GOPAKUMAR v. STATE OF KERALA; GOPINATHANPILLAI and OMANA AMMA v. STATE OF KERALA (Crl.M.C. Nos. 1268/2019 & 1274/2019)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941** ## **Crl.MC.No.1268 of 2019** **AGAINST THE ORDER/JUDGMENT IN CP 104/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR** **CRIME NO.2129/2016 OF Kunnicode Police Station , Kollam** ## **PETITIONER/S:** **GOPAKUMAR, AGED 38 YEARS S/O GOPINATHAN PILLAI, KOCHARIMOTH VEEDU, PANDITHITTA MURI, THALAVOOR, KUNNIKKODE, KOLLAM ,PIN 691 508.** **BY ADV. SRI.AJAYA KUMAR. G** ## **RESPONDENT/S:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 VICTIM** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1, SRI.M.ABDUL RASHEED FOR R2** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.06.2019, ALONG WITH Crl.MC.1274/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 27TH DAY OF JUNE 2019 / 6TH ASHADHA, 1941** ## **Crl.MC.No.1274 of 2019** **AGAINST THE ORDER/JUDGMENT IN CC 1214/2018 of JUDICIAL MAGISTRATE OF FIRST CLASS -III, PUNALUR** **CRIME NO.2129/2016 OF Kunnicode Police Station , Kollam** ## **PETITIONER/S:** - **1 GOPINATHANPILLAI,AGED 72 YEARS S/O GOPALA PILLAI, KOCHARAMATH VEEDU, PANDITHAITTA MURI, THALAVOOR, KUNNIKKODE, KOLLAM, PIN - 691 508.** - **2 OMANA AMMA, AGED 63 YEARS, W/O GOPINATHAN PILLAI, KOCHARAMATH VEEDU, PANDITHAITTA MURI, THALAVOOR, KUNNIKKODE, KOLLAM, PIN - 691 508.** **BY ADV. SRI.AJAYA KUMAR. G** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 VICTIM X** ## **OTHER PRESENT:** **SMT.PRIYA SHANAVAS, PUBLIC PROSECUTOR FOR R1, SRI.M.ABDUL RASHEED FOR R2** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 27.06.2019, ALONG WITH Crl.MC.1268/2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **ALEXANDER THOMAS, J.** ================== Crl.M.C.Nos.1268 & 1274 of 2019 ================== Dated this the 27[th] day of June, 2019 ## **O R D E R** The sole petitioner in Crl.M.C.No.1268/2019 and the two petitioners in Crl.M.C.No.1274/2019 have been arrayed as accused Nos.1 to 3, among the 3 accused in the instant Crime No. 2129/2016 of Kunnikkode Police Station, which has been registered for offences punishable under Secs.324, 294(b), 506(ii), 376, 420 and 34 of the I.P.C. The abovesaid crime has been registered on the basis of the FI statement/complaint of the 2[nd] respondent. 2. The prosecution case is that A-1 had promised the 2[nd] respondent defacto complainant that he will marry her and on that assurance, they had sexual intercourse on various occasions and that A-1 had misappropriated gold and money from her. It is further alleged that accused 2 and 3, who are the parents of A-1, had manhandled her. The Police, after investigation had filed final report/charge sheet in the abovesaid crime and thereafter, the case was split up and case against A-1 (sole petitioner in Crl.M.C.No. 1268/2019) is now pending as committal proceedings as C.P.No. 104/2018 on the file of the Judicial First Class Magistrate's Court-III, Crl.M.C.No. 1268/2019 & 1274/2019 **==> picture [30 x 9] intentionally omitted <==** Punalur, Kollam. The offences charged against A-1 are those under Sec. 376 and 420 of the I.P.C. The case as against A-2 and A-3 in the crime has been split up as C.C.No.1214/2018 on the file of the Judicial First Class Magistrate's Court-III, Punalur, and the offences alleged against A-2 and A-3 are those under Secs.294(b), 506(ii), 324, and 34 of the I.P.C. 3. It appears that the parties have now resolved their disputes and the sole petitioner in Crl.M.C.No.1268/2018 (accused No.1) in the FIR has now married the lady defacto complainant as evident from the marriage certificate dated 1.8.2018 issued under the provisions of Sec.13 of the Special Marriage Act, by the statutory marriage registrar concerned, wherein it has been certified that the marriage between the sole in Crl.M.C.No.1268/2019 and 2[nd] respondent lady defacto complainant has been solemnized in accordance with the provisions of the Special Marriage Act, on 1.8.2018. A copy of the statutory marriage certificate issued by the marriage officer concerned has been produced as Anx. A-2 in both the Crl.M.Cs. 4. The 2[nd] respondent defacto complainant has also separately filed affidavits in both these Crl.M.Cs. as Anx. A-3, in Crl.M.C.No. 1268/2019 & 1274/2019 - : 5 :- which it has been stated that the entire disputes between her and all the 3 accused in the abovesaid FIR have been satisfactory resolved and that now she and accused No.1 are living as husband and wife and that they are enjoying peaceful family life, etc. and that she is not interested in any manner to prosecute the matter any further and that in view of marriage between the abovesaid spouses, it will be more in the interest of the 2[nd] respondent defacto complainant that the impugned proceedings be quashed, as otherwise it will detrimentally affect their marital life. The offences alleged as against accused Nos. 2 and 3 in the FIR (the petitioners in Crl.M.C.No. 1274/2019) are only those under Secs.294(b), 506(ii), 324 and 34 of the I.P.C. and that therefore, the criminal proceedings impugned in Crl.M.C.No. 1274/2019 filed by the parents of accused No.1 could be quashed on the ground of settlement between the accused persons and the defacto complainant going by the well settled principles. 5. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any Crl.M.C.No. 1268/2019 & 1274/2019 **==> picture [30 x 9] intentionally omitted <==** purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 6. Since the sole petitioner in Crl.M.C.No.1268/2019 and the 2[nd] petitioner lady defacto complainant have now married as evident from Anx. A2 marriage certificate and as the 2[nd] respondent has also taken a clear and definite stand that it will be more in her interest that the impugned proceedings be quashed, as otherwise her peaceful and harmonious family life will be detrimentally affected. Crl.M.C.No. 1268/2019 & 1274/2019 - : 7 :- 7. The learned Prosecutor was requested to get instructions from the investigating officer concerned as to the genuineness of the abovesaid settlement arrived at between the parties and the learned Prosecutor has submitted that the investigating officer, after due inquiry has found that accused No.1 has married the 2[nd] respondent defacto complainant as evident from Anx. A-2 marriage certificate and the settlement arrived between the 2[nd] respondent and all the 3 accused, appears to be a genuine one. 8. It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C. cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. {see _**Shimbhu & Anr. 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 the decisions as in _**Freddy @ Antony Francis & Ors. v. State of Kerala & Anr**_ . [2017 KHC 344 = 2018 (1) KLD 558), _**Denu P.Thampi v. Ms.X**_ , [2019(3) KHC 199], etc. that the exception to Crl.M.C.No. 1268/2019 & 1274/2019 **==> picture [30 x 9] intentionally omitted <==** the above approach could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the defacto 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 under Sec.482 of the Cr.P.C. could quash the impugned criminal proceedings on the ground of settlement between the parties in cases where the accused has married the defacto complainant and the defacto complainant is insisting for quashment of the impugned criminal proceedings, etc. 9. In the light of of the abovesaid aspects, it is ordered in the interest of justice that: - _(i) In Crl.M.C.No. 1268/2019 the impugned Anx. A-1 final report/ charge sheet filed in Crime No. 2129/2016 of Kunnikkode Police Station, which has now led to the institution of committal proceedings, C.P.No. 104/ 2018 on the file of the Judicial First Class Magistrate's Court-III, Punalur, as against the petitioner therein (A-1) and all further proceedings taken in pursuance thereof as against him will stand quashed._ - _(ii) In Crl.M.C.No. 1274/2019 the impugned Anx. A-1 final report/ charge sheet filed in Crime No. 2129/2016 of Kunnikkode Police Station, which has now led to the institution of Calendar Case, C.C.No. 1214/2018 on the file of the Judicial First Class Magistrate's_ Crl.M.C.No. 1268/2019 & 1274/2019 **==> picture [30 x 9] intentionally omitted <==** _Court-III, Punalur, as against the two petitioners therein and all further proceedings taken in pursuance thereof as against them will stand quashed._ The respective petitioners will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** Crl.M.C.No. 1268/2019 & 1274/2019 - : 10 :- ## **APPENDIX OF Crl.MC 1268/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FINAL REPORT IN CRIME NO 2129/2016 OF KUNNIKODE POLICE STATION I CP 104/2018 ON THE FILE OF THE JFMC 111, PUNALUR KOLLAM ANNEXURE A2 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED FROM THE MARRIAGE OFFICER PATTAZHI, KOLLAM ANNEXURE A3 AN AFFIDAVIT SWORN BY THE 2ND RESPONDENT** Crl.M.C.No. 1268/2019 & 1274/2019 - : 11 :- ## **APPENDIX OF Crl.MC 1274/2019** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF THE FINAL REPORT IN CRIME NO.2129/2016 OF KUNNIKODE POLICE STATION IN CC 1214/2018 ON THE FILE OF THE JFMC III, PUNALUR, KOLLAM. ANNEXURE A2 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED FROM THE MARRIAGE OFFICER PATTAZHI, KOLLAM. ANNEXURE A3 AN AFFIDAVIT SWORN BY THE 2ND RESPONDENT.**