Akhil Kamal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY,THE 30TH DAY OF JANUARY 2019 / 10TH MAGHA, 1940 Crl.MC.No. 8349 of 2018** **CRIME NO. 447/2018 OF PANDALAM POLICE STATION , PATHANAMTHITTA** ## **PETITIONER/ACCUSED:** **AKHIL KAMAL AGED 26 YEARS S/O. KAMALASANAN, ERUMAKKAD, VALLANA, PANDALAM, PATHANAMTHITTA DISTRICT - 689 532.** **BY ADVS. SRI.ROSHEN.D.ALEXANDER SMT.TINA ALEX THOMAS** |**RESPONDENTS/STATE & DE FACTO COMPLAINANT**<br>**:**|**RESPONDENTS/STATE & DE FACTO COMPLAINANT**<br>**:**| |---|---| |**1**|**STATE OF KERALA**| ||**REPRESENTED BY PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM 682 031**| |**2**|**INSPECTOR OF POLICE**| ||**PANDALAM POLICE STATION, PANDALAM,**| ||**PATHANAMTHITTA DISTRICT - 689 501**| |**3**|**VICTIM**| ||**X**| ||**BY ADV. SRI.A.CHANDRA BABU**| |**OTHER PRESENT**<br>**:**|| ||**SRI MS BREEZ SR PP**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 8349 of 2018 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure (“the Code” for brevity) with a prayer to quash the proceedings pending against the petitioner. 2. The petitioner herein is the accused in Crime No.447 of 2018 of the Pandalam Police Station. It was registered on 28.2.2018 under Section 376 of the IPC. 3. The 3[rd] respondent herein is the victim. In her statement she alleges that she was working as a home nurse at Pune. The petitioner herein was her schoolmate. They got in touch through face book. Thereafter they used to contact with each other. She alleges that the petitioner herein assured her that he would marry her and she was taken to various places and she was subjected to sexual abuse. Later when he started ignoring her, she lodged a complaint before the police, consequent to which the subject Crime was registered. 4. The learned counsel appearing for the petitioner would contend that it was due to some misconception that information was furnished and the Crime was got registered. According to the learned Crl.MC.No. 8349 of 2018 3 counsel, immediately after registration of the crime, the parties have got married as per the customs prevailing in their community. Annexure A3 certificate is relied on by the learned counsel to show that their marriage has been solemnised. He would also refer to Annexure A4 certificate of marriage issued under the Kerala Registration of Marriages (Common) Rules, 2008. According to the learned counsel, the records would reveal that the petitioner and the de facto complainant were in love and it was based on misconception of fact that the Crime was initially registered. Now that the parties are living together, further proceedings would be clearly be an abuse of process of law, submits the learned counsel. 5. In the course of proceedings, the de facto complainant has entered appearance. The learned counsel contended that she was under the impression that the petitioner herein would not marry her and it was in the said circumstances that she has lodged the complaint. Now that he has married her, she has no subsisting grievance is the contention. She has filed Annexure-A2 affidavit wherein she has stated that the entire disputes have been settled. 6. The learned Public Prosecutor was directed to get instructions. He has produced before the Court the statement of the victim recorded by the investigating officer. Crl.MC.No. 8349 of 2018 4 7. I have considered the submissions advanced and have gone through the materials made available. 8. 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 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 offenses 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. Crl.MC.No. 8349 of 2018 5 9. 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 noncompoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise 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 pressurised 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 pressurise 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. 10. However in the instant case, it is borne out from the statement recorded by the Sub Inspector of Police that the parties were in love and the Crime was registered under the premise that the petitioner would not marry the victim. However, in view of the Crl.MC.No. 8349 of 2018 6 subsequent turn of events, she has realized that her apprehension was baseless. The parties are living together as husband and wife. There is no case for anyone that the dignity of the 3[rd] 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 3[rd] respondent, if the prosecution is permitted to continue. When the 3[rd] respondent has asserted that she has married the petitioner and this facts finds corroboration from Annexure A4 certificate of marriage. She has also filed an affidavit stating that she is not desirous of prosecuting against her husband 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 3[rd] 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 extra ordinary powers under Section 482 of the Code to quash the proceedings. Crl.MC.No. 8349 of 2018 7 In the result this petition will stand allowed. Annexure-A1 FIR and all proceedings pursuant thereto against the petitioner herein in Crime No.447 of 2018 of the Pandalam Police Station are quashed. **Sd/-** ## **RAJA VIJAYARAGHAVAN V** **JUDGE** IAP Crl.MC.No. 8349 of 2018 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FIRST INFORMATION REPORT IN CRIME NO. 447/2018 DATED 28-02-2018 OF PANDALAM POLICE STATION LODGED UNDER SECTION 376 OF INDIAN PENAL CODE WITH THE 1ST INFORMATION STATEMENT FORWARDED BY THE 2ND RESPONDENT.** **ANNEXURE A2 TRUE COPY OF THE AFFIDAVIT SIGNED BY THE DE-FACTO COMPLAINANT DTD 22-11-2018** **ANNEXURE A3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE DEVASWOM SECRETARY OF AREEKKARA PARAYARUKALA TEMPLE, MULAKKUZHA, CHENGANNUR ANNEXURE A4 TRUE COPY OF MARRIAGE CERTIFICATE WITH REGISTRATION NO.145/2018 DT.18.12.2018 ISSUED UNDER RULE 11(1) OF THE KERALA REGISTRATION OF MARRIAGES (COMMON)RULES, 2008.** ## **RESPONDENTS' EXHIBITS** NIL