Aby K. Sunny vs State Of Kerala

Gopinath P, J

Petitioner is the accused in Crime No.436/2023 of Thrikkakkara police station, Ernakulam district, which is now pending as C.P. No.20/2023 on the file of the Judicial First Class Magistrate Court, Kakkanad (Temporary), alleging commission of offences punishable under Sections 376, 376(2)(n), 448, 427, 323 and 506(i) of the Indian Penal Code and Section 67(A) of the Information Technology Act.

Allegation against the petitioner is that, the petitioner, who is well acquainted with the de facto complainant and her family, put forth a business offer to the de facto complainant and invited the de facto complainant to the house of the petitioner and after offering her some cool soft drinks, committed rape on her sometime in 2019 and thereafter, continued the activity by threatening her that certain videos and photographs of the de facto complainant/victim be circulated on social media.

Learned counsel appearing for the petitioner would submit that this Court while granting bail to the petitioner in Bail Application No.2407/2023, held as follows:-

“6. The applicant was remanded to judicial custody on 14/03/2023. I went through the FIS. The victim is a married woman, and she is having children. A reading of the FIS would show that the victim and the applicant were in a close relationship. The first incident of sexual assault was taken place in the year 2019. The second incident was taken place in the year 2020, whereas the complaint was filed only in the year 2023. The explanation offered is that the applicant threatened the victim. The applicant has produced the WhatsApp chat as well as the photographs shared between him and the victim as Annexures 8 and 9. It would show that they were in deep, close romantic relationship. Even the victim had shared her naked photos with the applicant. For all these reasons, I do not find any reason to hold that the continued detention of the applicant is required for any purpose. Hence, the applicant is entitled to be released on bail.’’

It is submitted that the victim has now executed Annexure-A5 affidavit wherein it is explicitly stated that the findings of this Court in the order granting bail to the petitioner are correct and further that the relationship between the petitioner and the de facto complainant/victim was purely consensual. It is submitted that, in the light of the aforesaid categoric statement by the de facto complainant/victim, proceedings against the petitioner may be quashed as it could not be said that the petitioner had committed any of the offences alleged against him.

Learned Public Prosecutor and the learned counsel appearing for the de facto complainant/victim would submit that the de facto complainant/victim stands by the averments in Annexure-A5 affidavit. It is submitted that any relationship between the petitioner and the de facto complainant/victim was purely consensual and that the de facto complainant/victim has no objection in the proceedings against the petitioner being quashed.

Having heard the learned counsel appearing for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the de facto complainant/victim, I am of the opinion that the proceedings against the petitioner can be quashed in the light of the categoric statement of the de facto complainant/victim as contained in the Annexure-A5 affidavit as also the findings of this Court in Paragraph No.6 of Annexure A4 order, granting bail to the petitioner. The proceedings against the petitioner can be quashed as it cannot be said that the petitioner had committed any of the offences alleged against him.

Accordingly, the Crl.M.C is allowed and all further proceedings in C.P. No.20/2023 on the file of the Judicial First Class Magistrate Court, Kakkanad (Temporary) (arising out of Crime No.436/2023 of Thrikkakkara police station) will stand quashed as against the petitioner.