CRL.MC NO. 3231 OF 2021

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MRS. JUSTICE M.R.ANITHA`** ``` WEDNESDAY, THE 22[ND] DAY OF DECEMBER 2021 / 1ST POUSHA, 1943 ``` ## **`CRL.MC NO. 3231 OF 2021`** ## **`PETITIONERS/ACCUSED NOS.1 TO 6:`** - **`1 XXX X`** - **`2 XXX X`** - **`3 XXX X`** - **`4 XXX X`** - **`5 XXX X`** - **`6 XXX X BY ADVS. K.SIJU S.SEETHA ANJANA KANNATH`** ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 31.`** - **`2 THE STATION HOUSE OFFICER KILIMANOOR POLICE STATION, THIRUVANANTHAPURAM RURAL, PIN - 695 601.`** - **`3 XXX X`** ## **`ADV. SANGEETHARAJ N.R, PUBLIC PROSECUTOR`** ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ``` 22.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 3231 OF 2021 ``` ``` 2 ``` ## **ORDER** Petitioners are accused Nos.1 to 6 in S.C.No.1494/2018 on the file of the Fast Track Special Court for Trial of POCSO Act Cases, Attingal. Which arose out of crime No. 759/2018 of Kilimanoor police station. This Crl.M.C. has been filed seeking to quash the entire further proceedings pending against the petitioners in the above crime registered for the offences punishable under Sections 5(1) r/w 6 of the Protection of Children from Sexual Offences Act, 2012 (in short ‘POCSO Act’) and Section 9, 10 & 11 of Prohibition of Child Marriage Act. 2. The prosecution case is that accused Nos.4 and 5 is the parents of the defacto complainant, permitted the solemnisation of the marriage between the first petitioner/first accused with the defacto complainant/third respondent. The marriage was solemnised on 09.07.2017 with the aid of accused Nos.4 and 5 i.e., the parents of the first accused. After the marriage, the defacto complainant become pregnant and was admitted at SAT Hospital, Thiruvananthapuram for delivery. The doctor who treated the defacto complainant intimated the police and thereafter this crime happened to be registered. Copy of the FIR is produced as ``` CRL.MC NO. 3231 OF 2021 ``` ``` 3 ``` Annexure A1. After the marriage, the defacto complainant gave birth to a child on 13.05.2018. All the petitioners were granted prearrest bail by the jurisdictional court. Copy of the final report is produced as Annexure A2. The petitioners are members of the Schedule Caste and were illiterate and were not aware of the legal consequences of marriage of a minor girl. The marriage was later registered with the Registrar of Marriages. 3. The marriage certificate has been produced as Annexure 4 which would prove that the petitioner married the defacto complainant on 16.06.2018. According to the learned counsel for the petitioner, a child is also born out of their wedlock. Now the petitioner, defacto complainant and their child are living peacefully. So in the said circumstances, the criminal proceedings against the petitioner is a harassment to the defacto complainant, her child and also the petitioner. In such circumstances, according to the learned counsel, the inherent powers vested with this Court can be exercised to quash the proceedings to secure the ends of justice. 4. The learned Public Prosecutor produced copy of the report of the Inspector of Police, Kilimanoor police station and also the signed copy of the victim in which she categorically stated that ``` CRL.MC NO. 3231 OF 2021 ``` ``` 4 ``` she is living happily with the child along with the petitioner and she is not interested in continuing with the proceedings against the petitioner. 5. So, in the said circumstances, whether the criminal prosecution against the petitioner is liable to be set aside or not, is the point for determination. 6. It is relevant in this context to quote Freddy @ Antony Francis and Another v. State of Kerala and Another (2017 KHC 344 = 2018 (1) KLD 558), Mohammed Rasal v. State of Kerala and Another (2019 (5) KHC 904 = 2020 (1) KLT 126) and Unni.A. v. State of Kerala and Another (Crl.M.C.2459/2018 dated 8.9.2020). 7. **Freddy** , referred above, was a case registered against the accused under Section 376 IPC and Section 3(1)(XII) of SC/ST Act and during the pendency of the criminal proceedings, accused married the victim and they filed a joint petition to quash the proceedings. So this Court considered the question whether power under Section 482 Cr.P.C can be exercised or not. Paragraph 9 of the said judgment is relevant which reads thus : “It is borne out from the statement recorded by the Sub Inspector of Police of the 2nd petitioner that the parties were in love and the Crime was registered when the 2nd petitioner was under the impression that the 1 st ``` CRL.MC NO. 3231 OF 2021 ``` ``` 5 ``` petitioner would resile from his earlier promise. 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 2nd petitioner was violated by a wanton act of the 1 st petitioner. This is not one of those cases wherein the allegations reek of extreme deparavity, 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 2nd petitioner, if the prosecution is permitted to continue. When the 2nd petitioner has asserted that she is not desirous of prosecuting her husband any further, the prospects of an ultimate conviction is remote and bleak. Further more, the 2nd petitioner 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 extra ordinary powers under S.482 of the Code to quash the proceedings. ## 8. **Mohammed Rasal's** case was also one charged under Section 376 read with Section 5(j)(ii) of the PoCSO Act, 2012 and ``` CRL.MC NO. 3231 OF 2021 ``` ``` 6 ``` the question arose whether the proceedings against the petitioner, accused in that case, can be quashed under Section 482, in view of the fact that the couple have a child and is leading a peaceful married life. The Court took into account the fact that the families on both sides arranged the marriage when the accused was 25 years old and the victim, the 2nd respondent, was 17 years old. It is true that, that was also a case they entered into a sexual relationship after the solemnization of marriage. The Court also has taken note of the fact that at the time when the alleged offence was committed before 11.10.2017 before the pronouncement of the dictum in Independent Thought v. Union of India & Anr (2017 (1) SCC 800 = AIR 2017 SC 4904) wherein the Apex Court held that in view of the provisions contained in the PoCSO Act and other provisions in Section 375 IPC, age limit should be 18 years envisaged in Section 375 as per clause sixty (wherein the age is mentioned as 16 years). 9. **Unni.A. v. State of Kerala** also is a case charged against the accused under Sections 3, 4 and 17 of the PoCSO Act and Sections 9 and 10 of th Prohibition of Child Marriage Act, 2006. In that case also, there was no formal complaint and the hospital authorities after recording her age finding that she is a minor, ``` CRL.MC NO. 3231 OF 2021 ``` ``` 7 ``` informed the police authorities and subsequently the case was registered. So taking into account the fact that the victim has not approached the police authorities and further that her marriage was arranged on an understanding between both the families and the accused and his family members were never aware that the victim was a minor at the time of marriage proposal etc., the Court based on the dictum laid down in **Mohammed Rasal's** case, ultimately quashed the proceedings against the accused persons. 10. In the present case also, the petitioner married the defacto complainant and they are living together. A child also borne out of their wedlock. It has also come out that the complaint was filed when the hospital authorities intimated the police. There was no complaint by the victim or her parents. So continuation of the criminal proceedings against the petitioners would definitely affect the peaceful marital life of the first petitioner and the defacto complainant and their child as well as their family. Hence, I am of the view that it would be just and proper for doing complete justice to the parties to quash the entire proceedings pending against the petitioners in crime No.759/2018 of Kilimanoor police station. ``` CRL.MC NO. 3231 OF 2021 ``` ``` 8 ``` In the result, this Crl.M.C. stands allowed and the entire proceedings in crime No.759/2018 of Kilimanoor police station, against the petitioners is hereby quashed. **Sd/M.R.ANITHA JUDGE** nkr ``` CRL.MC NO. 3231 OF 2021 ``` ``` 9 ``` ## **`APPENDIX OF CRL.MC 3231/2021`** |**`PETITIONER ANNEXURES`**|| |---|---| |**`Annexure 1`**|**`TRUE COPY OF FIR WITH FIS IN CRIME`**| ||**`NO.759/2018 OF KILIMANOOR POLICE STATION.`**| |**`Annexure 2`**|**`TRUE COPY OF FINAL REPORT IN CRIME`**| ||**`NO.759/2018 OF KILIMANOOR POLICE STATION`**| ||**`DATED 29.09.2018.`**| |**`Annexure 3`**|**`TRUE COPY OF AFFIDAVIT SWORN BY THE 3RD`**| ||**`RESPONDENT REGARDING SETTLEMENT DATED`**| ||**`16.07.2021.`**| |**`Annexure 4`**|**`THE COPY OF THE MARRIAGE CERTIFICATE`**| ||**`ISSUED BY THE REGISTRAR OF MARRIAGES`**| ||**`(COMMON) & SECRETARY, NAGAROOR GRAMA`**| ||**`PANCHAYAT DATED 20.06.2018`**|