Abdul Salam v. Soumya @ Jasmine and State of Kerala

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: R. Basant
Judgment Date: 2008-06-11
Court Decision / Holding: This Crl.M.C is allowed. S.C.No.489/07 against the petitioner herein on the allegation of having allegedly committed rape on the first respondent is hereby quashed.
Final Disposition: Crl.M.C allowed; S.C.No.489/07 quashed.

Parties to the Case

Appellants / Petitioners

ABDUL SALAM

Respondents

SOUMYA @ JASMIN
STATE OF KERALA

Legal Representation & Advocates

Counsels for Petitioners

• Sri.K.Sunilkumar

Counsels for Respondents

• Public Prosecutor Sri.AMJED ALI

Case Synopsis & Summary

This criminal miscellaneous case is before a Single Judge of the Kerala High Court and arises from Crime No. 92/2006 of Thadiyittaprambu Police Station. Abdul Salam stands accused of rape under section 376 IPC, with cognizance taken on the final police report. The essential allegation is that sexual intercourse occurred with the de facto complainant, the first respondent, during 2001–2006, though the exact date of the first act is not specified. The records show the first respondent’s birth year as 1985 (13 May 1985 per school records; 14 July 1985 in the birth register). The matter has not yet gone to trial, and the petitioner and the first respondent approached the court under Section 482 Cr.P.C. to quash proceedings on the ground that the dispute has been settled. They contend that they have since married, are living as husband and wife, and have a child, with no concrete evidence about the precise date of the initial intercourse; if the intercourse occurred after the dates of birth, the age of consent would be attained, and the offence would fail. The Public Prosecutor concedes settlement. Citing Madan Mohan Abbot v. State of Punjab, counsel maintain that the offence may not be made out in light of consent. The Court, recognizing the extraordinary scope of section 482 and the peculiar facts, allows the Crl.M.C. and quashes S.C. No. 489/07 against the petitioner. Observing that the interests of justice transcend mere law in appropriate cases, the judge invokes 482 Cr.P.C. and grants the relief.

Provisions of Law Cited

Section 482 Cr.P.C.Section 376 IPC

Legal Doctrines & Maxims

Interests of justice transcend the interests of mere law.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argue that the dispute has been settled and the parties have since married and are living as husband and wife with a child. There is no specific evidence of the exact date of the first intercourse, and if such intercourse occurred after the complainant reached the age of consent (16 years), it would not constitute an offence under section 376 IPC. Relying on Madan Mohan Abbot v. State of Punjab, they contend that the offence cannot be sustained in light of consent and lack of precise date. In the peculiar facts, Section 482 Cr.P.C. should be invoked to prevent abuse of process and to secure ends of justice.

Contentions of Respondents

The respondents acknowledge the settlement and consent between the parties. They emphasize that there is no precise date of the intercourse and that the alleged act occurred in a context where the parties have since married and are living harmoniously. Citing the same Madan Mohan Abbot decision, they submit that the lack of clear dating and the consensual nature may affect the viability of the offence, and seek quashing in view of the settlement.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Madan Mohan Abbot v. State of Punjab	[2008 AIR SCW 2287]	Positive	Cited with approval to support the argument that consent and lack of precise date may negate offence under Section 376 IPC in the context of settlement and marriage.

Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT WEDNESDAY, THE 11TH JUNE 2008 / 21ST JYAISHTA 1930 Crl.MC.No. 2149 of 2008() ------------------------- CRIME NO.92/2006 OF THADIYITTAPRAMBU POLICE STATION PETITIONER: ------------ ABDUL SALAM ,S/O. MUHAMMADALI, KOTTANDAN HOUSE, KAIPPURIKKARA BHAGAM, VAZHAKKULAM VILLAGE, ALUVA. BY ADV. SRI.K.SUNILKUMAR RESPONDENTS: ------------- 1. SOUMYA @ JASMIN, W/O. ABDUL SALAM, KOTTANADAN HOUSE, KAIPPURIKKARA BHAGAM, VAZHAKKULAM VILLAGE , ALUVA. 2. STATE OF KERALA,REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY PUBLIC PROSECUTOR SRI.AMJED ALI THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **R.BASANT, J.** **----------------------** Crl.M.C.No.2149 of 2008 ---------------------------------------Dated this the 11[th] day of June 2008 ## **O R D E R** The petitioner is the accused in a prosecution for the offence punishable under Section 376 I.P.C. Cognizance has been taken on the basis of a final report submitted by the police after due investigation. Crime was registered in 2006. The crux of the allegations is that there was sexual intercourse between the petitioner and the de facto complainant/the first respondent herein during the period 2001-2006. The records show that the date of birth of the first respondent is 13/5/1985 as per the school records and 14/7/1985 as per the birth register. 2. The matter stands posted for trial. At this stage, the petitioner and the first respondent have come before this court with a prayer that proceedings against the petitioner/accused may be quashed invoking the powers under Section 482 Cr.P.C. 3. What is the reason? The petitioner and the first respondent are represented by separate counsel and they submit that the matter has been settled between the parties. The first respondent has settled, compromised and compounded the Crl.M.C.No.2149/08 2 offence allegedly committed by the petitioner. It is brought to my notice that the date of first sexual intercourse is not specified though there is a statement that such intercourses continued from 2001 to 2006. Parties have, subsequent to the registration of the crime, got married in accordance with law. They have been residing together for the past more than two years. One child has been born in such matrimony. They are leading a healthy and harmonious life with the child. In view of the settlement and composition, powers under Section 482 Cr.P.C may be invoked, it is prayed. 4. The learned counsel for the petitioner and the first respondent rely on the decision in **Madan Mohan Abbot v. State of Punjab [2008 AIR SCW 2287]** and they contend that as a matter of fact, no offence will be made out as the first respondent now accepts that the sexual intercourses were with the consent of the first respondent. It is further submitted that even otherwise there is no specific allegation even about the precise date of the sexual intercourse in 2001. If such intercourses were after 13/5/2001 and 14/7/2001, going by the school certificate and the birth certificate, the first respondent Crl.M.C.No.2149/08 3 would have crossed the age of 16 and sexual intercourse with consent could not constitute any offence under Section 376 I.P.C. 5. The learned Public Prosecutor was requested to take specific instructions. The learned Public Prosecutor concedes that the matter has been settled between the parties that they are now living as husband and wife. In this harmonious matrimonial relationship, one child has been born also, it is reported. It is also conceded that there is no specific evidence as to whether the first of the sexual intercourses did take place before 14/7/2001 or thereafter. 6. I take note of all the circumstances. I am satisfied that in the peculiar facts and circumstances of this case, the powers under Section 482 Cr.P.C can and ought to be invoked. It is by now trite that the powers under Section 482 Cr.P.C are awesome. The same can be invoked in an appropriate case where the interests of justice transcend the interests of mere law. I take note of the crucial circumstance that there is no specific indications about the date of the first sexual intercourse and there is no material to decide whether such sexual Crl.M.C.No.2149/08 4 intercourse was before or after the first respondent attained the age of consent, that is 16 years. I further take note of the legal and valid matrimony and harmonious life of the petitioner and the first respondent as husband and wife now. 7. In the result, a) This Crl.M.C is allowed. b) S.C.No.489/07 against the petitioner herein on the allegation of having allegedly committed rape on the first respondent is hereby quashed. ## **(R.BASANT, JUDGE)** jsr // True Copy// PA to Judge Crl.M.C.No.2149/08 5 Crl.M.C.No.2149/08 6 ## **R.BASANT, J.** CRL.M.CNo. ORDER 21ST DAY OF MAY2007