the 1[st] respondent were husband and wife as they were residing together. 10. It is in this factual background, the petitioner contends that no case of rape is made out. In support of his contention, the learned counsel is relying upon the judgments in Dhruvaram Muralidhar Sonar (Dr) v. State of Maharashtra [AIR 2019 SC 327], Deepak Gulati v. State of Hayana [2013 KHC 4423]. 11. The crucial question that is to be considered in this case is whether, further proceeding on the basis of Annexure-A4 complaint, is an abuse of process of law or not. The basic allegation contained in Annexure-A4 is that, the 1[st] respondent was induced by the petitioner to have sexual intercourse under a false promise of marriage. In Uday v. State of Karnataka [(2003)4 SCC 46] , the Hon’ble Supreme Court considered a similar issue and after discussing the legal propositions and precedents in this regard, it was observed as follows: CRL.MC No.6116 of 2018 9 “ _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 inclined to agree with this view, but we must add that there is no strait jacket 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.”_ Similarly, in Dhruvaram Muralidhar Sonar’s case (supra, the Hon’ble Supreme Court has observed as follows: CRL.MC No.6116 of 2018 10 _“20. Thus, there is a clear distinction between rape and consensual sex. The Court, in such cases, must very carefully examine whether the complainant had actually wanted to marry the victim or had mala fide motives and had made a false promise to this effect only to satisfy his lust, as the later falls within the ambit of cheating or deception. There is also a distinction between mere breach of a promise and not fulfilling a false promise. If the accused has not made the promise with the sole intention to seduce the prosecutrix to indulge in sexual acts, such an act would not amount to rape. 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 the misconception created by 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. Such cases must be treated differently. If the complainant had any mala fide intention and if he had clandestine motives, it is a clear case of rape. The acknowledged consensual physical relationship between the parties would not constitute an offence under S.376 of the IPC.”_ In Pramod Suryabhan Pawar v. State of Maharashtra and Another [2019(9)SCC 608] , it was observed by the Hon’ble Supreme Court as follows: CRL.MC No.6116 of 2018 11 _“12. This Court has repeatedly held that consent with respect to S.375 of the IPC involves an active understanding of the circumstances, actions and consequences of the proposed act. An individual who makes a reasoned choice to act after evaluating various alternative actions (or inaction) as well as the various possible consequences flowing from such action or inaction, consents to such action. In Dhruvaram Sonar which was a case involving the invoking the jurisdiction under S.482, this court observed;_ _“15… An inference as to consent can be drawn if only based on evidence or probabilities of the case. “Consent” is also stated to be an act of reason coupled with deliberation. It denotes an active will in mind of a person to permit the doing of the act complained of” This understanding was also emphasized on the decision in Kaini Rajan v.State of Kerala (2013) (9) SCC 113;_ _“12….. “Consent”, for the purpose of S.375, requires voluntary participation not only after the exercise of intelligence based on the knowledge of the significance of the moral quality of the act but after having fully exercised the choice between the resistance and asset. Whether there was consent or not, is to be ascertained only on a careful study of all relevant circumstances”_ One of the basic principles laid down by the Hon’ble Supreme Court in the aforesaid judgments is that, when a person makes a conscious choice to CRL.MC No.6116 of 2018 12 have sexual intercourse with another person after understanding the consequences of such decision, it cannot be treated as a consent obtained on misconception of fact. ## 12. In Anilkumar v. State of Kerala and Others [2021(2)KLT 83], this Court considered a case of similar nature and observed as follows: _“9. So from the admitted allegations discernible from the prosecution materials, it can be seen that the 3rd respondent then aged 31 years was already married to another person since May, 2008 and she had a minor son aged 8 1/2 years. Initially she did not know that the petitioner has married and based on his promise that he would marry her, both of them entered into sexual relationship. Later, even after coming to know that the petitioner has married, which information was conveyed to her by none other than the wife of the petitioner, still the petitioner and the 3rd respondent continued to have sexual relationship. Later, the 3rd respondent moved away from the locality to another place and even thereafter, also both the 3rd respondent and the petitioner have entered into sexual relationship which lasted for a long time and she became pregnant, etc. Therefore, it is admitted case of the prosecution that the 3rd respondent has already married. Hence, it can_ CRL.MC No.6116 of 2018 13 _be seen that the promise alleged to have been made by the accused to a married woman that he would marry her, etc. is a promise, which is not enforceable in law and is seen by public policy and morals and hence, unenforceable in view of the mandatory provisions contained in S.23 of the Indian Contract Act. Such an unenforceable and illegal promise cannot be the basis for the prosecution to contend that the consent of the woman, who has sexual relationship with the accused, was obtained on the basis of misconception of fact, as understood in Explanation No.2 of S.376 of the IPC and S.90 of the IPC. That apart, a reading of the above said materials would make it clear that with wide and opened eyes and even after coming to know that the petitioner has already married, the 3rd respondent and the petitioner have entered into a long standing sexual relationship, even though both of them are married. In the light of all these aspects, it is only to be held that even if it is assumed that the sexual incidents alleged in the prosecution materials are assumed to be broadly true, then it has to be held that such incidents could have happened only on the basis of consent of two full grown adults. As observed herein above, in such cases it can be only said that the sexual relationship entered into by two full grown adults, can be only on the basis of promiscuity and passions to have their mutual companionship, which also is inclusive of sexual relationship. Such a scenario cannot be the basis to contend that the vital ingredients of rape as per S.375 of the IPC are fulfilled and that the accused is_ ## CRL.MC No.6116 of 2018 14 _to be prosecuted for the said offence. Hence, it is only to be held that the vital ingredients of the offence of rape as per S.375 of the IPC, which is punishable under S.376 of the IPC are conspicuously absent in this case and hence, the continuance of the impugned criminal proceedings is nothing, but a mere wastage of time and precious resources of the judicial organs, the prosecution machinery and the police agency and it amounts to an abuse of the process of the Court. Moreover, the 3rd respondent has now stated that the petitioner has agreed to maintain her and the child born to her in the above said sexual relationship with the petitioner, etc.”_ In this case, there are certain glaring aspects which goes against the case of the 1[st] respondent and make it necessary to apply the principles laid down in the above judgments. Even though, she alleges that she was subjected to forcible sexual intercourse at first instance, the sworn statement made by her as evidenced by Annexure-A5 does not contain such allegation. Similarly, Annexure-A1, which is the first complaint submitted by her, does not contain such allegation. On the other hand, the allegation is that she was induced to have sexual intercourse on a promise of marriage. It is to be CRL.MC No.6116 of 2018 15 noted in this regard that the 1[st] respondent is a lady already married twice and have four children. The 1[st] respondent was also aware that the petitioner is also a married person and residing along with a separate family consisting of children. It is evident from the contents of Annexure-A5 and Annexure-A6 sworn statements that both parties resided together as husband and wife for some time in the residence of the petitioner. In Annexure-A1, it was specifically stated by the 1st respondent that, she was under the care and protection of the petitioner and was residing in his house even in the absence of the petitioner whose regular residence was in America. From the statements of the witnesses examined in support of the case of the 1[st] respondent as evidenced by Annexures A6 and A7, it is evident that the petitioner and the 1[st] respondent was residing as husband and wife and they gathered such an inference from the conduct of the parties herein. 13. Thus, from the materials produced by the 1[st] CRL.MC No.6116 of 2018 16 respondent herself, the only conclusion possible is that, it was a case of a living-in-relationship where the 1[st] respondent had made a conscious decision to have a relationship with the petitioner. While considering this issue, the specific averment in Annexure-A1 complaint is also to be considered. In the said complaint, it was specifically stated by the 1[st] respondent that as she was separated from her husband, she was in need of love and protection of a man. ( _Annexure A1 complaint does not mention about any legal divorce with her husband_ ) Thus from an overall analysis of the entire materials, it is evident that it was a conscious decision taken by her and it is not a case where the 1[st] respondent was merely acting upon the promise of marriage to concede for sexual intercourse with the petitioner. In such circumstances, it cannot be concluded that, sexual intercourse which the petitioner had with the 1[st] respondent was on the basis of consent which was obtained on misconception of fact. She was capable CRL.MC No.6116 of 2018 17 for taking a decision on her own, by knowing the consequences thereof. While considering this issue, it is also a relevant factor to be noticed that, the 1[st] respondent is a person having criminal antecedents as it is evident from Annexure A8 to A12 First Information Reports wherein, several complaints are seen made against her for various offences including Sections 406 and 420 of the Indian Penal Code and Sections 3 and 17 of the Kerala Money Lenders Act. Admittedly, she was also in judicial custody for some time consequent to the aforesaid complaints. 14. In Annexure A4 complaint, the 1[st] respondent raised an allegation of misappropriation of certain gold ornaments and amounts as well. In Annexure A1 complaint also a similar allegation was raised by her without any details of the same. The matter is already investigated by police by registering Annxure A2 FIR and Annexure A3 final report was filed, wherein, it was found that the said allegations are baseless. The witnesses examined by CRL.MC No.6116 of 2018 18 the 1st respondent in support of her case, as evidenced by Annexures A6 and A7, do not mention about the details of any such articles or amount. None of the said witnesses had any direct knowledge about such transactions. Apart from a mere statement of 1[st] respondent, there are no evidence indicating the source of such gold and money or the entrustment of the same with the petitioner herein. While considering the said allegation, it is also a relevant aspect that, going by the findings in Annexure A3 final report, she is involved in seven cases of cheating, which indicates her criminal antecedents. Annexure A8 to A13 FIRs and final report produced in this Crl MC, supports the said finding of police. In such circumstances, I do not find any reason to disbelieve the findings in Annexure A3 final report submitted by the police pointing out the falsity in the allegations raised by the 1[st] respondent. 15. From the above, it is evident that no case is made out against the petitioner even going by CRL.MC No.6116 of 2018 19 the contents of Annexure-A4 complaint, statements of the petitioner as well as the witnesses examined as evidenced by Annexures 5, 6 and 7. I am of the view that this is a fit case in which the powers of this Court under Section 482 Cr.PC can be invoked as the entire proceedings are clear abuse of process of law. The chances of successful prosecution are very bleak and the continuation of proceedings in the matter would be a wastage of precious judicial time and resources. In such circumstances, this Crl.M.C. is allowed. The entire proceedings against the petitioner herein in S.C.No.17/2018 on the file of the Additional District and Sessions Court (For Trial Of Cases Relating To Atrocities And Sexual Violence towards Women and Children), Kozhikode are hereby quashed. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk CRL.MC No.6116 of 2018 20 ## APPENDIX OF CRL.MC 6116/2018 PETITIONER’S ANNEXURES - ANNEXURE A1 TRUE COPY OF THE COMPLAINT DATED 23/11/2015 OF PAYYOLI POLICE STATION. - ANNEXURE A2 TRUE COPY OF THE F.I.R. IN CRIME NO.752/2015 OF PAYYOLI POLICE STATION. - ANNEXURE A3 TRUE COPY OF THE REFER REPORT R.C.NO.64/2016 IN CRIME NO.752/2015 OF PAYYOLI POLICE STATION. - ANNEXURE A4 TRUE COPY OF THE COMPLAINT BY THE 1ST RESPONDENT HEREIN IS PRODUCED ON JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI DATED JUNE, 2016. - ANNEXURE A5 TRUE COPY OF DEPOSITION OF DEFACTO COMPLAINANT CMP NO.1757/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI DATED 29/7/2016. - ANNEXURE A6 TRUE COPY OF DEPOSITION OF CW2 IN CMP NO.1757/2016 ON THE FILES OF THE JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI DATED 18/8/2016. - ANNEXURE A7 TRUE COPY OF DEPOSITION OF CW3 IN CMP 1757/2016 ON THE FILES OF THE JUDICIAL MAGISTRTE COURT FIRST CLASS, PAYYOLI DATED 24/9/2016. - ANNEXURE A8 TRUE COPY OF THE FIR IN CRIME NO.591/2014 LODGED AGAINST THE 1ST RESPONDENT OF THE PAYYOLI POLICE STATION. - ANNEXURE A9 TRUE COPY OF THE CHARGE SHEET AGAINST THE 1ST RESPONDENT ON THE FILES BY THE JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI. - ANNEXURE A10 TRUE COPY OF THE FIRST INFORMATION REPORT LODGED AGAINST THE 1ST RESPONDENT ON THE FILES BY THE JUDICIAL MAGISTRATE OF FIRST CLASS, PAYYOLI. - ANNEXURE A11 TRUE COPY OF CHARGE SHEET AGAINST THE 1ST RESPONDENT IN CC NO.893/2014 ON THE FILES BY THE JUDICIAL MAGISTRATE OF FIRST CLASS, CRL.MC No.6116 of 2018 21 PAYYOLI. ANNEXURE A12 TRUE COPY OF THE CHARGE SHEET AGAINST THE 1ST RESPONDENT IN C.C.NO.47/2015 ON THE FILES OF THE PAYYOLI POLICE STATION. ANNEXURE A13 TRUE COPY OF THE MEDICAL REPORT WITH LIVER TRANSPLANTATION.