Jayachandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 12TH DAY OF DECEMBER 2018 / 21ST AGRAHAYANA, 1940** ## **Crl.MC.No. 1343 of 2017** **CRIME NO.516/2014 OF ERAVIPURAM POLICE STATION, KOLLAM** ## **PETITIONER/ACCUSED:** **JAYACHANDRAN, S/O.SASIDHARAN NAIR, AGED 31 YEARS, AISWARYA, BHARATH NAGAR, 136, KANNIMELCHERRY, KOLLAM WEST, KOLLAM. BY ADV. SRI.M.KIRANLAL** ## **RESPONDENT/DE FACTO COMPLAINANT/STATE:** |**1**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLICE PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, 682031.**| |**2**|**CIRCLE INSPECTOR OF POLICE**| ||**ERAVIPURAM POLICE STATION, KOLLAM 691011.**| |**3**|**STEFFY**| ||**D/O.JAMINE JOSPH, SHERLY COTTAGE,**| ||**MAYANADUCHERRY, MAYANAD VILLAGE,**| ||**KOLLAM-691303.**| ## **BY ADV. SRI.B.MOHANLAL** R1 & R2 BY PUBLIC PROSECUTOR MR.C.K.PRASAD **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 1343 of 2017 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in Crime No.516 of 2014 registered at the Eravipuram Police Station under Section 376 of the IPC. 3. The 3[rd] respondent herein is the victim. The petitioner herein and the de facto complainant were students of the Younus College of Engineering. They both joined the said college in the year 2007 and did their engineering course. While so, they fell in love and started having a physical relationship. The de facto complainant was persuaded to agree to have a sexual relationship by inducing her to believe that the petitioner would marry her. Their relationship went on even after completing the engineering course. In the month of August, 2012, the petitioner went abroad. According to the victim, sometime in the year 2012, he contacted the lady and informed her that he was not interested in continuing with the relationship. Stating Crl.MC.No. 1343 of 2017 3 the above allegations, a complaint was lodged in the month of April, 2014 pursuant to which, the subject crime was registered. The investigation was completed and Annexure-A2 final report was laid before the jurisdictional court. 4. The learned counsel appearing for the petitioner would contend that the allegations will not make out a case of rape. The relationship was consensual between two willing adults is the submission. Much reliance was placed on the decision of the Hon'ble Supreme Court in **Uday v. State of Karnataka** _[(2003) 4 SCC 46]_ to contend that there are no materials to show that the consent was given under a misconception of fact or that the petitioner was aware or had reason to believe that the consent was given by the lady in consequence of such misconception. 5. It is further submitted that during the pendency of the criminal proceedings, they have been able to sort out their differences. According to the learned counsel, the 3[rd] respondent has decided to marry another man and the pendency of the instant Crl.MC.No. 1343 of 2017 4 proceedings is a stumbling block. The learned counsel would refer to the affidavit sworn to by the 3[rd] respondent and would contend that she has asserted that due to the pendency of the instant proceeding, her marriage is being delayed. She is aged 29 years at present and she submitted that she has no objection in quashing the proceedings. 6. The 3[rd] respondent has appeared through counsel. The learned counsel has submitted that the allegations in the subject Crime are purely personal in nature and the continuance of proceedings would adversely affect the future of the 3[rd] respondent. 7. The learned Public Prosecutor was directed to get instructions. It is submitted that the statement of the 3[rd] respondent has been recorded and that she has stated in unequivocal terms that she wants to start a fresh life and has no grievance as against the petitioner herein. 8. I have considered the submissions advanced and have perused the materials made available. 9. The legal position with regard to quashing of proceedings Crl.MC.No. 1343 of 2017 5 on the basis of compromise between the parties is by now well settled. It has been held that 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 Section 320 of the Code. In what cases, power to quash the criminal proceeding or complaint or FIR 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. However, before exercise of such power, the Court will have to give due regard to the nature and gravity of the crime. It is also settled that heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. The directions of the Apex Court in **Gian Singh v. State of Punjab** [(2012) 10 SCC 303] and in **Narinder Singh v. State of Punjab** [(2014) 6 SCC 466 ] serve as guiding lights. Crl.MC.No. 1343 of 2017 6 10. Insofar as the offence of rape is concerned, there cannot be any doubt that the same cannot be settled on the strength of a compromise arrived at between the victim and the accused. The Apex Court in **State of M.P. v. Madan Lal** [2015 (7) SCC 681], relying on the decision in **Shimbhu and Another v. State of Haryana** [2014 (13) SCC 318] has clearly reminded the Courts that rape is a noncompoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. This was because of the fact that the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurized by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In such cases, the accused may use all his influence to pressurize the victim for a compromise. It was taking note of this aspect that it was held that it would not be safe in considering the compromise arrived at between the parties in rape cases. 11. However, in the instant case, the petitioner and the 3[rd] Crl.MC.No. 1343 of 2017 7 respondent were engineering students and they were in love. The allegation of sexual abuse was during the period from 2007 to 2012. There is some delay in setting the law in motion as well. They were both adults and their relation appears to have been consensual. There is no case for anyone that the dignity of the 3[rd] respondent was violated by a wanton act of the petitioner. This is not one of those cases, wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 3[rd] respondent, if the prosecution is permitted to continue. She has also filed an affidavit stating that she is not desirous of prosecuting against the petitioner any further. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case is proceeded with. Furthermore, the 3[rd] respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its Crl.MC.No. 1343 of 2017 8 extraordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition is allowed. Annexure-A2 final report and all proceedings pursuant thereto against the petitioner as C.P.No.84 of 2015 on the file of the Judicial Magistrate of First Class-II Kollam are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** IAP **//TRUE COPY// P.A. TO JUDGE** Crl.MC.No. 1343 of 2017 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS: ANNEXURE A1 A TRUE COPY OF THE FIR IN CRIME NO 516/2014 OF ERAVIPURAM POLICE STATION KOLLAM ANNEXURE A2 CERTIFIED COPY OF THE FINAL REPORT DTD 16/4/2015.**