The court held that contradictory and belated allegations in a sexual offence case can constitute an abuse of process, warranting quashment of the FIR and Charge Sheet.

ORDER :

A. Badharudeen, J.

This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure , 1973, to quash Annexure A1 FIR and Annexure A2 Charge Sheet in crime No.537/2018 of Kelakom police station, now pending as S.C.No.39/2020 on the files of the Additional Sessions Court, Thalassery. The petitioner herein is the sole accused in the above case.

2. Heard the learned counsel for the petitioner/accused and the learned Public Prosecutor in detail and perused the records placed by the learned counsel for the petitioner. Even though notice served upon the de facto complainant, she did not appear.

3. Here, the prosecution case, as could be read out from the First Information Report in Crime No.537/2018 of Kelakom Police Station, is that, while the husband of the de facto complainant went for a tour along with the business people in Kolakkad during 2017, the accused, who is the elder brother of the husband of the de facto complainant, criminally trespassed upon the residence of the de facto complainant, caught hold on her breast and also put his finger on her vagina. Thereafter, she was threatened from disclosing the same. On this premise, crime was registered, alleging commission of offences punishable under Sections 450, 506, 376(2)(f), 376(2)(l) and 376(2)(n) of the Indian Penal Code (hereinafter referred to as 'IPC' for short) and after investigation, final report filed alleging commission of offences punishable under Sections 450, 506(i), 376(2)(f) and 376(2)(l) of IPC.

4. While canvassing quashment of the entire proceedings, the learned counsel for the petitioner submitted that this is a false case foisted at the instance of the de facto complainant, who is the wife of the younger brother of the accused, since she is in inimical terms with the siblings of her husband, as she and her husband were dissatisfied with allotment of family property by the father of the petitioner as per Annexure A14 registered Will. It is pointed out by the learned counsel for the petitioner further that even though the occurrence was in the year 2017, the crime was registered on 26.12.2018, that too, by recording the statement of the de facto complainant on 26.12.2018. According to him, prior to 26.12.2018, the same de facto complainant filed another complaint, alleging commission of offences punishable under Sections 341, 324 and 509 r/w 34 of IPC, by the petitioner and the said case was registered on 22.12.2018. In the said case, First Information Statement given by the de facto complainant was recorded on 22.12.2018. Thus it is pointed out by the learned counsel for the petitioner that in the earlier statement recorded on 22.12.2018, there is no allegation similar to the allegation as to commission of rape and the same would go to show the falsity of the allegations. It is pointed out by the learned counsel for the petitioner further that the petitioner also registered rape cases against another brother of the husband of the de facto complainant by name, Alex and crime Nos.536/2018 and 20/2019 (wherein the wife of Alex also was involved) are those cases. That apart, against another brother, Jose, crime No.538/2018 and 526/2018 also were registered, alleging commission of rape. Out of which, the case arose out of crime No.538/2018 ended in acquittal. According to the learned counsel for the petitioner, due to animosity between the siblings of the husband of the de facto complainant, serious offences are alleged against the petitioner and his brothers without any basis and the entire prosecution is malafide and the same would require quashment.

5. While opposing quashment, the learned Public Prosecutor would submit that even though multiple crimes were registered against the petitioner and his siblings, the statement recorded as that of the de facto complainant forms part of this crime and the materials collected during investigation would show that the allegations are prima facie made out, warranting trial. Therefor