Ismayil v. State of Kerala and Jabira Farsana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** ## **WEDNESDAY, THE 20TH DAY OF AUGUST 2014/29TH SRAVANA, 1936** ## **CRL.MC.NO. 4714 OF 2014** **---------------------------------[C.P.NO.44/2014 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT, PARAPPANANGADI, CRIME NO. 969/2013 OF TANUR POLICE STATION, MALAPPURAM DISTRICT]** **.........** ## **PETITIONER/ACCUSED:** **-----------------------------------** **ISMAYIL, AGED 24 YEARS, S/O.THAJUDHEEN, ALIHAJEENTEPURAKKAL HOUSE, AZHEEKAL, UNNIYAL, TANUR, MALAPPURAM DISTRICT.** ## **BY ADV. SRI.P.VENUGOPAL.** ## **RESPONDENTS/STATE & DEFACTO - COMPLAINANT:** **-------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (REPRESENTING INSPECTOR OF POLICE, TANUR, MALAPPURAM DISTRICT).** **2. JABIRA FARSANA, AGED 20 YEARS,** **D/O.HANEEFA, CHATHERIPARAMBIL HOUSE, PUTHIYAKADAPPURAM P.O., UNNIYAL, TANUR, MALAPPURAM DISTRICT - 676 302.** **R1 BY DIRECTOR GENERAL OF PROSECUTION SRI. T. ASAF ALI, R2 BY ADV. SMT. T.J.MARIA GORETTI.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20-08-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** **CRL.M.C. NO.4714/2014:** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:** **ANNEXURE A: TRUE COPY OF THE FIRST INFORMATION STATEMENT GIVEN BY THE SECOND RESPONDENT BEFORE THE FIRST RESPONDENT/POLICE DT. 03.10.13. ANNEXURE : TRUE COPY OF THE FIRST INFORMATION REPORT REGISTERED BY THE TANUR POLICE IN CRIME NO. 969/13. ANNEXURE : TRUE COPY OF THE CERTIFICATE ISSUED BY THE MASJIDUSSALAM & DARUSSALAM MADRASSA MAHALLU COMMITTEE - UNNIYAL DT. 21.2.2014. ANNEXURE D : TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE FIRST RESPONDENT IN CRIME NO. 969/13 OF TANUR POLICE STATION. ANNEXURE E : AFFIDAVIT EXECUTED BY THE DEFACTOCOMPLAINANT/SECOND RESPONDENT DT. 06.05.14.** **RESPONDENTS' ANNEXURES: NIL.** ## **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **V.K.MOHANAN, J.** ## **------------------------------Crl. M.C No.4714 of 2014** **------------------------------Dated this the 20[th] day of August, 2014.** ## **O R D E R** The above petition is filed under Section 482 of the Criminal Procedure Code (for short 'Cr.P.C.') at the instance of the petitioner, who is accused in C.P.No.44/2014 of the Judicial First Class Magistrate Court, Parappanangadi, which is a case instituted upon the police report in Crime No. 969/2013 of Tanur Police Station for the offences punishable under Section 376 of I.P.C. with a prayer to quash Annexure D final report in Crime No.969/2013 of Tanur Police Station and proceedings pursuant to the same, now pending as C.P No.44/2014 on the file of the Judicial First Class Magistrate Court, Parappanangadi as the matter is settled out of court. 2. The allegation in the above case is that the de facto complainant and the petitioner were in love for the last three years. Almost two years back on a day, they indulged in sexual acts on the **Crl.M.C.No.4714/ 2014** 2 promise of marriage offered by the petitioner. De facto complainant consented to the sexual act believing on the promise of the petitioner as also on the fear of disgrace. The sexual acts continued for long time and gradually when it was made known to the public, petitioner fled from the place. Later, the de facto complainant became pregnant and petitioner insisted her to abort it. However, she did not agree and the petitioner declined to marry her and thus, the petitioner has committed the aforesaid offence and now, the case of the petitioner is that the matter is settled out of court. 3. Heard the learned counsel for the petitioner as well as the 2[nd] respondent. I have also heard the learned Public Prosecutor. 4. The learned counsel for the petitioner submitted that during the pendency of the above crime, the matter is settled amicably between the parties to the dispute which is the subject matter of the above crime. Therefore, the continuation of the proceedings in the above crime is abuse of process of law and proceedings. **Crl.M.C.No.4714/ 2014** 3 5. The learned counsel for the 2[nd] respondent, who on the basis of specific instruction received from the respondent, submitted that the above respondent, who is the de facto complainant does not intend to proceed any further against the petitioner and she has no grievance against him. 6. I have carefully considered the above submissions of the respective counsel. I have verified the documents and materials produced along with the above petition. In the given facts and circumstances of the case and especially in the light of the settlement arrived between the parties to the dispute, the learned Public Prosecutor has also no objection in allowing the above petition. 7. Having regard to the facts and circumstances involved in the case, it can be seen that the offence involved in the above case is only under Section 376 of IPC, which is more or less personal in nature and no public interest is involved. It is pertinent to note that though such offences are involved, the real parties to the dispute approached this Court after having amicably settled the matter. From the submission made by the counsel for the 2[nd] respondent, it appears to me that the de facto complainant has no further grievance against the petitioner/accused **Crl.M.C.No.4714/ 2014** 4 in the light of the settlement arrived by them. In this juncture, it is relevant to note the decision of the Honourable Apex Court reported in **Gian Singh** v. **State of Punjab** [2012(4) KLT 108(SC)], in which case, the Supreme Court has held as follows:- _“57. The position that emerges from the above discussion can be summarised thus: 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 S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz;(i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R. 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.._ ## It is further held as follows:- “...... _... But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial,mercandile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim........”_ **Crl.M.C.No.4714/ 2014** 5 8. Sri. T. Asaf Ali, learned Director General of Prosecutions, on the strength of the decision in **Gian Singh** v. **State of Punjab** [2012 (4) KLT 108(SC)] submitted that the rape cases are specifically excluded being allowed to compound or being quash any exercise of the powers of the Hon'ble High Court under Section 482 of the Code of Criminal Procedure. learned Director General of Prosecutions has pointed out that there are occasions where after filing an affidavit by the victim in this court, in support of the wrongdoer, to quash the proceedings pending against the petitioner/accused, harassing the victim or withdraw from the promise to marry her. I am also sharing the view of the learned Director General of Prosecutions. In Gian Singh's case, the Hon'ble Supreme Court has specifically stated that : “Heinous and serious offences of mental depravity or offences like murder, rape, dacoity etc cannot be finttingly quashed even though the victim or victim's family and the offender have settled the dispute”. According to me, the facts and circumstances involved in the present case is entirely different and in the present case the accused and the victim married each other and as disclosed from Annexure E affidavit **Crl.M.C.No.4714/ 2014** 6 filed by the victim, it can be seen that the marriage was solomnized on 21.02.2014 at Masjid Salam Dharusalam Madrassa and the said fact is further supported by Annexure C Marriage Certificate issued from the same Madrassa Mahallu Committee, Unniyal. Therefore, according to me, it is the duty of this Court in exercise of the jurisdiction vested with under Section 482 of the Cr.P.C to give effect of the compromise arrived between the victim and the accused and to permit them to have their marital life run in a smooth manner. Overlooking the said fact, this Court is not stepping into help the victim and the accused and if the criminal proceedings are allowed to proceed against the petitioner it is likely to affect their matrimonial life and create unnecessary inconvenience and atmosphere in the matrimonial home. As per the present stand of the victim, according to me, if the trial is proceeded overlooking the above approach and stand of the victim, there would not be any fruitful prosecution rather the net result would be sheer wastage of judicial time. So, according to me, it is a fit case where this court has to allow the prayer quashing the proceedings pending against the petitioner and thereby create a peaceful atmosphere so as to enable the petitioner as well as the victim to have an affectionate and peaceful marital life. **Crl.M.C.No.4714/ 2014** 7 In the result, this Crl.M.C. is allowed, quashing Annexure -D and all further proceedings pending against the petitioners in C.P.No.44/2014 of the Judicial First Class Magistrate Court,Parappanangadi in Crime No. 969/2013 of Tanur Police Station. **V.K.MOHANAN, JUDGE** vdv