IMPORTANT POINT
Consent vitiated by deception negates the validity of consent in sexual offences, allowing for charges of rape to proceed.

ORDER :

A. Badharudeen, J.

This Criminal Revision Petition has been filed under Sections 438 and 442 of the Bharatiya Nagarik Suraksha Sanhita, 2023, challenging the order dated 03.10.2024 in Crl.M.P. No.248/2024 in S.C. No.440/2021 on the files of the Special Judge Fast Track Special Court, Mattannur. The revision petitioner herein is the accused in the above case.

2. Heard the learned counsel for the revision petitioner as well as the learned Public Prosecutor, in detail. Perused the impugned order and relevant materials available.

3. The prosecution allegation is that, the accused, who is a distant relative of the defacto complainant, with whom she had been very close since the year 2018, in the month of December 2018, while her mother was admitted to the hospital, frequently visited her home while she was alone and promised to marry her. Consequent to thereof, the accused had sexual intercourse with her. Thereafter, the accused told her to keep the incident secret, repeating promise of marriage. Later, he persuaded her to snap her explicit photographs and forwarded them to him. Believing the promise to marry her, the defacto complainant obliged his request. He further threatened her that if she disclose the relationship with any other person he would commit suicide. Until June 2019, many times the accused subjected defacto complainant to rape. After some time, the defacto complainant learned that the marriage of the accused had been fixed with another lady. Thereafter, her efforts to contact the accused went in vain. Realizing the fraud and unilateral withdrawal by the accused from the marriage, the defacto complainant attempted to commit suicide. After counseling in a hospital, complaint was lodged and this crime was registered. It is on this premise, the prosecution alleges commission of offences punishable under Sections 376(2) (n) and (f) of Indian Penal Code. The petitioner moved an application under Section 227 of Cr.P.C. before the Special Court and sought the relief of discharge.

4. The learned counsel for the revision petitioner pressed for interference in the impugned order on the submission that the prosecution materials do not make a prima facie case to see commission of offence punishable under Section 376(2)(n) and (f) of IPC by the accused/revision petitioner and the sexual intercourse between the accused and the defacto complainant was consensual in nature. The learned counsel for the revision petitioner argued further that the Special Court failed to consider one document produced by the revision petitioner in the form of a complaint alleged to be lodged by the defacto complainant before the Yuvajana Commission admitting the relationship as consensual, while addressing the plea of discharge. Therefore, the petitioner is liable to be discharged.

5. The learned Public Prosecutor opposed grant of the relief sought for and submitted that the impugned order is perfectly justified. Therefore, the order impugned does not require any interference.

6. The learned Special Judge anxiously considered the contentions raised by the petitioner and the prime contention raised before the Special Court was that, sexual intercourse between the defacto complainant and accused was on the basis of mutual consent and therefore the allegation of rape would not sustain. The learned Special Judge meticulously analyzed the prosecution records and thereafter dismissed the discharge application as observed in paragraph Nos. 14 and 15 of the impugned order. The same are as under:

“14. In Sheoroj Singh Ahlawat V State of UP 2013 (11 SCC 476) it is held that "at the time of framing of charge the court is required to evaluate the materials and documents on record to decide whether there is a ground for presuming that the accused had committed offence. There is no need to evaluate the sufficiency of evidence to convict the accused. Materials brought on record by prosecution can be believed to be true. But there probative value cannot be decided a