Jaleel v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 19[TH] DAY OF OCTOBER 2023 / 27TH ASWINA, 1945 CRL.A NO. 134 OF 2022** **AGAINST THE ORDER/JUDGMENT SC 798/2020 OF FAST TRACK SPECIAL COURT, (POCSO) KUNNAMKULAM** ## **APPELLANT/S:** JALEEL AGED 37 YEARS S/O.ABDU, POKKAKILLATH HOUSE, MUNAKKAKADAVU, KADAPPURAM, CHAVAKKAD TALUK, THRISSUR DISTRICT - 680 514. BY ADV RAJIT ## **RESPONDENT/S:** 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031. 2 XXX ADDL.R2 IMPLEADED AS PER ORDER DATED 08.04.22 IN CRL.MA NO 2/22 IN CRL.A 134/2022 BY ADVS. ADVOCATE GENERAL OFFICE KERALA SMT.AMBIKA DEVI S, SPL.G.P. (ATROCITIES AGAINST WOMEN AND CHILDREN AND WELFARE OF W AND C)(GP-38) ## **OTHER PRESENT:** SRI G. SUDHEER (PP) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl. Appeal No.134/2022 -2- ## **J U D G M E N T** This Criminal Appeal has been filed challenging judgment dated 25-01-2023 in S.C. No.798/2020 on the file of the Fast Track Special Court, Kunnamkulam arose from Crime No.277/2014 of Chavakkad Police Station alleging commission of offences punishable under Sections 376 (1), 376 (2) (n), 450 IPC. Following trial the appellant / accused was convicted and sentenced to undergo rigorous imprisonment for 10 years for offence under Section 376 (1) of IPC and to pay a fine of Rs.1,00,000/- and to undergo rigorous imprisonment for 12 years for offence under Section 376 (2) (n) of IPC and pay a fine of Rs.1,00,000/- and to undergo rigorous imprisonment for 5 years for offence under Section 450 of IPC and a fine of Rs.10,000/-. The substantive sentences were to concurrently. 2. The learned counsel for the appellant would submit that the appellant and the _de facto_ complainant / victim were in a relationship for the period from 2009 to 2014. It is submitted that according to the _de facto_ complainant / victim, the appellant / accused had entered into relationship with her on the false promise of marriage and therefore there was no valid consent as defined under Section 90 of the Indian Penal Code. After Crime No.277/2014 had been registered the appellant / accused was arrested and he was granted bail at the crime stage on the ground that he intended to solemnize the marriage with the _de facto_ complainant / victim. It is submitted that a marriage between the appellant / accused and the _de facto_ complainant / victim was solemnised on 10-02-2014. It is submitted that thereafter there was a falling apart between the appellant / accused and the _de facto_ complainant / victim, though the marriage was not dissolved. It is submitted Crl. Appeal No.134/2022 -3- that the trial SC No.798/2020 took place at a time when the appellant / accused and the _de facto_ complainant / victim were living separately and therefore the _de facto_ complainant / victim gave evidence in support of the prosecution case leading to the conviction of the appellant / accused. It is submitted that now the appellant / accused and _de facto_ complainant / victim are living together as husband and wife and they have a child in their relationship. It is submitted that the affidavit of the _de facto_ complainant / victim produced along with Crl. M.A. No.2/2022 will indicate that the appellant / accused and the _de facto_ complainant / victim are now living together as husband and wife together with their child. It is submitted that the Birth Certificate of the child is also on record as Annexure-I in Crl. M.A. No.1/2023. It is submitted that in such circumstances this court may exercise the jurisdiction vested in this court under Section 482 of Cr.P.C to set aside all proceedings against the appellant / accused resulting in a setting aside of the judgment in SC No.798/2020 on the file of the Fast Track Special Court, Kunnamkulam through which the appellant / accused was convicted for the offences allegedly committed by him as indicated above. 3. The learned counsel for the petitioner has placed reliance on the judgment of the Supreme Court in _**Ramawatar v. State of Madhya Pradesh and another;** 2021 SCC OnLine SC 966_ to contend for the proposition that the jurisdiction under Section 482 Cr.P.C can be exercised in such circumstances. The learned counsel also placed reliance on the judgment of this Court in _**Soban v. State of Kerala;** 2021 (3) KHC 383_ where this court had also exercised jurisdiction under Section 482 to quash the proceedings on the ground of Crl. Appeal No.134/2022 -4- settlement even at the post conviction stage. 4. The learned Public Prosecutor submits on instructions that a statement has been recorded from the _de facto_ complainant / victim and it is confirmed that the appellant / accused and _de facto_ complainant / victim are now living together as husband and wife together with their child. The learned Public Prosecutor would also very fairly submit that the judgment of the Supreme Court in _**Ramgopal and**_ _**another v. State of Madhya Pradesh;** 2021 SCC OnLine SC 834_ also takes the view that even at the post conviction stage the power under Section 482 can be exercised to quash the proceedings if the circumstances otherwise exist for quashing the proceedings 5. Having heard the learned counsel for the the petitioner and the learned Public Prosecutor as above, I am of the view that the proceedings against the appellant / accused can be quashed on the ground of settlement in exercise of the jurisdiction vested in this court under Section 482 Cr.P.C. In _**Ramgopal**_ (supra) the Supreme Court held as follows; _“15. Given these settled parameters, the order of the High Court of Madhya Pradesh culminating into Criminal Appeal No. 1489 of 2012, to the extent it holds that the High Court does not have power to compound a noncompoundable offence, is in ignorance of its inherent powers under Section 482 Cr.P.C. and is, thus, unsustainable. However, the judgment and order dated 9 January, 2009 of the High Court of Karnataka, giving rise to Criminal Appeal No. 1488 of 2012 cannot be faulted with on this count for the reason that the parties did not bring any compromise/settlement to the notice of the High Court._ _xxx xxx xxx_ _19. We thus sum-up and hold that as opposed to Section 320 Cr.P.C. where the Court is squarely guided by the compromise between the parties in respect of offences ‘compoundable’ within the statutory framework, the extra-ordinary power enjoined upon a High Court under Section 482 Cr.P.C. or vested in this Court under Article 142 of the Constitution, can be invoked_ Crl. Appeal No.134/2022 -5- _beyond the metes and bounds of Section 320 Cr.P.C. Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind :_ _(i) Nature and effect of the offence on the conscious of the society; (ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.”_ ## Following the judgment in _**Ramgopal**_ (supra) the Supreme Court in ## _**Ramawatar**_ (supra) held as follows; _“10. So far as the first question is concerned, it would be ad rem to outrightly refer to the recent decision of this Court in the case of Ramgopal v. The State of Madhya Pradesh , wherein, a two-Judge Bench of this Court consisting of two of us (N.V.Ramana, CJI & Surya Kant, J) was confronted with an identical question. Answering in the affirmative, it has been clarified that the jurisdiction of a Court under Section 320 Cr.P.C cannot be construed as a proscription against the invocation of inherent powers vested in this Court under Article 142 of the Constitution nor on the powers of the High Courts under Section 482 Cr.P.C. It was further held that the touchstone for exercising the extra-ordinary powers under Article 142 or Section 482 Cr.P.C., would be to do complete justice. Therefore, this Court or the High Court, as the case may be, after having given due regard to the nature of the offence and the fact that the victim/complainant has willingly entered into a settlement/compromise, can quash proceedings in exercise of their respective constitutional/inherent powers._ _11. The Court in Ramgopal (Supra) further postulated that criminal proceedings involving non-heinous offences or offences which are predominantly of a private nature, could be set aside at any stage of the proceedings, including at the appellate level. The Court, however, being conscious of the fact that unscrupulous offenders may attempt to escape their criminal liabilities by securing a compromise through brute force, threats, bribes, or other such unethical and illegal means, cautioned that in cases where a settlement is struck post-conviction, the Courts should, interalia, carefully examine the fashion in which the compromise has been arrived at, as well as, the conduct of the accused before and after the incident in question. While concluding, the Court also formulated certain guidelines and held:_ _“19... Nonetheless, we reiterate that such powers of wide amplitude ought to be exercised carefully in the context of quashing criminal proceedings, bearing in mind: (i) Nature and effect of the offence on the conscious of the society;_ _(ii) Seriousness of the injury, if any; (iii) Voluntary nature of compromise between the accused and the victim; & (iv) Conduct of_ Crl. Appeal No.134/2022 -6- _the accused persons, prior to and after the occurrence of the purported offence and/or other relevant considerations.”_ _[Emphasis Applied]_ _12. In view of the settled proposition of law, we affirm the decision of this Court in Ramgopal (Supra) and re-iterate that the powers of this Court under Article 142 can be invoked to quash a criminal proceeding on the basis of a voluntary compromise between the complainant/victim and the accused.”_ ## This court in _**Soban**_ (supra) held as follows; _“10. It is settled that the plenary power possessed by the High Court u/s 482 of Cr.P.C. are very wide, though to be exercised sparingly and with circumspection. It is equally settled that the said power could be exercised irrespective of the nature of the proceedings and concurrently with appellate or revisional jurisdiction. Criminal proceedings commence from the lodging of FIR and would continue till the order of conviction, if passed, attains finality. When the order of conviction by the trial Court is under challenge before the appellate or revisional Court, it cannot be said that the order of conviction did attain finality. The presumption of innocence would continue till the order of conviction attains finality despite the conviction by the trial Court. An appeal challenging the order of conviction has the effect of continuation of trial itself. Since the power u/s 482 of Cr.P.C. is not controlled by S.320, such power could be exercised at any stage of the criminal proceedings including at the appellate or revisional stage. The section does not contemplate or specify any particular stage when the powers u/s 482 could be invoked. S.320 also does not contemplate any stage or specific mode by which Court can permit compounding of the offences. Subsections (5) and (6) of S.320 permit composition of the offences even during appellate or revisional stage. Thus, there is no reason whatsoever to restrict exercise of powers u/s 482 of Cr.P.C. only to cases where an order of conviction was not passed. The inherent power u/s 482 for quashing criminal proceedings being of a wide magnitude for being exercised with the object of securing the ends of justice, there cannot be limitation on such powers for being exercised only prior to conviction of an accused. Merely because the order of conviction was pending adjudication at the appellate or revisional stage, the same could not be a ground for refusing to exercise powers u/s 482 of Cr.P.C. to quash the criminal proceedings especially when the parties to the dispute had arrived at a settlement. Hence, I hold that if requirements of S.482 of Cr.P.C were satisfied in the sense that it was necessary to prevent abuse of the process of any Court or to secure the ends of justice, the criminal proceedings involving non-compoundable offence could be quashed notwithstanding the fact that the order of conviction was already passed against the accused provided offence in question does not fall in the category of offences prohibited for compounding in terms of the pronouncement of the Apex Court in Gian Singh (supra), Narinder Singh (supra) and Laxmi Narayan (supra).”_ Crl. Appeal No.134/2022 -7- 6. In the facts of the present case, Crime No.277/2014 of Chavakkad Police Station came to be registered against the appellant / accused on the allegation of the _de facto_ complainant / victim that he had entered into physical relationship with her on the false promise of marriage. Since a marriage has been solemnized between the appellant / accused and the _de facto_ complainant / victim and they are now living together happily as husband and wife along with their child, it cannot be said that any of the offences alleged against the appellant / accused are attracted. Therefore, notwithstanding the fact that the appellant / accused was convicted for having committed the offences alleged against him, I am of the view that the proceedings can be set aside in the light of the law laid down in the judgments referred to above. Therefore the the entire proceedings initiated against the appellant / accused in Crime No.277/2014 of Chavakkad Police Station are quashed. Consequently the conviction and sentence imposed on the appellant vide judgment in S.C. No.798/2020 on the file of the Fast Track Special Court, Kunnamkulam will stand set aside. Criminal Appeal will stand disposed of in the above terms. Sd/- **GOPINATH P. JUDGE** AMG Crl. Appeal No.134/2022 -8- ## **APPENDIX OF CRL.A 134/2022** PETITIONER ANNEXURES Annexure A1 A TRUE COPY OF THE BIRTH CERTIFICATE DATED 19.08.2023 Annexure A2 A TRUE COPY OF THE RELEVANT PAGES OF MY PASSPORT