CRL.MC NO. 5526 OF 2022, High Court of Kerala at Ernakulam

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` THURSDAY, THE 23[RD] DAY OF NOVEMBER 2023 / 2ND AGRAHAYANA, 1945 CRL.MC NO. 5526 OF 2022 ``` ``` CRIME NO.1338/2020 OF Kattappana Police Station, Idukki AGAINST THE ORDER/JUDGMENT SC 311/2022 OF FAST TRACK SPECIAL ``` ## **`COURT, KATTAPPANA (POCSO)`** ## **`PETITIONER/ACCUSED:`** ``` XXX ``` ``` BY ADVS. TOM E. JACOB LIJI.J.VADAKEDOM REXY ELIZABETH THOMAS ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY ITS PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM, PIN - 682031` - `2 SUB INSPECTOR OF POLICE-KATTAPPANA KATTAPPANA POLICE STATION, IDUKKI, PIN - 685508 BY ADV. NOUSHAD K.A., SR. PUBLIC PROSECUTOR` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON ``` - `23.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:` ``` CRL.MC NO. 5526 OF 2022 2 ``` ## **`ORDER`** The petitioner is the accused in Crime No.1338/2020 of Kattappana Police Station, Idukki District, alleging commission of offence under Section 376(2)(f) of the Indian Penal Code and Section 3(a), 4, 5(j)(ii)(n) and 6 of the POCSO Act. The matter is now pending as S.C.No.311 of 2022 before the Special Court for the Trial of Offences under the POCSO Act, Kattappana. 2. The learned counsel appearing for the petitioner would submit that the petitioner is absolutely innocent in the matter. It is submitted that the petitioner and the alleged victim were in a relationship. It is submitted that after the victim attained the age of majority, a marriage was solemnized between the petitioner and the alleged victim. Reference is made in this regard to Annexure –II Marriage Certificate issued by the Marriage Officer, Kattappana, which shows that the marriage between the petitioner and the victim was solemnized on 09.12.2021. It is submitted that, in such circumstances, going by the law laid down by this Court in **Vishnu v. State of Kerala** [2023(4)KHC 1), ``` CRL.MC NO. 5526 OF 2022 3 ``` the proceedings against the petitioner can be quashed as the continuance of proceedings may be prejudicial to the victim as well. It is also submitted that the petitioner and the victim are now living together as husband and wife, happily. 3. Heard the learned Public Prosecutor also. The learned Public Prosecutor submits that a statement has been recorded from the victim and she has confirmed that she is living with the petitioner as his wife. 4. Having heard the learned counsel for the petitioner and the learned Public Prosecutor and being in respectful agreement with the view taken by this Court in **Vishu (supra)** , I am of the opinion that the jurisdiction of this Court under Section 482 of the Cr.P.C can be invoked to quash the proceedings against the petitioner in the peculiar facts and circumstances of this case. In **Vishnu (supra)** , this Court held as follows:- “13. The Apex Court in Saju P.R. v. State of Kerala 17, quashed a ‘rape case’ on the ground of settlement between the accused and the victim for ‘doing complete justice to the parties concerned’. In Anand D.V. v. State and Another , the Apex Court allowed the compromise and quashed the proceedings ``` CRL.MC NO. 5526 OF 2022 4 ``` for rape on the ground that the accused married the victim. The crime therein was registered against the accused on the complaint of the victim for offences under sections 376 and 380 IPC, alleging that the accused, by giving a false promise of marriage, had sexual intercourse with her, but the promise was not honoured. However, after the registration of the FIR, both got married, and they approached the High Court of Delhi, seeking to quash the proceedings invoking section 482 of Cr.P.C read with Article 226 of the Constitution of India. The High Court dismissed their plea, and therefore, both preferred separate appeals at the Apex Court. The Apex Court allowed the appeals and quashed the proceedings holding that the parties were happily married. In J **atin Agarwal v. State of Telangana & Another** , a similar rape case was quashed as the victim got married to the accused. That was a case where an FIR was lodged against the accused by the victim for offences under Sections 417, 420, and 376 IPC alleging that on the promise to marry, the accused made a physical relationship with her, but he withdrew from the promise and refused to marry her. However, later, both got married and therefore, they moved to the High Court of Telangana, seeking the quashing of the FIR. The High Court dismissed their plea to quash the FIR, and therefore, they moved to the Apex Court. The Apex Court accepted the settlement, allowed the appeal, and quashed the FIR, exercising its powers under Article 142 of the Constitution of India, observing that it was necessary to do complete justice to the parties. In **K. Dhandapani v. The State by the Inspector of Police** , the Apex Court set aside the conviction and sentence of an accused who raped his own niece and later married her. The accused was working as a woodcutter on daily wages in a private factory. An FIR was lodged against him for committing rape on his niece on a false promise of marriage under Section 5(j) (ii) read with Section 6, 5(I) read with Sections 6 and 5(n) read with Section 6 of the POCSO Act. The trial Court convicted and sentenced him to ten years of rigorous imprisonment, which the High Court upheld. Aggrieved thereby, the accused approached the Apex Court. The accused submitted that since he has, in fact, married the prosecutrix and they have two children, it would not be in the interest of justice to disturb their family life. The State opposed the grant of ``` CRL.MC NO. 5526 OF 2022 5 ``` any relief to the accused, contending that the prosecutrix was aged 14 years on the date of the offence and that the marriage might only be for the purpose of escaping punishment. The Court taking note of the custom in Tamilnadu, which permits the marriage of a girl with her maternal uncle, and the statement of the prosecutrix that she is leading a happy married life with the appellant, set aside the conviction observing that “This Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix”. However, as a note of caution, the Court added that in the peculiar facts of the case, it should not be treated as a precedent. Recently in **Kapil Gupta v. State of NCT of Delhi & Another** , the Apex Court quashed the FIR registered under section 376 of IPC as the matter was amicably settled between the accused and the victim holding that though ordinarily, cases under Section 376 of IPC should not be quashed, the Court is not powerless in exercising the extraordinary jurisdiction to quash the proceedings in the facts and circumstances of a particular case. It was further held that while exercising the power, the Court has also to take into consideration whether the settlement between the parties is going to result in harmony between them, which may improve their mutual relationship and the stage of the proceedings. The Apex Court was hearing an appeal challenging the judgment of the High Court of Delhi dismissing the application filed by the victim for quashing the proceedings under section 376 of IPC invoking section 482 of Cr.P.C. While allowing the appeal, the Apex Court observed that since the victim herself is not supporting the prosecution case, even if the trial is allowed to go ahead, it will end in nothing else than an acquittal and if the request for quashing is not allowed, it will amount to adding one more criminal case to the already overburdened criminal courts. 14. The High Court of Karnataka in **Sathish K. and Others v State of Karnataka** held that an offence under Section 376 IPC can be permitted to be compounded, in specific circumstances, which includes a situation where the closure of such a case would promote the family life of the complainant and the accused. The Punjab and Haryana High Court in C **handan Paswan v. State of Punjab and Another** quashed the proceedings for rape on the ground that ``` CRL.MC NO. 5526 OF 2022 6 ``` the matter had been compromised and the accused married the victim. In **Ashiq v. State of Kerala** , where the accused and victim settled the disputes and married subsequently, the High Court of Kerala in the exercise of the extraordinary inherent powers under section 482 of the Cr.P.C. quashed the proceedings for the purpose of welfare of the victim. In **Md. Jahirul Maulana v. State of Assam** , the High Court of Gauhati quashed criminal proceedings against a ‘rape accused’ who married the ‘victim’ holding that chances of conviction in the case are bleak in view of the compromise between the parties and marriage. It was observed that: “the ends of justice will demand that they should be left at their will and their otherwise happy marital life should not be allowed to be disturbed by the interfering clouds of litigations looming over their heads.” The High Court of Andhra Pradesh in **Gokada Suresh v. State of Andhra Pradesh** held that the offence under section 376 of IPC can be compounded to promote the family life of the complainant and accused. In **Vijaya Kumar v. State** , the High Court of Karnataka held that though the offences are punishable under Section 376 of IPC and the provisions of POCSO Act, since the parties have settled the dispute and the accused and the victim are living together, the petition filed under Section 482 of Cr.P.C., needs to be allowed and the proceedings have to be quashed. The High Court of Delhi in **Arshad Ahmad & Others v. State of NCT of Delhi** while quashing an FIR for the offence of rape and cruelty by a woman against her father-in-law and others has said that quashing of FIR in matrimonial offences is welcome as it shows that parties have decided to put an end to the dispute as well as the misery. The High Court of Meghalaya in **Shri. Skhemborlang Suting & Another v. State of Meghalaya & Another** quashed the case against a man under the POCSO Act, 2012, for marrying a 16year-old girl, observing that it would be an “injustice” to separate a “well-knitted family unit”. Taking note of the unique facts and circumstances of the case, the court held that allowing prosecution would “only result in the breakdown of a happy family relationship and the possible consequence of the wife having to take care of a baby with no support, physically or financially from her husband who may be languishing in jail”. In **Kundan & Another v. State & Others** , the High ``` CRL.MC NO. 5526 OF 2022 7 ``` Court of Delhi quashed a similar FIR, considering that the life of the husband, wife, and child would be “ruined”. As did the High Court of Bombay in **Nauman Suleman Khan v. State of Maharashtra** , recently, quashing an FIR under POCSO Act for penetrative sexual assault after the victim, who on attaining majority, said that she and the accused were “in love and are now to be married”, and the accused gave the undertaking to marry her. The court accepted the same, considering the accused and the victim’s “future” and in the interest of a “peaceful life”. The High Court of **Punjab and Haryana in Pankaj @ Sikandar Kumar v. State of Ut Chandigarh and Another** quashed an FIR registered under section 376 of IPC and section 6 of the POCSO Act honouring the agreement between the accused and the victim that they would solemnize their marriage as soon as the latter attains the age of marriage. In **Manga Singh v. State of Punjab and Others** , the High Court of Punjab and Haryana quashed the proceedings based on a compromise for the reason that the prosecutrix had solemnized marriage with the accused prior to the registration of the FIR, a child was born in that wedlock, and they were living in peace and harmony. The High Court of Kerala in F **reddy @ Antony Francis and Another v. State of Kerala and Another** and in **Denu P. Thampi v. Ms. X** quashed the criminal proceedings involving sexual offence under IPC and the POCSO Act, where the accused is alleged to have committed sexual assault on the victim on the false promise of marriage, on the ground that they subsequently married and settled the dispute. It was held that since the accused and the victim are now residing as husband and wife, it would be in their welfare to quash the proceedings. A similar view was taken by the High Courts of Bombay, Uttarakhand and Punjab and Haryana. 15. The inherent power given to the High Court under section 482 of Cr.P.C. is with the purpose and object of advancement of justice. The touchstone for exercising that power would be to secure the ends of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered in accordance with the laws enacted by the legislature. The concept of justice is elastic and imprescriptible. There can be no hard and fast line constricting the power of the High Court to do substantial justice. A ``` CRL.MC NO. 5526 OF 2022 8 ``` restrictive construction of inherent powers under Section 482 Cr.P.C. may lead to rigid or specious justice, which in the given facts and circumstances of a case, may instead lead to grave injustice. Nonetheless, such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) the Nature and effect of the offence on the consciousness of the society; (ii) the Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence or other relevant considerations.” The continuance of the proceedings against the petitioner will not be in public interest. The chances of a successful prosecution are also remote. The continuance of proceedings will cause prejudice to the victim as well. Accordingly, this Crl.M.C is allowed and all further proceedings in S.C.No.311/2022 before the Special Court for the trial of offences under the POCSO Act, (arising out of Crime No.1338/2020 of Kattappana police station, Idukki District, will stand quashed as against the petitioner. ``` Sd/- ``` ``` GOPINATH P. JUDGE ``` ajt ``` CRL.MC NO. 5526 OF 2022 9 ``` ## **`APPENDIX OF CRL.MC 5526/2022`** ``` PETITIONER ANNEXURES Annexure1 ``` ``` Annexure1THE COPY OF THE BAIL ORDER IN BAIL APPL NO.1635/2021 DATED 16.12.2021 ANNEXURE IITHE COPY OF THE CERTIFICATE OF MARRIAGE NO.119/2021 ISSUED BY THE MARRIAGE OFFICER, KATTAPPANA ANNEXURE IIITHE COPY OF THE AFFIDAVIT DATED 8.2.2021 ANNEXURE IV THE PHOTOCOPY OF THE FINAL REPORT IN CR. NO.1338/2020 OF KATTAPPANA POLICE STATION ```