HARIS M.P v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** ## **Crl.MC.No.3952 OF 2020(D)** **CRIME NO.690/2019 OF Kakkur Police Station , Kozhikode** ## **PETITIONER/ACCUSED:** **HARIS M.P AGED 30 YEARS S/O. AMMAD, MUNDAPPURATH HOUSE, KOLIKKAL, UNNIKULAM P.O., BALUSSERY, KOZHIKODE - 673574.** **BY ADVS. SRI.MATHEW KURIAKOSE SHRI.MONI GEORGE** ## **RESPONDENTS/STATE & VICTIM:** **1 STATE OF KERALA (CRIME NO.690/2019 OF KAKKOOR POLICE STATION), REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 68031.** **2 VICTIM, VICTIM** **BY ADVS. SRI.J.KRISHNAKUMAR (ADOOR)-R2 SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 3952 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 3952 of 2020 -----------------------------------Dated this the 13[th ] day of October, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.PC is as follows: _“....to quash Anx.A charge sheet cum final report in Crime No.690/2019 of Kakkoor Police Station in Kozhikode District and further proceedings pursuant thereto.”_ 2. Heard Sri.Mathew Kuriakose, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 State of Kerala and Sri.J.Krishna Kumar (Adoor), learned counsel appearing for R2 (victim girl). 3. The petitioner herein has been arrayed as the sole accused in the instant FIR in crime No.690/2019 of Kakkoor Police Station, Kozhikode District, which has registered for offences punishable under Sec.354 of IPC and Sec.10 read with Sec.9(f) of the Protection of Children from Sexual Offences (POCSO) Act, 2012, on the basis of the First Information Statement given by the 2[nd] respondent minor victim girl on 24-12-2019 in respect of the alleged incidents said to have happened on 09-12-2019 at 12.00 noon. The Police after 3 Crl.M.C No. 3952 of 2020 investigation has filed impugned Anx.A Final Report/Charge sheet in the said Crime No.690/2019 of Kakkoor Police Station, which has now led to the pendency of Sessions Case S.C No.700/2020 on the file of the First Additional Sessions Court, notified to deal with POCSO cases, Kozhikode. 4. The allegations in the abovesaid crime is to the effect that, the petitioner/accused aged 30 years, is an Arabic Teacher in the school where the minor victim girl, then aged 16 years, was studying and that on 09-12-2019 at about 12.00 noon, when she had entered into the Library of the school, the petitioner had allegedly hugged and kissed her, etc. 5. The learned counsel for the petitioner would submit that the abovesaid allegations are factually wrong and have been made only out of the misunderstandings of the minor victim girl and further that in the subsequent statement given by the 2[nd] respondent before the learned Magistrate under Sec.164 of the Cr.PC, she has only stated that the petitioner had patted on her shoulder and there are no allegations that the petitioner had hugged or kissed her and that on account of the act of the petitioner in patting her on the shoulder she was under the impression that the petitioner would have done it only Crl.M.C No. 3952 of 2020 4 with ulterior motives. 6. Now it is submitted by Sri.Mathew Kuriakose, learned counsel appearing for the petitioner/accused and Sri.J.Krishna Kumar, learned Advocate appearing for R2 that the issues between the abovesaid parties have been settled and that the mother of the 2[nd] respondent minor victim girl has sworn to Anx.B affidavit dated 24-06-2020 before this Court, in which she has stated that the disputes have been settled and that the complaint was made on account of misunderstandings and that mother of the victim girl as well as the victim girl are not interested to proceed with the matter any further and that they have no objections in quashing the impugned criminal proceedings etc. 7. The learned Public Prosecutor was requested to get instructions in the matter and today when the matter has been taken up for consideration, Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 State of Kerala would submit on the basis of instructions that the Investigating Officer has conducted an enquiry and has also taken the statements of both the mother of the victim girl as well as the 2[nd] respondent victim girl, who have stated that that the mother has voluntarily sworn to Anx.B affidavit before this 5 Crl.M.C No. 3952 of 2020 Court and that they are not interested to proceed with the matter any further and that the abovesaid settlement appears to be _bonafide_ and done voluntarily by the 2[nd] respondent and her mother and not on account of any coercion etc. 8. 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 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**_ . Crl.M.C No. 3952 of 2020 6 reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 9. After hearing both sides it is seen that in the subsequent statement given by the 2[nd] respondent minor victim girl before the learned Magistrate under Sec.164 of Cr.PC, the main allegation raised by her is to the effect that on the day in question petitioner had talked to her and then had patted on her shoulder and asked her to go out and she was under the distinct impression that the petitioner would have done in out of ulterior motives. So crucially it can be seen that the abovesaid allegations earlier made by the 2[nd] respondent in her FIS that the petitioner had hugged and kissed her etc, are not made in the statement given before the learned Magistrate under Sec.164 of the Cr.PC. There are no allegations of penetrative sexual assault in this case. 10. Taking note of the allegations as made out in Sec.164 of Cr.PC statement, this Court is of the considered view that it may not be possible for the prosecution to establish the beyond reasonable doubt that the alleged act of the petitioner in having patted the girl on her shoulder would have been done by him with sexual intent. It is Crl.M.C No. 3952 of 2020 7 all the more so, as the earlier crucial allegation that the petitioner had hugged and kissed her are not made in the subsequent statement made by her before the learned Magistrate under Sec.164 of Cr.PC. There are no allegations of penetrative sexual assault in this case. The Investigating Officer has also recorded the statements of both the mother of the victim girl as well as the victim girl and it is borne out therefrom that settlement is appears to be _bonafide_ and that the case is that the allegations are earlier made by them on account of misunderstandings and that they are no longer interested to continue the impugned criminal proceedings. 11. Taking into account the overall totality of the facts and circumstances of the case, more particularly, the factual aspects discernible from the allegations made out in the statement given by the victim girl before the learned Magistrate under Sec.164 of Cr.PC etc, this Court is of the considered view that the plea for quashment could be befittingly considered in the facts and circumstances of the case. 12. Accordingly it is ordered in the interest of justice that the impugned Anx-A Final Report/Charge sheet filed in Crime No.690/2019 of Kakkor Police Station, Kozhikode District, which has 8 Crl.M.C No. 3952 of 2020 now led to the pendency of Sessions Case S.C No.700/2020 on the file of the First Additional Sessions Court, notified to deal with POCSO cases, Kozhikode as against the petitioner/accused and all further proceedings emanating therefrom against the petitioner/accused will stand quashed and set aside. 13. The petitioner will produce certified copies of this order before the Investigating Officer concerned as well as before the First Additional Sessions Court, notified to deal with POCSO cases, Kozhikode, who is dealing with S.C No.700/2020, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 3952 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE A** **CERTIFIED COPY OF THE CHARGE SHEET CUM FINAL REPORT IN CRIME NO. 690/2019 OF KAKKOOR POLICE STATION IN KIZHIKODE DISTRICT.** **ANNEXURE B AFFIDAVIT OF THE RESPONDENT NO. 1 DATED 24.08.2020** **RESPONDENT'S/S EXHIBITS: NIL**