CRL.M.C Nos.10447 of 2023 and 10848 of 2023 v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 CRL.MC NO. 10447 OF 2023 ``` ``` CRIME NO.4/2021 OF Cheruthuruthy Police Station, ``` ## **`Thrissur`** ``` AGAINST THE ORDER DATED 25.11.2023 IN SC NO.1368 OF 2022 OF FAST TRACK SPECIAL COURT, (POCSO) KUNNAMKULAM PETITIONER/ACCUSED: ``` ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADVS. JITHIN K R SUDARSANA S.(K/1658/2023) ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA ``` ``` REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031. ``` ## **`PUBLIC PROSECUTOR SRI M P PRASANTH`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2024 ALONG WITH CRL.M.C.NO.10848/2023, THE COURT ON 23.07.2024 PASSED THE FOLLOWING: ``` CRL.MC Nos.10447 & 10848 of 2023 **`2`** ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 CRL.MC NO. 10848 OF 2023 ``` ``` CRIME NO.4/2021 OF Cheruthuruthy Police Station, Thrissur SC NO.1368 OF 2022 OF FAST TRACK SPECIAL COURT, (POCSO) KUNNAMKULAM ``` ``` PETITIONER/ACCUSED: ``` ``` XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX ``` ``` BY ADVS. JITHIN K R SUDARSANA S.(K/1658/2023) ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN – 682031. ``` - **`2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX`** ``` SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE R2 BY ADV K.P.SUFIYAN ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.07.2024 ALONG WITH CRL.M.C.NO.10447/2023, THE COURT ON 23.07.2024 PASSED THE FOLLOWING: ``` CRL.MC Nos.10447 & 10848 of 2023 **`3`** ## _**A. BADHARUDEEN, J.**_ _**================================** Crl.M.C No.10447 of 2023 and Crl.M.C.No.10848 of 2023 ================================ Dated this the 23rd day of July, 2024_ ## _**O R D E R**_ Crl.M.C.No.10447/2023 has been filed by the sole accused in S.C.No.1368/2022 on the files of Fast Track Special Court (POCSO), Kunnamamkulam, under Section 482 of the Code of Criminal Procedure Code (`Cr.P.C’ for short), arising out of Crime No.4 of 2021 of Cheruthuruthy Police Station, Thrissur. The prayer in this petition is to quash Annexure IV order dated 25.11.2023 in CMP.No.277/2023 in S.C.No.1368/2022. 2. Crl.M.C.No.10848/2023 also has been filed by the same accused in the above case under Section 482 of Cr.P.C CRL.MC Nos.10447 & 10848 of 2023 **`4`** and the prayer therein is to quash Annexure-A1 FIR and Annexure-A2 final report in S.C.No.1368/2022, arising out of Crime No.4 of 2021 of Cheruthuruthy Police Station, Thrissur. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. Perused the records.. 3. In this case the prosecution alleges commission of offences punishable under Sections 376(1), (2), (n) and 506 of the Indian Penal Code, by the accused. The specific allegation is that on 20.10.2008 the accused committed rape on the defacto complainant while her daughter was admitted in Daya Surgical Super Speciality Hospital for delivery. There were repeated forceful sexual intercourse during 2019 and 2020 at her residence on threatening her. 4. The trial court ventured the matter and on completing the pretrial formalities, evidence recorded. PWs 1 to 16 were examined and Exts.P1 to P13 were marked on the side of the prosecution. When the prosecution evidence was CRL.MC Nos.10447 & 10848 of 2023 **`5`** completed, CMP.No.277/2023 was filed to recall PW1 and PW2 on the ground that some relevant questions were omitted to be asked since the petitioner failed to give instructions in this regard to the counsel. The said petition was opposed by the prosecution contending that no sufficient grounds stated to recall and re-examine PW1 and PW2. Finally, as per order dated 25.11.2023, the learned Special Judge dismissed the application holding that power under Section 311 of Cr.P.C could be invoked only if it was necessary and essential for the just decision of the case. According to the learned Special Judge, recalling of PW1 and PW2 was not essential for the just decision of the case, where evidence already completed. Therefore, CMP.No.277/2023 got dismissed. 5. On 13.12.2023, Crl.M.C.No.10848/2023 has been filed contending that the 2[nd] respondent (PW1) filed an affidavit conceding settlement of the matter and therefore, based on the settlement, the entire proceedings are liable to be quashed. CRL.MC Nos.10447 & 10848 of 2023 **`6`** 6. In so far as the law regarding settlement of serious offences are concerned, the law is well settled. Thus, the law as it stands is that although High Court can invoke its jurisdiction u/s.482 Cr.P.C. even in non-compoundable offence and can quash the proceedings on the basis of settlement arrived at between the parties even in the cases of non-compoundable offences but while exercising its jurisdiction this Court must consider the fact that whether the proceeding relates to any serious and heinous offences and whether the crime in question has impact over the society. In cases of serious nature which affects the society at large this Court should not exercise its jurisdiction under Section 482 Cr.P.C. for quashing the proceedings on the basis of compromise executed between the parties. (See decisions in _**Gian Singh v. State of Punjab and Another**_ reported in **[(2012) 10 SCC 303],** _**Narinder Singh and Others v. State of Punjab and Another**_ reported in **[(2014) 9 SCC 466],** _**Shimbhu v. State of Haryana**_ reported in **[AIR** CRL.MC Nos.10447 & 10848 of 2023 **`7`** **2014 Supreme Court 739]** (three Bench) **,** _**State of Madhya Pradesh v. Madanlal**_ reported in **[AIR 2015 Supreme Court 3003]** (two Bench), _**Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others v. State of Gujarat and Another**_ reported in **[(2017) 9 SCC 641],** _**State of Madhya Pradesh** v._ _**Laxmi Narayan & Ors** ._ reported in **[(2019) 5 SCC 688],** _**Arun Singh and Others v. State of Uttar Pradesh Through its Secretary and Another**_ reported in **[(2020) (3) SCC 736],** _**Ram Gopal & Another v. State of Madhya Pradesh**_ reported in **[(2021 0 Supreme (SC) 529)],** _**Daxaben** v._ _**The State of Gujarat & others**_ reported in **[2022 LiveLaw (SC) 642],** _**P.Dharmraj v. Shanmugam and others**_ decided on 8[th] September 2022 in Crl.Appeal Nos.1515-1516 of 2022). 7. In this matter, the specific case of the prosecution is that the accused herein, who is none other than the husband of the daughter of the defacto complainant, while the daughter was admitted at Daya Hospital, Thrissur, in CRL.MC Nos.10447 & 10848 of 2023 **`8`** connection with pregnancy infirmities, on 20.10.2008 attempted to caught hold of the defacto complainant with sexual intent at a private room in the above hospital. Thereafter when the daughter was taken to the labour room, the accused forcefully subjected her to rape and threatened her that the said occurrence should not be disclosed and if so the daughter of the defacto complainant would be divorced. Later, the accused took the daughter of the defacto complainant to Coimbatore and the defacto complainant reached there during 2012 to look after the affairs of her daughter. On this occasion also, the accused threatened the defacto complainant stating that he had recorded the earlier sexual acts in his mobile phone and the same would be shown to the daughter and others and on this premise she was subjected to rape. Accordingly, she was put under mental depression and she underwent treatment. Later, during the month of March, 2020, the CRL.MC Nos.10447 & 10848 of 2023 **`9`** accused attempted to bring the defacto complainant at his house, but she escaped. But during 2022, when she reached to meet her daughter, the accused consumed alcohol and under intoxication, she was subjected to rape. 8. Going by the allegations, it is emphatically clear that in this matter the prosecution allegations are well made out and evidence was already recorded. In such a case, after completion of evidence, the attempt of the accused to recall PW1 and PW2 only on the ground of omission to put certain questions cannot be allowed. Therefore, dismissal of the 311 petition filed by the accused, by the Special Judge, is only to be confirmed. So also to quash the proceedings on the ground of settlement, could not be considered. 9. In view of the matter, these petitions must fail and are accordingly dismissed. 10. Interim stay, if any, granted in these petitions stands CRL.MC Nos.10447 & 10848 of 2023 **`10`** vacated. Registry is directed to forward a copy of this order to the jurisdictional court for information and for further steps. Sd/- _**A. BADHARUDEEN, JUDGE**_ rtr/