Crl.M.C No.2777 of 2019 (F)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** **Crl.MC.No.2777 OF 2019(F)** **AGAINST THE ORDER/JUDGMENT IN MC 55/2018 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THALASSERY** **CRIME NO.687/2018 OF PANOOR POLICE STATION, KANNUR** ## **PETITIONERS/ACCUSED 1 TO 6:** **1 ADHEEB KARAT AGED 26 YEARS, S/O.ABDULLA KARAT, KARAT HOUSE, P.O.ELENGODE, THALASSERY, KANNUR, PIN-670692. 2 ABDULLA KARAT, AGED 61 YEARS S/O.MOHAMMED, KARAT HOUSE, P.O.ELANGODE, THALASSERY, KANNUR, PIN-670692. 3 ANSAR KARAT, AGED 37 YEARS S/O.ABDULLA, KARAT HOUSE, P.O.ELANGODE, THALASSERY, KANNUR, PIN-670692. 4 SAINABA KARAT, AGED 52 YEARS W/O.ABDULLA KARAT, KARAT HOUSE, P.O.ELANGODE, THALASSERY, KANNUR, PIN-670692. 5 ASEERA, AGED 32 YEARS W/O.AFSAL, KARAT HOUSE, P.O.ELANGODE, THALASSERY, KANNUR, PIN-670692.** **6 SAMEENA, AGED 29 YEARS W/O JAFFER, KARAT HOUSE, P.O.ELANGODE, THALASSERY, KANNUR, PIN-670692.** **Crl.MC.No.2777 OF 2019(F)** **2** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON SMT.ANUROOPA JAYADEVAN** ## **RESPONDENTS/STATE & DE FACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 VICTIM** **R2 BY ADV. SRI.B.RAMAN PILLAI (SR.) R2 BY ADV. SRI.P.SASI R2 BY ADV. SRI.K.A.BENNY (B-865) R2 BY ADV. SRI.R.ANIL R2 BY ADV. SRI.M.SUNILKUMAR R2 BY ADV. SRI.SUJESH MENON V.B.** ## **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.2777 OF 2019(F)** **3** ## **ALEXANDER THOMAS, J. =========================== Crl.M.C No.2777 of 2019** **===========================** Dated this the 11[th] day of November, 2019 ## **ORDER** The facts projected in this Crl.M.C filed under Sec.482 of the Cr.P.C are as follows: The petitioners herein are arraigned as accused Nos.1 to 6 in Crime No.687/2018 of the Panoor Police Station. The offences alleged are under Secs.420, 323 and 376 of the IPC. The said case was registered on 04.10.2018 on the basis of a complaint lodged by the 2[nd] respondent herein before the Circle Inspector of Police, Panoor on 04.10.2018. The 1[st] petitioner herein is the husband of the 2[nd] respondent herein. Petitioners 2 and 4 are the parents of the 1[st] petitioner and parents-in-law of the 2[nd] respondent. The 3[rd] petitioner is the brother of the 1[st] petitioner. Petitioners 5 and 6 are the sisters of the 1[st] petitioner. They are married and presently residing at Dubai and Saudi Arabia along with their family. The 1[st] petitioner is presently employed abroad. The gist of the allegations **Crl.MC.No.2777 OF 2019(F)** **4** in the complaint is that the 1[st] petitioner married the 2[nd] respondent on 05.08.2017 and they lived together till 19.10.2017 in the matrimonial home. Thereafter, the 1[st] petitioner left to the Gulf countries in connection with his employment. It is alleged that since the petitioners did not agree to register the marriage as per the rules after conducting the Nikah on 05.08.2017, they cheated her. It is also alleged that the 1[st] petitioner who is the husband of the 2[nd] respondent committed forcible sexual intercourse with the 2[nd] respondent during the period they were living together as husband and wife in the matrimonial home and thereby committed the offence of rape. It is also alleged that when the complainant refused to have sexual intercourse, she was assaulted and thus an offence under Sec.323 of the IPC is also committed by the 1[st] petitioner. The complaint was filed on 04.10.2018 about one year after the alleged incident. Meanwhile, an application under the Protection of Women from Domestic Violence Act was filed by the 2[nd] respondent admitting her status as legally wedded wife of the 1[st] petitioner. Now, from 19.10.2017 the parties are living separately. The petitioners submit that the complaint filed by the 2[nd] respondent do not disclose any offence against them and they are seeking to quash the FIR registered against them and all proceedings against them **Crl.MC.No.2777 OF 2019(F)** **5** pursuant to them. It is in the light of these factual averments and contentions, the petitioner has filed the instant Crl.M.C with the following prayers: “............. to call for the records leading to Annexure-A1 and to quash the proceedings against the petitioners in Crime No.687/2018 of the Panoor Police Station, Kannur and to exonerate the petitioners of all allegations leveled against them.” 2. The basic allegations made by the 2[nd] respondent in Annexure-A1 FIR as against the 1[st] petitioner (A-1) is that the marriage between the 1[st] petitioner (A-1) and the 2[nd] respondent was duly solemnized and that contrary to this assurance that he will immediately take steps to register the said solemnization of the marriage was not fulfilled by him and that she was thereafter subjected to forcible sexual intercourse and thereby the 1[st] petitioner has committed the offence as per Secs.376 and 420 of the Indian Penal Code. Further it is seen that 2[nd] to 6[th] petitioners (A-2 to A-6) are the father, brother, mother and the two sisters respectively of the 1[st] petitioner (A-1). The allegations as against petitioners 2 to 6 (A-2 to A-6) are to the effect that they have also cheated the 2[nd] respondent, inasmuch as the assurance to register the solemnization of the marriage was not fulfilled and that the said act of the respondents is that the solemnization of the marriage was only a fraudulent marriage, etc. and that **Crl.MC.No.2777 OF 2019(F)** **6** some of the other co-accused persons have assaulted her and thereby the other accused persons have committed the offence as per Secs.420 and 323 of the Indian Penal Code. 3. Now the 2[nd] respondent has filed Annexure-A5 affidavit stating that her entire disputes with the petitioners, more particularly, with the 1[st] petitioner has been resolved and that the 1[st] petitioner and the 2[nd] respondent have agreed to dissolve their marital relationship and that the marital relationship has been now dissolved by pronouncement of a valid talaq and that she has no further grievances in the matter. 4. A perusal of the impugned proceedings would make it clear that even going by the 2[nd] respondent’s case, the marriage between the 1[st] petitioner and the 2[nd] respondent was indeed solemnized and her grievance was that the promise of the petitioners that steps will be taken to register the solemnization of the marriage was not fulfilled and therefore, they had cheated her and that the solemnization of the marriage is therefore a fradulent marriage, etc. Now it is an admitted case of the 2[nd] respondent that the marital relationship has already been dissolved by pronouncement of a valid talaq and she has also received due compensation from the 1[st] petitioner in terms of the provisions contained in **Crl.MC.No.2777 OF 2019(F)** **7** the Muslim Women (Protection of Rights on Divorce) Act, 1986, etc. Therefore, it is now conceded even by the 2[nd] respondent that the marriage between the 1[st] petitioner and the 2[nd] respondent was indeed solemnized. It is too elementary proposition that the factum of the solemnization of the marriage and its registration are two different things and merely because a solemnized marriage is not registered, will not take away the legal efficacy of the solemnization of the marriage. Since the alleged incidents of sexual intercourse has taken place after the solemnization of the marriage, the said alleged acts said to have been committed by the 2[nd] respondent, would be nothing but a marital rape at best, as in which is protected in terms of Exception No.2 of Sec.375 and hence it is not an offence at all. As against the other offence as per Secs.420 & 320 of the Indian Penal Code, those offences are capable of being quashed on the ground of settlement, as they are not very serious offences. 5. The learned Public Prosecutor was requested to get instructions in the matter and today when the matter was taken up for consideration, the learned Prosecutor has submitted that the Investigating Officer has conducted an enquiry and has taken a statement from R-2, wherein she has stated that her marital relationship with the 1[st] petitioner has now been **Crl.MC.No.2777 OF 2019(F)** **8** dissolved by pronouncement of a valid talaq and that she has received a due compensation amount, etc. Further it is stated by the learned Prosecutor that the Investigating Officer has also received the certificate of the solemnization of the customary marriage between the parties from the Mahallu Committee concerned. 6. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and **Crl.MC.No.2777 OF 2019(F)** **9** ## _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 7. Accordingly, it is ordered in the interest of justice that the impugned Annexure-A1 FIR in Crime No.687/2018 of Panoor Police Station, Kannur and all further proceedings arising therefrom pending against all the accused will stand quashed. 8. The petitioners will produce certified copies of this order to the Investigating Officer concerned and the competent court below concerned. Office of Advocate General will forward a copy of this order to the Investigating Officer concerned, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd **Crl.MC.No.2777 OF 2019(F)** **10** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A1** **CERTIFIED COPY OF THE F.I.R. IN CRIME NO.687/2018 OF THE PANOOR POLICE STATION AND THE FIRST INFORMATION STATEMENT BY THE 2ND RESPONDENT IN THE ABOVE CRIME.** **ANNEXURE A-2** **TRUE COPY OF THE ORDER OF THIS HON'BLE COURT DATED 27.11.2018 IN BAIL APPLICATION NO.7576/2018.** **ANNEXURE A3 TRUE COPY OF THE REPLY NOTICE DATED 10.8.2018 ISSUED ON BEHALF OF THE 2ND RESPONDENT TO THE PETITIONERS.** **ANNEXURE A4 TRUE COPY OF THE ORDER DATED 18.3.2019 IN C.M.P.NO.4927/2018 IN M.C.NO.55/2018 OF THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE'S COURT, THALASSERY.** **ANNEXURE A5 THE ORIGINAL AFFIDAVIT DATED 05.10.2019 SWORN TO BY THE 2ND RESPONDENT**