Azif A S v. State of Kerala and Sri Noushad K.A. (Sr PP)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR. JUSTICE GOPINATH P. ``` ``` THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 ``` ``` CRL.MC NO. 4989 OF 2023 ``` ``` CRIME NO.2783/2020 OF Town East Police Station, Thrissur ``` ``` AGAINST THE ORDER/JUDGMENT SC 704/2021 OF FAST TRACK SPECIAL COURT II, THRISSUR ``` ## `PETITIONER/ACCUSED:` ``` AZIF A S AGED 35 YEARS S/O ABDUL BARI SAJNA MANZIL, PULIMATH DESOM THIRUVANANTHAPURAM, PIN - 695612 BY ADV C.S.SUMESH ``` ## `RESPONDENTS/STATE & DEFACTO COMPLAINANT:` ``` 1STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031 2XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX BY ADV R.B.BALACHANDRAN ``` ``` SRI NOUSHAD K.A. (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 2 ``` ## **ORDER** Petitioner is the accused in crime No.2783 of 2020 of Thrissur East Police Station alleging the commission of offences under Sections 354 (B), 506, 376 (2), 377 of Indian Penal Code, Sections 66 E and 67 a of Information Technology Act and Section 119 (b) of the Kerala Police Act. 2. The allegation against the petitioner, in brief, is that the petitioner, who was on friendly terms with defacto complainant/victim, had in the month of December in the year 2016, compelled the defacto complainant/victim to go along with him to a hotel in Thrissur and while they were there the petitioner removed the dress of the defacto complainant/victim and took nude photos and videos of the defacto complainant/victim. It is alleged that thereafter on 13.03.2019, the petitioner again compelled the defacto complainant/victim to go along with him to the ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 3 ``` very same hotel and there he sexually abused her and committed rape on her and also forced her to have sexual relationships against the order of nature. It is further alleged that in January 2020, the petitioner forwarded the pictures and videos of he defacto complaint/victim to a person named Sooraj with whom the marriage of the defacto complainant/victim had been fixed, with an intention to ensure that the marriage does not take place and thereby the petitioner committed the offences alleged against him. 3. The learned counsel appearing for the petitioner would submit that the petitioner and the defacto complainant/victim were in a relationship and the sexual relationships between them was purely consensual. It is submitted that the petitioner had actually contacted the person with whom the marriage of the defacto complainant /victim had been fixed, owing to the fact that the defacto complainant/victim had herself requested the petitioner to do so. It is submitted that the defacto complainant/victim ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 4 ``` was not interested in marriage with the aforesaid Sooraj and this was the reason why she had requested the petitioner to some how prevent her marriage with the aforesaid Sooraj. It is submitted that it was under the compulsion of the family members of the defacto complainant/victim that she was forced to file a complaint against the petitioner, as the family members of the victim came to know that the petitioner had forwarded certain pictures and videos of the defacto complainant/victim to the aforesaid Sooraj and on account of the same, the marriage between the defacto complainant/victim and the aforesaid Sooraj had to be called off. It is submitted that the defacto complainant/victim has now executed Annexure R2(a) affidavit which indicates that the relationship between the petitioner and the defacto complainant/victim was purely consensual and the petitioner had actually forwarded her pictures and videos to the aforesaid Sooraj on her request. It is submitted that the affidavit also indicates that the defacto complainant/victim does not ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 5 ``` intend to continue the prosecution against the petitioner in any manner. It is also pointed out that the affidavit, now executed by the defacto complainant/victim, also indicates that she is now married to another person and she also has a one year old child in that relationship and that the continuance of prosecution in this case will affect the family life of the defacto complainant/victim. It is submitted that in such circumstances this Court may exercise its jurisdiction under Section 482 Cr.P.C. to quash the proceedings against the petitioner. It is submitted that the continuance of proceedings may be prejudicial to the victim as well. 4. The learned Public Prosecutor has read out the contents of the final report. He states that going by the judgment of the Supreme Court in _**Gian Singh v. State of Punjab and Another;**_ [(2012) 10 SCC 303)] _**,**_ and _**State of Madhya Pradesh v. Laxmi Narayan and Others;**_ [(2019) 5 SCC 688], an offence of rape falls within the category of heinous offences which cannot be quashed on ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 6 ``` the ground of settlement. However, it is fairly admitted that taking into consideration the contents of Annexure R2(a) affidavit now executed by the defacto complainant /victim, it can only be held that the relationship between the petitioner and the defacto complainant/victim was consensual. 5. Learned counsel appearing for the defacto complainant/victim/2[nd] respondent would confirm that his client stands by the contents of Annexure R2(a) affidavit and that she does not wish to prosecute the complaint in any manner. It is submitted that if the defacto complainant/victim is forced to prosecute the complaint, the matter may come to the knowledge of the present husband of the defacto complainant/victim and the family life of the defacto complainant/victim may also be affected if the proceedings are not terminated. 6. Having heard the learned counsel for the petitioner, the learned Public Prosecutor and the learned counsel appearing for the defacto complainant/victim 2[nd] ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 7 ``` respondent, I am of the view that in the peculiar facts and circumstances of this case, the jurisdiction vested in this Court under Section 482 Cr.P.C. can be invoked to quash the proceedings against the petitioner. While the learned Public Prosecutor is right in contending on the authority of the decisions of the Supreme Court in **Gian Singh** (supra) and _**State of Madhya Pradesh**_ (supra) that offence punishable under Section 376 IPC cannot be quashed on the ground of any settlement, this Court can take note of the circumstances in a particular case and if there are materials to suggest that the relationship was purely consensual and there was no element of rape as alleged by the prosecution, terminate the proceedings not on the ground of settlement but on the ground that the offence has not been committed. In the facts of the present case a reading of Annexure R2(a) executed by the defacto complainant/victim suggests the following:- a. The relationship between the petitioner and the defacto complainant/victim was ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 8 ``` ## consensual; b. The petitioner had intervened to prevent the marriage of the defacto complainant/victim with the aforesaid Sooraj at the request and on account of the fact that the defacto complainant/victim did not wish to enter into marriage with the aforesaid Sooraj. c. The defacto complainant/victim had filed a complaint against the petitioner owing to compulsion from her family members and which in turn was on account of the fact that they came to know of the relationship between the petitioner and the defacto complainant/victim through the family members of the aforesaid Sooraj. d. The defacto complainant/victim/2[nd] respondent is now married and is happily settled in life and is living with her husband and one year old child. The continuance of proceedings will affect the family life of the defacto ``` 9 ``` ``` Crl.M.C. NO.4989 OF 2023 ``` ## complainant/victim. Taking all the aforesaid facts cumulatively to consideration, I am of of the view that the proceedings against the petitioner can be quashed on the ground that it cannot be said that the petitioner has committed the offences alleged against him in the light of the contents of the Annexure R2(a) affidavit executed by the defacto complainant/victim/2[nd] respondent. It is clarified that the proceedings are not being quashed on the ground of any settlement but on the ground that the offences are not made out in the light of the contents of the affidavit now executed by the defacto complainant/victim. Accordingly, this Criminal M.C. is allowed and all further proceedings against the petitioner in S.C.No. 704/2021 on the file of the Fast Track Special Court-II, Thrissur, will stand quashed as against the petitioner. **Sd/GOPINATH P. JUDGE** SSK/07/12 ``` Crl.M.C. NO.4989 OF 2023 ``` ``` 10 ``` ## `APPENDIX OF CRL.MC 4989/2023` ## `PETITIONER ANNEXURES` ``` Annexure1CERTIFIED COPY OF FINAL REPORT DATED 14.01.2021 FILED IN CRIME NO.2783 OF 2020 OF Thrissur East POLICE STATION. Annexure 2THE TRUE COPY O NOTARIZED AFFIDAVIT EVIDENCING THE SETTLEMENT BETWEEN THE 2ND RESPONDENT/DEFACTO COMPLAINANT AND THE PETITIONER/ACCUSED Annexure 3THE CERTIFIED COPY OF THE COMPLAINT DATED 28.01.2020 BEFORE THE CIRCLE INSPECTOR OF POLICE, PONNANI Annexure 4THE CERTIFIED COPY OF THE STATEMENT OF THE VICTIM DATED 19.02.2020 BEFORE THE JURISDICTIONAL MAGISTRATE COURT. RESPONDENTS Annexure ``` ``` ANNEXURE R2(A)TRUE COPY OF THE NEW NOTARIZED AFFIDAVIT DATED 16.11.2023 SWORN BY DEFACTO COMPLAINANT. ```