Ebin John v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 29TH DAY OF NOVEMBER 2018 / 8TH AGRAHAYANA, 1940** ## **Crl.MC.No. 3277 of 2018** **CRIME NO.697/2017 OF KANJAR POLICE STATION, IDUKKI DISTRICT** ## **PETITIONER/S:** **EBIN JOHN, S/O. JOHN, AGED 22 YEARS, THARATHANATHU HOUSE, ELAMDESOM KARA, VELLIAMATTOM VILLAGE, THODUPUZHA TALUK, IDUKKI DISTRICT.** **BY ADV. SRI.LATHEESH SEBASTIAN** ## **RESPONDENTS/STATE, COMPLAINANT & VICTIM:** |**1**|**STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS,**| ||**HIGH COURT OF KERALA, ERNAKULAM - 682 031.**| |**2**|**STATION HOUSE OFFICER,**| ||**KANJAR POLICE STATION, IDUKKI.**| |**3**|**DIPU RAVI, S/O. RAVI,**| ||**AGED 43 YEARS, KOONAKKAL HOUSE,**| ||**VELLIAMATTOM KARA, VELLIMATTOM VILLAGE,**| ||**THODUPUZHA TALUK, IDUKKI DISTRICT.**| |**4**|**VICTIM..**| ||**BY ADV. SRI.R.ARUN**| ## **OTHER PRESENT:** **PUBLIC PROSECUTOR SMT. M.K. PUSHPALATHA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.11.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC:3277/18 2 ## **ORDER** This petition under Section 482 of the Cr.P.C. has been preferred by the sole accused in Crime No.697 of 2017 of the Kanjar Police Station with a prayer to invoke the extraordinary inherent powers and to quash the pending criminal proceedings. 2. The 3[rd] respondent is the de facto complainant and the 4[th] respondent is the victim. According to the prosecution, the petitioner herein and the 4[th] respondent were in love and their marriage was fixed by the family members of both the parties. This was at a time that the victim was a minor child. It is alleged that prior to the fixation of the marriage, the petitioner went to the house of 3[rd] respondent and subjected the victim to sexual intercourse on more than one occasion. Later, some dispute occurred between the parties and under the premise that the petitioner would not marry the victim, information was furnished to the police and the Crime was registered under Sections 376 of the IPC and Section 5(1) of the Protection of Children from Sexual Offences Act, 2012. 3. The learned counsel appearing for the petitioner submitted that the petitioner had married the victim on 26.04.2018 Crl.MC:3277/18 3 and they have been living together as husband and wife and in blissful marital harmony since then. He refers to Annexure-A2 certificate of marriage, which is dated 26.04.2018 issued by the Marriage Officer, Idukki, to substantiate his contention. According to the learned counsel, it was under a mistaken premise that his wife had lodged the complaint and the apprehensions have been proved to be baseless later. 4. The de facto complainant has appeared through counsel. The learned counsel has referred to Annexures-A3 and A4 affidavits sworn to by the father and the victim respectively and submitted that the marriage having been solemnized, the continuance of proceedings would be nothing, but a futile exercise. 5. The learned Public Prosecutor was directed to get instructions. The officer has recorded the statement of the victim and her parents and it is reported that the accused and the victim are living together as husband and wife. 6. I have considered the submissions advanced and have perused the materials made available. Crl.MC:3277/18 4 7. The legal position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. It has been held that the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal Court for compounding the offences under Section 320 of the Code. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the Court will have to give due regard to the nature and gravity of the crime. It is also settled that heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot quashed even though the victim or victim's family and the offender have settled the dispute. Such offenses are not private in nature and have serious impact on society. The directions of the Apex Court in **Gian Singh v. State of Punjab** [(2012) 10 SCC 303] and in **Narinder singh v. State of Punjab** [(2014) 6 SCC 466 ] serve as guiding lights. 8. Insofar as the offence of rape is concerned, there cannot Crl.MC:3277/18 5 be any doubt that the same cannot be settled on the strength of a compromise arrived at between the victim and the accused. The Apex Court in **State of M.P. v. Madan Lal** [2015 (7) SCC 681], relying on the decision in **Shimbhu and Another v. State of Haryana** [2014 (13) SCC 318] has clearly reminded the Courts that rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. This was because of the fact that the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In such cases, the accused may use all his influence to pressurise the victim for a compromise. It was taking note of this aspect that it was held that it would not be safe in considering the compromise arrived at between the parties in rape cases. 9. However, in the instant case, it is borne out from the statement of the 2[nd] respondent recorded by the Sub Inspector of Police that the parties were in love and the Crime was registered under the premise that the petitioner would not marry the victim. Crl.MC:3277/18 6 However, in view of the subsequent turn of events, she has realized that her apprehension was baseless. The parties are living together as husband and wife. There is no case for anyone that the dignity of the 4[th] respondent was violated by a wanton act of the petitioner. This is not one of those cases, wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 4[th] respondent, if the prosecution is permitted to continue. When the 4[th] respondent has asserted that she has married the petitioner and this fact finds corroboration from Annexure-A2 certificate of marriage. She has also filed an affidavit stating that she is not desirous of prosecuting against her husband any further. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case is proceeded with. Furthermore, the 4[th] respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. Crl.MC:3277/18 7 In the result this petition will stand allowed. Annexure-A1 FIR in Crime No.697 of 2017 of the Kanjar Police Station and all proceedings pursuant thereto against the petitioner herein are quashed. ## **Sd/-** **RAJA VIJAYARAGHAVAN V., JUDGE** krj //TRUE COPY// P.A.TO JUDGE Crl.MC:3277/18 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1 TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO. 697/2017 OF KANJAR POLICE STATION ANNEXURE-A2 TRUE COPY OF THE MARRAIGE CERTIFICATE ISSUED BY THE SUB REGISTRAR OFFICER, KARIKKODE DATED 26/04/2018 ANNEXURE-A3 TRUE COPY OF THE AFFIDAVIT OF THE 3RD RESPONDENT ANNEXURE-A4 TRUE COPY OF THE AFFIDAVIT OF THE 4TH RESPONDENT** **RESPONDENTS' EXHIBITS:-NIL**