Amal Varghese v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY ,THE 22ND DAY OF FEBRUARY 2019 / 3RD PHALGUNA, 1940** ## **Crl.MC.No. 5338 of 2018** **AGAINST THE ORDER/JUDGMENT IN CRMC 935/2018 of ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) DATED 22-05-2018 CRIME NO. 783/2018 OF Kalady Police Station , Ernakulam** ## **PETITIONER/ACCUSED:** **AMAL VARGHESE AGED 23 YEARS S/O.VARGHESE, PALISSERY HOUSE,KANJOOR, KALADY,ERNAKULAM DISTRICT.** **BY ADV. SRI.SEBIN THOMAS** ## **RESPONDENTS/COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF**| ||**KERALA,ERNAKULAM, PIN - 682 031.**| |**2**|**THE SUB INSPECTOR OF POLICE**| ||**KALADY POLICE STATION,ERNAKULAM RURAL,ERNAKULAM**| ||**DISTRICT, PIN - 683 574.**| |**3**|**VICTIM**| |4|***ADDL R4**| ||**BINDU LIOUS,**| ||**AGED ABOUT 45 YEARS,**| ||**W/O. LOUIS THOMAS,**| ||**5 SLOANE COURT, AMESBURY,**| ||**SALISBURY WILTSHIRE, SP47YP,**| ||**UNITED KINGDOM,**| ||**HOME ADDRESS AT KANJIRATHINGAL HOUSE,**| ||**KERALA STATE, KANJOOR,P.O, KANJOOR – 683 575**| ***ADDL R4 IMPLEADED AS PER ORDER DATED 28.09.2018 IN CRL.M.A.NO.03/18** **2** ## **Crl.MC.No. 5338 of 2018** **BY ADV. SRI.AKHIL BHASKAR** **PUBLIC PROSECUTOR SRI AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 5338 of 2018** **3** ## **ORDER** This petition is filed under Section 482 of the CrPC. 2. The 3[rd] respondent is the wife of the petitioner. At her instance, Crime No. 783 of 2018 of the Kalady Police Station was registered on 25.4.2018, _inter alia,_ under Section 376 of the IPC and Sections 3, 4 of the Protection of Children from Sexual Offences Act, 2012. 3. The 3[rd] respondent is residing in the UK with her family. She got acquainted with the petitioner and they fell in love. While she had come to India for a holiday, the petitioner is alleged to have subjected her to sexual abuse. 4. The learned counsel appearing for the petitioner submitted that there is no truth in the allegations. The relationship between the petitioner and the 3[rd] respondent was staunchly opposed by the parents of the victim. They forced the victim to level false allegations against him alleging acts of sexual abuse. The allegations of sexual abuse was a cooked up story and there are audio as well as video conversations between the family members **Crl.MC.No. 5338 of 2018** **4** which clearly show that the allegations are false. It is submitted that these aspects were taken note of by the learned Sessions Judge and anticipatory bail was granted to the petitioner holding that the allegations have no basis or truth. After the registration of the crime, the parties have got married as per the provisions of the Special Marriage Act, 1954, on 20.8.2018. It is submitted that now that the parties have got married, it is only just and proper that the criminal proceedings be terminated so that the parties can live together peacefully and in an amicable manner without the threat of prosecution. The learned counsel would also refer to the certificate of marriage issued by the Registrar of Marriages to substantiate his contention. 5. The 3[rd] respondent has filed an affidavit before this Court detailing the sequence of events. It is stated in the affidavit that her parents had beaten her up and she was forced to state falsehood before the Police and before the learned Magistrate. The Public Protection Department, Domestic Abuse/Child Protection, Bourne Hill Police Station, UK registered a case against her parents and they were released later on bail. It is submitted that after the **Crl.MC.No. 5338 of 2018** **5** registration of the Crime, she reached India and the marriage with the applicant was solemnized. Both of them are living together as husband and wife. It is submitted that the continuance of the proceedings against the petitioner would be nothing but a clear abuse of process. 6. The learned Public Prosecutor was directed to get instructions. It is submitted that the 3[rd] respondent, who has now attained majority have given a statement detailing the circumstances under which the crime was registered against the petitioner. The statement of the victim has been recorded and in view of the unusual nature of the case, the State has no serious objection in quashing the proceedings. 7. I have considered the submissions advanced and have perused 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 **Crl.MC.No. 5338 of 2018** **6** 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. 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 **Crl.MC.No. 5338 of 2018** **7** 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 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 of the 3[rd] respondent recorded by the Sub Inspector of Police that the parties were in love and the Crime was registered by forcing the victim to give a false statement. In the order granting **Crl.MC.No. 5338 of 2018** **8** pre arrest bail, the learned Sessions Judge had occassion to watch the video clipping produced before Court and also the audio conversations, and it was held in Annexure III order that the act of sexual harassment and molestation had not taken place. 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. The 3[rd] respondent has asserted that she has married the petitioner and this fact finds corroboration from Annexure-A3 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 **Crl.MC.No. 5338 of 2018** **9** 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-I FIR in Crime No.783 of 2018 of the Kalady Police Station and all proceedings pursuant thereto against the petitioner herein are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** avs **Crl.MC.No. 5338 of 2018** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **CERTIFIED COPY OF THE FIRST INFORMATION REPORT IN CRIME NO.783 OF 2018 DATED 25/04/2018.** **ANNEXURE II CERTIFIED COPY OF THE REQUEST FOR RECORDING 164 STATEMENT ALONG WITH 161 STATEMENT RECORDED BY THE POLICE DATED 30/04/2018.** **ANNEXURE III TRUE COPY OF THE ORDER IN CRL.M.C.NO.935 OF 2018 BY THE SESSIONS COURT, ERNAKULAM DATED 22/05/2018.** **ANNEXURE IV THE AFFIDAVIT OF SETTLEMENT DATED 30/07/2018. ANNEXURE A3 TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 01.09.2018** ## **RESPONDENT'S/S EXHIBITS:** **NIL** **avs //TRUE COPY// P.A TO JUDGE**