Jamshed Sheikh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 03RD DAY OF NOVEMBER 2020 / 12TH KARTHIKA, 1942** ## **CRL.MC.NO.684 OF 2020(E)** **CRIME NO.531/2015 OF KAYAMKULAM POLICE STATION , ALAPPUZHA** ## **PETITIONER/ACCUSED:** **JAMSHED SHEIKH, S/O. ANGOOR SHEIKH, MANGALKOTTA, BARDHAMAM, WEST BENGAL BY ADV. SRI.M.R.SASITH** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, PIN-682 031**| |**2**|**THE SUB INSPECTOR**| ||**KAYAMKULAM POLICE STATION, ALAPPUZHA, PIN-690 572.**| |**3**|**NAZAR, AGED 56 YEARS,**| ||**S/O. MYDEEN KUNJU, VADAKKE MARUTHAVANA VEEDU,**| ||**KRISHNAPURAM PANCHAYATH, WARD 13,**| ||**THEKKUM KOCHUMURI, KRISHNAPURAM, PIN-690 533.**| |**4**|**NAJEEMA, AGED 49 YEARS,**| ||**W/O. NAZAR,VADAKKE MARUTHAVANA VEEDU,**| ||**KRISHNAPURAM PANCHAYATH, WARD 13,**| ||**THEKKUM KOCHUMURI, KRISHNAPURAM, PIN-690 533.**| |**5**|**NAMITHA NAZAR, AGED 21 YEARS,**| ||**D/O. NAZAR, VADAKKE MARUTHAVANA VEEDU,**| ||**KRISHNAPURAM PANCHAYATH, WARD 13,**| ||**THEKKUM KOCHUMURI, KRISHNAPURAM, PIN-690 533.**| ||**SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR**| ||**R1 & R2**| ||**ADV. SRI.V.VINAR FOR R3 TO R5**| **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 03.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. --------------------------------------Crl.M.C. No. 684 of 2020 --------------------------------------Dated this the 3[rd] day of November, 2020 ## O R D E R The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“......quash Annexure-A1-FIR of Crime No.531/2015 of Kayamkulam Police Station.”_ 2. Heard Sri.M.R.Sasith Panicker, learned counsel appearing for the petitioner/sole accused, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for respondents 1 & 2 and Sri.V.Vinar, learned counsel appearing for contesting respondents 3 to 5 (father and mother of the lady victim and the lady victim respectively ). 3. The case has arisen out of Anx.A1 Crime No.531/2015 of Kayamkulam Police Station, Alappuzha district, which was initially registered under Sec.57 of the Kerala Police Act, 2011, on the basis of the FIS conveyed by the 3[rd] respondent father of the lady victim regarding the alleged missing of the 5[th] respondent lady victim. Anx.A1 crime has been registered on 26.2.2015 4. According to the prosecution, the date of birth of the 5[th] respondent lady victim is 30.1.1998 and that she was a minor girl Crl.M.C. No. 684 of 2020 ..3.. then aged 17 years at the time of registration of FIR and the petitioner was then aged 20 years. The police in the course of investigation found that the 5[th] respondent lady victim was found in the company of the petitioner and that she had eloped with him as they were having a love affair. According to the police, the petitioner had sexual relationship with the 5[th] respondent during abovesaid period at the time when she was minor. Accordingly, offences in Anx.A1 FIR was altered to those punishable under Secs.363, 366, 376 & 201 of the IPC and Secs.3 & 4 of the POCSO Act. Later, the 5[th] respondent lady victim has attained the majority age of 18 years on 30.1.2016. It is now stated by the counsel for the petitioner and the counsel for contesting respondents 3 to 5 that, later with the blessings of families of both sides particularly parents, the petitioner accused and the 5[th] respondent has voluntarily entered into a marital arrangement, and marriage between the petitioner and the 5[th] respondent was solemnized in accordance with the Muslim personal law on 27.3.2016 as certified by Anx.A2 marriage certificate dated 11.8.2018 issued by the Jama-Ath committee of the area concerned. Further it is stated by the petitioner and contesting respondents that, after the Crl.M.C. No. 684 of 2020 ..4.. solemnization of marriage on 27.3.2016, a child has been born to the 5[th] respondent in her marital relationship with the petitioner on 12.4.2017 as evident from Anx.A3 birth certificate issued by the Registrar of Births and Deaths. It is stated that, the 5[th] respondent is now aged more than 21 years and further that contesting respondents 3 & 4 (father and mother of the victim) and the 5[th] respondent lady victim had separately filed affidavits as per Anxs. A4, A5, & A6 respectively on 16.12.2019 stating that the entire disputes between the petitioner and them were resolved and with the blessings of both families, marriage of the 5[th] respondent with the petitioner has been solemnized as evident from Anx.A2 certificate, and that a child has also been born to her in her marital relationship with the petitioner, and that they have no objection in quashing the impugned criminal proceedings, and that it is better for the welfare of future marital life of the 5[th] respondent that the impugned criminal proceedings be quashed etc. 5. The learned Public Prosecutor was requested to get instructions, and today when the matter has been taken up for consideration the learned Public Prosecutor would submit that, Crl.M.C. No. 684 of 2020 ..5.. the investigating officer has conducted an enquiry and he had recorded the statements of contesting respondents 3 to 5 and has found that the averments in abovesaid affidavits as per Anxs.A4 to A6 are correct and true, and that the 5[th] respondent has voluntarily entered into marital relationship with the petitioner and their marriage has been solemnized on 27.3.2016 after the 5[th] respondent has attained the majority age of 18 years on 30.1.2016, and that a child is also born to them and that the 5[th] respondent is now leading a happy married life with the petitioner, etc. 6. It is by now well settled that it may not be right and proper for this Court to ordinarily quash serious and grave offence of rape as per Sec.376 of the IPC solely on the ground of settlement between the parties {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, it has been held by this Court in 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],_ that Crl.M.C. No. 684 of 2020 ..6.. an exception could be made in cases where the accused has subsequently married the lady victim and they have decided to settle all the disputes and for the predominant purpose of welfare of the defacto complainant/victim to ensure her a better marital life, it may be only just and proper for this Court in exercising extra ordinary discretionary inherent powers conferred under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings on the basis of such extenuating factors, especially in cases where the accused has committed penetrative sexual assault/rape on a victim/minor victim on the assurance of marriage and where the marriage of accused and victim has been subsequently solemnized. 7. After hearing both sides and taking note of the submissions on both sides as well as the submissions of the investigating agency this Court is of the considered view that, the extra ordinary discretionary inherent powers conferred under Sec.482 of the Cr.P.C. could be considered for exercise in the facts and circumstances of this case as it is now brought to the notice of this Court that subsequently the petitioner and the 5[th] respondent lady victim have voluntarily entered into a marital relationship Crl.M.C. No. 684 of 2020 ..7.. and that the marriage has already been solemnized, and that even a child has been born to them in the said wedlock and that they are now living a peaceful marital life and hence it may be only better in the interest of the further marital life of the 5[th] respondent that the impugned criminal proceedings be quashed or otherwise it could detrimentally affect her further life. In that view of the matter it is ordered that the impugned Anx.A1 FIR in Crime No. 531/2015 of Kayamkulam Police Station, Alappuzha District, and all further proceedings emanating therefrom as against the petitioner accused shall stand quashed and set aside. 8. The petitioner will produce a certified copy of this order before the Investigating Officer concerned as well as before the competent criminal court concerned (Special Court notified to deal with POCSO Cases) for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **==> picture [32 x 14] intentionally omitted <==** ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 684 of 2020 ..8.. ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1 TRUE COPY OF FIR OF CRIME NO 531/2015 OF KAYAMKULAM POLICE STATION** **ANNEXURE A2 TRUE COPY OF MARRIAGE CERTIFICATE ISSUED BY OACHIRA PADINJARE THERUVU MUSLIM JAMA-ATH COMMITTEE ANNEXURE A3 TRUE COPY OF BIRTH CERTIFICATE OF NAHAL KHATUN ISSUED BY GOVERNMENT OF KERALA ANNEXURE A4 TRUE COPY OF AFFIDAVIT BY THE 3RD RESPONDENT ANNEXURE A5 TRUE COPY OF AFFIDAVIT BY THE 4TH RESPONDENT ANNEXURE A6 TRUE COPY OF AFFIDAVIT BY THE 5TH RESPONDENT**