Crl.M.C Nos. 1763 & 1900 of 2019

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **Crl.MC.No.1763 OF 2019(A)** **CRIME NO.920/2018 OF Kilikolloor Police Station , Kollam** ## **PETITIONER/ACCUSED:** **ARUN S/O. MANOJ, AGED 19 YEARS, BIJU NIVAS, KANNIMEL CHERRY, KILIKOLLOOR, KOLLAM - 691 004 BY ADV. SMT.S.REKHA KUMARI** ## **- RESPONDENTS/STATE & DE FACTO COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 691 004**| |**2**|**THE STATION HOUSE OFFICER,**| ||**KILIKOLLOOR POLICE STATION, KOLLAM - 691 004**| |**3**|**ARCHANA**| ||**AGED 18 YEARS, D/O. MINI, BIJU BHAVAN,**| ||**CHERY KHETRA NAGAR - 209, KANNIMEL CHERRY,**| ||**KILIKOLLOR VILLAGE, KOLLAM DISTRICT - 691 004**| ||**R1-2 BY GOVERNMENT PLEADER**| ||**R3 BY ADV. PRATHEESH.P**| **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.12.2020, ALONG WITH Crl.MC.1900/2019(F), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C Nos. 1763 & 1900 of 2019 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 21ST DAY OF DECEMBER 2020 / 30TH AGRAHAYANA, 1942** ## **Crl.MC.No.1900 OF 2019(F)** **CRIME NO.1697/2018 OF Vattiyoorkavu Police Station, Thiruvananthapuram** ## **PETITIONER/ACCUSED:** **VISHNU R.NAIR AGED 20 YEARS S/O. ADV. R.C. RAJASHEKARAN NAIR, HARISREE, TGRA-105A, THELI BHAGOM, THIRUMALA P., THIRUVANANTHAPURAM-695 006** **BY ADV. SMT.K.DEEPA (PAYYANUR)** ## **- RESPONDENTS/STATE/DE FACTO COMPLAINANT:** **1 STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-31. 2 VICTIM VICTIM** **R2 BY ADV. K.P.SURYA SRI.SAIGI JACOB PALATTY, SR.PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 21.12.2020, ALONG WITH Crl.MC.1763/2019(A), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C Nos. 1763 & 1900 of 2019 3 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C Nos. 1763 & 1900 of 2019 -----------------------------------Dated this the 21[st] day of December, 2020 ## **O R D E R** As these matters are of similar in nature, these cases are disposed of on the basis of common order. ## **Crl.M.C No.1763 of 2019** 2. The prayer in Crl.M.C No.1763/2019 filed under Sec.482 of Cr.PC is as follows: _“...to quash Anx.1 FIR in the interest of justice.”_ 3. The petitioner herein has been arrayed as the sole accused in the instant F.I.R in Crime No.920/2018 of Kilikolloor Police Station, which has been registered for offences punishable under Secs.13(c) and 14(1) of the Protection of Children from Sexual Offence Act, Sec.509 of the I.P.C and Sec.67 (B) (b) of the Information Technology Act, 2000 on the basis of the First Information Statement given by the mother of the 3[rd] respondent victim on 19-11-2018. 4. The prosecution case is that, the date of birth of the 3[rd] respondent victim is 04-12-2000 and that she has completed the Crl.M.C Nos. 1763 & 1900 of 2019 4 majority age of 18 years only on 04-12-2018 and that the petitioner/accused then aged about 18 years had sexual video chat over phone with the 3[rd] respondent victim, who was then a minor girl, during the Onam holidays in the year 2018 (August 2018) and that the accused had forced the 3[rd] respondent victim to remove her dress and which was recorded by the accused and it was later uploaded and that after medical examination, police has also incorporated the offence as per Sec.376 of the I.P.C. Later, the 3[rd] respondent has attained the majority age of 18 years on 04-12-2018 and thereafter it is stated that with the consent of both the families the marriage of the petitioner with the 3[rd] respondent victim has been solemnised on 03-11-2020 in accordance with the Hindu Marriage Rites & Customs and that the solemnisation of the marriage with the petitioner/accused and the 3[rd] respondent has been duly certified by Anx.5 Certificate of Marriage issued by the Local Registrar of Marriages under Rule 11 (1) of the Kerala Registration of Marriages (Common) Rules, 2008. In Anx.5 Marriage Certificate the Marriage Registrar, who is also the Registrar of Births and Deaths, has certified therein that the date of birth of the petitioner/accused is 08-10-1999 Crl.M.C Nos. 1763 & 1900 of 2019 5 and that of the 3[rd] respondent is 04-12-2000, etc. 5. The 2[nd] respondent has also sworn to Anx.2 affidavit dated 01-02-2019 and stated that she has voluntarily married the petitioner/accused and that in view of the subsequent extraneous circumstances, the impugned criminal proceedings may be quashed as otherwise her future marital life will be detrimentally affected, etc. 6. The learned Prosecutor was requested to get instructions and it is apprised that the Investigating Officer conducted an enquiry and that the marriage between the petitioner/accused and the 3[rd] respondent has been lawfully solemnised and that the petitioner and the 3[rd] respondent are leading their marital life, etc. 7. It is by now well settled that it may not be right and proper for this Court ordinarily quash serious and grave offence of rape as per Sec.375 of the IPC, solely on the ground of settlement between the parties [see _**Shimbhu 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 held in decisions as in _**Freddy @ Antony**_ Crl.M.C Nos. 1763 & 1900 of 2019 6 _**Francis v. State of Kerala**_ [2017 KHC 344 = 2018 (1) KLD 558], _**Denu P.Thampi v. Ms.X**_ [2019 (3) KHC 199 = 2019 (2) KLT 996] that in a case where the petitioner/accused has married the respondent-lady victim and they have started their married life, then in appropriate cases, this Court could exercise its discretion conferred under Sec.482 of the Cr.P.C to quash offences, as per Sec.376 of the IPC on the ground that the victim has subsequently married the accused, as otherwise and where it is ascertained that the marriage was on the basis of consent of the parties and not on the basis of any coercion or threat on the victim, etc. 8. In that view of the matter, it is ordered that the impugned Anx.1 FIR in crime No.920/2018 of Kilikolloor Police Station as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 9. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the competent criminal court concerned for necessary information and further action. Crl.M.C Nos. 1763 & 1900 of 2019 7 ## **Crl.M.C No.1900 of 2019** 10. The facts in this case are broadly similar to the one in the afore captioned Crl.M.C No.1763/2019. 11. The prayer in Crl.M.C No.1900/2019 filed under Sec.482 of Cr.PC is as follows: _“.....to quash Anx.I FIR and all further proceeding, pending against the petitioner/accused pursuant to crime No.1697/2018 of Vattiyoorkavu Police Station, Thiruvananthapuram City.”_ 12. Heard Smt.K.Deepa (Payyanur), learned counsel appearing for the petitioner/accused, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1 State of Kerala and Smt.K.P.Surya, learned counsel appearing for R2 (lady victim). 13. In this case, it appears that the date of birth of the petitioner/accused is 17-07-1999 and the date of birth of the 2[nd] respondent victim is 18-04-1999 and that the 2[nd] respondent victim has completed the majority age of 18 years only on 18-04-2017. 14. The petitioner has been arrayed as the sole accused in the instant impugned Anx.I FIR in crime No.1697/2018 of Vattiyoorkavu Police Station, Thiruvananthapuram for offences punishable under Sec.376 of the IPC, on the basis of the First Information Statement given by the 2[nd] respondent lady victim on 23-11-2018 in respect of Crl.M.C Nos. 1763 & 1900 of 2019 8 the alleged incident which happened on 17-10-2018. 15. The admitted case of the prosecution is that, the 2[nd] respondent has completed the majority age of 18 years on the day on which the alleged incident is said to have occurred on 17-10-2018. The allegation is to the effect that, the petitioner/accused had assured the 2[nd] respondent lady victim that he would marry her and based on the said assurance, they had sexual relationship on 17-10-2018 in the house of a friend of the petitioner/accused and that later he had withdrawn his promise to marry her, etc and that the case of the prosecution is that, the consent of the woman to have sex is vitiated on account of misconception of fact as understood in Sec.90 of IPC, etc. Subsequently with the blessings of the families on both sides, the marriage of the petitioner/accused with the 2[nd] respondent lady victim has been lawfully solemnised on 23-11-2020 in accordance with the provisions contained in the Special Marriage Act and Anx.III is the statutory Marriage Certificate dated 23-11-2020 issued by the statutory Marriage Officer certifying that the marriage between the parties has been solemnised and registered on 23-11-2020. The 2[nd] respondent victim has filed Anx.II affidavit Crl.M.C Nos. 1763 & 1900 of 2019 9 dated 11-03-2019, stating about the factum of the solemnisation of the marriage and that the impugned criminal proceedings may be quashed as otherwise her future marital life will be detrimentally affected and that she is leading a happy married life with the petitioner/accused, etc. 16. The learned Prosecutor was requested to get instructions and it is apprised to this Court that the Investigating Officer conducted a detailed enquiry and that the statement of the 2[nd] respondent has been recorded and she has stated that she has voluntarily married the petitioner/accused and that she is leading a peaceful marital life with the petitioner/accused, etc. 17. Taking note of the abovesaid aspects already dealt with in the order in the afore captioned Crl.M.C No.1763/2019 and taking into account the extraneous circumstances of the subsequent marriage between the petitioner/accused and the 2[nd] respondent, this Court is of the view that, the impugned criminal proceedings could be interdicted. In that view of the matter it is ordered that, the impugned Anx.I FIR in crime No.1697/2018 of Vattiyoorkavu Police Station, Thiruvananthapuram as against the petitioner/accused and Crl.M.C Nos. 1763 & 1900 of 2019 10 all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 18. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the competent below court concerned for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C Nos. 1763 & 1900 of 2019 11 ## **APPENDIX OF Crl.MC 1763/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF FIR WITH FIS IN CRIME NO.920/2018 OF KILIKOLLOOR POLICE STATION. ANNEXURE 2 TRUE COPY OF AFFIDAVIT SWORN BY THE 3RD RESPONDENT/DE-FACTO COMPLAINANT REGARDING SETTLEMENT DATED 01.02.2019 ANNEXURE - 3 THE COPY OF THE AFFIDAVIT SWORN BY THE MOTHER OF THE DE-FACTO COMPLAINANT DATED 22/5/2019. ANNEXURE - 4 THE COPY OF THE SSLC CERTIFICATE OF THE PETITIONER. ANNEXURE - 5 TRUE COPY OF MARRIAGE CERTIFICATE OF THE PETITIONER WITH THE VICTIM WHICH WAS CONDUCTED ON 03-11-2020. (SEALED COVER)** **RESPONDENT'S/S EXHIBITS:** Crl.M.C Nos. 1763 & 1900 of 2019 12 ## **APPENDIX OF Crl.MC 1900/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I TRUE COPY OF THE FIR OF CRIME NO. 1697/2018 OF VATTIYOORKAVU POLICE STATION, THIRUVANANTHAPURAM CITY.** **ANNEXURE II AFFIDAVIT FILED BY THE 2ND RESPONDENT. ANNEXURE III TRUE COPY OF THE CERTIFICATE OF MARRIAGE DATED 23-11-2020 SOLEMNIZED BETWEEN THE PETITIONER AND THE 2ND RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL**