CRL.M.C. Nos.4170 & 4222 of 2021

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944** ## **CRL.MC NO. 4170 OF 2021** **AGAINST CC 507/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, KOLLAM** **FIR NO.96/2021 OF ERAVIPURAM POLICE STATION** ## **PETITIONERS/1ST & 2ND ACCUSED:** **1 MOHAMMED NOUFAL AGED 32 YEARS, S/O.RASHEED, SARANGAM VEEDU, USHUS NAGAR-36, AYATHIL P.O., KOLLAM - 691 021 FROM NOUFIYA MANZIL, ZAM ZAM NAGAR-111, PALLIMUKKU, VADAKKEVILA VILLAGE, KOLLAM TALUK, KOLLAM - 691 010** **2 AMANUDEEN AGED 44 YEARS,S/O.MAITHIN KUNJU, PUNNAKKULATHU VEEDU, AYATHIL NAGAR-28, AYATHIL P.O., PATTATHANAM, KOLLAM TALUK, KOLLAM - 691 021.** **BY ADV B.SIBI** ## **RESPONDENTS/COMPLAINANTS:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA,**| ||**ERNAKULAM - 682 031.**| - **2 THE STATION HOUSE OFFICER ERAVIPURAM POLICE STATION, KOLLAM DISTRICT - 691 011.** |**3**|**BIMALKUMAR**| |---|---| ||**AGED 54 YEARS,S/O.SUKUMARAPILLAI,**| ||**SANKARA VILASOM,**| ||**MARAVOOR MURI, UPPOODU,**| ||**EAST KALLADA P.O.,**| ||**KOLLAM DISTRICT - 691 502.**| **BY ADV C.R.JAYAKUMAR** Crl.M.C. Nos.4170 & 4222/21 **-:2:-** **SRI.NOUSHAD K.A., PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH Crl.M.C.4222/2021, THE COURT ON 26.10.2022 PASSED THE FOLLOWING:** Crl.M.C. Nos.4170 & 4222/21 ## **-:3:-** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS** **WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944** **CRL.MC NO. 4222 OF 2021** **AGAINST CP 44/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, KOLLAM** **FIR NO.105/2021 OF ERAVIPURAM POLICE STATION, KOLLAM** ## **PETITIONER/SOLE ACCUSED:** **BIMALKUMAR** **AGED 54 YEARS, S/O. SUKUMARAPILLAI, SANKARA VILASOM, MARAVOOR MURI, EAST KALLADA VILLAGE, EAST KALLADA PO, KOLLAM DISTRICT-691 502 WORKING AS CMO, GOVERNMENT HOMEO HOSPITAL, VADAKKEVILA, KOLLAM-691 010.** **BY ADVS. C.R.JAYAKUMAR NOBEL RAJU** ## **RESPONDENTS / COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 THE STATION HOUSE OFFICER ERAVIPURAM POLICE STATION, KOLLAM DISTRICT-691 011.** - **3 XXXXX** **BY ADV B.SIBI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 11.10.2022, ALONG WITH Crl.MC.4170/2021, THE COURT ON 26.10.2022 PASSED THE FOLLOWING:** **-:4:-** Crl.M.C. Nos.4170 & 4222/21 ## **BECHU KURIAN THOMAS, J.** **-----------------------------------------Crl.M.C. Nos. 4170 & 4222 of 2021 ------------------------------------------** Dated this the 26[th] day of October, 2022 ## **ORDER** These two petitions are filed under section 482 of the Code of Criminal Procedure, 1973, challenging the proceedings of two criminal cases pending before the Judicial Magistrate of First Class-II, Kollam. 2. In Crl.M.C. No.4222 of 2021, petitioner challenges the proceedings now pending as C.P. No.44 of 2021 on the files of the Judicial Magistrate of First Class-II, Kollam, which arose from Crime No.105 of 2021 of Eravipuram Police Station, Kollam. In Crl.M.C No.4170 of 2021, petitioners challenge the proceedings now pending as C.C. No.507 of 2021 on the files of the Judicial Magistrate of First Class-II, Kollam, which arose from Crime No.96 of 2021 of Eravipuram Police Station. Since the defacto complaint in Crime No.105 of 2021 is the wife of the first petitioner in Crl.M.C No.4170 of 2021 and the petitioner in Crl.M.C No.4222 of 2021 is the defacto complainant in Crime No.96 of 2021, both these cases were heard together. Crl.M.C. Nos.4170 & 4222/21 **-:5:-** 3. In Crime No.105 of 2021, the offences alleged to have been committed by the accused are under sections 342, 354B, 354 and 376(2)(b) of the Indian Penal Code, 1860, while in Crime No.96 of 2021, the offences alleged are under sections 294(b), 323, 324 and 448 read with section 34 of the Indian Penal Code, 1860. 4. On 25.01.2021, when the defacto complainant in Crime No.105 of 2021 approached the accused for medical consultation, he is alleged to have asked her to come to his clinic on 27.01.2021. On the said date, when the defacto complainant visited the clinic of the accused, she was subjected to penetrative sexual assault, thus committing the offences alleged against the accused (petitioner in Crl.M.C No.4222 of 2021). 5. According to the prosecution, while the defacto complainant was being examined medically, the accused forcibly removed the dress of the victim and inserted his finger into the private parts of the defacto complainant and, after groping her breast, pressed his genitals onto the body of the victim. 6. The above-mentioned incident, which is the basis for Crime No.105 of 2021, has a connection with Crime No.96 of 2021, wherein the accused, which includes the husband of the Crl.M.C. Nos.4170 & 4222/21 **-:6:-** defacto complainant in Crime No.105 of 2021, is alleged to have trespassed into the consulting room of the accused in Crime No.105 of 2021 and after abusing him with obscene words, assaulted him and hit him with a plastic torch on his head and also stamped him when he fell down and thereby committed the offences alleged by the accused in Crime No.96 of 2021. 7. Sri.C.R.Jayakumar, learned counsel for the petitioner in Crl.M.C. No.4222 of 2021 submitted that Crime No.105 of 2021 was registered only on 01.02.2021 while Crime No.96 of 2021 was registered on 29.01.2021, which itself indicates that Crime No.105 of 2021 is only an afterthought and solely for the purpose of overcoming the criminal act committed by the husband of the defacto complainant in Crime No.105 of 2021. It was further submitted that realising the falsity of the prosecution case in Crime 105 of 2021, the parties have entered into a settlement and as evident from the affidavit filed by the defacto complainant in both the crimes, the issues have been settled. It was further submitted that the allegations in Crime No. 105 of 2021 are totally false, and therefore, the proceedings ought to be quashed primarily on the basis of the prosecution case and Crl.M.C. Nos.4170 & 4222/21 **-:7:-** also on the basis of the settlement entered into between the parties. 8. Sri.B.Sibi, learned counsel for the petitioner in Crl.M.C. No.4170 of 2021 also, contended that the disputes between the parties have been settled and an affidavit to that effect has been filed by the defacto complainant and therefore, the proceedings against the petitioners ought to be quashed. 9. A perusal of the final report in both cases reveals that according to the prosecution on 27.01.2021, the petitioner in Crl.M.C. No.4222 of 2021 had sexually assaulted the wife of the first petitioner in Crl.M.C. No.4170 of 2021 due to which the petitioners in Crl.M.C. No.4170 of 2021 assaulted the petitioner in Crl.M.C. No.4222 of 2021. Even though the registration of Crime No.105 of 2021 is subsequent to the registration of Crime No.96 of 2021 , I am of the view that going by the allegations in the final report, it cannot be held that the same is false. The falsity of the prosecution case can be proved only through a trial after appreciating the evidence adduced. It is too premature a stage to jump to the conclusion, on the basis of the allegations in the final report, that the prosecution case is false. Crl.M.C. Nos.4170 & 4222/21 **-:8:-** 10. Further, the petitioners seek quashing of the criminal prosecution against them on the basis of the settlement arrived at between the parties. Though the offences alleged in Crime No.96 of 2021 can be quashed on the basis of the settlement, I notice that the said settlement is based upon the understanding arrived at between the parties in Crime No.105 of 2021. The latter crime relates to an offence of rape. The accused in the said crime is alleged to have committed penetrative sexual assault on the victim by inserting his finger into the vagina of the victim under the guise of medical examination. The said offence is a grievous offence. ## 11. In the decision in **Gian Sing v. State of Punjab and** **Another** [(2012) 10 SCC 303], the Supreme Court has observed as follows: _“Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which_ Crl.M.C. Nos.4170 & 4222/21 ## **-:9:-** _have harmful effect on the public and consist in wrong doing that seriously endangers and threatens the wellbeing of the society and it is not safe to leave the crimedoer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the Court.........In respect of serious offences like murder, rape, dacoity, etc; or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not_ Crl.M.C. Nos.4170 & 4222/21 ## **-:10:-** _exhaustive. Each case will depend on its own facts and no hard-and-fast category can be prescribed.”_ 12. Considering the allegations in Crime No.105 of 2021, this Court is of the opinion that the allegations being one of rape is grievous in nature, and hence the proceedings cannot be quashed on the basis of the settlement. Therefore, I decline to quash the proceedings in C.P. No.44 of 2021 on the files of the Judicial Magistrate of First Class-II, Kollam. 13. As mentioned earlier, since both these crimes are allegedly settled on the basis of mutual settlement since I decline to quash the proceedings in Crl.M.C No.4222 of 2021, I am of the view that it would be prejudicial to the accused in C.C. No. 507 of 2021 to quash the proceedings on the basis of the alleged settlement. Accordingly, these Crl.M.Cs. are dismissed. ## **Sd/-** ## **BECHU KURIAN THOMAS** ## **JUDGE** vps **-:11:-** Crl.M.C. Nos.4170 & 4222/21 ## **APPENDIX OF CRL.MC 4222/2021** **PETITIONER’S/S’ ANNEXURES** **Annexure A1** **TRUE COPY OF THE FIR NO.105/2021 OF ERAVIPURAM POLICE STATION, KOLLAM.** **Annexure A2 TRUE COPY OF THE FINAL REPORT IN FIR NO.105/2021 OF ERAVIPURAM POLICE STATION, KOLLAM, PRESENTLY NUMBERED AS CP NO.44/2021 ON THE FILES OF JUDICIAL IST CLASS MAGISRATE COURT-II, KOLLAM.** **Annexure A3 THE AFFIDAVIT PREPARED BY THE 3RD RESPONDENT DATED 30.8.2021.** **Annexure A4 TRUE COPY OF THE FIR IN CRIME NO.96/2021 OF ERAVIPURAM POLICE STATION, KOLLAM** **ANNEXURE A5 TRUE COPY OF THE FINAL REPORT IN CRIME NO.96/2021 OF ERAVIPURAM POLICE STATION, KOLLAM** Crl.M.C. Nos.4170 & 4222/21 **-:12:-** ## **APPENDIX OF CRL.MC 4170/2021** **PETITIONER’S/S’ ANNEXURES Annexure A1 TRUE COPY OF THE FIR NO.96/2021 OF ERAVIPURAM POLICE STATION, KOLLAM. Annexure A2 THE AFFIDAVIT PREPARED BY THE 3RD RESPONDENT DATED 30/08/2021.**