Deepu v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 04TH DAY OF NOVEMBER 2020 / 13TH KARTHIKA, 1942** ## **Crl.MC.No.4563 OF 2020(A)** **AGAINST THE ORDER/JUDGMENT IN SC 359/2015 OF SPECIAL COURT UNDER POCSO ACT, IDUKKI** **CRIME NO.113/2012 OF Cumbummettu Police Station , Idukki** ## **PETITIONER/ACCUSED:** **DEEPU AGED 33 YEARS S/O.DIVAKARAN, KURUVIKKATTU HOUSE, ANYARTHOLU, ANYARTHOLU P.O., IDUKKI DISTRICT, KERALA STATE, PIN-685 515.** ## **BY ADV. SMT.V.H.JASMINE** ## **RESPONDENTS/STATE, DEFACTO COMPLAINANT & VICTIM:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031.** - **2 STATION HOUSE OFFICER CUMBAMMETTU POLICE STATOIN, CUMBAMMETTU P.O., IDUKKI DISTRICT, PIN-685 001.** - **3 FATHER OF VICTIM X** - **4 X X** - **5 MOTHER OF VICTIM X R3-5 BY ADV. V.VINAY** **BY ADVS. SRI.RAMESH CHAND, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 04.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** 2 Crl.M.C No.4563 of 2020 ALEXANDER THOMAS, J. -----------------------------------Crl.M.C No.4563 of 2020 -----------------------------------Dated this the 4[th] day of November, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case is as follows: _“…....to quash Anx.A1 FIR and Anx.A2 Final Report in Crime No.113/2012 of Cumbammettu Police Station, Idukki District in pending as S.C No.359/2015 on the file of 1[st] Addl. Sessions Court, Thodupuzha, Idukki District.”_ 2. Heard Smt.V.H.Jasmine, learned counsel appearing for the petitioner (sole accused), Sri.Ramesh Chand, learned Public Prosecutor appearing for R1 & R2 and Sri.V.Vinay, learned Advocate appearing for contesting respondents 3 to 5. The respondent Nos.3 & 5 are the father and mother of the lady victim and 4[th] respondent is the lady victim in this case. 3. Initially Anx.A1 FIR in crime No.113/2012 of Cumbammettu Police Station, Idukki District was registered under Sec.57(a) of the Kerala Police Act, 2011, on the basis of the first information statement conveyed by the 3[rd] respondent father of the victim that the victim was found missing from the house since 29-03-2012 and 3 Crl.M.C No.4563 of 2020 that the victim was then minor and who had not completed the majority age of 18 years. Later, the Police had found out that the victim was in the accompany of the petitioner/accused and that they had sexual relationship for the period from 06-04-2012 onwards and that later she had become pregnant. The incident occurred at the time before the coming into force of the Protection of Children from Sexual Offences (POCSO) Act, 2012 which, came into force on 14-11-2012. 4. Accordingly, the Police had altered the offences in Anx.A1 FIR to those punishable under Secs.363, 366 and 76 of the IPC and Sec.23 of the Juvenile Justice Act. The Police after investigation has filed the impugned Anx.A2 Final report/Charge sheet on 29-05-2015 against the petitioner/accused for the abvoesaid offences. It appears that even before the filing of Anx.A2 Final report, with the blessings and consent of the families on both sides the petitioner had solemnised his marriage with the 4[th] respondent lady victim on 07-06-2014, in terms of Sec.13 of the Special Marriage Act, 1954. Annexure A3 is the marriage certificate issued by the statutory Marriage Registrar under the provisions of the Special Marriage Act, 1954, which would certify that the petitioner’s marriage with the 4[th] 4 Crl.M.C No.4563 of 2020 respondent has been solemnised and registered in accordance with the provisions of the said Act on 07-06-2014. According to the petitioner, the date of birth of the 4[th] respondent victim is 04-05-1996 and she had completed the majority age of 18 years on 04-05-2014. Thus it appears that the marriage between the parties have been solemnised and registered on 07-06-2014 after the 4[th] respondent lady victim had completed the majority age of 18 years. Now respondents 3, 4 & 5 have sworn to affidavits as per Anxs.A4, A5 & A6 dated 01-10-2020 stating that the entire disputes between the parties have been resolved and that the marriage between the petitioner and the 4[th] respondent has been solemnised on 07-06-2014 and that now they have two children born in their wedlock and that they are living their family life peacefully and that the impugned criminal proceedings be quashed on the ground of settlement and that it is better in the future marital life of the 4[th] respondent and children that the impugned criminal proceedings be quashed, as otherwise their family life may be detrimentally affected etc. 5. The learned Public Prosecutor was requested to get instructions, today when the matter has been taken up for 5 Crl.M.C No.4563 of 2020 consideration, learned Public Prosecutor would submit on the basis of the Instructions that the Investigating Officer in this case has conducted an enquiry and has taken the statement of respondents 3 to 5, who have stated that they have voluntarily sworn to Anx.A4, A5 & A6 affidavits and that the facts stated therein are true and that the petitioner has married the 4[th] respondent on 07-06-2014, as certified in Anx.A3 certificate and that the couple have now two children born in their wedlock and that they are living their family life peacefully and that they have no objection for quashment of the the impugned criminal proceedings on the ground of settlement, etc. 6. It is by now well settled that it may not be right and proper for this Court in exercise of the powers under Sec.482 of Cr.PC, to consider quashment of grave and serious offence of rape as per Sec.376 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 various decisions including those in _**Freddy @ Antony Francis & Others v. State of Kerala &**_ 6 Crl.M.C No.4563 of 2020 _**Another**_ [2017 KHC 344 = 2018 (1) KLD558] , _**Denu P. Thampi v. Ms.X & Another**_ [2019 (3) KHC 199 = 2019(2) KLT 996], that an exception to the above approach should be made in cases where the accused had married the _de facto_ complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the family life of the _de facto_ complainant/victim, to ensure her better future life. It is only just and proper that this Court in exercise of the extra ordinary inherent powers conferred under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings in view of the solemnisation of the marriage between the accused and the lady victim, concerned. In the instant case, there is no dispute that the marriage was solemnised not only on the basis of compromise between the petitioner and the 4[th] respondent victim but also on the basis of the concurrence and blessings of the parents of both of them. 7. Taking note of the totality of the facts and circumstances of the case, including the aforementioned decisions of this Court, this Court is of the considered view that the impugned criminal proceedings could be considered for quashment in the light of these facts and circumstances of the case. Accordingly it is ordered that 7 Crl.M.C No.4563 of 2020 the impugned Anx.A2 Final report/charge sheet filed in crime No.113/2012 of Cumbammettu Police Station, Idukki District, which has now led to the pendency of Sessions Case, S.C No.359/2015 on the file of the 1[st] Addl. Sessions Court, Thodupuzha, as against the petitioner/accused and all further proceedings emanating therefrom as against the petitioner/accused will stand quashed and set aside. 8. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the First Additional Sessions Court, Thodupuzha, who is dealing with S.C No.359/2015, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. H/O Sd/- **ALEXANDER THOMAS, JUDGE** KAS 8 Crl.M.C No.4563 of 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.113/2012 OF CUMBAMMETTU POLICE STATION, IDUKKI DISTRICT.** **ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.113/2012 OF CUMBAMMETTU POLICE STATION, IDUKKI DISTRICT.** **ANNEXURE A3 CERTIFIED COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE OFFICER, UDUMBANCHOLA DATED 07.06.2014. ANNEXURE A4 ORIGINAL AFFIDAVIT SWORN BY THE 3RD RESPONDENT (FATHER OF THE VICTIM) DATED 01.10.2020.** **ANNEXURE A5 ORIGINAL AFFIDAVIT SWORN BY THE 4TH RESPONDENT DATED 01.10.2020. ANNEXURE A6 ORIGINAL AFFIDAVIT SWORN BY THE 5TH RESPONDENT (MOTHER OF THE VICTIM) DATED 01.10.2020.** **RESPONDENT'S/S EXHIBITS: NIL**