XXX v. State of Kerala and De facto complainant

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943** **CRL.MC NO. 2648 OF 2021** **CRIME NO.1399/2020 OF Neyyattinkara Police Station,** ## **Thiruvananthapuram** **CP 29/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,NEYYATINKARA** ## **PETITIONER/ACCUSED** XXX BY ADV VISHNU BHUVANENDRAN ## **RESPONDENT/STATE & DEFACTO COMPLAINANT** 1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31. 2 YYY BY ADV M.S.AMAL DHARSAN PP SANGEETHARAJ N.R. THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 2.11.2021, THE COURT ON 01.12.2021 DELIVERED THE FOLLOWING: Crl.M.C. .No.2648/2021 2 ## ORDER ## Dated : 1[st] December, 2021 1. This Crl.M.C has been filed seeking to quash the entire further proceedings against the petitioner in C.P.29/2021 on the file of the Judicial First Class Magistrate Court-I, Neyyattinkara which arose out of crime No.1399/2020 of Neyyattinkara Police Station. 2. Petitioner is the sole accused in Crime No.1399/2020 of Neyyattinkara Police Station. The allegation against the petitioner/accused (hereinafter referred as petitioner) is that he committed rape upon the de facto complainant who is a relative (father's brother's daughter) in the year April 2012 by trespassing into her house. Thereafter, he intimidated to do away with her if it is disclosed to anybody. After three days he again approached her and told her that he is in love with her and on several occasions he had sexual contact with her promising to marry her. On 30.10.2017, when he came for a marriage, while he was undergoing Fireman training in Thrissur, he had sexual contact with her and thereafter it was continued till May 2019 and thereby the accused committed the offences punishable under Sections Sections 376 (2) (n) and 506(i) of IPC. Crl.M.C. .No.2648/2021 3 3. According to the learned counsel for the petitioner, the entire allegation is false and concocted and has been made only to prevent him from entering into service as Sub Inspector of Police and with that specific motive while he had been undergoing training as S.I. at Kerala Police Academy, Ramavarmapuram, this complaint was filed by the de facto complainant. 4. Petitioner produced Annexure -1 copy of the FIR and Annexure 2 copy of the final report in the above crime and Annexure-3 is the copy of the anticipatory bail order granted in his favour on 17.6.2020 itself. i.e. according to him on the fifth day after the registration of the crime (crime was registered on 12.6.2020). According to the learned counsel Annexure-3 bail order was passed in his favour by this Court on the fifth day of the registration of the Crime since, the de facto complainant is her cousin and there is delay of eight years for registering the crime etc. According to the learned counsel, the continuation of the proceedings against the petitioner would be an abuse of process of court and hence to secure the ends of justice and to prevent the abuse of process of court, further proceedings against the petitioner has tobe quashed. 5. The learned counsel relies upon Sonu @ Subash Kumar Vs. State of Uttarpradesh (2021 (2) KHC 314: 2021 KHC Online 6136) . That was a case registered against the accused therein under Section 376 IPC and the allegation of Crl.M.C. .No.2648/2021 4 complainant in that case was that, the defacto complainant/second respondent developed friendship with the appellant and he assured to marry her and she was exploited physically for 1½ years and the father of the accused/appellant informed the second respondent that their marriage would be arranged and after a lapse of 1 ½ years, the accused went back to his home and informed the de facto complainant about his wishes to perform marriage and asked her to come to his place and accordingly she proceeded to Jhansi the place of the accused and on reaching there, his father informed that the accused does not wish to marry her and he also informed that the accused does not desire to meet her and asked to take some money and leave from there. It was in the said circumstances, the crime was registered against the petitioner and the Apex Court held that the relationship happened to be consensual and spread over a period of 1 ½ years on the accused expressing his inclination to marry the victim and hence the offence under Section 376 will not be attracted and the case was quashed. 6. The learned counsel further brought to my attention to Pramod Surya Bhan Pawar v. The State of Maharasthra and another (AIR 2019 SC 4010; 2019 9 SCC 608 : 2019 KHC 6829 ). In that case, accused was a Deputy Commandant in CRPF and the complainant is an Assistant Commissioner of Sales Tax. Both of them knew each other Crl.M.C. .No.2648/2021 5 since 1998 and were intimate since 2004. The complainant and accused met regularly, travelled long distance to meet each other, resided in each other's houses on multiple occasions, engaged in sexual intercourse regularly over a period of five years. When proposal of marriage was muted the accused expressed his reservations about marriage as he belongs to a different caste. So alleging that the consent was obtained under the misconception of facts, complaint was filed alleging offence of rape and offence under SC/ST(POA) Act and thereby accused approached the High Court for quashing the proceedings and the High Court rejected the petition against which the accused approached the Hon'ble Supreme Court. In that case also the complainant alleged that the accused engaged in sexual relationship with her on false promise of marrying her and thereby consent was obtained on a misconception of fact. But in that case, it has been held that there must be adequate evidence to show that at the relevant time, that is at the initial stage itself, the accused had no intention whatsoever to keep the promise to marry the victim. The failure to keep a promise to a future uncertain date due to reasons that are not 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 facts, the fact must have an immediate relevance and Section 90 IPC will not come to the aid in such a situation to pardon the act Crl.M.C. .No.2648/2021 6 of a girl in entirety and fastened the 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. 7. In that case, it was also found that the allegations in the FIR do not on their face indicates that the promise by the appellant was false or the complainant engaged in sexual relationship on the basis of his promise. It is also found therein that the allegations in the FIR indicate that the complainant was aware that there existed obstacles to marry the appellant since 2008 and that the appellant continued to engage in sexual relationship long after their getting married, had become a disputed matter. 8. Reliance was also placed by the learned counsel on Maheswar Tigga v. State of Jharkand [AIR 2020 SC 4535: 2020 10 SCC 108: 2020 5 KHC 322] . In that case, the prosecutrix alleged that four years before the lodgment of the FIS, appellant/accused outraged her modesty. He had since been promising to marry her and on that pretext, continued to establish physical relationship with her as husband and wife. She also stayed at his house for fifteen days, during which period also he established physical relationship with her. Five days prior to the lodging of FIR, the appellant had sexual relationship with her on 9.4.1999. It is also alleged that, by cheating her, the accused is going to solemnize his marriage with another girl and all efforts for compromise was failed and Crl.M.C. .No.2648/2021 7 ## hence the complaint was filed. 9. First of all that was a case against conviction after detailed appreciation of evidence of the prosecutrix as well as of her parents were taken into account. Even the parents acknowledged the love affair between the prosecutrix and the accused and serious infirmities in the evidence of prosecutrix and that of her parents were also appreciated and ultimately it was found that the consent of the prosecutrix was but a conscious and deliberate as distinguished from an involuntary action. The factors like the prosecutrix herself was aware of the obstacles in their relationship because of different religious beliefs and an engagement ceremony was held in the sudden belief that societal obstacles would be overcome but unfortunately differences also arose whether the marriage was to be solemnized in a church or in a temple and ultimately failed. In the said circumstances, it was held that it is not possible to hold that the appellant right from the inception did not intend to marry the prosecutrix ever and had fraudulently misrepresented only in order to establish physical relationship with her. So appreciating all those factors, it was held that in a case where accused does not make a false promise or intentional misrepresentation of marriage leading to establishment of physical relationship between the parties and evidence available reveal that the accused right from the inception intended to marry the prosecutrix and had not Crl.M.C. .No.2648/2021 8 fraudulently misrepresented only in order to establish the physical relationship with her, it cannot be said that offence of rape is attracted. So the fact situation of the case is entirely different from the above cited decision. 10. The learned counsel for the second respondent, the de facto complainant on the other hand would brought to my attention to Madan Razak v. State of Bihar and others (2015 (16) SCC 269. Dineshbhai Chandubhai Patel and Others v. State of Gujarat and others [( 2018) 3 SCC 104], Central Bureau of Investigation V. Aravind Khanna [(2019) 10 SCC 686]. Kaptan Singh v. State of Uttar Pradesh and others (2021 SCC OnLine SC 580), State of Haryana and others v. Bhajanlal and Others (AIR 1992 SC 604 = 1992 SCC (Cri) 426 = AIR 1992 Supl. 1 SCC 335). 11. Madan Razak is a case in which the proceedings against the accused was quashed mainly on the ground of delay in recording the statements by the police and it was held that the delay in recording the statements by the police is not a ground to quash the proceedings under Section 482 Cr.P.C. 12. In Dinesh Chandubhai Patel and Others v. State of Gujarat and Others's case, it has been held while dealing with Section 482, 157 154 of the Code of Criminal Procedure, 1973 that in order to examine as to whether factual contents of FIR disclose any prima facie cognizable offence or not, High Court cannot act like an investigating agency nor can exercise Crl.M.C. .No.2648/2021 9 powers like an appellate court. It is also held that once court finds that FIR thus discloses prima facie commission of any cognizable offence it should tie its hand and allow the investigating machinery to step into initiate the probe to the crime. This may not be squarely applicable in this case because final report has already been filed and the present proceedings is to quash the final report in C.P. 29/2021. 13. Central Bureau of Investigation' is a case in which the High Court quashed the FIR along with all proceedings emanating their tool and it was held that minute consideration of evidence and defence put forth is not permissible under Section 482. In Kapthan Singh's case, the High Court of judicature at Allahabad on an application under Section 482 Cr.P.C., quashed the entire proceedings of criminal case No.3304/2015 which was registered under Sections 147, 148, 149, 406, 329 and 386 IPC and against which the original complainant approaches the Apex Court. The appellant actually filed the complaint before the learned magistrate court under Section 156(3) Cr.P.C. 14. In State of Haryana and Others v. Bhajanlal , the Apex Court have given the guidelines by way of illustrations and also held that the power under Section 482 CR.P.C should be exercised sparingly in with utmost care and circumspection. 15. So coming to the factual situation of the present case, according to the learned counsel for the petitioner, as per the Crl.M.C. .No.2648/2021 10 averments in Annexure 1 FIR, the first incident occurred in April 2012 and that according to him, has been purposely made to implicate the petitioner in an offence involving POCSO Act. But on investigation it was found that her date of birth is 5.9.1994. The report of the investigating officer would reveal from page 25 of the file that as per the birth certificate issued by CW10, the Registrar (Birth and Death), Thiruvananthapuram Municipal Corporation her date of birth is 5.9.1994. So it was concluded that as on September, 2012 she had become major and offence under the POCSO Act was deleted. 16. Further he would contend that this complaint was filed only when few days were remaining for his passing out parade in the cadre of S.I. Annexure IX is the true copy of the the leave details of the petitioner. He would also contend that his training was started from 5[th] July 2019. The learned counsel take my attention to his attendance during the month of December 2019 which would show that his training was temporarily extended from 25.12.2019 to 28.12.2019 and thereafter his training period was extended on 13 & 14[th] of June 2020 and again on 15, 16 and 17 he had taken over stayed leave and subsequent to that, due to the pendency of this crime he was temporarily excluded from the training. So according to him only because of this false case he is now prevented from entering into service and that was the only Crl.M.C. .No.2648/2021 11 purpose for which this complaint was filed and ultimately, final report also filed. It is also his contention that even before getting the post of S.I., he was working as fireman in Fire Force Department. He also got Government appointment for the post of Constable on 31.1.2017 and University Assistant in June 2019 and he relinquished all other posts since he got the appointment as S.I of Police. He would also contend that the marriage of the petitioner was fixed in May 2019 and engagement function was held on 15.9.2018. He produced a photograph as Annexure A8 to show that the de facto complainant also participated in the engagement function. It is also his contention that the de facto complainant's premarriage engagement with one Vimal was also held on 6.11.2019 at R.U.M Auditorium, Nellimmood. That fact is admitted by the de facto complainant in the FIS itself. Further he would contend that she went missing on 9.1.2020 and her father filed a man-missing complaint and a crime was registered in connection with the same. Annexure-4 is the copy of that FIR. Annexure-5 is the copy of the statement of the victim while producing before the magistrate in connection with Annexure 4 complaint instituted by her father in which she has no complaint against anybody and she specifically stated that she left the house on her own. So all the above circumstances according to the learned counsel would point to the fact that this is a false case and he has no such Crl.M.C. .No.2648/2021 12 relationship as alleged with the de facto complainant and the learned counsel would emphasis that they were in a prohibited degree and their marriage also cannot be legally conducted being a daughter of father's brother. 17. The learned Public Prosecutor, on the other hand, produced copy of the charge sheet along with medical examination report of the victim girl which would go to show that the victim had undergone medical examination and to the doctor she had given a narration of the incident which occurred at her house and thereafter, she had sexual contact on several occasions on a promise of marriage and it continued upto May 2019. The statement of the doctor who examined the victim also has been produced which would show that the doctor has given a specific statement that the victim was brought for medical examination and it was reveled on examination that there had a sexual intercourse before one year and hymen was torn and her opinion was that there had sexual intercourse on several occasions. So medical examination report of the victim girl prima facie proves her allegation of sexual intercourse. 18. The allegation in the FIS, the copy of which is produced as Annexure-A1, is that one day in April, while she was sleeping in the house, accused with intention and preparation to commit sexual assault upon her, forcefully caught of her both shoulders. Suddenly she got awakened and pushed his Crl.M.C. .No.2648/2021 13 hands and ran away from the room to the upstairs. Then he followed her and forcefully took her and removed her skirt and panties and dragged her to the cot and committed rape upon her and intimidated to do away with her stating that it would be a shame if it is revealed. After three days, he again came and told her that she is in love with her and after getting job they can get married and if anybody is not permitting them, they can elope. Thereafter they fell in love with each other and during that time, he used to hug her and kiss her. Three to four times she had went out with him. Further she stated that on 29.3.2017, while he had gone to Thrissur for Fireman Trainee, he handed over the phone used by him to her and used to call her twice a day. On 30[th] October, 2017, there was a marriage in the family and on the previous day he called her over phone and told her that they should have sexual contact when he came on the next day to the house. Even though she objected, next day he came at about 10.00 am when nobody was in the house and sexually abused her. The Fireman post was at Idukki and six months thereafter,he told her to marry another person and even after marriage, they can continue the relationship. According to her, till May 2019, they were in good relationship and after he became Sub Inspector trainee, he told her that he is not interested to marry her and his marriage was fixed with another lady and also threatened her. According to the learned counsel for the de facto complainant, Crl.M.C. .No.2648/2021 14 while giving Section 164 statement also, the de facto complainant stated the facts almost in corroboration with the FIS. 19. The learned counsel also produced Annexure-IX his leave details to falsify the allegation of the second respondent that in the month of Chingam when petitioner came on leave and she asked to marry her, he refused. Annexure-IX would show that he has not availed any leave during training in September which was the corresponding to Chingam in 2019. 20. According to the learned counsel for the petitioner, the entire story of the prosecution revealed through the victim is false and concocted and it is only out of frustration and jealousy on seeing that he is going to be posted as Sub Inspector. According to him, in order to show that she was a minor at the time of first incident, she falsely stated the date of birth as 5.9.1995 and only on collecting the birth certificate, her date of birth was found to be 5.9.1994 instead of 5.9.1995. That was explained by the learned counsel for the de facto complainant that it was due to a wrong entry in the Aadhar card with regard to the date of birth. Whatever it be at present, the offence under the PoCSO Act has been deleted and only 376(2)(n) and 506(i) IPC are the offences for which charge has been laid. 21. In this context, the learned counsel for the de facto complainant drew my attention to S tate of Haryana and Crl.M.C. .No.2648/2021 15 Others v. Bhajan Lal and Others (1992 Supp (1) SCC 335) wherein the Apex Court, categorically laid down the guidelines to be followed for exercising extra ordinary power under Article 226 of the Constitution of India or the inherent powers under Section 482 Cr.P.C to prevent the abuse of process of Court or to secure the ends of justice to quash the proceedings. The relevant paragraph reads as follows :- “In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised Crl.M.C. .No.2648/2021 16 1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused 2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code 3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused 4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code Crl.M.C. .No.2648/2021 17 5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused 6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party 7. Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge”. 22. On analyzing the facts of the case it could be seen that none of the above contingencies arise in this case.It is true that a learned single Judge of this Court granted pre-arrest bail to the petitioner as per the order dated 17.6.2020. At that stage this court taken into account the delay of 8 years and Crl.M.C. .No.2648/2021 18 engagement of the petitioner as well as the de facto complainant and further, the registration of Crime No.42/2020 under Section 57 of the Police Act, on the basis of the complaint filed by the father of the victim for her missing etc. 23. The learned counsel for the de facto complainant as well as the learned Public Prosecutor vehemently contend about the medical evidence and the statement of the Doctor with regard to the signs of repeated sexual intercourse upon the examination of the body of the victim. She is none other than the petitioner's father's brother's daughter. The first incident in April 2012 according to her was a forceful act while she was sleeping in the house. After 3 days she saw him and at that time he promised to marry her on getting job and told her that he love her and and there after till May 2019 their relationship said to have continued. Now one of the contentions of the petitioner is that de facto complainant and petitioner are in prohibited degree of relationship. That would indicate prima facie that the petitioner from the inception had no intention to marry her. The first act was forceful and in none of the above cited decision from the side of petitioner such a circumstance is there. Though the learned counsel for the petitioner attempted to establish through the site plan that there is no door with out lock in the kitchen area etc. at this stage this court is not expected to evaluate the facts meticulously. (More over that incident allegedly is in April 2012. It is a matter to be Crl.M.C. .No.2648/2021 19 proved in evidence as to whether her house and kitchen area has been subsequently altered). 24. Her unusual conduct of leaving the house with out informing anybody and father's man missing complaint and her subsequent statement before the Magistrate that she left the house her own and has no complaint against anybody and nobody has caused any harm to her etc. would throw some light to state of her mind. Admittedly the marriage of petitioner was fixed in the month of May 2019 with another woman. Subsequent to that her marriage was also fixed. Even according to the petitioner her marriage was fell through at the instance of de facto complainant. Intimacy or relationship with the petitioner might have been a reason for that. So evaluating the facts and circumstances I am not satisfied that this is a case which can be thrown away at this stage. It is true that because of this case the career of the petitioner has been on the verge of termination. But that can not be taken as a ground to quash the proceedings against the petitioner. 25. In the result, Crl.M.C. dismissed. Sd/- M.R.Anitha, Judge Al/Mrcs/6.11. Crl.M.C. .No.2648/2021 20 ## **APPENDIX OF CRL.MC 2648/2021** - ANNEXURES ANNEXURE I THE CERTIFIED COPY OF THE FIR DATED 12/06/2020 IN CRIME NO.1399/2020 OF NEYYATTINKARA POLICE THIRUVANANTHAPURAM DISTRICT. - ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.1399/2020 OF NEYYATTINKARA POLICE STATION THIRUVANANTHAPURAM DISTRICT. - ANNEXURE III TRUE COPY OF THE ORDER DATED 17/06/2020 IN BAIL APPLICATION NO.3644/2020 OF THIS HONBLE COURT. - ANNEXURE IV TRUE COPY OF THE FIR DATED 9/01/2020 IN CRIME NO.42/2020 OF NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. - ANNEXURE V TRUE COPY OF THE DEPOSITION OF THE VICTIM BEFORE THE MAGISTRATE DATED 11/01/2020 IN CRIME NO.42/2020 OF NEYYATTINKARA POLICE STATION, THIRUVANANTHAPURAM DISTRICT. - ANNEXURE VI TRUE COPY OF THE SCENE PLAN OBTAINED VIA RIGHT TO INFORMATION ACT. - ANNEXURE VII TRUE COPY OF THE APPOINTMENT ORDER NO.E2-70548/2019/PHQ DATED 28/06/2019 OF THE PETITIONER. - ANNEXURE VIII THE TRUE COPY OF THE PHTOGRAPH TAKEN DURING THE ENGAGEMENT FUNCTION OF THE PETITIONER WHEREIN THE DE FACTO COMPLAINANT/ALLEGED VICTIM IS SEEN IN THE COMPANY OF THE PETITIONER'S PARENTS, SISTER AND THE BRIDE - ANNEXURE IX THE TRUE COPY OF THE LEAVE DETAILS PERTAINING FOR THE PETITIONER WHILE HE WAS UNDERGOING TRAINING AT KERALA POLICE TRAINING ACADEMY, THRISSUR 21 ## Crl.M.C. .No.2648/2021 ANNEXURE-X THE TRUE COPY OF THE CERTIFICATE ISSUED FROM FINWARE TECHNOLOGIES CERTIFYING THAT THE PETITIONER WAS WORKING AS JUNIOR SOFTWARE ENGINER IN THE COMPANY FROM 9.1.2011 TO 30.42012