Consent in sexual offences cannot be deemed obtained by misconception if the complainant is already married, nullifying the validity of the promise of marriage.

ORDER :

Sole accused in S.C.No.1071/2023 on the files of the Special Court for the trial of cases under theProtection of Children from Sexual Offences Act (for short ‘the PoCSO Act’ hereinafter), Thrissur, has filed this Criminal Miscellaneous Case under Section 482 of the Code of Criminal Procedure , 1973, arising out of Crime No.330/2023 of Town East Police Station, Thrissur, and the prayer herein is as under:

To quash Annexure A2 Final Report and all further proceedings arising therefrom and pending as S.C.No.1071 of 2023 on the file of the Fast Track Special Court – II, Thrissur in Crime No.330 of 2023 of Town East Police Station, Thrissur.

2. Heard the learned counsel for the petitioner/accused and the learned Public Prosecutor, in detail. Even though the de facto complainant was served notice and a counsel appeared for the de facto complainant, now he filed a memo stating that he has relinquished the vakalath. But the de facto complainant or any other counsel not appeared.

3. In this matter, the prosecution alleges commission of offences punishable under Sections 342 and 376(2)(n) of the Indian Penal Code (for short, 'the IPC ' hereinafter) by the accused. Initially, FIR was registered alleging commission of offences punishable under Sections 376(2)(n), 323, 324, 342, 384 and 506 of the IPC and later on investigation, final report filed alleging commission of the above said offences.

4. In this matter, the prosecution case is that, the accused, who is working as a police officer, offered to marry the de facto complainant and thereafter, on promise of marriage, the de facto complainant was subjected to sexual intercourse on 24.4.2022 and subsequently, till the ides of October, 2022 in Thrissur, Guruvayoor etc. During this time, the accused procured Rs.9,30,000/- (Rupees Nine Lakh Thirty Thousand only) from the de facto complainant and thereafter, retracted from the marriage.

5. While seeking quashment of the proceedings on the allegation that the offences are not made out prima facie, the learned counsel for the petitioner submitted that the petitioner bona fide made a proposal to marry the de facto complainant believing that she is an unmarried lady and thereafter, when it was noticed that she is a lady already married and having two children, the proposal was dropped as legal marriage could not be solemnized. By the time, false allegations were raised against the petitioner that he subjected the de facto complainant to repeated sexual intercourse with promise of marriage. According to the learned counsel for the petitioner, going by the First Information Statement as well as the additional statement recorded as that of the de facto complainant, there are repeated assertions that the de facto complainant is a married lady and she is having two children. Further, she has been continuing her earlier marriage relationship also during the alleged promise of marriage. Therefore, the entire prosecution allegations are false and the same would require quashment. It is also pointed out by the learned counsel for the petitioner that the de facto complainant is a lady, used to impersonate others with a view to grab money from innocent persons. Accordingly, it is submitted that one Akhilesh filed complaint against the de facto complainant alleging commission of offences punishable under Sections 406, 420 and 506 of the IPC , which led to registration of Annexure A3 FIR in Crime No.304/2024 of Melparamba police station on 21.6.2024, where the allegation was that the de facto complainant who got acquainted with the said Akhilesh impersonating her as an employee of ISRO and Income Tax Office, obtained one sovereign of gold and Rs.1 Lakh from Akhilesh. Similarly, Annexure A4 FIR in Crime No.501/2024 of Kasargode police station was registered against the de facto complainant alleging commission of offence punishable under Section 318(4) of the Bharatiya Nyaya Sanhita (BNS), 2023, at the instance of one Devi Das wherein also, the allegation wa