Aneesh v. State of Kerala (Crl.M.C. No. 1519 of 2020 (H))

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 17TH DAY OF NOVEMBER 2020 / 26TH KARTHIKA, 1942** **CRL.MC.NO.1519 OF 2020(H)** **SC 52/2018 OF PRINCIPAL SESSIONS COURT, ALAPPUZHA** **CRIME NO.1354/2016 OF HARIPAD POLICE STATION, ALAPPUZHA** ## **PETITIONER/ACCUSED:** **ANEESH, AGED 25 YEARS, S/O.THAMPI, MANGALATHU VADAKKATHIL, KALLEHBHAGAM VILLAGE, KARUNAGAPALLY TALUK, KOLLAM DISTRICT.** **BY ADV. SRI.ABDUL JALEEL.A** ## **RESPONDENTS/COMPLAINANT/DEFACTO COMPLAINANT:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM.**| |**2**|**THE DEPUTY SUPERINTENDENT OF POLICE,**| ||**KAYAMKULAM POLICE STATION,**| ||**ALAPPUZHA DISTRICT-690502.**| |**3**|**X**| ||**SRI.B.JAYASURYA, PUBLIC PROSECUTOR**| ||**ADV. SRI.A.E.ALIYAR FOR R3.**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 17.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------- ## Crl.M.C. No. 1519 of 2020 --------------------------------------Dated this the 17[th] day of November, 2020 ## O R D E R The prayers in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. are as follows: “ - _i. Quash Annexure-A1 FIR and A2 final report against the petitioner arising out of Crime No.1354/2016 of Haripad Police Station on the file of the Principal Sessions Court, Alappuzha District and acquit the petitioner/accused in the interest of justice._ - _ii. Issue such other order or direction, as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.A.Abdul Jaleel, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for R-1 & R-2 and Sri.A.E.Aliyar, learned counsel appearing for R-3 (defacto complainant). 3. The case arises out of Anx.A1 FIR in Crime No. 1354/2016 of Haripad Police Station, Alappuzha, which was initially registered under Sec.57(a) of the Kerala Police Act, 2011, on account of the alleged missing of the minor victim girl on the basis of the FIS given by her mother (3[rd] respondent defacto complainant) on 20.1.2016. Later the police after investigation has found the victim girl with the company of the petitioner accused and that she was then aged only 17 years and the petitioner had sexual relationship with the victim during the said period. Accordingly, Crl.M.C. No. 1519 of 2020 ..3.. the investigating agency altered the offences in Anx.A1 FIR and after completing the investigation has submitted the impugned Anx.A2 final report/charge sheet in the said Crime No.1354/2016 of Haripad Police Station, as against the petitioner accused for offences punishable under Sec. 376 of the IPC and Secs.5(l) r/w 6, 7 & 8 of the POCSO Act, and Sec.3(1)(w)(i) of the SC/ST (POA) Act, 1989, as amended. 4. The case of the prosecution is that, the date of birth of the victim girl is 1.1.1999 and that she had not completed the majority age of 18 years at the time of alleged commission of offence, and that she belongs to Scheduled Caste community and that the petitioner knew that she belongs to Scheduled Caste community, etc. The filing of Anx.A2 final report/charge sheet in Anx.A1 crime has led to the pendency of Sessions Case S.C. No. 52/2018 on the file of the Principal Sessions Court, Alappuzha, for the abovesaid offences in question. 5. It is pointed out by the counsel for the petitioner and the counsel for the 3[rd] respondent that subsequently after the victim girl had completed majority age of 18 years with the blessings of both the families and with the consent of both sides, the petitioner’s marriage with the victim girl has been duly solemnized on 24.4.2017 as evident Crl.M.C. No. 1519 of 2020 **==> picture [19 x 9] intentionally omitted <==** from Anx.A3 marriage certificate issued by the Local Registrar of Marriages in accordance with the Rule 11(1) of the Kerala Registration of Marriages (Common) Rules, 2o08. It has _inter alia_ certified in Anx.A3 marriage certificate that the marriage has been solemnized on 24.4.2017 in a temple and that the date of birth of the petitioner is 11.2.1990 and that the date of birth of the victim girl is 1.1.1999. Incidentally it is to be noted that the Local Registrar of Marriages who has issued Anx.A3 marriage certificate is the statutory Registrar of Births and Deaths of the local panchayat concerned in accordance with the Registration of Births and Deaths Act. It is submitted by the counsel for the petitioner and the counsel for the 3[rd] respondent that, now after the marriage the abovesaid couple are continuing their married life in a peaceful and harmonious manner and that the 3[rd] respondent defacto complainant has filed Anx.A4 affidavit stating abovesaid facts. Further that, the victim girl has sworn to Anx.A5 affidavit dated 5.2.2020 that in view of the subsequent marriage between the petitioner and herself, she has no surviving grievances and the impugned criminal proceedings may be quashed in view of extenuating circumstances, etc. 6. The learned Public Prosecutor was requested to get instructions in the matter and today when the matter has been taken Crl.M.C. No. 1519 of 2020 ..5.. up for consideration, the learned Prosecutor would submit that he has instructions from the Investigating Officer that the I.O. has conducted an enquiry and has also recorded the statement of the victim girl who has stated that she has voluntarily executed Anx.A5 affidavit and that the facts stated therein are correct and that later she has married the petitioner as evident from Anx.A3 certificate and that she is not interested to continue the impugned criminal proceedings any longer as the petitioner accused is her lawful husband, and that it is better for the welfare of her future married life that the impugned criminal proceedings be quashed as the accused therein is now her husband. 7. It is by now well settled that it may not be right and proper for this Court to ordinarily quash serious and grave offence of rape as per Sec.376 of the IPC solely on the ground of settlement between the parties {see _**Shimbhu & Anr. v. State of Haryana**_ [(2014) 13 SCC 318], _**Parbatbhai Aahir v. State of Gujarat**_ [ _(_ 2017) 9 SCC 641], _**Anita Maria Dias v. State of Maharashtra**_ [(2018) 3 SCC 290], _**Sebastian @ Solly v. State of Kerala**_ [2015 (1) KLJ 384, etc.}. However, it has been held by this Court in decisions as in _**Freddy @ Antony Francis & Ors. v. State of Kerala & Anr**_ . [2017 KHC 344 = 2018 (1) KLD 558], Crl.M.C. No. 1519 of 2020 ..6.. _**Denu P.Thampi v. Ms.X** , [2019 (3) KHC 199],_ that an exception could be made in cases where the accused has subsequently married the lady victim and they have decided to settle all the disputes and for the predominant purpose of welfare of the defacto complainant/ victim to ensure her a better marital life, it may be only just and proper for this Court in exercising extra ordinary discretionary inherent powers conferred under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings on the basis of such extenuating factors, after verifying that the marriage between the parties was entered into voluntarily by the lady victim, etc. 8. In view of the submissions of the parties and in view of the submission made by the learned Prosecutor as stated above, this Court is of the considered view that the abovesaid aspects based on the subsequent marriage of the parties could be extenuating circumstances that could be taken into consideration for quashment of impugned criminal proceedings in this case. Moreover, it may be better for the future marital life of the victim girl that the impugned criminal proceedings be quashed, as the petitioner accused is now none other than her husband. Accordingly it is ordered that, the impugned Anx.A2 final report/charge sheet filed in Crime No.1354/2016 of Haripad Police Station, Alappuzha district, which Crl.M.C. No. 1519 of 2020 **==> picture [18 x 9] intentionally omitted <==** has now led to the pendency of Sessions Case S.C. No. 52/2018 on the file of the Principal Sessions Court, Alappuzha, as against the petitioner accused and all other proceedings emanating therefrom as against the petitioner accused will stand quashed and set aside. 9. The petitioner will produce a certified copy of this order before the Investigating Officer concerned as well as before the Principal Sessions Court, Alappuzha, who is dealing with S.C. No. 52/2018 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 1519 of 2020 ..8.. ## **APPENDIX** |**PETITIONER'S **|**EXHIBITS:**|| |---|---|---| |**ANNEXURE A1**|**CERTIFIED COPY**|**OF FIR AND FIS IN CRIME**| ||**NO.1354/2016**|**OF**<br>**HARIPAD**<br>**POLICE**| ||**STATION.**|| |**ANNEXURE A2**|**CERTIFIED COPY**|**OF FINAL REPORT/CHARGE**| ||**SHEET IN CRIME**|**NO.1354/2016 OF HARIPAD**| ||**POLICE STATION.**|| |**ANNEXURE A3**|**TRUE COPY OF THE MARRIAGE CERTIFICATE**|| ||**DATED 20.5.2017 ISSUED BY THE**|| ||**PALLIPPAD GRAMA**|**PANCHAYAT.**| |**ANNEXURE A4**|**AFFIDAVIT FILED BY 3RD RESPONDENT**|| ||**DATED 4.2.2020.**|| |**ANNEXURE A5**|**AFFIDAVIT SWORN IN BY VICTIM DATED**|| ||**5.2.2020.**||