Jubeesh Khan v. Sub Inspector of Police, Pulikeezhu Police Station; State of Kerala; Baisy Anna Cheriyan; Mathew Cheriyan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **MONDAY, THE 29TH DAY OF JULY 2013/7TH SRAVANA, 1935** **Crl.MC.No. 221 of 2009 ( )** **--------------------------SC 166/2008 of ADDL.SESSIONS COURT II, PATHANAMTHITTA** **PETITIONERS/ACCUSED NO.1:** **-----------------------** **JUBEESH KHAN,S/O.NAUSHAD KAMALUDHEEN, THOPPIL PUTHENPURAYIL VEEDU, THEKKUM BHAGOM MURI, NIRANAM VILLAGE** **BY ADV. SRI.UNNI. K.K. (EZHUMATTOOR)** **RESPONDENTS/COMPLAINANT :** **1. SUB INSPECTOR OF POLICE, PULIKEEZHU POLICE STATION** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** - ***ADDL.R3 & R4 IMPLEADED :** **3. BAISY ANNA CHERIYAN, W/O.JUBEESH KHAN, THOPPIL PUTHENPURAYIL VEEDU, THEKKUM BHAGOMMURI, NIRANAM VILLAGE.** **4. MATHEW CHERIYAN, S/O.MATHEW, PEACE BHAVAN, OTTATHENGIL THEKKUM,BHAGOM MURI,NIRANAM VILLAGE ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DT 28/1/2009 IN CRMA 459/09 IN CRMC 221/09.** **R1 & R2 BY PUBLIC PROSECUTOR SRI.PADMALAYAN ADDL.R3. BY ADV. SMT.APARNA N.NAMBOOTHIRI ADDL.R4 BY ADVS. SRI.VIVEK VARGHESE P.J. SRI.VARUGHESE M EASO** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 23/07/2013, THE COURT ON 29-07-2013 PASSED THE FOLLOWING:** **BP** ## **Crl.MC.No. 221 of 2009 ( )** ## **APPENDIX** ## **PETITIONER'S ANNEXURES :** |**ANNEXURE A1:**|**COPY OF THE FINAL REPORT IN CRIME NO.92/07 OF**| |---|---| ||**PULIKEEZHU POLICE STATION.**| |**ANNEXURE A2:**|**COPY OF THE DEPOSITION OF BAISY MADE BEFORE**| ||**THE JUDICIAL FIRST CLASS MAGISTRATE COURT,**| ||**THIRUVALLA.**| |**ANNEXURE A3:**|**COPY OF THE STATEMENT MADE BEFORE R1.**| |**ANNEXURE A4:**|**COPY OF THE MARRIAGE CERTIFICATE**| |**ANNEXURE A4(a):**|**COPY OF THE D MARRIAGE REGISTER**| **RESPONDENT'S ANNEXURES : NIL.** **//TRUE COPY//** **P.A. TO JUDGE** ## **BP** K. RAMAKRISHNAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl. M.C.No.221 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 29[th] day of July, 2013 ## **J U D G M E N T** This is an application filed by the accused in S.C. No.166/2008 on the file of the Additional Sessions Court-II, Pathanamthitta, to quash the proceedings under Section 482 of the Code of Criminal Procedure (herein after referred to as 'Cr.P.C'). 2. It is alleged in the petition that the above case was originated on the basis of the statement given by the additional 4[th] respondent, the father of the additional 3[rd] respondent, alleging that the petitioner had kidnapped his daughter who was a minor then, with a view to have sexual intercourse with her and compel her to marry him and thereby the police had registered a crime as Crime No.92/2007 of Pulikeezhu police station against the petitioner. In fact, the case was originally registered for man missing and the 4[th] respondent also filed habeas corpus petition as W.P.(Crl.) No.121/2007 before this court, and the police had arrested the 2 Crl. M.C.No.221 of 2009 petitioner along with the 3[rd] respondent and they were produced before the Judicial First Class Magistrate Court, Thiruvalla and he was granted bail. The statement of the 3[rd] respondent was taken, in which she had categorically stated that there was no compulsion or inducement made on the part of the petitioner herein. She was in love with him and she had voluntarily gone with him and this statement is produced as Annexure-A2. She had given similar statement before the investigating officer also, which is produced as Annexure-A3. Thereafter, the 3[rd] respondent converted to islam and they married on 2.11.2007 at Niranam Denar Palli Jama Athu under Muslim law and the marriage certificate is produced as Annexure-A4 and A4(a). 3. After investigation, the investigating officer submitted Annexure-A1 final report against the petitioner, alleging commission of offence under Section 466 of Indian Penal Code. After committal, the case is now pending before the Additional Sessions Court-II, Pathanamthitta as S.C. No.166/2008. He had not 3 Crl. M.C.No.221 of 2009 committed any offence. The statement of the victim girl will go to show that there was no kidnapping or had intercourse with her against her wish, as alleged by the prosecution. There is no purpose in prosecuting the case, as they are now living as husband and wife and leading a happy family life. So, the counsel for the petitioner prayed for quashing the proceedings, as there is no possibility of conviction being entered in the circumstances of the case, hence the petition. 4. Learned Public Prosecutor submitted that it is not a fit case to invoke the power under Section 482 Cr.P.C. Counsel for the additional 3[rd] respondent submitted that his client is now residing with the petitioner as husband and wife and there are children in the relationship. He had no objection in quashing the proceedings. 5. Counsel for the 4[th] respondent also submitted that, considering the fact that his daughter had decided to live with the petitioner, he had no objection, in allowing the application, but they should not harass him. Crl. M.C.No.221 of 2009 4 Counsel for the petitioner and the 3[rd] respondent submitted that they have no intention to harass the 4[th] respondent. 6. I have considered the rival contentions of all parties in detail. 7. It is an admitted fact that the additional 3[rd] respondent is the daughter of the additional 4[th] respondent and when she missed from the house, he filed a complaint to the 2[nd] respondent and he had registered a case as Crime No.92/2007 of Pulikeezhu police station under the caption man-missing. It is also an admitted fact that the victim girl namely 3[rd] respondent went along with the petitioner and they married and now are living as husband and wife. When the counsel for the petitioner submitted that she had converted to Islam, I directed the 3[rd] respondent to file an affidavit and she had filed an affidavit stating that she had converted to Isalam and she married the petitioner with the blessings of the parents of the petitioner and they are now living happily. She had been re-named as Raziya, after conversion and this was 5 Crl. M.C.No.221 of 2009 notified in the gazette as well. She had also stated in the affidavit that she went along with the petitioner voluntarily and there was no inducement from the side of the petitioner in her going with him. She had also stated in the affidavit that there was no compulsion in the marriage. Even in Annexure-A2 statement, before the magistrate, she had stated that she had voluntarily gone along with the petitioner and they were in love and the sexual intercourse was done with her consent. She was aged 17 and half years at that time. The same statement was reitarted by her in Annexure-A3 statement recorded by the police during investigation under Section 161 of Cr.P.C as well. So, these statements will go to show that she had voluntarily gone with the petitioner. 8. In the decision reported in **AIR 1965 SC 942 S. Varadarajan v. State of Madras** , it has been held that “college going girl on the verge of majority, telephoning accused and meeting and going with him to Sub Registrar's Office for registering the marriage agreement, without any threat or inducement on the part 6 Crl. M.C.No.221 of 2009 of the accused and at the insistence of the victim girl, he married her, then there is no inducement or taking away as contemplated under Section 361 of Indian Penal Code, so as to convict the accused for the offence of kidnapping. Taking or it enticiting away a minor out of the keeping of lawful guardian is an essential ingredient of the offence of kidnapping”. Applying the principle laid down in the decision cited (supra), there is no offence under Section 366 of I.P.C is attracted. 9. Further considering the nature of statement given by the victim girl and also the affidavit filed by her before this court will go to show that there will be no purpose in allowing the proceedings to continue as she is not going to speak against the petitioner, as they are now living as husband and wife. 10. In the decision reported in **Gian Singh v. State of Punjab 2012 (4) KLT 108 (SC)** , the Apex Court has held that it is within the powers of the High Court to quash the criminal proceedings involving noncompoundable offences, on the basis of the compromise 7 Crl. M.C.No.221 of 2009 reached by the offender and the victim. It is also observed in the said decision that compounding of offence under S.320 Cr.PC and the quashing of criminal proceedings under S.482 Cr.PC are different and distinct. High Court must consider whether it would be unfair and contrary to the interest of justice to continue with such proceedings in view of the settlement and the compromise reached between the parties. In the said case, certain categories of cases have been mentioned, which cannot be quashed. In the same decision, it has been observed that in cases where matrimonial disputes are involved, it is always better that Courts should invoke the power under Section 482 and quash the proceedings if the matter has been settled between the parties. So, considering the circumstances of the case and also applying the dictum laid down in the decision reported in Gian Singh's case (supra), I feel that it is a fit case where the power under Section 482 Cr.P.C has to be invoked to quash the proceedings against the petitioner, inorder to promote the matrimonial harmony that is going on 8 Crl. M.C.No.221 of 2009 smoothly between the petitioner and the additional 3[rd] respondent and quash the proceedings against the petitioner. So the proceeding against the petitioner is quashed. In the result, the application is allowed and proceedings against the accused in S.C. No.166/2008 on the file of the Additional Sessions Court-II, Pathanamthitta originated on the basis of Crime No.92/2007 of Pulikeezhu police station, are hereby quashed. The office is directed to communicate the order to the concerned court, immediately. Sd/K.RAMAKRISHNAN, (Judge) // True Copy // P.A. To Judge ss