High Court of KeralaSingle Judge2019-03-06Dismissed

CRL.M.C. Nos. 1727/2019 and 1730/2019; Surendran @ Suresh v. State of Kerala; Ahammed Sahib @ Sayu and Muhammad Kassim v. State of Kerala

Case / Petition Number:CRL.MC.NO. 1727 OF 2019; CRL.MC. NO. 1730 OF 2019

Neutral Citation:/null

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: ALEXANDER THOMAS
Judgment Date: 2019-03-06
Court Decision / Holding: With liberty to file fresh Crl.M.Cs on independent grounds, CRL.M.C. Nos. 1727/2019 and 1730/2019 are dismissed as withdrawn; the petitions are not disposed on merits and the petitioners may approach the Court with fresh grounds in accordance with law.
Final Disposition: Dismissed

Parties to the Case

Appellants / Petitioners

SURENDRAN @ SURESH
AHAMMED SAHIB @ SAYU
MUHAMMED KASSIM

Respondents

VICTIM (defacto complainant) - CRL.M.C. 1727/2019
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031
VICTIM AMJAD ALI - CRL.M.C. 1730/2019

Legal Representation & Advocates

Counsels for Petitioners

• SRI.K.JAYESH MOHANKUMAR
• SRI.NIREESH MATHEW

Counsels for Respondents

• SRI.ASWIN T SURESH
• SRI.SAIGI JACOB PALATTY
• SRI.AMJAD ALI
• SRI.BABU JOSE

Case Synopsis & Summary

These two criminal miscellaneous petitions (CRL.M.C. Nos. 1727/2019 and 1730/2019) were heard by a single-judge bench of the Kerala High Court (Justice Alexander Thomas) on 6 March 2019. The petitioners sought to quash criminal proceedings under Section 376 IPC (rape) and Section 3(2)(v) of the SC/ST (POA) Act, 1989 on the ground that the accused and the defacto complainant had amicably settled the matter. The court recalls a line of decisions (Shimbhu & Anr. v. State of Haryana; Parbatbhai Aahir v. State of Gujarat; Anita Maria Dias v. State of Maharashtra; Sebastian @ Solly v. State of Kerala) indicating it is improper for the High Court to exercise its inherent powers under Section 482 Cr.P.C. to quash a case solely on the basis of settlement when the offense is grave and serious. The petitioners argued there were merits grounds beyond settlement, which should be considered, but these grounds were not raised in the pleadings. The State Prosecutor countered that new grounds cannot be entertained. The court held that new pleas not pleaded cannot be entertained, granted liberty to withdraw the petitions, and, with a view to enabling fresh challenging grounds, dismissed both petitions (1727/2019 and 1730/2019) with liberty to file fresh Crl.M.Cs in accordance with law.

Provisions of Law Cited

Section 376 of IPCSection 3(2)(v) of the SC/ST (POA) Act, 1989 (Central Act 33 of 1989)Section 482 Cr.P.C.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that the alleged offences have been settled and that quashing the proceedings is warranted, particularly in light of settled authorities. They argued that there may exist merits-based grounds to challenge the proceedings beyond the settlement. However, these additional grounds were not raised in the pleadings, and the petitioners sought leave to withdraw with liberty to file a fresh Crl.M.C. on independent grounds.

Contentions of Respondents

The State prosecutors submitted that reliance on settlement to quash proceedings in grave offenses like rape is impermissible and that new, unpleaded grounds should not be entertained. They urged the Court to refrain from considering grounds outside the pleadings and to uphold the integrity of the process, allowing withdrawal with liberty to approach again only on independent grounds.

Cited Precedents (4)

Case Name	Citation	Treatment	Explanation
Shimbhu & Anr. v. State of Haryana	[(2014) 13 SCC 318]	Positive	Cited to support the proposition that quashing on the ground of settlement is not proper in grave offenses.
Parbatbhai Aahir v. State of Gujarat	[(2017) 9 SCC 641]	Positive	Cited as part of the line of authorities restricting quashing on settlement in serious offenses.
Anita Maria Dias v. State of Maharashtra	[(2018) 3 SCC 290]	Positive	Cited within the same jurisprudential trend limiting quashing on settlement in grave offenses.
Sebastian @ Solly v. State of Kerala	[2015 (1) KLJ 384]	Positive	Cited to reinforce the stance against quashing on settlement in rape cases.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 6TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940** ## **CRL.MC.NO. 1727 OF 2019** **CRIME NO. 369/2018 OF AMBALATHARA POLICE STATION , KASARGOD** ## **PETITIONER:** **SURENDRAN @ SURESH, AGED 48 YEARS, S/O.PARADESI, RESIDING AT KADAYANGANAM HOUSE, THAYANNUR, KALICHANADUKKAM.P.O., VELLARIKUNDU TALUK, KASARAGOD DISTRICT.** **BY ADVS. SRI.PUSHPARAJAN KODOTH, SMT.VANDANA MENON SRI.K.JAYESH MOHANKUMAR, SMT.VINEETHA JAMES** ## **RESPONDENTS:** **1 VICTIM 2 STATE OF KERALA REPRESENTED BY THE DIRECTOR OF PUBLIC PROSECUTIONS, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.369/2018 ON THE FILE OF AMBALATHARA POLICE STATION, KASARAGOD RURAL)** **ADV. SRI.ASWIN T SURESH FOR R1 SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R2** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.03.2019, ALONG WITH CRL.MC.1730/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 6TH DAY OF MARCH 2019 / 15TH PHALGUNA, 1940 CRL.MC.NO. 1730 OF 2019 CRIME NO. 1211/2017 OF ALATHUR POLICE STATION , PALAKKAD** ## **PETITIONERS:** |**1**|**AHAMMED SAHIB @ SAYU, AGED 27 YEARS,**| |---|---| ||**S/O. MUHAMMED KASSIM, KOTTADI HOUSE, MANJALOOR P.O,**| ||**THENKURUSSI, ALATHUR TALUK, PALAKKAD DISTRICT.**| |**2**|**MUHAMMED KASSIM, AGED 53 YEARS,**| ||**S/O. MUHAMMED, KATTADI HOUSE, MANJALOOR P.O,**| ||**THENKURUSSI, ALATHUR TALUK, PALAKKAD DISTRICT.**| ||**BY ADV. SRI.NIREESH MATHEW**| ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031** - **2 VICTIM SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, ADV. SRI.BABU JOSE FOR R2** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.03.2019, ALONG WITH CRL.MC.1727/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -----------------------------------------Crl.M.C. Nos. 1727 & 1730 of 2019 -----------------------------------------Dated this the 6[th] day of March, 2019 ## O R D E R Heard Sri.K.Jayesh Mohankumar, learned counsel appearing for the petitioner in Crl.M.C.No.1727/2019, Sri.Nireesh Mathew, learned counsel appearing for the petitioner in Crl.M.C.No.1730/2019, Sri.Saigi Jacob Palatty, learned Prosecutor appearing for the respondent (State) in Crl.M.C.No.1727/2019, Sri.Amjad Ali, learned Prosecutor appearing for the respondent (State) in Crl.M.C.No.1730/2019, Sri.Aswin T.Suresh learned Advocate appearing for the contesting respondent-defacto complainant in Crl.M.C.No.1727/2019 and Sri.Babu Jose, learned Advocate appearing for the contesting respondent-defacto complainant in Crl.M.C.No.1730/2019. 2. The offences alleged against the petitioners in both the cases are those u/s 376 of the IPC (rape) and that u/s 3(2)(v) of the SC/ST (POA) Act, 1989 (Central Act 33 of 1989). The main ground urged for quashment of the impugned criminal proceedings which are in relation of offence as per Sec.376 of IPC (rape) is that the respective accused have now fully settled the Crl.M.C. Nos. 1727 & 1730 of 2019 **==> picture [19 x 8] intentionally omitted <==** matter with the respondent defacto complainant and that this Court may quash the impugned criminal proceedings on that ground. It is now well settled by a series of rulings as in _**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 that it is not right and proper for the High Court to exercise its extra ordinary discretionary inherent powers conferred u/s 482 of the Cr.P.C., to quash the impugned criminal complaints on the ground of settlement where the offence alleged is grave and serious as the one in relation to Sec.376 of the IPC (rape). Accordingly this Court is of the considered view that, the plea for quashment of the impugned criminal proceedings on the ground of settlement need not be entertained. 3. However Sri.K.Jayesh Mohankumar, learned counsel appearing for the petitioner in Crl.M.C.No.1727/2019 would submit that, the petitioner has other grounds on merits and that even if the contention based on the plea for quashment on the ground of settlement between the parties is eschewed, still the impugned Crl.M.C. Nos. 1727 & 1730 of 2019 **==> picture [18 x 8] intentionally omitted <==** criminal proceedings is vitiated on account of various factors, etc. However it is seen that such grounds which are independent from the plea based on settlement has not been raised and adverted to in the present Crl.M.Cs. The learned Prosecutor would submit that, it is not right and proper for this Court to get into those contentions as those grounds are not even urged in the Crl.M.Cs. 4. After hearing both sides, this Court is of the view that the learned Prosecutor is right in contending that such additional pleas which are not taken in the pleadings in the Crl.M.C. may not be entertained, as otherwise it will amount to springing a surprise on the opposite side by raising such new pleas which have never been raised. Accordingly Sri.K.Jayesh Mohankumar, learned counsel appearing for the petitioner in Crl.M.C.No.1727/2019 would submit on the basis of instructions of his party that, leave may be granted to the petitioner to withdraw the abovesaid Crl.M.C. with liberty to file a fresh Crl.M.C. seeking quashment of the impugned proceedings on grounds which are independent from the one based on settlement. Liberty is given to the petitioner in Crl.M.C. Nos. 1727 & 1730 of 2019 **==> picture [19 x 9] intentionally omitted <==** Crl.M.C.No.1727/2019 to work out his remedies in accordance with law. With the said liberty it is ordered that Crl.M.C.No.1727/2019 will stand dismissed as withdrawn. In the light of the abovesaid aspects it is ordered that Crl.M.C.No.1730/2019 will stand dismissed. With the said liberty, the above Criminal Miscellaneous Cases are dismissed. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. Nos. 1727 & 1730 of 2019 ..7.. ## **APPENDIX OF Crl.MC 1727/2019** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE FIR IN CRIME NO.369/2018 ON THE FILE OF AMBALATHARA POLICE STATION, KASARAGOD RURAL DT.15.12.2018(8). ANNEXURE B TRUE COPY OF THE AFFIDAVIT FILED BY PETITIONER DT.23.1.2019, STATING THAT DISPUTE IN CRIME NO.369/2018 OF AMBALATHARA POLICE STATION, HAS BEEN SETTLED BETWEEN THE PARTEIS. ANNEXURE C TRUE COPY OF THE AFFIDAVT FILED BY 1ST RESPONDENT DT.23.1.2019, STATING THAT DISPUTE IN CRIME NO.369/2018 OF AMBALATHARA POLICE STATION, HAS BEEN SETTLED BETWEEN THE PARTIES.** Crl.M.C. Nos. 1727 & 1730 of 2019 ..8.. ## **APPENDIX OF Crl.MC 1730/2019** ## **PETITIONERS' EXHIBITS:** |**ANNEXURE A**|**TRUE**<br>**PHOTOCOPY**<br>**OF**<br>**THE**<br>**FIRST**| |---|---| ||**INFORMATION REPORT DATED 17.11.2017**| ||**ALONG WITH THE F.I. STATEMENT.**| |**ANNEXURE B**|**TRUE PHOTOCOPY OF THE REPORT DATED**| ||**21.11.2017 SUBMITTED BY THE DEPUTY**| ||**SUPERINTENDENT OF POLICE, ALATHUR**| ||**BEFORE THE SPECIAL COURT FOR SC/ST**| ||**(PREVENTION OF ATROCITIES) CASES,**| ||**MANNARKKAD.**| |**ANNEXURE C**|**ORIGINAL OF THE AFFIDAVIT SWORN TO BY**| ||**THE 2ND RESPONDENT DATED 21.02.2019**|