AFNAS v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` THURSDAY, THE 2[ND] DAY OF NOVEMBER 2023 / 11TH KARTHIKA, 1945 ``` ## **`CRL.MC NO. 6016 OF 2023`** ``` CRIME NO.214/2022 OF VALAYAM POLICE STATION, KOZHIKODE ``` ``` PENDING AS SC 966/2022 AND NOW IT WAS REFILED AS LP 3/2023 BEFORE ``` ## **`THE FAST TRACK SPECIAL COURT, NADAPURAM`** ## **`PETITIONER/ACCUSED:`** ``` AFNAS AGED 26 YEARS, S/O ATHOLINTAVIDE MOIDU, POYIKKARA HOUSE, PULIYAVU, PARAKADAVU.P.O., KOZHIKODE, PIN – 673 509. ``` ``` BY ADVS. SHARAN SHAHIER RAKHY BABY EDWIN JOSEPH AGNA JOY ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED PUBLIC PROCECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682 031. ``` ``` 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADVS ``` ``` G.SUDHEER (PP) S.MOHAMMED FEBIN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.6016 OF 2023 2 ``` ## **ORDER** This Crl.M.C. has been filed seeking to quash the proceedings against the petitioner in L.P.No3/2023 pending before the Fast Track Special Court, Nadapuram (arising out of Crime No.214/2022 of Valayam Police Station, Kozhikode district). 2. The prosecution case is that, on 04-01-2021 at about 11.45 pm and on 05-01-2023 at about 11.50 pm, the petitioner/accused trespassed where the defacto complainant/victim/2[nd] respondent resides and committed rape by giving a false promise of marriage. The defacto complainant/victim/2[nd] respondent was only 17 years old at the time of incident. Following investigation, a final report was filed alleging commission of offences under Sections 450, 376(2)(n) of the Indian Penal Code and Section 6 r/w 5(l) of the Protection of Children from Sexual Offences Act (POCSO Act). The final report is on record as Annexure-1. 3. Learned counsel for the petitioner would submit that all issues between the petitioner and the defacto complainant/victim/2[nd] respondent have been settled and therefore further proceedings against the petitioner may be terminated on that ground. He also refers to Annexure-2 ``` Crl.M.C. NO.6016 OF 2023 3 ``` notarized affidavit executed by the defacto complainant/victim/2[nd] respondent to establish that the entire issues between the petitioner and the defacto complainant/victim/2[nd] respondent have been settled. It is submitted that considering the settlement between the parties, it is very unlikely that the trial of the case can end in successful prosecution of the petitioner. It is submitted that considering the contents of Annexure-2 affidavit, it is only just and proper that the proceedings be terminated. 4. Learned counsel for the defacto complainant/ victim/2[nd] respondent would submit that the entire issues have been settled and the proceedings can be quashed. 5. Learned Public Prosecutor vehemently opposes the grant of any relief. He states that this is a case where the allegation is of penetrative sexual assault and the offence alleged is under Section 376 of the Indian Penal Code and corresponding provisions of the POCSO Act. It is submitted that going by the judgment of the Supreme Court in **Gian Singh v. State of Panjab and Another; 2012 KHC 4530** and decisions following that judgment, offences such as rape are heinous offences, which cannot be quashed on the ground of settlement. He submits that in the facts of the present case, ## `Crl.M.C. NO.6016 OF 2023 4` apart from the fact that the offence under Section 376 IPC is involved, this is also a case where the victim was a minor and therefore the offences under the POCSO Act are also involved. It is submitted that since the petitioner was working abroad he could not be arrested and an absconding charge sheet has been filed. 6. Faced with this situation, the learned counsel for the petitioner would submit that the petitioner may at least be permitted to surrender before the court and seek bail. It is submitted that to enable the petitioner to surrender before the court, seek bail and face proceedings before the court, all coercive steps against the petitioner to secure his presence may be kept in abeyance. 7. Having heard the learned counsel for the petitioner, learned Public Prosecutor and the learned counsel appearing for the defacto complainant/victim/2[nd] respondent, as above, I am of the opinion that the learned Public Prosecutor is justified in contending that considering the nature of the offences the same cannot be quashed under Section 482 Cr.P.C on the ground of settlement. In **State of M.P. v. Laxmi Narayan** ; - (2019) 5 SCC 688 it was held: “ **11.3.** In Narinder Singh v. State of Punjab, (2014) 6 SCC 466, after considering the decision in Gian Singh v. State ## `Crl.M.C. NO.6016 OF 2023 5` of Punjab, (2012) 10 SCC 303 in para 29, this Court summed up as under: “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings: 29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely ## `Crl.M.C. NO.6016 OF 2023 6` on the basis of compromise between the victim and the offender. 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the ``` Crl.M.C. NO.6016 OF 2023 7 ``` settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is ## `Crl.M.C. NO.6016 OF 2023 8` proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” Therefore this is not a case where the proceedings against the petitioner can be quashed on the ground that the issues between the petitioner and the defacto complainant/victim/2[nd] respondent have been settled. However, the petitioner is permitted to surrender before the Station House Officer, Valayam Police Station, Kozhikode district within a period of 15 days from today. If the petitioner surrenders before the Station House Officer, Valayam Police Station, the arrest of the petitioner shall be recorded and he shall be produced before the special court on the same day. The petitioner is at liberty to move the special court for bail which shall be considered on its merits by the special court. Crl.M.C. is dismissed with the above observation. **Sd/GOPINATH P. JUDGE** ats