Dr. V. Prasanna v. Geetha and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT TUESDAY, THE 25TH NOVEMBER 2008 / 4TH AGRAHAYANA 1930 Crl.MC.No. 2691 of 2008() ------------------------SC.152/2008 of ASSISTANT SESSIONS COURT (PRINCIPAL), PALAKKAD .................... PETITIONER(S): - --------------- DR.V.PRASANNA, AGED 68 YEARS, W/O KUNJUKUTTAN, SHIVAYAM, ALATHUR. BY ADV. SRI.P.VIJAYA BHANU SRI.M.REVIKRISHNAN RESPONDENT(S): --------------- 1. GEETHA, AGED 20 YEARS, D/O LATE SREEDHARAN, RAJEEV COLONY, PULLODU, THRUPALLUR. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. S.U. NAZAR. SRI.SAJAN VARGHEESE K. FOR R1 SRI.LIJU. M.P FOR R1 THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 25/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **R. BASANT, J. ------------------------------------------------Crl.M.C. No. 2691 of 2008 ------------------------------------------------Dated this the 25[th] day of November, 2008** ## **ORDER** The petitioner faces indictment as the second accused in a prosecution for offences punishable under Sections 376 and 313 r/w. 34 I.P.C. The petitioner is a Medical Practitioner. She has to answer the charge under Section 313 r/w. 34 I.P.C. alone. Altogether, there are two accused persons. The first accused and the de facto complainant were allegedly in love. The first accused, who was intimate with the de facto complainant allegedly had sexual intercourse with her after employing force. She was promised that he shall marry her. But she did not agree to have sexual intercourse before marriage. It was, in these circumstances, that they allegedly had sexual intercourse by the first accused employing force. The first accused appears to have gone back of his word. He ## **Crl.M.C. No. 2691 of 2008** -: 2 :- did not marry the de facto complainant. On 29.3.2007 a complaint was made before the police. The F.I.R. was registered. In that there is no whisper of any allegation against the petitioner herein - a Medical Practitioner. It is significant that in the F.I.R. there is not even an allegation that the de facto complainant had become pregnant in such sexual intercourse. 2. Before lodging the complaint it appears that there was proceedings before the Vanitha Cell of the police and there was an agreement that the first accused shall marry the de facto complainant. It was only when he deviated from that promise that the complaint was filed on 29.3.2007 and the F.I.R. was registered. 3. In the course of investigation the de facto complainant appears to have prevaricated and the Investigating Officer wanted her statement under Sec.164 Cr.P.C. to be recorded. Accordingly, the statement under Sec.164 was recorded. Before the Investigating Officer, she had stated once that she had become pregnant and the pregnancy was aborted. Later, she asserted that she had not become pregnant and there was no occasion to abort the pregnancy. In the S.164 statement she asserted that she had become pregnant and that pregnancy was aborted in the clinic of the petitioner herein. After completing ## **Crl.M.C. No. 2691 of 2008** -: 3 :- the investigation, final report has been filed in which allegation has been raised against the petitioner herein of having committed the offence punishable under Sec.313 I.P.C. 4. The learned counsel for the petitioner submits that the entire allegations, if carefully considered, must knock the bottom out of the charges which are sought to be raised against the petitioner. The petitioner is absolutely innocent. The petitioner runs only a clinic as alleged. No miscarriage had taken place in her clinic. Even accepting the entire version of the de,facto complainant she had only stated that she along with the first accused had gone to the clinic of the petitioner and had represented themselves to be husband and wife. It was thus that the pregnancy was aborted; this was the allegation raised. In any view of the matter, the petitioner does not deserve to endure the trauma of such a vexatious criminal prosecution and the same is liable to be quashed invoking the jurisdiction under Section 482 Cr.P.C. contends the learned counsel for the petitioner. 5. Simultaneously and alternatively the learned counsel for the petitioner submits that the de facto complainant herself has now realised the injustice of prosecuting the petitioner and she has agreed to compound the offences allegedly committed by the petitioner herein. The de facto complainant has entered ## **Crl.M.C. No. 2691 of 2008** -: 4 :- appearance through counsel. She has filed an affidavit to confirm that she does not want to further prosecute the petitioner and that she has settled and compromised the matter with the petitioner herein. The affidavit is duly attested by her counsel. 6. The learned counsel for the petitioner submits that the prosecution is, at any rate, liable to be quashed for the reason that no valid and worthwhile allegations are raised. In the alternative, invoking the dictum in **Madhan Mohan Abbot v. State of Punjab** (2008 AIR SCW 2287); **Nikhil Merchant v. C.B.I.** (2008 (3) KLT 769 (SC)) and **Manoj Sharma v. State** (2008 (4) KLT 417) the prosecution is, at any rate, liable to brought to premature termination. In these circumstances, the learned counsel for the petitioner prays, the learned counsel for the victim/de facto complainant endorses the said prayer and the learned Public Prosecutor concedes that the prosecution in so far as it relates to the petitioner can be quashed. 7. Having considered all the relevant circumstances, I am in agreement that the prosecution against the petitioner can now be quashed. In coming to this conclusion, I take note of the inherently unsatisfactory case alleged against the petitioner as also the admitted stand of the 1[st] respondent/de facto complainant that she has settled the dispute and has no ## **Crl.M.C. No. 2691 of 2008** -: 5 :- surviving grievance against the petitioner. The offence is, of course, is not compoundable; but the mere fact that it is not compoundable under Sec.320 Cr.P.C. cannot deter this Court from invoking the extraordinary inherent jurisdiction under Sec.482 Cr.P.C. I am satisfied that viewed from any angle, this is an eminently fit case where the undeserved prosecution against the petitioner should not be allowed to continue and must be quashed. 8. In the result: (a) This Crl.M.C. is allowed. (b) S.C.No.152/08 of the Principal Assistant Sessions Court, Palakkad, in so far as it relates to the petitioner/2[nd] accused is hereby quashed. (c) Needless to say, the proceedings, if any, pending against the petitioner and the sureties under Sec.446 Cr.P.C. shall be disposed of by the learned Magistrate in accordance with law. Sd/- ## **(R. BASANT, JUDGE)** ## **Nan/** ## **//true copy//** ## **P.S. to Judge.** ## **Crl.M.C. No. 2691 of 2008** -: 6 :- ## **R. BASANT, J.** **------------------------------------------------Crl.M.C. No. 2691 of 2008 ------------------------------------------------Dated this the 17[th] day of July, 2008** ## **ORDER** Heard. Admitted. R1 has entered appearance through a counsel. The learned Public Prosecutor appears for R2 and prays for time to report whether the State has any objection against the invocation of the dictum in **Madhan Mohan Abbot v. State of Punjab** (2008 AIR SCW 2287. Call on 29/7/2008. The petitioner shall be permitted to appear through counsel before the Sessions Court till that date. **Crl.M.C. No. 2691 of 2008** -: 7 :- ## **(R. BASANT, JUDGE)** ## **Nan/**