Aparna R. @ Aparna Kurup & Ajitha v. State of Kerala & Dipu S. Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 24TH DAY OF SEPTEMBER 2020 / 2ND ASWINA, 1942** ## **Crl.MC.No.3316 OF 2019(D)** **AGAINST THE ORDER/JUDGMENT IN SC 248/2018 OF ADDITIONAL DISTRICT COURT,KOTTAYAM** ## **PETITIONER/S:** |**1**||**APARNA.R @ APARNA KURUP**| |---|---|---| |||**AGED 36 YEARS**| |||**DURGA,THIRUVANCHIKULAM, KODUNGALLUR-680 664**| |**2**||**AJITHA,**| |||**AGED 62 YEARS**| |||**DURG, THIRUVANCHIKULAM, KODUNGALLUR-680 664**| |||**BY ADV. SRI.MANSOOR.B.H.**| |**ENT/S**|**:**|| |**1**||**STATE OF KERALA**| |||**REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA**| |**2**||**DIPU S.NAIR,**| |||**AGED 36 YEARS**| |||**S/O. SASIDHARAN NAIR, DEEPAM HOUSE, PERUNNA,**| |||**CHANGANCHERRY, NOW RESIDING AT POURNAMI-J1, KURUPS**| |||**LANE, SATHAMANGALAM, THIRUVANANTHAPURAM**| |||**R2 BY ADV. SMT.V.K.HEMA**| ## **RESPONDENT/S:** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3316 OF 2019(D)** **2** ## **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = =** ## **Crl.M.C. No.3316 of 2019** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 24[th] day of September, 2020 ## **O R D E R** The prayer in the aforecaptioned Crl.M.C. is as follows : _“xxx xxx may be pleased to quash Annexure A private complaint S.C. 248/2018 pending on the files of Court of Additional District and Sessions Judge-1, Kottayam.”_ 2. Heard Sri.B.H.Mansoor, learned counsel appearing for the petitioners herein (accused Nos. 1 and 2), Sri.Saigi Jacob Palatty, learned senior Public Prosecutor appearing for R1-State of Kerala and Smt.V.K.Hema, learned counsel appearing for contesting respondent No.2 (defacto complainant). 3. The 1[st] petitioner (A1) herein is the wife of the 2[nd] respondent herein and the 2[nd] petitioner (A2) herein is the mother of the 1[st] petitioner (A1). The abovesaid petition has been filed so as to impugn Annexure-A private criminal complaint filed by the 2[nd] respondent and all further proceedings in the pending sessions case S.C.No.248/2018 on the file of the Court of the 1[st] Addl.Sessions Judge, Kottayam in which cognizance has been taken for the offences punishable under Secs.182, 500 IPC and Sec.22(1)(3) of the Protection of Children from Sexual Offences Act, 2012. According to the petitioners, the incidents in question, which led to the filing of the impugned Annexure-A private criminal complaint arise out of **Crl.MC.No.3316 OF 2019(D)** **3** the matrimonial dispute between the 1[st] petitioner and the 2[nd] respondent and that the allegations in the impugned criminal proceedings is that the accused has given a false complaint/false information in respect of the minor child/son born in the wedlock of the 1[st] petitioner (A1) with R2 herein and therefore, it has victimized the child and that the accused persons have also thus defamed the complainant and his family members. 4. It appears that the 1[st] petitioner and the 2[nd] respondent on account of the matrimonial disputes were living separately and matrimonial litigative proceedings are also pending between the parties before the Family Court concerned. The 1[st] petitioner herein had earlier given the complaint before the Police authorities that after the spouses were living separately, their child was living along with A1 and at that time, a close friend of the brother of the 2[nd] respondent (husband) had gone to the said house and had sexually assaulted the minor boy and this led to the registration of Annexure-B Crime No.707/2016 of Changanacherry Police Station for offences punishable under Secs. 377 IPC and Sec.3(a) r/w Sec.4 of the POCSO Act, 2012. 5. The Police after investigation has obtained Annexure-C medical report which does not disclose any serious case of sexual assault as alleged in Annexure-B FIR and thereafter, the Police has filed refer report referring the case as false. Thereupon, R2 herein has filed Annexure-A private criminal complaint before the 1[st] Addl.Sessions Court (notified to deal with **Crl.MC.No.3316 OF 2019(D)** **4** POCSO cases, Kottayam) alleging that the petitioners herein have victimized the minor child by making such blatantly false allegations in Annexure-B FIR and that thereby they have committed the abovesaid offences in question. 6. This Court had earlier granted interim stay of the impugned criminal proceedings in this case. Later, this Court has passed a detailed order dated 28.6.2019 on Crl.M.A.No.1/2019 in Crl.M.C.No.3316/2019 making the said interim stay order absolute till the final disposal of this Crl.M.C. and the said order dated 28.6.2019 on Crl.M.A.No.1/2019 in this Crl.M.C. reads as follows : “ _Crl.M.A.No. 1 of 2019_ _At the admission stage, this Court had granted interim stay on 29.05.2019 for a period of one month. Though notice has been duly served on contesting respondent No.2 (complainant in the impugned Anx.A private criminal compliant/husband of 1st petitioner), there is no appearance for that party. Today the interim application came up for consideration for this Court's decision, as to whether the said interim stay order should be made absolute or is liable to be vacated or modified._ 2. _Heard the learned counsel for the petitioner and learned Prosecutor appearing for the 1[st] respondent._ _3. It is to be noted that the Sessions Court has now taken cognizance of the impugned Anx.A complaint for offences as per Section 22 (1) of the POCSO Act and Sections 182 and 500 of the IPC. It is urged by the petitioner that the offence as per Section 182 of the IPC (False information, with intent to cause public servant to use his lawful power to the injury of another person) could be prosecuted only on the basis of a complaint in writing of the public servant concerned in view of the prescription contained in Section 195 (1) (a) of the Cr.P.C and that therefore the action of the learned Magistrate in having taken cognizance for the said offence as per Section 182 of the IPC, on the basis of a private criminal complaint filed by a private party, is thus clearly barred in law. Further it is pointed out that, the offence as per Section 500 of the IPC, could be prosecuted only on the basis of a complaint of the person who is directly aggrieved by the defamation, in view of the prescription contained in Section 199 of the Cr.P.C. In the instant case even going by the admitted allegations of the complainant, the alleged defamation is said to have been suffered by a 3[rd] person, a party who is other than the 2[nd] respondent complainant and that therefore the offence as per Section 500 of the IPC, is also barred in law in view of the prescription in Section 199 of the Cr.P.C._ **Crl.MC.No.3316 OF 2019(D)** **5** _4. Further it is pointed out that going by the prescription in Section 22 (1) of the POCSO Act as well as the Cr.P.C, the same is a non-cognizable offence and that even according to the 2[nd] respondent/complainant, the person against to whom the false allegations are said to have been made is a 3[rd] party (a friend of the younger brother of the 2[nd] respondent), and that therefore the complaint initiated by the 2[nd] respondent who is the 3[rd] party, is not a bonafide prosecution and amounts to abuse the process of the Court._ _5. It is further contended by the petitioner that, going by the averments and contents in this petition more particularly those based on Anx.C Medical Certificate and the facts recorded in Anx.D certificate, it can be seen that the action taken by the 1[st] petitioner in giving First Information/complaint to the Police which led to the registration of Anx.B First Information Report, is an action taken in good faith for the welfare of her minor son and that therefore the accused is protected by the provision contained in Section 19 (7) of the POCSO Act, in as much as the action taken by her is only in good faith, etc._ _6. After having heard both sides, this Court is of the view that prima facie the petitioner has made out a strong case. The balance of convenience in the matter of consideration of the grant of the interlocutory relief is also in favour of the petitioner. Accordingly, it is ordered that the interim stay order granted by this Court on 29.05.2019, is made absolute and will continue to have its efficacy until the final disposal of this Crl.M.C._ _With these observations and directions the above Crl.M.A. 1 of 2019 will stand disposed of.”_ 7. Now, it is submitted by Sri.B.H.Mansoor, learned counsel appearing for the petitioners (accused persons) as well as Smt. V.K.Hema, learned counsel appearing for contesting respondent No.2 (defacto complainant) that disputes between the parties have been amicably settled and that through mediation and with the initiative of the advocates concerned of both sides as well as the relatives of the parties and that the 2[nd] respondent has no further grievances or complaint against the petitioners and he does not want to proceed further with the impugned criminal proceedings which has arisen on account of Annexure-A private criminal complaint filed by him. The 2[nd] respondent has filed an affidavit dated 23.12.2019 in this case regarding the factum of settlement and that he is not interested to proceed further with the impugned criminal **Crl.MC.No.3316 OF 2019(D)** **6** proceedings and that he has no objections in this Court quashing the impugned criminal proceedings in this case etc. 8. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 9. Taking into account the aspect that the impugned criminal proceedings have arisen mainly out of incidents arising out of matrimonial disputes between the parties and also taking into account some of the vital **Crl.MC.No.3316 OF 2019(D)** **7** aspects borne out from the order dated 28.6.2019 passed in this Crl.M.C. and also taking into account the fact that the offences alleged in the instant criminal proceedings are not in relation to any serious allegations of penetrative sexual assault etc. but only on the allegation that the accused persons have given a false complaint to the Police, which led to Annexure-B FIR and taking into account the fact that the minor victim child will have to be dragged into the criminal proceedings even once more, if the impugned criminal proceedings are sustained, this Court is of the considered view that the impugned criminal proceedings in this case could be quashed on the ground of settlement between the parties. Moreover, the matrimonial disputes are pending before the Family Court and if the aforesaid settlement arrived at between the parties is not effectuated by this Court, it may lead to more bit of fights between the spouses in the pending matrimonial disputes before the Family Court. 10. Taking into account the overall facts and circumstances of this case, this Court is constrained to take the view that the discretion for quashment of the impugned criminal proceedings on the ground of settlement could be invoked in this case. In that view of the matter, it is ordered that the impugned Annexure-A private criminal complaint, which has now led to the pendency of Sessions Case S.C.No. 248/2018 on the file of the 1[st] Addl.Sessions Court (notified to deal with POCSO cases), Kottayam as against the petitioners (accused) and all further proceedings **Crl.MC.No.3316 OF 2019(D)** **8** emanating therefrom as against the accused persons therein will stand quashed and set aside. 11. The petitioners will produce certified copy of this order before the Sessions Court concerned for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.3316 OF 2019(D)** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A CERTIFIED COPY OF THE PRIVATE COMPLAINT IN S.C248/2018 OF COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE-1,KOTTAYAM ANNEXURE-B COPY OF THE F.I.R IN CRIME NO.707/2016 OF CHANGANACHERRY POLICE STATION ANNEXURE-C COPY OF MEDICAL CERTIFICATE DATED 20/2/2016 ISSUED BY DR.RAJALAKSHMI IYER, PAEDIATRICIAN OF RENAI MEDICITY HOSPITAL,KOCHI ANNEXURE-D COPY OF THE REFERRAL CAUSALITY RECORD DATED 23/2/2016 ISSUED FROM GOVT MEDICAL COLLEGE, KOTTAYAM**