The court determined that consensual relationships negate claims under Section 376, while Sections 420 and 406 may co-exist depending on trial findings.

ORDER

Dated this the 23^rd day of January, 2026 The petitioner is the 1^st accused in S.C No. 501 of 2024 on the file of the Fast Track Special Court, kozhikode, arising out of Crime No. 84 of 2019 of the Medical College Police Station. He has filed this petition under Sections 438 and 442 of the BNSS, being aggrieved by Annexure A4 order passed by the learned Special Judge dated 09.12.2024. The offences alleged against the petitioner are under Sections 376 (2)(n), 406, 420 r/w 34 of the IPC .

2. The prosecution case is that the petitioner after promising to marry the defacto complainant, subjected her to repeated sexual abuse and received a total sum of Rs. 33,46,000/- and 33.75 sovereigns of gold ornaments. Thereafter, he refused to return the same and thereby he is alleged to have committed the aforesaid offences.

3. The petition was strongly opposed by the learned Public Prosecutor.

4. Though notice was served on the defacto complainant/additional 3^rd respondent, she did not turn up.

5. On a perusal of the FI statement it is revealed that, at the time of the alleged incident, she was a married lady and the mother of three children. During the relevant time, she was living separately from her husband due to differences of opinion. At that time, the petitioner and the defacto complainant became friends. As per FI statement, the petitioner promised to marry her, took her to various places and they had sexual relationship with each other. In the meantime, she paid various amounts to him and also gave her gold ornaments for the use of the petitioner.

6. The claim of the defacto complainant that she had given consent for the sexual relationship as the 1^st petitioner promised to marry her cannot be believed, as at time of the alleged incident she was married to another person. Therefore, it is to be held that the relationship between the petitioner and the defacto complainant was a consensual one. If so the offence under Section 376 (2)(n), as alleged by prosecution will not stand against the petitioner.

7. The case of the defacto complainant is that, after promising to marry her the petitioner received a total sum of Rs. 33,46,000/- and gold ornaments weighing 33.75 sovereigns and thereafter refused to return the same and as such he has committed offences under Sections 420 and 406 of the IPC .

8. The learned counsel for the petitioner would argue that, since the alleged promise of marriage will not stand, the offence of cheating also will not stand. Further, according to the learned counsel the offences under Sections 420 and 406 will not stand together. He also relied upon the decision of the Hon'ble Supreme Court in Inder Chand Bagri v. Jagadish Prasad Bagri [2025 KHC OnLine 7628] . It is true that, in the above decision the apex court held that the offences under and 406 will not stand together.

9. In the instant case, the allegation is that after promising to marry the defacto complainant, the petitioner received huge amounts on different dates and also received 33.75 sovereigns of gold ornaments on different dates and thereafter refused to return the same. In the FI statement, she claims that she had given money as well as gold ornaments believing the promise of the petitioner that he will marry her. Though, as argued by the learned counsel for the petitioner the offences under Sections 420 and 406 may not lie together, whether the petitioner has committed any of those offences can be ascertain only after the trial. In the FI statement, there is specific allegation that she had given those amounts and gold ornaments on the bona fide belief that the petitioner would marry her.

10. In the above circumstances, I hold that the prayer for discharge of the offences under Sections 420 and 406 of