Chithudas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **Crl.MC.No.3955 OF 2020(D)** ## **PETITIONER/S:** **CHITHUDAS AGED 24 YEARS** **S/O T.G.MOHANDAS, CHAITHRAM NIVAS MULAKKUZHA P.O., CHEGHANNUR PIN-689505.** **BY ADV. SRI.K.R.VINOD** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI 682031.** **2 X X** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR, SRI.V.SRINATH** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.3955 OF 2020(D)** **2** ## **ALEXANDER THOMAS, J.** **= = = = = = = = = = = = = = = = = Crl.M.C. No.3955 of 2020** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 21[st] day of October, 2020 ## **O R D E R** The prayers in the above Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C. are as follows : _“(a) Call for the records pertaining to Annexure A1 FIR No.1357/2018 of Chenghannur Police Station, and Annexure A2 final report in S.C.No. 422/2019 now pending before the Hon'ble Fast Track Special Court, Haripad and quash the same by invoking the inherent powers of this Hon'ble Court in the interest of justice. (b) Issue any other order or direction appropriate in the circumstances of this case.”_ 2. Heard Sri.K.R.Vinod, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor apperaing for R1-State of Kerala and Sri.V.Srinath, learned counsel appearing for contesting respondent No.2 (lady victim). 3. The petitioner herein has been arrayed as the sole accused in Annexure-A1 FIR in Crime No. 1357/2018 of Chengannur Police Station for offences punishable under Sec. 376 of the IPC and Secs. 3 and 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 on the basis of the First Information Statement furnished by the 2[nd] respondentvictim on 27.5.2018 at about 3.30 p.m. in respect of the alleged incident which happened on the same day (viz.27.5.2018 at about 00.30 hrs). The Police after investigation has filed the impugned Annexure-A2 final **Crl.MC.No.3955 OF 2020(D)** **3** report/charge sheet in the said Crime No.1357/2018 of Chengannur Police Station and later, the learned Magistrate has committed the case to the Sessions Court concerned and the case is now pending as sessions case SC No. 422/2019 on the file of the Fast Track Special Court, Haripad for the abovesaid offences in question. 4. The gist of the allegations in the abovesaid Annexure-A1 and A2 criminal proceedings is to the effect that the date of birth of the 2[nd] respondent – victim is 17.7.2002 and she was a minor and hardly the age of 16 years at the time of alleged incident on 27.5.2018 and that the petitioner/accused then aged 22 years was having a love affair with the 2[nd] respondent-victim girl, who was a minor at that time and that on 27.5.2018, he had sexual relationship with her and thereby, he has committed the abovesaid offences in question. 5. The main ground urged by the counsel for the petitioner is to the effect that subsequently with the blessings and consent of the families on both sides, the petitioner/accused had married the 2[nd] respondent- lady victim on 2.8.2020 after the 2[nd] respondent had completed the majority age of 18 years on 17.7.2020 and that the said marriage has been solemnized in accordance with the Hindu rites and customs as evident from Annexure-A3 marriage certificate dated 2.8.2020 issued by the Karayogam of the local temple, where the marriage was solemnized. The said marriage was solemnized in accordance with the provisions of the Hindu Marriage Act **Crl.MC.No.3955 OF 2020(D)** **4** was duly registered with the local Marriage Registrar in accordance with the provisions contained in Rule 11(1) of the Kerala Registration of Marriages (Common) Rules, 2008 and that Annexure-A3 is the registration certificate dated 14.8.2020 issued by the said local marriage Registrar (Secretary of the Panchayat concerned) regarding the solemnization of the said marriage on 2.8.2020 and that the petitioner and the 2[nd] respondent are now happily living together as husband and wife. Further that, the 2[nd] respondent has filed Annexure-A4 affidavit dated 7.9.2020 stating that with the blessings and consent of both the families, she has voluntarily married the petitioner and that she does not have any further grievances against the petitioner and that the factum of the marriage was evident from Annexure-A3 series of documents and that it is better for her future marital life that the case be quashed as otherwise, it would detrimentally affect her future etc. 6. It is by now well settled that ordinarily it may not be right and proper for this Court to quash serious 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, this Court has also held in various decisions including the one as in _**Freddy @ Antony Francis &**_ **Crl.MC.No.3955 OF 2020(D)** **5** _**Ors. v. State of Kerala & Anr**_ . [2017 KHC 344 = 2018 (1) KLD 558) and _**Denu P Thampi** v._ _**X & others**_ 2019 (3) KHC 199=2019 (2) KLT 996 etc. that in a impugned criminal proceedings involving offences as per Sec.376 of the IPC etc. where the allegation is that the sexual relationship happened in the course of an affair and where the subsequently, the petitioner/accused had married the respondent/lady victim after she has attained the majority age of 18 years etc. and where the said marriage is one which is entered into voluntarily by the respondent- victim and the respondent-victim herself would also seek for quashment of the impugned criminal proceedings involving the offence of Sec.376 of the IPC, in view of the subsequent marriage between the parties, then this Court in exercise of its inherent powers under Sec.482 of the Cr.P.C. may consider the plea for quashment taking into account such extraneous circumstances, provided the marriage is one which has been entered into voluntarily by the lady victim and not out of any coercion or threat etc. 7. This Court had earlier requested the learned Public Prosecutor to get instructions in the matter from the investigating officer concerned. Today, when the matter has been take up for consideration, Sri.B.Jayasurya, learned Public Prosecutor appearing for R1-State of Kerala would submit on the basis of instructions of the investigating officer that the investigating officer has conducted an enquiry and has recorded the statement of the 2[nd] respondent-lady victim, wherein she has stated that **Crl.MC.No.3955 OF 2020(D)** **6** after she had completed the majority age of 18 years, her marriage with the petitioner was solemnized as referred to hereinabove and she had voluntarily entered into the said marital relationship with the petitioner/accused and she has no objection in quashing the impugned criminal proceedings in view of the subsequent developments and as she is happily living with her husband and that it may be better for her welfare and her future marital life that the case be quashed, as otherwise it would detrimentally affect her marital life etc. Further that, the enquiry would reveal that the 2[nd] respondent/victim and the petitioner are now living together as husband and wife after solemnization of the marriage as aforestated. In the light of these aspects, this Court is inclined to consider the plea for quashment in view of the abovesaid subsequent extraneous circumstances. Accordingly, it is ordered that all further proceedings pursuant to the impugned Annexure-A2 final report/charge sheet filed in Annexure-A1 FIR in Crime No. 1357/2018 of Chengannur Police Station which has led to the pendency of sessions case SC No.422/2019 on the file of the Fast Track Special Court, Haripad and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 8. The petitioner will produce certified copy of this order before the investigating officer concerned as well as before the Fast Tack Special Court, Haripad, who is dealing with SC No. 422/2019 for necessary **Crl.MC.No.3955 OF 2020(D)** **7** information. With these observations and directions, the above Crl.M.C. will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.No.3955 OF 2020(D)** **8** ## **APPENDIX** ||**APPENDIX**| |---|---| |**PETITIONER'S/S**|**EXHIBITS:**| |**ANNEXURE A1**|**THE CERTIFIED COPY OF THE FIE NO.1357/2018**| ||**OF CHENGHANNUR POLICE STATION.**| |**ANNEXURE A2**|**THE CERTIFIED COPY OF THE FINAL REPORT IN**| ||**S.C. NO.422/2019 NOW PENDING BEFORE THE**| ||**FAST TRACK SPECIA••L COURT, HARIPAD.**| |**ANNEXURE A3**|**THE COPY OF THE CERTIFICATE OF REGISTRATION**| ||**ISSUED UNDER RULE 11(1) OF THE KERALA**| ||**REGISTRATION OF MARRIAGES (COMMON) RULES,**| ||**2008 ISSUED BY THE REGISTRAR, MULAKKUZHA**| ||**GRAMA PANCHAYATH ALONG WITH COVERING LETTER**| ||**ISSUED BY THE SECRETARY IN CHARGE OF**| ||**MULAKKUZHA-PIRALASSERI KANNUVELIKKAVU SREE**| ||**KRISHNA SWAMI TEMPLE.**| |**ANNEXURE A4**|**THE AFFIDAVIT OF THE 2ND RESPONDENT.**|