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2025 DIGILAW 826 (KER)

Xxx v. State Of Kerala

2025-04-03

A.BADHARUDEEN

body2025
ORDER : This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure , 1973 [hereinafter referred as ‘Cr.P.C.’ for short], to quash all further proceedings pursuant to Annexure.A1 FIR and Annexure.A1(a) complaint in Crime No.1071 of 2022 of Konni Police Station, Pathanamthitta. The petitioners herein are accused Nos.1 and 2 in the above case. 2. Heard the learned counsel for the petitioners, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant, in detail. Perused the documents placed by all parties, including the case diary as such. 3. In this matter, Annexure.A1 FIR in Crime No.1071/2022 of Konny Police Station has been registered on 01.12.2022, alleging commission of the offence punishable under Sections 376 and 120(B) of the Indian Penal Code, against the petitioners herein. Annexure.A1(a) is the complaint lodged by the defacto complainant before the Judicial First Class Magistrate Court-II, Pathanamthitta and Annexure.A1 FIR was registered when the said complaint was forwarded by the learned Magistrate for investigation. 4. The precise allegation raised by the defacto complainant against the petitioners in Annexure.A1(a) complaint, which led to registration of Annexure.A1 FIR could be gathered from paragraph Nos. 7, 8 and 9 of Annexure.A1 (a). The same read as under: 7. It is submitted that on 6-4-2015 ie; the day after Easter at around 4.30 PM the Petitioner was alone there at the matrimonial home. When the Petitioner was about to doze in her bedroom, she felt somebody touch her left cheek. She opened her eyes and saw the 1 st Accused, sitting beside her on the bed, clad only in a bathing towel around his groin, and patting her left cheek with his hand. She got frightened and got out of the bed and screamed. Thereupon the 1 st Accused also got himself out of the bed, caught hold of her, forcefully pulled her towards his bosom with his left hand around her neck and covered her mouth with the palm of his right hand. He appealed her that he would reward her if she yield to his sexual desire. Petitioner resisted vehemently and tried hard to wriggle free from his clutches. He appealed her that he would reward her if she yield to his sexual desire. Petitioner resisted vehemently and tried hard to wriggle free from his clutches. Thereafter, the 1 st Accused pushed her to the bed, rolled up the nighty she was wearing up to her waist, stripped off her panties, forcefully laying her in a supine position with her legs apart and after stripping himself off, he penetrated his erected penis into the vagina and raped her against her will and consent. After satisfying his lust, he threatened to kill her and ravish her daughter also if she complain this incident to anybody. Complainant was afraid to tell this horrible experience to anybody fearing that he would endanger herself and her daughter. However, she told the whole incident to the 2 nd Accused in the evening itself. But to her astonishment the 2 nd Accused advised the Complainant not to disclose the incident to anybody. She also informed the Complainant that the family was in need of a legal heir to inherit the vast property of the family. She also warned the Complainant with dire consequences if she report it to anybody. It was clear that a criminal conspiracy was hatched by the 1 st and the 2 nd Accused for the criminal act of rape. After this incident many a time the 1 st Accused raped the Complainant. 8. Later the 1 st Accused told the Complainant that he raped her on the connivance of the 2 nd Accused. Since Benjamin was impotent, they wanted a boy child from her as the legal heir of the vast property belonging to the family. Thus, the Complainant became pregnant and after seven months she returned to her house and told her mother everything about these nasty incidents. When her mother ranged up the 1 st Accused, he came to her house with Divakaran and pressurised them not to tell anybody. 9. On 10.02.2016 the Complainant gave birth to a daughter begotten by the 1 st Accused. On the birth of her daughter the respondents were staunchly against the Complainant as they wanted a son. Hence, they openly demanded that to abandon the girl child in any orphanage or that they would kill the Complainant and her daughter. 9. On 10.02.2016 the Complainant gave birth to a daughter begotten by the 1 st Accused. On the birth of her daughter the respondents were staunchly against the Complainant as they wanted a son. Hence, they openly demanded that to abandon the girl child in any orphanage or that they would kill the Complainant and her daughter. The Accused in collusion and suppressing the material fact that Benjamin is impotent and a mental patient caused this marriage and later the 1 st accused raped the Complainant and begotten a daughter. 5. The learned counsel for the petitioners, who pressed for quashment of the proceedings pursuant to Annexure.A1 FIR, zealously argued that, even though the occurrence was on 06.04.2015, Annexure.A1 FIR was registered only on 01.12.2022 i.e. after a delay of seven years. Prior to Annexure.A1 FIR, Annexure.A2 FIR was registered as on 29.01.2019, at the instance of the defacto complainant herein against the petitioners, who are accused Nos. 2 and 3 therein and the 1 st accused therein was Sri.Benjamin Mathew, who is the husband of the defacto complainant, alleging that the accused committed the offence punishable under Section 498A read with 34 of IPC. It is pointed out by the learned counsel for the petitioners that, since Annexure.A2 FIR was registered as early as on 29.01.2019, which culminated in Annexure.A3 Final Report in Crime No.192/2019 of Konni Police Station, Annexure.A1 FIR is to be treated as second FIR, based on the same occurrence, at the instance of the same defacto complainant against the same accused. Therefore, Annexure.A1 FIR is liable to be quashed for the said reason alone. In this connection, the learned counsel for the petitioners placed decisions of the Apex Court reported in [ (2001) 6 SCC 181 ] T.T. Antony v. State of Kerala [ (2013) 5 SCC 148 ] Surender Kaushik and Others v. State of Uttar Pradesh and Others , [ (2021) SCC 435 : AIR 2021 SC 1381 ] Krishna Lal Chawla and Others v. State of U.P. and Others and the decision of this Court in Gargian Sudheeran v. State of Kerala reported in [2025 KHC OnLine 38] 6. It is argued by the learned counsel for the petitioners further that, the long delay in lodging the present FIR against the petitioners, alleging the offence of rape is not excusable and it is pointed out that Annexure.A1(a) complaint was filed by the defacto complainant, when the petitioners herein filed O.S. No.340/2019 before the Munsiff Court, Pathanamthitta and obtained an order of injunction against the defacto complainant as per the order in I.A. No.1357/2019 dated 13.08.2019 produced as Annexure.A6. Therefore, the long delay itself is a ground to grant the relief of quashment is the submission of the learned counsel for the petitioners. 7. That apart, the learned counsel for the petitioners further argued that, Annexure.A2(a) is the FIS based on which, Annexure.A2 FIR was registered. In the said FIS, it has been consistently stated by the defacto complainant that, she had sexual intercourse with the 1 st accused herein to conceive and deliver a child, since she could not conceive from her husband, even after undergoing IVF treatment for the same. Thus, it is pointed out by the learned counsel for the petitioners that, going by the initial statement recorded in Annexure.A2 FIR, the defacto complainant admitted that the sexual intercourse in between the herself and the 1 st accused was purely consensual and therefore, the subsequent FIR registered as Annexure.A1, after a period of seven years, alleging the instance as an offence of rape punishable under Section 376 of IPC, would necessarily fail. 8. Refuting this contention, the learned counsel appearing for the defacto complainant argued that, in paragraph No.13 of the Crl.M.C. itself, the petitioners admitted that the defacto complainant filed C.M.P. No.281/2021 in C.C. No.402/2019 arising out of Annexure.A2 FIR, seeking further investigation. Later, after not pressing the said petition, Annexure.A1(a) complaint was lodged and the present crime registered pursuant to Annexure.A1(a), could not be considered as a second FIR. According to the learned counsel for the defacto complainant, the matter would require investigation and fair trial in order to find out the truth of the allegation. Therefore, the quashment prayer is liable to fail. 9. The learned Public Prosecutor also opposed quashment prayer, while conceding that, initially Annexure.A2 FIR was registered at the instance of the defacto complainant herein, wherein consensual sex was alleged, while incorporating offence under Section 498A of IPC. Then, Annexure.A3 Final Report also has been filed. Therefore, the quashment prayer is liable to fail. 9. The learned Public Prosecutor also opposed quashment prayer, while conceding that, initially Annexure.A2 FIR was registered at the instance of the defacto complainant herein, wherein consensual sex was alleged, while incorporating offence under Section 498A of IPC. Then, Annexure.A3 Final Report also has been filed. He submitted further that, Final Report in the present case could not be failed, because filing of Final Report has been stayed by this Court. 10. Having addressed the rival submissions, it is discernible from Annexure.A2(a) First Information Statement that, the defacto complainant was earlier married and after the death of her husband, she again married Sri.Benjamin Mathew, who is the brother of the 1 st accused and the son of the 2 nd accused. In Annexure.A2(a), it has been averred that the defacto complainant could not conceive a child in the second marriage with Sri.Benjamin Mathew and they had undergone IVF treatment for the same. Since the treatment was also not successful and when the defacto complainant failed to conceive, she had sexual intercourse with the 1 st accused. In consequence thereof, she delivered a girl child on 10.02.2016. In Annexure.A2(a), it has been specifically stated that sexual intercourse between the defacto complainant and the 1 st accused was with her consent and with the knowledge of her husband and mother in law. It was also stated that the 1 st accused gave assurance to look after the child born to her. 11. As of now, based on Annexure.A2 FIR, Annexure.A3 Final Report has been filed against the petitioners herein and Sri.Benjamin Mathew [now, he is no more] alleging commission of the offence punishable under Section 498A read with 34 of IPC. 12. Though, the defacto complainant filed C.M.P. No.281/2021 in C.C. No.402/2019 arising out of Annexure.A2 FIR, seeking further investigation, she later not pressed the same. Thereafter, she filed Annexure.A1(a) complaint alleging commission of rape by 1 st accused and there was conspiracy between the 1 st and 2 nd accused in committing the said crime. 13. 12. Though, the defacto complainant filed C.M.P. No.281/2021 in C.C. No.402/2019 arising out of Annexure.A2 FIR, seeking further investigation, she later not pressed the same. Thereafter, she filed Annexure.A1(a) complaint alleging commission of rape by 1 st accused and there was conspiracy between the 1 st and 2 nd accused in committing the said crime. 13. In T.T. Antony ’s case (supra), the Apex Court observed in paragraph No.20 that, from the above discussion it follows that under the scheme of the provisions of Sections 154, 155, 156, 157, 162, 169, 170 and 173 CrPC only the earliest or the first information in regard to the commission of a cognizable offence satisfies the requirements of Section 154 CrPC. Thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offences. On receipt of information about a cognizable offence or an incident giving rise to a cognizable offence or offences and on entering the FIR in the station house diary, the ofÏcer in charge of a police station has to investigate not merely the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and file one or more reports as provided in Section 173 CrPC. 14. In paragraph No.26, the Apex Court observed as under: In State of Haryana v. Bhajan Lal after exhaustive consideration of the decisions of this Court in State of W.B. v. Swapan Kumar Guha, S.N. Sharma v. Bipen Kumar Tiwari, R.P. Kapur v. State of Punjab, Nandini Satpathy v. P.L. Dani and Prabhu Dayal Deorah v. District Magistrate, Kamrup, approving the judgment of the Privy Council in Khwaja Nazir Ahmad case it was concluded in para 102 as follows: (SCC pp. 378-79). "102. 378-79). "102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufÏciently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police ofÏcers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police ofÏcer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufÏcient ground for proceeding against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufÏcient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efÏcacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." The above list, as noted, is illustrative and not exhaustive. 15. Finally, in paragraph No.27, the Apex Court held as under: In our view a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution. 16. In fact, the said ratio has been followed in Surender Kaushik ’s case (supra) and Krishna Lal Chawla ’s case (supra). In paragraph No.10 of Gargian Sudheeran ’s case (supra), this Court held that, the legal position is emphatically clear on the point that if multiple first information reports by the same person against the same accused are permitted to be registered in respect of the same set of facts and allegations, the same would result in getting the accused entangled in multiple criminal proceedings for the same offences. Therefore, the registration of such multiple first information reports is nothing but an abuse of process of law and the same would not stand in the scrutiny of Articles 21 and 22 of the Constitution of India. In such cases, while permitting investigation in one FIR registered initially, other FIRs shall be quashed. Therefore, the registration of such multiple first information reports is nothing but an abuse of process of law and the same would not stand in the scrutiny of Articles 21 and 22 of the Constitution of India. In such cases, while permitting investigation in one FIR registered initially, other FIRs shall be quashed. At the same time, registration of first information reports by the same person against the same accused for entirely different offence/s, not covered by the first information report earlier registered, is within the orbit of law and such FIRs cannot be quashed. 17. Thus, the legal position is not in dispute that, in a case of fresh investigation based on the second or successive FIRs, not being a counter-case, filed in connection with the same or connected cognizable offence/offences alleged to have been committed in the course of the same transaction and in respect of which pursuant to the first FIR either investigation is under way or final report under Section 173(2) has been forwarded to the Magistrate, may be a fit case for exercise of power under Section 482 CrPC or under Articles 226/227 of the Constitution. 18. In this case, even though Annexure.A2 FIR was registered as early on 29.01.2019, acting on Annexure.A2(a) FIS given by the defacto complainant, wherein the defacto complainant stated that, since the defacto complainant failed to conceive a child from her husband, she had sexual intercourse with the 1 st accused, who is the brother of her husband and the sexual intercourse was with her consent, as pointed out by the learned counsel for the petitioners. 19. It is strange to note that, though the defacto complainant filed C.M.P. No.281/2021 in C.C. No.402/2019 arising out of Annexure.A2 FIR, seeking further investigation, she later not pressed the same. According to the petitioners, the said course of action was opted on getting report of the Police against the defacto complainant. 20. In this matter, as already pointed out, regarding an occurrence on 06.04.2015, Annexure.A1 FIR was registered only on 01.12.2022, after a period of 7 years. According to the petitioners, the said course of action was opted on getting report of the Police against the defacto complainant. 20. In this matter, as already pointed out, regarding an occurrence on 06.04.2015, Annexure.A1 FIR was registered only on 01.12.2022, after a period of 7 years. It is to be noted further that, as on 13.08.2019, the petitioners herein obtained an interim order of injunction against the defacto complainant and while the interim order has been in force, on 01.12.2022 the allegation of rape has been leveled against the 1 st accused, by alleging conspiracy in between the 1 st and 2 nd accused in committing of the said crime. 21. The relevant point to be noted is, if the sexual intercourse in between the 1 st accused and the defacto complainant was not consensual, as now alleged in Annexure.A1(a) complaint, the defacto complainant ought to have disclosed the same in Annexure.A2(a) FIS itself. In Annexure.A2(a), it has been specifically stated that sexual intercourse between the 1 st accused and the defacto complainant was with her consent. Registration of this crime on 01.12.2022, after Annexure.A6 order dated 13.08.2019 would show that the defacto complainant had no consistent case as regards to her sexual intercourse with the 1 st accused. The long delay in disclosing the sexual intercourse as one without consent, would suggest the fact that, the defacto complainant took a u-turn from what has been stated earlier in Annexure.A2(a), to give a go by to her earlier statement that the sexual intercourse between herself and the 1 st accused was consensual. Registering a second FIR in relation to a sexual intercourse as on 06.04.2015 as without consent, after registering an earlier FIR, disclosing the said sexual intercourse as one with consent, must be held as an abuse of process of Court to achieve illegal motive and the same could not be permitted. 22. In such view of the matter, no materials made out in this matter to attract the offences alleged, against the accused. Therefore, this is a fit case, where this Court has to exercise its power under Section 482 of Cr.P.C. to allow the prayer for quashment. Accordingly, this petition stands allowed and all further proceedings pursuant to Annexure.A1 FIR and Annexure.A1(a) complaint in Crime No.1071 of 2022 of Konni Police Station, Pathanamthitta, as against the accused/petitioners herein, stand quashed.