Jimmy Varghese v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE GOPINATH P.`** ``` FRIDAY, THE 3[RD] DAY OF NOVEMBER 2023 / 12TH KARTHIKA, 1945 CRL.MC NO. 5701 OF 2023 ``` ## **`CRIME NO.1973/2023 OF Ernakulam Central Police Station, Ernakulam`** ## **`PETITIONER/ACCUSED :`** ``` JIMMY VARGHESE AGED 58 YEARS S/O K.J.VARGHESE, KIDANGETH HOUSE, HOUSE NO. 52, SANSKRIT ROAD, THRIPUNITHURA, PIN - 682301 BY ADVS. K.R.VINOD M.S.LETHA NABIL KHADER CHITHRA C.EDADAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN - 682031 2XXX 3XXX ``` ## **`OTHER PRESENT:`** ``` SRI VIPIN NARAYAN (SR PP) BY ADV.SRI.GEORGE ROY ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 03.11.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.5701 of 2023 2 ## **O R D E R** The petitioner faces prosecution under Sections 7 and 8 of the Protection of Children from Sexual Offences Act and under Section 354A of the Indian Penal Code. A crime was registered against the petitioner as Crime No.1973 of 2023 of Central Police Station, Ernakulam, alleging the commission of offences under the aforesaid provisions of law. 2. The learned counsel appearing for the petitioner would submit that the entire disputes between the petitioner and respondents 2 and 3 have been settled, as is evident from Annexure-A2 and Annexure A3 affidavits executed by respondents 2 and 3. It is submitted that no useful purpose would be served in continuing with the prosecution against the petitioner in the light of the settlement of all issues between the petitioner and respondents 2 and 3. 3. The learned Public Prosecutor, on instructions, would submit that the disputes between the petitioner and respondents 2 and 3 have been settled and respondents 2 and 3 do not wish to continue with the prosecution against the petitioner. Crl.M.C.No.5701 of 2023 3 4. Since the offences under the POCSO Act are also involved apart from the offence under Section 354A of the IPC, I have gone through the contents of the First Information Report in Crime No.1973 of 2023. The specific allegation is that when the alleged victim was working in the shop of the petitioner on 27.6.2023, the petitioner directed the victim to go to the godown of the shop and to get some materials. According to the victim, following directions issued by the petitioner, she proceeded to the godown at Convent Junction in Ernakulam, alone. It is alleged that while she was in the godown, the petitioner/accused followed her and hugged her from behind, and therefore, he committed the offences alleged against him. It was alleged that the victim was aged only 17 at that time. The incident took place at about 4 p.m. 5. The First Information Statement leading to the registration of Crime No.1973 of 2023 states that the victim had completed her Plus Two Course and intended to join for her Degree Course. It is stated that since she had vacations during the relevant time, she started working in the garment shop belonging to the petitioner/accused from the 15th of May, 2023. It is stated that to meet the expenses in connection with the admission for the Degree Course, she had taken salary in advance Crl.M.C.No.5701 of 2023 4 from the petitioner. It is alleged that the petitioner had tried to catch hold of the hand of the victim on several occasions, and the victim had informed the petitioner in clear terms that she did not like the petitioner's advances. It is stated that, thereafter, on 27.6.2023, the victim was sexually assaulted, as detailed in the preceding paragraph. The victim has executed Annexure-A2 affidavit and the mother of the victim has executed Annexure-A3 affidavit stating that the victim has no further grievances in the matter and that all issues have been settled between the victim and the petitioner. 6. The learned counsel for the petitioner states that the victim is still working in the shop belonging to the petitioner. 7. In _**State of M.P. v. Laxmi Narayan**_ ; (2019) 5 SCC 688 following _**Narinder Singh & Others v. State of Punjab & Another**_ [(2014) 6 SCC 466], it was held:- “ **11.3** . In Narinder Singh v. State of Punjab, (2014) 6 SCC 466, after considering the decision in Gian Singh v. State of Punjab, (2012) 10 SCC 303 in para 29, this Court summed up as under: “29. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to Crl.M.C.No.5701 of 2023 5 accept the settlement with direction to continue with the criminal proceedings: 29.1. Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution. 29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. 29.3. Such a power is not to be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for the offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. 29.4. On the other hand, those criminal cases having overwhelmingly and predominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes Crl.M.C.No.5701 of 2023 6 should be quashed when the parties have resolved their entire disputes among themselves. 29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties Crl.M.C.No.5701 of 2023 7 is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the chargesheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” Crl.M.C.No.5701 of 2023 8 Keeping in mind the law laid down by the Supreme Court in _**Gian Singh v. State of Punjab**_ ; (2012) 10 SCC 303, _**Narinder Singh v. State of Punjab**_ , (2014) 6 SCC 466, and _**State of M.P. v. Laxmi Narayan**_ ; (2019) 5 SCC 688, I am of the view that the proceedings against the petitioner can be quashed on the ground of settlement. No public purpose would be served by continuing the proceedings against the petitioner in Crime No.1973 of 2023 of Central Police Station, Ernakulam. The chance of a successful prosecution is also minimal in the light of the settlement between the parties. The allegations against the petitioner are noticed above. They do not fall within the category of heinous offences, as mentioned in paragraph 29.3 of _**Narinder Singh**_ **(supra)** . In the result, this Crl.M.C. is allowed and all further proceedings against the petitioner in Crime No.1973 of 2023 of Central Police Station, Ernakulam will stand quashed. Sd/- ## **GOPINATH P., JUDGE** rkj