Crl.M.C.No.4462/2023-G

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN MONDAY, THE 5[TH] DAY OF AUGUST 2024 / 14TH SRAVANA, ``` ``` 1946 ``` ``` CRL.MC NO. 4462 OF 2023 ``` ``` CRIME NO.669/2022 OF Vellathooval Police Station, ``` ``` Idukki ``` ``` SC NO.264 OF 2023 OF SPECIAL COURT UNDER POCSO ACT, PAINAVU, IDUKKI ``` ``` PETITIONER/ACCUSED: ``` ``` SONY MARTIN, AGED 29 YEARS S/O.MARTIN THATTIL, KAMBILIKANDAM, PARATHODU PARATHODU,KONNATHADY, IDUKKI DISTRICT, PIN – 685571. ``` ``` BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL ARUN POOMULLI PREETHA S CHANDRAN ABHIJITH SREEKUMAR ANAND REMESH ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ,ERNAKULAM-, PIN – 682031.`** - **`2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX`** ``` SENIOR PUBLIC PROSECUTOR SRI RENJIT GEORGE ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.07.2024, THE COURT ON 05.08.2024 PASSED THE FOLLOWING: ``` Crl.M.C.No.4462/2023-G 2 ## _**A. BADHARUDEEN, J.**_ _**================================**_ _Crl.M.C.No.4462 of 2023-G_ _================================ Dated this the 5th day of August, 2024_ ## _**O R D E R**_ This Criminal Miscellaneous Case has been filed by the accused under Section 482 of the Code of Criminal Procedure, to quash Annexure A2 FIR and Annexure A3 final report and all further proceedings, pending against the petitioner in S.C.No.264/2023 on the files of the Special Court for the trial of POCSO Cases, Painavu, Idukki, in Crime No.669/2022 of Vellathooval Police Station. 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor in detail. 3. I have perused Annexure-A2 FIR and A3 final report, which are under challenge. 4. Here the prosecution alleges commission of offences punishable under Sections 363, 370, 370A, 354(A)(i)(i), 376, 376(2)(n), 506(i) of the Indian Penal Code (`IPC' for short) Crl.M.C.No.4462/2023-G 3 and Section 8 r/w 7, 4(1) r/w 3(a), 6 r/w, 5(l), 12 r/w 11(iv) of the Protection of Children from Sexual Offences Act (`POCSO' for short hereafter). 5. The learned counsel for the petitioner argued at length to convince this Court that the petitioner is innocent as the relationship is purely consensual in nature. Therefore, the matter would require quashment. He has given emphasis to the affidavit filed by the victim as Annexure-A4 conceding settlement. 6. Whereas the learned Public Prosecutor strongly opposed quashment of the proceedings involving serious offences under the IPC as well as POCSO Act on the submission that offences of serious nature could not be settled, as repeatedly cautioned by the Honourable Apex Court. 7. The law as it stands is that although High Court can invoke its jurisdiction u/s.482 Cr.P.C. even in noncompoundable offence and can quash the proceedings on the basis of settlement arrived at between the parties even in the Crl.M.C.No.4462/2023-G 4 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 v. executed between the parties. (See decisions in **Gian Singh State of Punjab and Another** reported in **[(2012) 10 SCC 303],** v. **Narinder Singh and Others State of Punjab and Another** reported in **[(2014) 9 SCC 466], Shimbhu** v. **State of Haryana** reported in **[AIR 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** v. **Madhya Pradesh Laxmi Narayan & Ors** . reported in **[(2019) 5 SCC 688], Arun Singh and Others** v. **State of Uttar** Crl.M.C.No.4462/2023-G 5 **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** v. **LiveLaw (SC) 642], P.Dharmraj Shanmugam and others** decided on 8[th] September 2022 in Crl.Appeal Nos.1515-1516 of 2022). 8. In view of the rival arguments, I have perused the FIS given by the defacto complainant which led to registration of this crime running into 5 pages dated 12.11.2022 and the same recites that while the defacto complaint was studying at St.George Higher Secondary School, Parathodu, she made an affair with the accused and had telephone calls. Thereafter, when the defacto complainant was studying in the 10[th] standard, she went to see a Science Fest at Panikkankudi school, where the accused also came and taken her in a Jeep driven by him to Iruttukanam. When they reached at a house, nobody was there and key of the house was with the accused. Crl.M.C.No.4462/2023-G 6 He opened the room and persuaded her for sexual intercourse and she resisted the same. Thereafter, he subjected her to rape on the promise of marriage and thereafter he had given a tablet to her. After 3 months, the accused brought the defacto complainant to his residence at Kambilikandam to meet his mother, but nobody was there when they reached at the house and he committed sexual intercourse and he repeated the same on several occasions till she attained majority. According to the defacto complainant, the accused agreed to marry her on attaining 18 years and thereafter he retracted from the marriage. After completing 18 years also, he continued the same and during 2020 and in February, 2022 also he repeated the same. But on 06.02.2022 the accused married another lady and suppressing the marriage he continued the relationship and repeated sexual molestation. This is the base on which the prosecution alleges commission of the above offences. 9. Going through the prosecution allegations, the offences are well made out and it is discernible that the accused Crl.M.C.No.4462/2023-G 7 herein subjected the defacto complainant to repeated sexual intercourses on the promise of marriage, prior to her attaining majority and continued the same thereafter. Therefore, if at all the relationship is on the basis of consent, consent vitiates due to the minority of the child. That apart, the prosecution allegation is that the relationship continued on the promise of marriage. But he had married another lady retracting from the promise of marriage given to the defacto complainant and the said aspect also was suppressed and thereafter also she was subjected to sexual intercourse on the promise of marriage. In such a case, where the prosecution case is well made out, _prima facie_ , quashment cannot be considered, merely on the ground of settlement and in view of the matter, acting on the affidavit filed by the defacto complainant quashment of the proceedings could not be resorted to. Hence this petition fails and is accordingly dismissed. 10. Therefore, the quashment, as prayed for, stands disallowed, with liberty to the petitioner to raise his contentions Crl.M.C.No.4462/2023-G 8 before the trial court during trial. 11. In the result, this petition is dismissed. 12. Interim order shall stand vacated. Registry is directed to forward a copy of this order to the trial court, for information and further steps. To be _Sd/-_ ( _**A. BADHARUDEEN, JUDGE**_ **)** ## _**A. BADHARUDEEN, J.**_ _**================================**_ _Crl.M.C.No.4223 of 202_ _================================ Dated this the th day of July, 2024_ ## _**O R D E R**_ This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, to quash Annexure A,,, final report and all further proceedings, pending against the petitioner in C.P.No.,,,,,,, on the file of ….Judicial First Class Magistrate Court, Malappuram, in Crime No./2019 of …... Police Station. 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor in detail. 3. I have perused Annexure-A.. final report, which is under challenge. The prosecution allegation herein is that the petitioner/accused committed offences punishable under Section 354(1) of the Indian Penal Code (`IPC' for short) Crl.M.C.No.4462/2023-G 10 and Sections 66(c) and 67 of the Information Technology Act (`I.T Act' for short). The specific allegation is that the defacto complainant undergone scissarian operation in between 11.13 hours and 11.16 hours on 18.07.2014 and gave birth to 3 children at Government Hospital, Payyannur. The 1[st] accused videographed the same and forwarded the same to WhatsApp groups. The 2[nd] accused also photographed 19 photos of the defacto complainant and forwarded the same toi CW17. As part of the investigation, those items were recovered by the police from the mobile phones as well as the Tab of the 1[st] and 2[nd] accused respectively. The learned counsel for the petitioner vehemently canvassed quashment on the submission that the prosecution records in no way justify commission of the above offences by the accused. Whereas the learned Public Prosecutor fervently opposed quashment of the proceedings on the submission that in this case scissarian procedure was videographed and Crl.M.C.No.4462/2023-G 11 photographed by the accused and thereafter they had shared the same through WhatsApp and thereby they outraged the modesty of a woman and committed offences punishable under Section 66(c) of the IT Act. On perusal of the prosecution records along with statements of the witness as well as the records collected during investigation, it could be gathered, _prima facie_ , that the 1[st] accused videographed operational procedure on .. and the 2[nd] accused also took photographs of the same and … in WhatsApp group and who got some in the WhatsApp group also. That apart, the WhatsApp videographs and photographs sent were collected during investigation to justify the involvement of the petitioners in this crime, _prima facie_ . Thus the accused should go for trial is absolutely necessary and therefore quashment sought for cannot be considered. Whereas the learned Public Prosecutor strongly opposed submitted that the facts of the case dealt in the Apex quashment of the proceedings involving serious offences under the IPC as well as POCSO Act on the submission that serious offences of Crl.M.C.No.4462/2023-G 12 this nature could not be settled is laid down repeatedly quashed by the Honourable Apex Court. _Sd/-_ ## _**A. BADHARUDEEN, JUDGE**_ _rtr/_