Kerala High Court

Abdul Kalam vs State Of Kerala on 25 June, 2025

                                                               2025:KER:45076
Crl.M.C.No.3040/2025
                                          -:1:-

                       IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                       PRESENT

                         THE HONOURABLE MR. JUSTICE G.GIRISH

            WEDNESDAY, THE 25TH DAY OF JUNE 2025 / 4TH ASHADHA, 1947

                               CRL.MC NO. 3040 OF 2025

   CRIME NO.687/2023 OF ERNAKULAM CENTRAL POLICE STATION, ERNAKULAM

            AGAINST THE ORDER IN CP NO.2 OF 2025 OF JUDICIAL MAGISTRATE OF
                           FIRST CLASS -II, ERNAKULAM

PETITIONER/ACCUSED:

                  ABDUL KALAM
                  AGED 27 YEARS
                  S/O ABDUL SALAM, THONDAMKANDATHIL HOUSE,
                  KARUVATTA NORTH.P.O., ALAPPUZHA,
                  PIN - 690517

                  BY ADVS.SRI.A.RAJASIMHAN
                          KUM.VYKHARI.K.U


RESPONDENT/STATE AND DE FACTO COMPLAINANT:

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

        2         XXXXXXXXXX
                  XXXXXXXXXX XXXXXXXXXX

                  SMT PUSHPALATHA M.K., SR. PUBLIC PROSECUTOR


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION                ON
22.05.2025, THE COURT ON 25.06.2025 PASSED THE FOLLOWING:
                                                          2025:KER:45076
Crl.M.C.No.3040/2025
                                   -:2:-


                               ORDER

The petitioner is the accused in Crime No.687/2023 of Ernakulam

Central Police Station, a case registered in respect of the commission of

offences under Sections 376, 376(2)(n), 354, 354B, 354C & 506 of the

Indian Penal Code, 1860, and Section 66E of the Information Technology

Act, 2000. The prosecution case is that the petitioner, who was the

classmate of the survivor, committed rape and sexual outrages upon her

during the period from 23.02.2022 to 30.01.2023, at various places. It is

alleged that on 23.02.2022, the petitioner hit the survivor upon her head

inside the classroom after academic hours and raped her, and thereafter,

recorded her nude photographs. Later on, the petitioner is alleged to

have raped the survivor in February, 2022 and in March, 2022, at

guesthouses near Kochuveli Railway Station and Shornur Railway Station

after subjecting her to the threat that her nude photographs would be

published in social media, if she did not surrender to him. Again, the

survivor is said to have been subjected to rape in the months of April and

May at Kakkanad and Fort Kochi, by adopting the same tactics.

Thereafter, she was said to have been raped again in the month of July

and August, 2022 at Fort Kochi and Kakkanad. On another day, the 2025:KER:45076

petitioner allegedly subjected the survivor to oral sex inside the lift of the

college. The last incident of rape is said to have happened on 30.01.2023

inside the gents' toilet of the college where they have been studying.

According to the survivor, she was not in a position to resist the

subsequent sexual assaults upon her after the first incident, since the

petitioner threatened that he would circulate and publish her nude and

inappropriate visuals in social media and in the common Whatsapp group

of the students of the institution. After the completion of the

investigation, the Inspector of Police, Central Police Station, laid the final

report before the Judicial First Class Magistrate-II, Ernakulam, who

accepted the same as C.P. No.2/2025.

2. In the present petition filed under Section 528 of the

Bharatiya Nagarik Suraksha Sanhita, 2023 (in short, 'BNSS'), the

petitioner would contend that none of the offences as alleged against

him are attracted in the facts and circumstances of this case. According

to the petitioner, he was in love with the survivor, and that the sexual

relationship between them took place with the full consent of the

survivor. It is the further contention of the petitioner that he was ready 2025:KER:45076

to marry the survivor but she developed a relationship with another

person.

3. Heard the learned counsel for the petitioner and the learned

Public Prosecutor representing the State of Kerala.

4. It is the specific case of the survivor that the petitioner

committed rape upon her for the first time on 23.02.2022 after physically

assaulting her by hitting upon her head inside the classroom when

nobody was there after the academic hours. The survivor is said to have

collapsed as a result of the above assault, and thus, the petitioner made

use of that situation to ravish her and to record her nude photographs

with the dubious objective to compel her to surrender to him on future

occasions for perpetrating further sexual assaults. The survivor would

state the reason that the threat on the part of the petitioner about the

publication of her nude photographs in the students' Whatsapp group

and other social media, made her surrender to his carnal desires on

several occasions during the months of March, April, May, July and

August, 2022, and finally on 30.01.2023.

5. The learned counsel for the petitioner would contend that the

long tenure of about one year when the petitioner allegedly raped her at 2025:KER:45076

various destinations itself reveals that the relationship between them was

consensual. According to the learned counsel for the petitioner, if the

allegation of the survivor was true, she could have preferred a complaint

against the petitioner at any time before the law-enforcing agencies or

the college authorities during that period. It is the further contention of

the learned counsel for the petitioner that the screenshots of the

Whatsapp chats of the petitioner and the de facto complainant during

the relevant period itself disclose the fact that their relationship was

cordial during all such occasions, when the petitioner is alleged to have

raped the survivor. Thus, it is contended that the petitioner was granted

anticipatory bail by the Sessions Court taking note of the above aspect.

6. The argument advanced by the learned counsel for the

petitioner in the above regard cannot be accepted due to two reasons.

Firstly, this Court, while dealing with a petition under Section 528 of the

BNSS, cannot embark upon a roving enquiry on the merits of the

electronic evidence of Whatsapp chats relied on by the petitioner to

arrive at a finding as to whether the sexual intercourse between the

petitioner and the survivor on various occasions, was with the consent of

the survivor. Secondly, it is pertinent to note that Annexure-A3 Whatsapp 2025:KER:45076

chats, which the petitioner rely on, is not having continuity at the

relevant points of time when the survivor is alleged to have been raped

by the petitioner. In other words, a perusal of Annexure-A3 Whatsapp

chats would reveal that there are missings on several portions which

would coincide with the alleged period when the petitioner is said to

have raped the survivor. For instance, it is pertinent to note that in

Annexure-A3, after 19.01.2022 there is a break up to 07.03.2022. It was

during that time that the petitioner allegedly raped the survivor for the

first time on 23.02.2022 inside the classroom. So also, the Whatsapp

chats between the petitioner and the survivor in Annexure-A3 are

missing during the period after 12.03.2022 and before 04.04.2022. It is

pertinent to note that the survivor has alleged that she was raped by the

petitioner on a day in March, 2022, at Railway Guest House, Shornur.

Likewise, there is missing and lack of continuity in Annexure-A3 after

10.05.2022 till 06.10.2022. It is during that period that the survivor was

allegedly raped by the petitioner at the homestay at Fort Kochi and a

lodge at Kakkanad. Finally, it is to be noted that Annexure-A3 does not

contain the Whatsapp chats between the petitioner and the survivor after

23.12.2022, which would support the allegation of the survivor that she 2025:KER:45076

was raped for the last time on 30.01.2023. At any rate, the evidence in

the above regard has to be analysed by the Trial Court after taking into

account its acceptability and possible implications. This Court, while

exercising its powers under Section 528 BNSS, cannot analyse the

aforesaid evidence, as if in a trial.

7. The powers under Section 528 of the BNSS could be invoked

only in such cases where it is necessary to meet the ends of justice, to

give effect to any orders passed under the Bharatiya Nagarik Suraksha

Sanhita, or to prevent abuse of process of court. It is not possible for this

Court to conduct a roving enquiry into the merits of the evidence which

the prosecution propose to adduce in a criminal case, while dealing with

a petition under Section 528 BNSS. In XYZ v. State of Gujarat and

Another [(2019) 10 SCC 337], the Hon'ble Apex Court held as follows

upon the constraints of the exercise of powers under Section 482 Cr.PC.:

"xxx xxx xxxx xxx xxxx xxx xxx xxxx xxxxxx Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the 2025:KER:45076

High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC xxx xxx xxxx xxx xxxx xxx xxx xxxx xxxxxx"

8. In State of H.P. v. Shree Kant Shekari [(2004) 8 SCC

153], the Hon'ble Supreme Court held that the question of consent is

a matter of defence which the accused is bound to establish. The

relevant portion of the judgment rendered by the Hon'ble Apex Court

in the aforesaid decision is extracted hereunder:

"xxx xxx xxxx xxx xxxx xxx xxx xxxx xxxxxx Even otherwise, the High Court seems to have fallen into grave error in coming to the conclusion that the victim has not shown that the act was not done with her consent. It was not for the victim to show that there was no consent. Factually also, the conclusion is erroneous right from the beginning, that is, from the stage when the FIR was lodged and in her evidence there was a categorical statement that the rape was forcibly done notwithstanding protest by the victim. The High Court was, therefore, wrong in putting burden on the victim to show that there was no consent. The question of consent is really a matter of defence by the accused and it was for him to place materials to show that there was consent.

xxx xxx xxxx xxx xxxx xxx xxx xxxx xxxxxx"

9. In State of Rajasthan v. Roshan Khan and Others

[(2014) 2 SCC 476], the Hon'ble Apex Court, while dealing with

Section 114-A of the Evidence Act, 1872, held that when the sexual

intercourse by the accused is proved, it is up to him to establish that it 2025:KER:45076

was with the consent of the victim. The relevant portion of the

aforesaid decision is extracted hereunder:

"xxx xxx xxxx xxx xxxx xxx xxx xxxx xxxxxx Section 114-A of the Evidence Act, 1872 clearly provides that in a prosecution for rape under clause (g) of sub-section (2) of Section 376 IPC, where sexual intercourse by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent. Since the prosecutrix (PW 2) has categorically said that sexual intercourse was committed by the accused without her consent and forcibly, the Court has to draw the presumption that she did not give consent to the sexual intercourse committed on her by the accused persons. xxx xxx xxxx xxx xxxx xxx xxx xxxx xxxxxx"

10. Very recently, the Hon'ble Apex Court has held in the

landmark judgment of the case In Re: Right to Privacy of

Adolescents [2024 SCC Online SC 2055], that when offences of

rape and aggravated penetrative sexual assault are committed, by

exercising its jurisdiction under Article 226 of the Constitution of India

and/or Section 482 of the Cr.PC, the High Court cannot acquit an

accused whose guilt has been proved. It is true that the aforesaid

dictum applies to a case where the offence alleged was found to have

been proved in the trial. But, the dictum in the aforesaid decision,

when taken along with the law laid down by the Apex Court, 2025:KER:45076

consistently alerting the High Courts against the exercise of the powers

under Section 482 Cr.PC for stifling the prosecution on the ground of