Hassainar P.K. @ Ashraf and others v. State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 21ST DAY OF JUNE 2017/31ST JYAISHTA, 1939 Crl.MC.No. 3860 of 2017 () --------------------------SC 581/2015 of ADDL.DIST & SC 1(SPECIAL COURT UNDER POCSO ACT), KASARAGOD CRIME NO. 736/2012 OF MANJESWAR POLICE STATION , KASARGOD PETITIONER(S)/ACCUSED NOS 1 TO 5: -------------------------------------------------------- 1. HASSAINAR.P.K. @ ASHRAF, S/O. ABDUL KHADER, AGED 37 YEARS, BADRIYA HOUSE, PAVOOR, VORKADY PANCHAYATH, 1/216, KASARAGOD. 2. ABDUL AZEEZ, S/O, ABDUL RAHMAN, AGED 27 YEARS, PAVOOR KALLAJE HOUSE, VORKADY GRAMAM, KASARAGOD. 3. ABOOBACKER SIDDIQUE, S/O. MOOSSA, AGED 35 YEARS,KALLAJE HOUSE, PAVOOR,VORKADY VILLAGE, KASARAGOD. 4. MOHAMMED KADRI@ MOHAMMED @ MONU, S/O. KHADER, AGED 35 YEARS, IQBAL HOUSE, KEDUMBADY,VORKADY VILLAGE, KASARAGOD. 5. NAJEER @ NAZEER, S/O. U. SHAIKUNHI, AGED 33 YEARS, THALAPPADY HOUSE, MANGALORE, KARNATAKA, NOW RESIDING AT SIRAJUL HUDA, MANJESHWAR, UDYAVAR, KASARAGOD. BY ADV. SRI.T.G.RAJENDRAN ## RESPONDENTS/COMPLAINANT AND STATE: ------------------------------------------------------------ 1. THE CIRCLE INSPECTOR OF POLICE KUMBLA, MANJESHWAR POLICE STATION, KASARAGOD DISTRICT - 671 122. 2. ABDUL RAHIMAN, S/O. ANDU, AGED 54 YEARS, BADANADKA HOUSE, PAVOOR,KALLAJE, PAVOOR P.O, MANJESHWAR TALUK, KASARAGOD 671122. 3. NABEESA, W/O. ABDUL RAHIMAN,AGED 52 YEARS, RESIDING DO. 4. AYSHATH MISRIYA,AGED 19 YEARS, D/O. ABDUL RAHIMAN, KALLAJE HOUSE, PAVOOR P.O,VORKADY VILLAGE,MANJESHWAR TALUK, KASARAGOD. 5. KAIRUNNIZA, AGED 20 YEARS, D/O.ABDUL RAHIMAN, BADANADKA HOUSE, PAVOOR,KALLAJE, PAVOOR P.O,MANJESHWAR TALUK, KASARAGOD. 671 122. 6. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031. R2-R5 BY ADV. SRI.CIBI THOMAS R1& R6 BY PUBLIC PROSECUTOR, SMT. M K PUSHPALATHA THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 21-062017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 3860 of 2017 () --------------------------- ## **APPENDIX** PETITIONER(S)' EXHIBITS ---------------------------------- ANNEXURE I TRUE COPY OF THE FINAL REPORT. ANNEXURE II TRUE COPY OF THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT DATED 20.4.2017. ANNEXURE III TRUE COPY OF THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT DATED 20.4.2017. ANNEXURE IV TRUE COPY OF THE AFFIDAVIT SWORN BY THE 4TH RESPONDENT DATED 20.4.2017. ANNEXURE V TRUE COPY OF THE AFFIDAVIT SWORN BY THE 5TH RESPONDENT DATED 20.4.2017. RESPONDENT(S)' EXHIBITS : NIL ----------------------- // True Copy // PA to Judge ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl.M.C. No.3860 of 2017 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 21[st ] day of June 2017 ## O R D E R The petitioners are the accused in S.C.No.581 of 2015 on the files of the Additional Sessions Court (Special Court for Protection of Children from Sexual Offences Act Cases), Kasaragod. The offences alleged against the petitioners are the offences under Sections 366(A), 376 and 354 read with Section 34 I.P.C. and Section 3 read with Section 4 and Section 7 read with Section 8 of the Protection of Children from Sexual Offences Act, 2012 2. The prosecution allegation is that the first petitioner had abducted the minor _de-facto complainant_ aged 14 years and her sister aged 16 years to Karnataka Crl.M.C.3860/2017 -: 2 :- State during June 2012 with the assistance of the second petitioner and thereafter, the first petitioner committed rape on both of them with the assistance of the second petitioner, who is the brother of the victims, on so many times. The first and the second petitioner also presented the said victim girls to so many persons at Karnataka for nearly two years. The petitioner Nos.3 and 4 also committed rape on the _de-facto complainant_ at Karnataka. The fifth petitioner molested her with the assistance of the second petitioner. 3. The petitioners in this Crl.M.C. seek for quashing Annexure-I final report and further proceedings against the petitioners in S.C. No.581 of 2015 on the files of the court below on the ground that the matter has been settled between the parties. Crl.M.C.3860/2017 -: 3 :- ## 4. Heard. 5. The respondent Nos.4 and 5 are the victim girls in this case. They have filed separate affidavits stating that the matter has been settled between the parties and hence, they have no further grievance against the petitioners. 6. The learned Public Prosecutor has opposed the request of the petitioners and submitted that this is a typical example to show that women are not safe even in their house and in the said circumstances, if the said offences are effaced by quashing the proceedings, that will give wrong signal to the society. 7. The Honourable Apex Court in Yogendra Yadav and others v. State of Jharkhand and another (2014 KHC 4470) held that the offences which involve moral turpitude and grave offences like rape, murder etc. cannot be effaced Crl.M.C.3860/2017 -: 4 :- by quashing the proceedings because that will have harmful effect on the society as the said offences cannot be said to be restricted to two individuals or two groups. The Honourable Apex Court observed in Yogendra Yadav (supra) that if such offences are quashed, it may send wrong signal to the society. 8. The Honourable Apex Court in Narinder Singh and others v. State of Punjab and another (2014 KHC 4195) held that the heinous and serious offences of mental depravity and offences like murder, rape, dacoity etc., should not be quashed by exercising the inherent power under Section 482 Cr.P.C. as the said offences are not private in nature and have a serious impact on the society. 9. In this case, the second petitioner is the brother of the minor victim girls. He was having a duty to protect and Crl.M.C.3860/2017 -: 5 :- safeguard the interest of the minor victim girls. However, instead of protecting their interest, he himself became the tormentor and permitted petitioner Nos.1, 3 and 4 to commit rape on the victims with his active assistance. The second petitioner also permitted the fifth petitioner to molest them. The second petitioner also presented the victim girls, who are his sisters, to various persons for sexual intercourse. The offences alleged against the petitioners are very serious in nature. Therefore, if the said offences are permitted to be effaced by quashing the proceedings, that will have harmful effect on the society as the above said offences cannot be said to be restricted to two individuals or two groups. 10. It is also pertinent to note that the 1[st] petitioner had earlier committed rape on the fifth respondent with the active assistance of the second petitioner, for which S.C.No.434 Crl.M.C.3860/2017 -: 6 :- of 2015 is pending. This would show that the 2[nd] petitioner facilitated the first petitioner and others to commit rape on both his sisters, which is beyond the expectation and imagination of a dignified society. If the offences against such persons are quashed in exercise of the inherent jurisdiction, that will definitely lead to anarchy. Moreover, if the offences against such persons are effaced by quashing the proceedings, the same will have the effect of undermining the esteem of the judiciary. Considering the nature and seriousness of the allegations raised against the petitioners, I am not inclined to quash the proceedings against the petitioners on the ground that the matter has been settled between the parties. In the result, this Crl.M.C. stands dismissed. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/21.6.2017_