IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 20^TH DAY OF JUNE 2024 / 30TH JYAISHTA, 1946 CRL.MC NO. 6854 OF 2023 CRIME NO.255/2017 OF Maloor Police Station, Kannur AGAINST THE ORDER/JUDGMENT DATED IN SC NO.995 OF 2018 OF FAST TRACK SPECIAL COURT, MATTANNUR PETITIONER/ACCUSED:

UBAID.K.C AGED 40 YEARS S/O.ABOOTTY, AYSHA MANZIL, PUTHANPURA, KUTHUPARAMBA AMSOM, PARAL, P.O.KUTHUPARAMBA, KANNUR DISTRICT, PIN -

670643 BY ADVS.

M.P.PRIYESHKUMAR SHANAVAS NALAKATH RANDUPURAYIL RESPONDENTS/STATE AND DEFACTO COMPLAINANT:

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

2 XXXX XXXX THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON

20.06.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

A. BADHARUDEEN., J.

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Crl.M.C No.6854 of 2023 --------------------------------

Dated this the 20^th day of June, 2024

O R D E R

The petition has been filed under Section 482 of Cr.PC and prayer is as under:-

“it is most humbly prayed that this Hon'ble Court may be pleased to quash Annexure 1 FIR and Annexure 3 final report in Crime No. 255/2017 of Maloor Police Station, Kannur District and all further proceedings in S.C 995/2018 on the file of Fast Track Special Court, Mattannur, so as to secure the ends of justice and also to prevent abuse of process of the Court.”

2. Heard the learned counsel appearing for the petitioner and the learned Public Prosecutor appearing for the respondent.

3. The prosecution allegation is that, the accused herein though married, after suppressing the said fact maintained a relationship with the defacto complainant who is a married lady and thereafter, he offered to marry her. Believing the offer, she got divorced and maintained relationship with the accused, believing that the accused will marry her. Thereafter, the accused persuaded the defacto complainant for sexual intercourse by promising to marry her, in between 28.05.2017 to 03.06.2017 and deviated from the marriage. Later, it was revealed that, the accused was already married and the said fact was suppressed by him. Thus, the prosecution alleges commission of offence punishable under Section

376(1) (n) of IPC.

4. The learned counsel for the petitioner read out the complaint as well as the statement of the defacto complainant contenting that the relationship is consensual and the promise of marriage is not believable. It is argued that, the defacto complainant was married at the time of the relation so also the accused. Accordingly, it is submitted that, since the relationship is consensual, no offence punishable under Section 376 of IPC would attract as with the quashment is liable to be allowed.

5. Where as, the learned Public Prosecutor point out that, even though the defacto complainant was married, the accused offered her to marry, on getting divorce and accordingly, she divorced and maintained relationship, believing the promise of marriage. In such a case, prima facie materials are there to find the commission of offence punishable under Section 375 of IPC and the contention of the accused is a matter to be decided in the evidence.

Therefore, the matter shall go for trial.

6. On perusal of the records, prosecution allegation is that the accused herein, though married, suppressed the said fact and maintained relationship with the defacto complainant promising that he would marry her, on getting divorce of the defacto complainant. Believing the promise, the defacto complainant effected divorce and at this juncture, the petitioner retracted from the marriage. Thus, it is discernible that the defacto complainant effected divorce believing the offer that the accused would marry her and they had intercourse on the said promise. As such prima facie cause is made out to go for trial. In such circumstances, whether there is consensual relationship or the same is under misconceptional fact on the promise of the marriage, can be decided during trial, after perm