Kerala High Court

Chandran T vs State Of Kerala on 27 February, 2025

                                                              2025:KER:16713
Crl.M.C.No.4168 of 2020
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                   IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                   PRESENT

                      THE HONOURABLE MR. JUSTICE S.MANU

  THURSDAY, THE 27TH DAY OF FEBRUARY 2025 / 8TH PHALGUNA, 1946

                           CRL.MC NO. 4168 OF 2020

          CRIME NO.305/2019 OF Malur Police Station, Kannur

      CP NO.11 OF 2020 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
     KUTHUPARAMBA
PETITIONER/ACCUSED:

               CHANDRAN T.
               AGED 52 YEARS
               S/O KUNHIRAMAN,AGED 52, RAMYA NIVAS,
               KOLAYAM AMSOM ALACHERY DESOM, KANNUR DISTRICT.670650


               BY ADV C.LEENA


RESPONDENTS/STATE & COMPLAINANT:

    1          STATE OF KERALA
               REPRESENTED BY THE PUBLIC PROSECUTOR,
               HIGH COURT OF KERALA,ERNAKULAM 682031

    2          X


               BY ADV HRITHWIK D. NAMBOOTHIRI


OTHER PRESENT:

               SMT.MAYA M.N., PUBLIC PROSECUTOR


        THIS   CRIMINAL    MISC.   CASE   HAVING   BEEN   FINALLY   HEARD   ON
20.02.2025, THE COURT ON 27.02.2025 PASSED THE FOLLOWING:
                                                          2025:KER:16713
Crl.M.C.No.4168 of 2020
                                      2

                             S.MANU, J.
            -------------------------------------------------
                       Crl.M.C.No.4168 of 2020
            -------------------------------------------------
              Dated this the 27th day of February, 2025

                                ORDER

The sole accused in Crime No.305/2019 of Malur Police

Station, Kannur District is the petitioner in this Crl.M.C. On the

basis of information furnished by the 2nd respondent on

28.10.2019 the crime was registered. The offences alleged in

the FIR are under Sections 450, 342, 376(2)(n), 493, 406 and

506 of IPC. The allegation in the FIR briefly stated is as follows:-

The accused, pretending that he loves the de facto

complainant and offering to marry her with the actual intention

to sexually exploit her, on 12.10.2018 at about 11:00 hours,

trespassed into her house, wrongfully restrained her and

committed rape in the bedroom of the house. Without

terminating the lawful marriage of the accused he took the de

facto complainant to Thodeekkalam Temple and made it appear

that he had married her there and lived with her at his house in

Kolathai. He indulged in sexual intercourse with her ignoring 2025:KER:16713

her resistance on several days while living there. Later, she was

evicted from the house by threatening to kill her showing a

knife. He also cheated her without repaying an amount

of ₹1,85,000/- he had received from her.

2. The Police concluded the investigation and filed

the final report dated 26.12.2020 for the offences under

Sections 450, 342, 376(2)(n), 493, 406 and 506(ii) of the IPC.

Petitioner was arrested on 30.10.2019 and this Court granted

bail to him on 19.11.2019. In this Crl.M.C. the petitioner prays

to quash all further proceedings pursuant to Annexure-I FIR

and Annexure-II final report including the proceedings pending

before the Judicial First Class Magistrate's Court, Kuthuparamba

in C.P.No.11/2020. Learned counsel for the petitioner

submitted that the case is now pending as S.C.No.335 of 2020

before the Fast Track Special Court, Mattannur.

3. The learned counsel for the petitioner submitted

that the registration of the crime at the instance of the 2 nd 2025:KER:16713

respondent was an abuse of the process of law. She pointed out

that there was a delay of almost a year in registering the crime,

which has not been properly explained. She submitted that the

de facto complainant had two grown up children before she

came into acquaintance with the petitioner. She became close to

the petitioner knowing very well that he was married and that

he had not divorced his wife. The learned counsel pointed out

that the admitted case of the 2nd respondent is that she

voluntarily lived with the petitioner at his house and they

indulged in sexual intercourse on several occasions while

residing there. The learned counsel pointed out that the 2 nd

respondent is a mature lady who had two children and she knew

well that tying a 'tali' by a person who is already married would

not amount to a legally valid marriage. The learned counsel

pointed out that the sequence of events clearly show that the

2nd respondent turned against the petitioner and approached the

police after she had to vacate the house of the petitioner when

it was sold to CW4. She submitted that the sexual relationship

between the petitioner and the 2nd respondent was obviously 2025:KER:16713

consensual. The learned counsel argued that the account

statement produced along with the final report shows only that,

on 21.11.2018, the petitioner transferred ₹3,00,000/- to the

account of the 2nd respondent. The learned counsel submitted

that the said amount was given to the 2 nd respondent out of the

sale consideration received by the petitioner on selling his house

to CW4. The learned counsel contended that the story of

borrowing ₹4,85,000/- from the 2nd respondent and repaying

only ₹3,00,000/- is a totally false allegation developed by the

2nd respondent. She pointed out that there is no evidence

whatsoever in support of the allegation of borrow by the

petitioner. Crux of the submission of the learned counsel for the

petitioner is that the petitioner and the 2 nd respondent

developed acquaintance and lived together for some time. They

had consensual sexual intercourse on many occasions. The only

financial transaction as evident from the account statement is

transfer of an amount of ₹3,00,000/- by the petitioner to the 2 nd

respondent. She submitted that the facts and circumstances of

the case would clearly show that the registration of the case on 2025:KER:16713

the basis of totally false and unsustainable allegations raised by

the 2nd respondent amounts to sheer abuse of the process of

law. The learned counsel relied on the following reported

decisions in support of her contentions:-

(i) Mahesh Damu Khare v. The State of Maharashtra & another [(2024) SCC OnLine SC 3471]

(ii) Sunish Pillai v. State of Kerala & another [(2024) SCC OnLine Ker 6315]

(iii) Sujith v. State of Kerala & another [2024 KLT OnLine 1987]

She therefore prayed that the final report against the petitioner

may be quashed and proceedings pending before the

jurisdictional Magistrate's court may also be quashed.

4. Though notice was served and a counsel entered an

appearance on behalf of the 2nd respondent, there was no

representation for the 2nd respondent when the case was taken

up for hearing on 30.1.2025 and 31.1.2025. Therefore, the

High Court Legal Services Committee, pursuant to the order 2025:KER:16713

dated 6.2.2025 assigned Advocate Hrithwik D.Namboothiri to

appear for the 2nd respondent. He contended that the prayer to

quash the proceedings is not liable to be entertained. He

pointed out that there are materials brought on record by police

which would show that the 2nd respondent was under the

impression that the petitioner has married her by tying tali in

the presence of her children and he genuinely desired to accept

her as his wife. He therefore contended that the consent for

sexual relationship was on misconception of facts. He referred to

the statements of various witnesses including the children of the

2nd respondent and submitted that the petitioner has behaved in

a highly unscrupulous manner by sexually exploiting the 2 nd

respondent by giving a promise to marry her and indulging in a

fake marriage to make it appear to her and also her children

that he had genuinely married her. He also submitted that the

allegation of obtaining money from her is also highly probable

and the fact that the petitioner acted as a surety in the loan

transaction shows that the loan was probably obtained by the

2nd respondent for the benefit of the petitioner. The learned 2025:KER:16713

counsel relied on the order in xxx v. State of Kerala [2024 KLT

OnLine 3066] and submitted that whether the de facto

complainant consented for sexual relationship on misconception

of facts is purely a matter of evidence and hence the petitioner

deserves to face the trial. He hence submitted that no

interference in exercise of the inherent powers of the Court is

warranted in this case.

5. The learned Public Prosecutor submitted that the

allegations against the petitioner are serious in nature. She

contended that the materials collected by police during

investigation are sufficient to support the conclusions in the final

report. She stated that several witnesses have been cited in the

final report and the evidence of the 2nd respondent alone is

sufficient to prove the allegation of rape. She submitted that

the petitioner, who was already married gave a false promise to

the 2nd respondent that he would marry her and exploited her

sexually continuously. The learned Public Prosecutor also

pointed out that there is evidence collected by the police to

prove that the 2nd respondent had availed a loan for which the 2025:KER:16713

petitioner stood as a guarantor. She therefore submitted that in

these circumstances the allegation that he obtained an amount

of ₹4,83,000/- from the 2nd respondent and repaid only

₹3,00,000/- is also supported by evidence. The learned Public

Prosecutor, therefore submitted that this is not a fit case in

which the inherent powers vested in this Court can be exercised

for quashing the proceedings.

6. Statement given to the police by the 2 nd respondent

shows that she had acquaintance with the petitioner since 2011.

She started working in his rubber plantation in 2011. The

petitioner had obtained a sim card in his name and gave it to

the 2nd respondent. He used to call her in the said mobile

connection. She stated that the petitioner told her that he is

interested to marry her and she believed him. On 12.10.2018,

at about 11 am., he came to her house and had forcible sexual

intercourse. Thereafter, on several occasions when she was

alone he came to her house and had sex. On 28.10.2018, he

took her and her children to a temple and tied a 'tali'.

Thereafter, he took her and children to his newly constructed 2025:KER:16713

house. She stated that since the marriage was not registered

she refused to have sexual relationship with him. Nevertheless,

ignoring her resistance he continued to have sex with her. On

24.01.2019, he sent her and her children back to home by

threatening to kill her. Even thereafter he came to her house

and interacted lovingly with her and her children on two three

occasions. Later, he called her over phone and asked her to

come to his house. Till May 2019 she used to go to his house

and was forced by him to have sexual intercourse. She further

stated that he had borrowed ₹4,85,000/- from her for the

purpose of completing construction of new house. Believing

that she and her children will be taken to stay there she gave

the money. ₹3,00,000/- was repaid to her by depositing in her

account. Remaining amount of ₹1,85,000/- has not been

repaid. She also stated that she went to his house and stayed

there believing that the marriage was genuine.

7. During investigation statements of several persons

were recorded including that of the children of the 2 nd

respondent. The children stated that they stayed with the 2025:KER:16713

petitioner at his newly constructed house for some time and

then he used to drop them in the school and they used to

address him as father. They also stated that some amounts

were borrowed by him from the 2 nd respondent and he did not

repay the whole amount. Some other witnesses interrogated

have given statements to the effect that the petitioner and the

2nd respondent were living like husband and wife at his house

and later she returned to her home and further that the

petitioner's first wife rejoined him.

8. What emerges from the materials available with the

final report is that the petitioner and the 2 nd respondent had a

long time acquaintance. Even according to the 2 nd respondent,

the petitioner had sexual relationship with her over a long

period. He, according to the version of the 2 nd respondent, had

sexual intercourse with her at her own home, in his newly

constructed house and his own house. Even after the 2 nd

respondent and her children were sent back to their home and

their relation became much strained, she admits to having gone

to his house where again sexual relationship had happened.

2025:KER:16713

9. Under Section 375 of IPC, regarding the aspect of

consent seven circumstances are delineated. The Act alleged

falls within the description of rape under Section 375 of IPC if it

happens without valid consent. Whether there was valid

consent is a matter to be inferred from the facts and

circumstances. In this case, it can be noticed that the petitioner

had sexual intercourse with the 2 nd respondent over a long

period of time. The 2nd respondent is a mature lady having two

children. As noted earlier, the petitioner indulged in sexual

relationship with her even after she and her children were sent

back from his new house. Admittedly she went to his house

even after that on several occasions and he had sex with her.

Her case is that she believed the marriage to be true and

genuine. However, she also stated that she insisted the

petitioner to register the marriage and that they could have a

sexual relationship only after the registration. Nevertheless,

registration was not done. But the sexual relationship

continued. The petitioner's specific case that his sexual 2025:KER:16713

relationship with the 2nd respondent was consensual is

believable in this peculiar circumstances.

10. It is also difficult to conclude that the petitioner had

an intention to deceive her by giving a false promise from the

very beginning. Fact that he took the 2 nd respondent and her

children to his newly constructed house situated close to his

original home and lived there together shows that it was an

open relationship known to all. Statements of the children of the

2nd respondent and even her own version is to the effect that

the petitioner was behaving well with the children. He used to

drop them at school and they addressed him as father.

However, it seems that his first wife later rejoined him and he

changed his mind to live with the 2 nd respondent and her

children. Therefore, in the circumstances of this case, it cannot

be concluded that there was any misconception regarding their

relationship in the mind of the 2nd respondent and she was

sexually exploited by the petitioner making use of the

misconception. Therefore, as the consent cannot be held to be

the result of any misconception, the alleged acts of the 2025:KER:16713

petitioner cannot be considered to constitute the offence under

Section 376(2)(n) of IPC.

11. The offences under Sections 450 and 342 of IPC also

would not lie against the petitioner in the facts and

circumstances as borne out from the statement of the 2 nd

respondent. Admittedly, the acquaintance between the

petitioner and the 2nd respondent developed from 2011 and he

used to visit her at her home. She was using a mobile

connection provided by him. As valid consent is to be inferred

with respect to the sexual relationship between the petitioner

and the 2nd respondent, the allegation of the offences under

Sections 450 and 342 of the IPC is also liable to be held as not

sustainable in the facts of the case. The offence under Section

506 of the IPC also cannot be sustained. The children of the 2 nd

respondent have no case that they were driven out of the

petitioner's new house by showing a knife and threatening that

they would be killed. It is also to be noted that admittedly the

petitioner visited the 2nd respondent at her home after they left

his newly constructed house and going by the statement of the 2025:KER:16713

2nd respondent he behaved lovingly. She further admits that she

went to his residence still later and he had sexually intercourse

with her. In these circumstances it cannot be believed by any

prudent mind that the 2nd respondent was intimidated by the

petitioner. Had that been the case, the subsequent events

narrated by the 2nd respondent would not have happened.

12. Offence under Section 406 of IPC has been

incorporated on the basis of the allegation that the petitioner did

not repay ₹1,85,000/- to the 2nd respondent. She stated to the

police that he borrowed total amount of ₹4,85,000/- from her

for completing the construction of his house and he paid the

amount believing that she and her children will be permitted to

live in the new house. Only an amount of ₹3,00,000/- was

repaid by him and the remaining amount was retained with him

though she demanded to return the balance amount also. Even

if the version of the 2nd respondent is accepted as totally correct

the issue in essence is a borrowal and failure to repay the

amount. The same would not attract the ingredients of criminal

breach of trust under Section 405 of IPC. Hence, I find that the 2025:KER:16713

offence under Section 406 of IPC is also not attracted in this

case.

13. Remaining offence is the one punishable under

Section 493 of IPC. Section 493 of IPC is as follows:-

"493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage.--

Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."

14. It is relevant to note in this case that according to

the 2nd respondent, the petitioner indulged in sexual intercourse

with her at her residence on a number of occasions initially. One

day he took her to a temple and tied a 'tali' in the presence of

her children. However, it is clear that the 2nd respondent did not

consider it as a valid marriage. She has stated that she resisted

when the petitioner attempted to have sexual intercourse

thereafter, insisting that the marriage should be registered. It

was also within her knowledge that the petitioner had not got 2025:KER:16713

himself legally separated from his first wife. A lady with two

children having sufficient experience in life cannot be considered

to have believed that tying of tali by a man legally wedded to

another can constitute a valid marriage. Her own statements

show that she did not believe that there was a valid marriage

between her and the petitioner. In this context, it is relevant to

refer to a judgment of the Gujarat High Court in State of

Gujarat v. Batuk Hiralal Mehta [1974 Guj LR 391]. The Court

observed as follows:-

"(7) As aforesaid in our opinion it is difficult to reach a conclusion that the accused had induced a belief in the mind of complainant Nalini that a lawful marriage was performed on the night of June 21 1969 in the bungalow of the accused at vapi. The garlanding by each other might have been done although it is doubtful. But that might as well have been done by the accused by way of or creating a psychological satisfaction in the mind of Nalini that her future was being safeguarded as a permanent mistress in the house of the accused and she dedicated herself. But having regard to the nature of the alleged ceremony it cannot be treated as satisfactory evidence to show that the 2025:KER:16713

accused had induced in Nalini a belief that she was a woman lawfully married to the accused. An experienced and an intelligent woman that complainant Nalini was and one who was born and brought up in a city like Bombay cannot ordinarily be taken to have been beguiled into a belief by the simple process of mutual garlanding before the photo of Lord Rama in a summary manner that she was lawfully married to the accused and to have been induced to cohabit with the accused under such a belief. The evidence of Nalini is a highly interested testimony which bristles with many inconsistencies contradictions and unnatural statements and receives no corroboration from any material evidence or circumstance. ....................

9) It is needless to repeat that the conduct of the accused which we have found to be reprehensible and sexy and for which no further comment is necessary cannot per se lead us to a finding of guilt of the accused in the matter of commission of alleged offences under Secs.493 and 496 of the I.P.C. In any case it cannot be decisive of matter.

The prosecution has failed to prove the relevant necessary ingredients of the said offences. In any case two views are possible and the accused is entitled to benefit of doubt and we do not find it 2025:KER:16713

proper to interfere in this acquittal appeal which thus fails and is dismissed. Appeal dismissed."

Therefore, in my view, the offence under Section 493 of the IPC

is also not made out in the instant case.

15. In the result, the Crl.M.C. is allowed. The final report

in Crime No.305/2019 of Malur Police Station, Kannur District

and the proceedings in S.C.No.335/2020 on the file of the Fast

Track Special Court, Mattannur are hereby quashed. This will

not stand in the way of the 2 nd respondent proceeding against

the petitioner in accordance with law for any subsisting

grievances. I place on record appreciation for the efforts of the

learned counsel Sri.Hrithwik D.Namboothiri assigned by the High

Court Legal Services Committee to espouse the cause of the 2 nd