Binu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 10TH DAY OF JANUARY 2019 / 20TH POUSHA, 1940** **Crl.MC.No. 7153 of 2018** **AGAINST THE ORDER/JUDGMENT IN SC 30/2017 of ADDL. D.C. & SESSIONS COURT - V, KOLLAM** **CRIME NO. 1747/2016 OF KARUNAAGAPALLY POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED:** **BINU, AGED 29 YEARS, S/O. KUTTAN CHETTIYAR, ARUNODAYAM, THEKKUM MURI, ADINADU VILLAGE, NOW RESIDING AT MALIYEKKAL KIZHAKKATHIL VEEDU, VADAKKUM MURI, KARUNAGAPPALLY VILLAGE, KOLLAM DISTRICT-690518.** **BY ADVS. SRI.PRATHEESH.P SMT.S.SEETHA** ## **RESPONDENTS /STATE & DE FACTO COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, KARUNAGAPPALLY POLICE STATION THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. 2 SANKARESWARY, AGED 22 YEARS, D/O NAGARATNAM, MUNDAPPALLY THEKKATHL, THEKKUM MURI KIZHAKKU, THAZHAVA, KARUNAGAPPALLY, KOLLAM NOW RESIDING AT MALIYEKKAL KIZHAKKATHIL, VADAKKUM MURI, KARUNAGAPPALLY VILLAGE, KOLLAM DISTRICT- 690518. BY ADV. SUJITH CHANRDAN BY PUBLIC PROSECUTOR SRI.T.R.RENJITH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 10.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7153 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 S.C. No. 30/2017 on the file of the V Addl. Sessions Court, Kollam. In the aforesaid case, he faces accusations of having committed offence punishable under Section 376 of the IPC. 3. The 2[nd] respondent is the de facto complainant. According to the prosecution, she was in love with the petitioner herein. He is alleged to have assured her that he would marry her and her consent was deceitfully obtained for having a sexual relationship. On 20.03.2016, he is alleged to have subjected her to rape. This was repeated on a couple of instances thereafter. 4. The learned counsel appearing for the petitioner submitted that the crime was registered under the mistaken premise that the petitioner would not marry the victim. However, immediately after **Crl.MC.No. 7153 of 2018** **3** registration of the crime, the petitioner married the 2[nd] respondent and they are now living together as husband and wife. In order to establish the said fact, he would refer to Annexure-4, certificate of marriage issued under the provisions of the Kerala Registration of Marriages (Common) Rules, 2008. The parties are now living together as husband and wife. The de facto complainant, who has entered appearance through her counsel, seconded the submissions of the learned counsel and he would contend that the crime was registered under a misconception. He would submit that in view of the changed circumstances, the continuance of proceedings would be nothing, but a futile exercise. 5. The learned Public Prosecutor was directed to get instructions. The officer has recorded the statement of the victim and it is reported that the accused and the victim are living together as husband and wife. 6. I have considered the submissions advanced and have perused the materials made available. 7. The legal position with regard to quashing of proceedings **Crl.MC.No. 7153 of 2018** **4** 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 a 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. 8. Insofar as the offence of rape is concerned, there cannot be any doubt that the same cannot be settled on the strength of a **Crl.MC.No. 7153 of 2018** **5** 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. 9. However, in the instant case, it is borne out from the statement of the 2[nd] respondent 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 subsequent turn of events, she has realized **Crl.MC.No. 7153 of 2018** **6** 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 2[nd] 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 4[th] respondent, if the prosecution is permitted to continue. When the 2[nd] respondent has asserted that she has married the petitioner and this fact finds corroboration from Annexure-4 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 2[nd] 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 extraordinary powers under Section 482 of the Code to quash the proceedings. **Crl.MC.No. 7153 of 2018** **7** In the result this petition will stand allowed. Annexure-2 Final report and all proceedings pursuant thereto against the petitioner now pending as S.C No. 30/2017 on the file of V Addl. Sessions Court , Kollam are quashed. **SD/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** avs **//TRUE COPY// P.A. TO JUDGE** **Crl.MC.No. 7153 of 2018** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 THE COPY OF FIR WITH FIS IN CRIME NO.1747/2016 OF KARUNAGAPPALLY POLICE STATION.** **ANNEXURE P2 THE COPY OF THE FINAL REPORT IN CRIME NO.1747/2016 OF KARUNAGAPPALLY POLICE STATION.** **ANNEXURE P3 THE COPY OF AFFIDAVIT SWORN BY THE 2ND RESPONDENT/DE-FACTO COMPLAINANT REGARDING SETTLEMENT DATED 28/09/2018.** **RESPONDENT'S/S EXHIBITS:** **NIL**