Binu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** **Crl.MC.No. 5013 of 2018** **CRIME NO. 257/2018 OF MULANTHURUTHY POLICE STATION, ERNAKULAM** ## **PETITIONER/ACCUSED:** **BINU, AGED 21 YEARS, S/O.KESAVADAS, PANDANKUDI HOUSE, NEAR MARTHOMAN CHURCH, MULANTHURUTHY, MULANTHURUTHY VILLAGE, PIN-682 314.** **BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.D.BEENA SMT.M.SANTHY SRI.JOHNY THOMAS** ## **RESPONDENT/STATE/DE FACTO COMPLAINANT/VICTIM:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ENRAKULAM-682 031. 2 VICTIM. ... 3 GOPI, S/O.MADHAVAN, CHAKKONAYIL HOUSE, PANGARAPPILLY KARA, MULANTHURUTHY VILLAGE, ERNAKULAMD DISTRICT-682 314. R2 BY ADV. SRI.C.A.ANAS R1 BY SRI T R RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 5013 of 2018** **2** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in Crime No.257 of 2018 of the Mulanthuruthy Police Station. In the aforesaid Crime, he is accused of having committed offences punishable under Sections 376(1) and 376(2)(n) of the IPC and Sections 3(2)(V) and 3(1)(w)(i) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. The 2[nd] respondent is the member of Scheduled Caste and the 3[rd] respondent is her father. The prosecution allegation is that on a false promise of marriage, the petitioner persuaded the victim to come to his residential home and subjected her to rape. 4. The learned counsel appearing for the petitioner submitted that the allegations are not true. The petitioner and the 2[nd] respondent were in love. She was working as a Lab Technician at the VKM Hospital. Since the family members of both parties raised objections, they decided to elope. On 20.2.2018, the 3[rd] respondent herein lodged a complaint that his daughter was **Crl.MC.No. 5013 of 2018** **3** missing from his residence and hence, Crime No.257 of 2018 was registered under Section 57 of the Kerala Police Act. The girl was later traced out and on the information furnished by her, the subject crime was registered. 5. The learned counsel appearing for the petitioner submitted that the petitioner married the 2[nd] respondent on 11.3.2018 and they are now residing together as husband and wife. He would refer to Annexure-A5 Certificate of Marriage issued under the Kerala Registration of Marriage (Common) Rules, 2008 to substantiate his contention. 6. The learned counsel appearing for the 2[nd] respondent submitted that the 2[nd] respondent has no objection in allowing this petition as the parties are residing together as husband and wife. 7. The learned Public Prosecutor was directed to get instructions. It is submitted that the statement of the victim was recorded and she has expressed in clear terms that she has no grievance. The fact that the parties are living together is also true, **Crl.MC.No. 5013 of 2018** **4** submits the learned Public Prosecutor. 8. I have considered the submissions advanced and have perused the materials made available. 9. 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 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. **Crl.MC.No. 5013 of 2018** **5** 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. 10. 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 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 **Crl.MC.No. 5013 of 2018** **6** 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. 11. 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 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 2[nd] 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 **Crl.MC.No. 5013 of 2018** **7** Annexure-5 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. In the result this petition will stand allowed. Annexure-A1 FIR in Crime No.257 of 2018 of the Mulanthuruthy Police Station and all proceedings pursuant thereto against the petitioner herein are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V JUDGE** DSV/- //TRUE COPY// P.A. TO JUDGE **Crl.MC.No. 5013 of 2018** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 TRUE COPY OF THE FIR IN CRIME NO.257/2018 MULANTHURUTHY POLICE STATION.** **ANNEXURE-A1(A). TRUE COPY OF THE REPORT SUBMITTED BY THE POLICE INSPECTOR IN CRIME NO.257/2018 OF MULANTHURUTHY POLICE STATION.** **ANNEXURE A2. TRUE PHOTOCOPY OF THE VAZHIPAADU RECEIPT NO.2267 DATED 11/3/2018 (MARRIAGE) ISSUED FROM PAZHOOR PERUM THRIKKOVIL TEMPLE. ANNEXURE-A3. TRUE PHOTOGRAPHS OF THE MARRIAGE OF PETITIONER AND 2ND RESPONDENT ANNEXURE-A4. AFFIDAVIT DATED 26/7/2018 SWORN BY THE DE-FACTO COMPLAINANT.** **Crl.MC.No. 5013 of 2018** **9** **ANNEXURE-A5. TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 01.09.2018** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**