Abdul Rasiq v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 04TH DAY OF DECEMBER 2018 / 13TH AGRAHAYANA, 1940** ## **Crl.MC.No. 3351 of 2018** **IN SC NO.1102/2017 ON THE FILES OF THE ADDL. DISTRICT COURT, MANJERI CRIME NO. 528/2016 OF PARAPPANGADI POLICE STATION, MALAPPURAM** ## **PETITIONER/ACCUSED:** **ABDUL RASIQ, S/O.HAMZABAVA, AGED 29 YEARS, CHUNDANTEPURAKKAL HOUSE, TANUR P.O., MALAPPURAM DISTRICT.** **BY ADV. SRI.U.K.DEVIDAS** ## **RESPONDENTS/COMPLAINANT & DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE,PARAPPANGADI POLICE STATION, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 VICTIM. ....** **R2 BY ADV. SRI.PRINSUN PHILIP** **R1 BY SRI. T. R. RENJITH-PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 04.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC:3351/18 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C seeking to quash the proceedings pending against the petitioner. 2. The petitioner herein is the 2[nd] accused in S.C. No.1102 of 2017 on the file of the Additional Sessions Court-I, Manjeri. In the aforesaid case, he is charged for having committed offence punishable under Sections 406 and 376(2)(n) of the IPC. 3. In her statement, the 2[nd] respondent alleges that she met the petitioner herein in the year 2008 and they fell in love. They used to contact often. After a brief courtship, he went abroad and he returned in the year 2013. She further alleges that she was inducted to have a sexual relationship with him on a promise of marriage. He later went back to pursue his employment abroad. In the month of November, 2015, she was told that his brother was getting married. She alleges that the petitioner conducted Nikah with another lady without her knowledge. On 26.03.2016, a complaint was lodged, based on which the subject crime was registered. After investigation, the final report was laid before the jurisdictional Court. Crl.MC:3351/18 3 4. The learned counsel appearing for the petitioner would contend that the allegations will not make out a case of rape. The relationship was consensual between two willing adults is the submission. Much reliance was placed on the decision of the Hon'ble Supreme Court in **Uday v. State of Karnataka** _[(2003) 4 SCC 46]_ to contend that there are no materials to show that the consent was given under a misconception of fact or that the petitioner was aware or had reason to believe that the consent was given by the lady in consequence of such misconception. 5. It is further submitted that during the pendency of the criminal proceedings, they have been able to sort out their differences. According to the learned counsel, the 2[nd] respondent has decided to marry another man and the pendency of the instant proceedings is a stumbling block. The learned counsel would refer to Annexure-III affidavit sworn to by the 2[nd] respondent and would contend that she has asserted that the FIR was lodged under some misconception and that she is not desirous of prosecuting the petitioner at this stage. and would contend that in view of the affidavit, it cannot now be said that the consent was given under a misconception of fact. Crl.MC:3351/18 4 6. The 2[nd] respondent has appeared through counsel. The learned counsel has submitted that the allegations in the subject Crime are purely personal in nature and the continuance of proceedings would adversely affect the the future of the 2[nd] respondent. 7. The learned Public Prosecutor was directed to get instructions. It is submitted that the statement of the 2[nd] respondent has been recorded and that she has stated in unequivocal terms that she wants to start a fresh life and she has no grievance as against the petitioner herein. 8. I have considered the submissions advanced and have perused the materials made available. 9. The legal position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. It has been held that the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal Court for compounding the offences under Section 320 of the Code. In what cases power to quash the criminal proceeding or Crl.MC:3351/18 5 complaint or FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the Court will have to give due regard to the nature and gravity of the crime. It is also settled that heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. The directions of the Apex Court in **Gian Singh v. State of Punjab** [(2012) 10 SCC 303] and in **Narinder singh v. State of Punjab** [(2014) 6 SCC 466 ] serve as guiding lights. 10. Insofar as the offence of rape is concerned, there cannot be any doubt that the same cannot be settled on the strength of a compromise arrived at between the victim and the accused. The Apex Court in **State of M.P. v. Madan Lal** [2015 (7) SCC 681], relying on the decision in **Shimbhu and Another v. State of Haryana** [2014 (13) SCC 318] has clearly reminded the Courts that rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise Crl.MC:3351/18 6 and settle. This was because of the fact that the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In such cases, the accused may use all his influence to pressurize the victim for a compromise. It was taking note of this aspect that it was held that it would not be safe in considering the compromise arrived at between the parties in rape cases. 9. However in the instant case, the petitioner and the 2[nd] respondent were in love for a long period. They were both adults and their relation appears to have been consensual. There is no case for anyone that the dignity of the 2[nd] respondent was violated by a wanton act of the petitioner. This is not one of those cases, wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 2[nd] respondent, if the prosecution is permitted to continue. She has also filed an Crl.MC:3351/18 7 affidavit stating that she is not desirous of prosecuting against the petitioner any further. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case is proceeded with. Furthermore, the 2[nd] respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. In the result this petition will stand allowed. Annexure-AII final report and all proceedings pursuant thereto against the petitioner in S.C. No.1102 of 2017 on the files of the Additional Sessions Court-I, Manjeri are quashed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A. TO JUDGE Crl.MC:3351/18 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-I. THE TRUE COPY OF THE FIR WITH FIS IN CRIME NO.528/2016 OF PARAPPANGADI POLICE STATION DATED 23/6/2016.** **ANNEXURE-II. TRUE COPY OF THE FINAL REPORT IN CRIME NO.528/2016 OF THE PARAPPANGADI POLICE STATION DATED 13/11/2016. ANNEXURE-III. ORIGINAL OF THE AFFIDAVIT DATED 4/5/2018 SWORN BY THE 2ND RESPONDENT** ## **RESPONDENTS' EXHIBITS:-NIL**