IMPORTANT POINT
Consent obtained under a misconception of fact does not constitute valid consent under Section 90 IPC; a consensual relationship does not amount to rape.

ORDER :

1. This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure (‘Cr.P.C.’ for short), seeking to quash Annexure 7 FIR based on Annexure 6 FIS and all further proceedings pursuant to the same in Crime No. 181/2022 of Atholy Police Station, Kozhikode. The petitioner is the sole accused in this case.

2. Heard and on the learned counsel for the petitioner and the learned Senior Counsel Advocate P. Vijayabhanu appearing for the 2nd respondent on 12.08.2024, 19.08.2024 and on 06.09.2024. As on 11.09.2024, this Court ordered as under:

“It is submitted by the learned counsel for the petitioner that though the allegation in the complaint is under Section 376 of the Indian Penal Code, the defacto complainant has another contention that, there was marriage between the defacto complainant and the accused and further, the accused is liable to pay some amount, borrowed from the defacto complainant. The learned counsel for the petitioner would submit that, in view of the discussion between the counsels concerned, Rs.50,00,000/- (Rupees Firth lakh only) transferred to the defacto complainant in her account through RTGS and the same is not in dispute. Therefore, the same is recorded.

Post for disposal of the matter on 04.10.2024. Till then, the interim order shall continue.”

3. When this case was posted on 04.10.2024, the instructing counsel for the 2nd respondent representing the learned Senior Counsel, Shri P. Vijayabhanu submitted that vakalat for and on behalf of the 2nd respondent has been given up. Another counsel filed fresh vakalat for the 2nd respondent. When this matter taken on 14.10.2024, the learned counsel, who filed fresh vakalat submitted that Rs.50 lakh was transferred to the account of the 2nd respondent, as recorded as per order dated 11.09.2024, but the prayer for quashment is liable to be considered on merits and there is no settlement in view of payment of Rs.50 lakh as admitted.

4. The learned counsel for the petitioner would submit that reading the prosecution allegations, offences punishable under Sections 376, 406, 420 and 506 of Indian Penal Code (‘IPC’ for short) are not made out, prima facie, since the relationship between the petitioner and the 2nd respondent is purely consensual It is also submitted that the amount received by the petitioner along with the interest thereof was transferred as recorded by this Court on 11.09.2024. Therefore, the entire matter would require quashment. He also submitted that Rs.50 lakh was transferred in the account of the defacto complainant, believing the words of the Senior Counsel for the defacto complainant, to settle the financial liability and also taking note of the submission made by the Senior Counsel for the defacto complainant that the defacto complainant is in urgent need for money to solemnize the marriage of her daughter. As far as the submission made by the learned counsel for the petitioner with regard to the events led to transfer of Rs.50 lakh by the petitioner in the account of the defacto complainant is concerned, the submission is absolutely correct. That is to say, such a submission was made in open Court by the learned Senior Counsel for the defacto complainant and therefore, Rs.50 lakh was transferred to the account of the defacto complainant and the counsel for the defacto complainant admitted its receipt. Thus the submission made by the learned Senior Counsel for the defacto complainant in open court is a matter which is taken judicial notice of by this Court. But subsequent events after transfer of Rs.50 lakh and change of vakalat found to be shocking and the same is noted with exasperation; as gentlemen’s words and assurance to be honoured and acted upon in its epistle and quintessance to keep the equilibrium of societal needs in all facets of social life, without exception to judicial proceedings as well.

5. Leaving the events as illustrated, in order to address the prayer for quashment on merits, I have gone thro