Serious Charges Override Procedural Bars | Consent Obtained By Fraud Is No Consent At All Says Kerala High Court In Rape-Marriage Case
Sanchayita Lahkar
The High Court of Kerala Single Bench of Justice A. Badharudeen dismissed a criminal revision petition and a criminal miscellaneous case filed by the accused in a pending sessions trial. The court upheld the trial court’s rejection of the accused’s pleas for discharge and further investigation, stating that sufficient prima facie material warranted framing of charges. It directed the trial court to conclude the trial within six months from the date of the judgment.
The criminal revision petition and criminal miscellaneous case were filed by the accused in Sessions Case No. 371 of 2013 pending before the I Additional Sessions Court, Thalassery. The case originated from a private complaint filed before the Additional Chief Judicial Magistrate, Thalassery, alleging commission of offences under Sections 420, 493, 494, 495, and 376 of the Indian Penal Code. The complaint was forwarded for police investigation under Section 156(3) of the Criminal Procedure Code.
The prosecution alleged that the complainant, having divorced her former husband, was living independently when the accused—known to her family—entered her life under the pretext of being a bachelor. He allegedly promised a peaceful married life and took her to Mysore in 1996, where a marriage ceremony was conducted at the Varasidhi Vinayaka Temple. They cohabited as husband and wife until 2003 at various locations. The complainant claimed to have been deceived into a sexual relationship on the belief of a lawful marriage.
Subsequently, the accused allegedly neglected the complainant. In proceedings under the Protection of Women from Domestic Violence Act, the accused disclosed his pre-existing marriage and children, leading to dismissal of the complaint under that Act. The complainant then filed a private criminal complaint alleging the accused had committed bigamy and rape by suppressing his marital status.
The trial court dismissed the accused’s petitions for discharge (Crl.M.P.Nos.6047/2014 and 6392/2014) and a petition seeking further investigation (C.M.P.No.370/2015). The accused had earlier attempted to quash the proceedings through Crl.M.C.No.5051/2013, which the High Court declined, advising the filing of a discharge petition instead.
In challenging the trial court’s order, the accused argued that Sections 493, 494, and 495 IPC fall under Chapter XX, which require a direct complaint under Section 198(1) CrPC and cannot be investigated by police. He also argued that consensual cohabitation spanning several years would not qualify as rape and that the complainant had knowledge of his marital status from the outset.
The de facto complainant’s counsel argued that the accused misrepresented facts regarding his marital status, which formed the foundation of the complainant’s belief in a lawful marriage. The complainant allegedly consented to sexual relations under that false belief.
The Public Prosecutor supported this view, maintaining that the materials on record warranted trial.
The court observed that “apart from offences coming under Chapter XX of IPC, other cognizable offences were also alleged in the complaint.” It recorded that under Ushaben v. Kishorbhai Chunnilal Talpada & Ors., the Supreme Court held that investigation into combined cognizable and non-cognizable offences is permissible. Therefore, the bar under Section 198(1) CrPC was not applicable.
The court stated, “Here, the prosecution case is that the 2nd respondent/de facto complainant lodged a private complaint... alleging commission of offences punishable under Sections 420, 493, 494, 495 as well as 376 of the IPC... Acting on the complaint, the learned Magistrate forwarded the same to the police for investigation.”
The court noted, “CW2 has given evidence that he had conducted marriage between the accused and CW1 at Sree Varasidhi Vinayaka temple situated at Ilwala, Mysore.” It further recorded, “CW3 to 10 had also given statement... that accused and complainant had lived at different places at Mysore as husband and wife.”
The court stated that “there are sufficient material to substantiate the allegations against the accused that he had obtained consent of CW1 for having sexual intercourse... suppressing the fact that he is a married person.” It highlighted, “the available materials will also reveal that in order to make it appear that the accused had legally married CW1, he has taken CW1 to a temple and conducted ceremonies of a Hindu marriage.”
Addressing the plea for further investigation, the court observed, “where the prosecution materials available were found to be sufficient to frame charge... the said petition is only to be treated as an attempt to delay the trial further.”
The court recorded, “this is a case wherein the finding of the trial court that prima facie the offences are made out... is only to be justified.”
The High Court, upon examining the records and arguments presented, dismissed both Criminal Miscellaneous Case No. 1221 of 2015 and Criminal Revision Petition No. 295 of 2015.
It held that the petition seeking further investigation was not sustainable, as the available prosecution materials were found to be sufficient for framing charges and proceeding to trial.
The court further noted that the petitioner had previously approached it through Criminal Miscellaneous Case No. 5051 of 2013 to quash the entire proceedings, which was not allowed. Instead, the petitioner had been directed to approach the trial court with a discharge petition.
Given that context, the court found no merit in the subsequent plea for further investigation and concluded that the rejection of C.M.P. No. 370 of 2015 by the trial court required no interference.
Additionally, the court took into consideration that the prosecution proceedings had commenced in the year 2011 and had already been delayed for a period of 14 years owing to multiple reasons.
In view of this protracted delay, the High Court issued a directive to the learned I Additional Sessions Judge to expedite the trial and complete it within a period of six months from the date of receipt of a copy of the common order.
The court further directed the Registry to forward a copy of the order to the jurisdictional court for its information and for taking further steps.
Advocates Representing the Parties
For the Petitioners: Sri. Grashious Kuriakose (Senior Advocate), Sri. George Mathews, Sri. T.T. Rakesh, Sri. T. Ramesh Babu
For the Respondents: Sri. Abhilash A.J., Public Prosecutor Sri. T.S. Jibu; Sri. K.K. Dheerendrakrishnan, Sri. D. Feroze, Sri. S. Rajeev, Sri. T.P. Sajid, Sri. V.V. Vinay
Case Title: XXXX v. State - Station House Officer, Kadirur Police, Tellicherry & Another
Neutral Citation: 2025:KER:34847
Case Number: Crl.R.P. No. 295 of 2015 & Crl.M.C. No. 1221 of 2015
Bench: Justice A. Badharudeen
[Read/Download order]
