Kabeer v. State of Kerala and Smt. Sikha G. Nair

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 18TH DAY OF MARCH 2019/ 27TH PHALGUNA, 1940** ## **Crl.MC.No. 8402 of 2018** **AGAINST THE ORDER IN CP 33/2017 of JUDICIAL MAGISTRATE OF FIRST CLASS MAGISTRATE COURT-I,PERUMBAVOOR** **CRIME NO. 279/2010 of Perumbavoor Police Station, Ernakulam** ## **PETITIONER/ACCUSED:** **KABEER, AGED 43 YEARS, S/O.MAKKAR, KODAVATHAN HOUSE, PONJASSERY BHAGHOM, VENGOLA KARA, NOW RESIDING AT KODAVATHAN HOUSE, PALLICHIRANGARA, THRIKKALATHOOR P.O., MUVATTUPUZHA-683 541.** **BY ADV. SRI.AJEESH M UMMER** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 VICTIM** ## **BY ADV. SMT.SIKHA G.NAIR** **SRI.AMJAD ALI, PUBLIC PROSECUTOR FOR R1, SMT.SIKHA G.NAIR FOR R2** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 18.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.M.C.No.8402 of 2018** **2** ## **ALEXANDER THOMAS, J.** **=========================== Crl.M.C.No.8402 of 2018** **============================** Dated this the 18[th] day of March, 2019 ## **O R D E R** The prayer in the above captioned Criminal Miscellaneous Case is for quashment of the impugned Annexure A Final report in Crime No.279 of 2010 of Perumbavoor Police Station which has now let to the institution of commuted proceedings in C.P.No.33/2017 on the file of the Judicial First Class Magistrate Court-1, Perumbavoor for offences punishable under Sections 376, 496 and 420 of the IPC, the main ground urged by the petitioner. 2. Heard Sri.Ajeesh M.Ummer, learned counsel appearing for the petitioner/accused, Sri.Amjad Ali, learned Public Prosecutor appearing for the 1[st] respondent/State and Smt.Sikha G.Nair, learned counsel appearing for 2[nd] respondent (defacto complainant /victim). 3. The main ground urged for quashment of the impugned proceedings is that the entire disputes between the petitioner/accused and the 2[nd] respondent/defacto complainant has now been resolved and that the petitioner/accused and 2[nd] respondent/defacto complainant **Crl.M.C.No.8402 of 2018** **3** (victim) are married and they are now leading family life and now that they have a child and that the 2[nd] respondent have now decided to settle the disputes and the 2[nd] respondent thus pray that the impugned criminal proceedings may be quashed under ground of settlement as otherwise it will affect the marital life of the 2[nd] respondent. 4. It is by now well settled that the impugned criminal proceedings for serious and grave offences as the one in Section 376 of the IPC may not be amenable for quashment on the ground of settlement between the petitioner/accused and the 2[nd] respondent/defacto complainant (victim) {see _**Parbatbhai Aahir v. State of Gujarat,**_ reported in (2017) 9 SCC 641, _**Shimbhu & anr. v State of Haryana,**_ reported in (2014) 13 SCC 318, _**Sebastian @ Solly v. State of Kerala**_ , reported in 2015 KHC 38 = 2015 (1) KLT SN, 98, etc}. However, this Court has also held in various decisions as in _**Freddy @ Antony Francis and anr. v. State of Kerala & anr**_ [2017 KHC 344 = 2018 (1) KLD 558] etc, that in a case involving offence of rape, where the accused subsequently marries the victim, then and the victim herself has settled the disputes and also supports the plea for quashment for better future in her married life, the said plea could be allowed by this Court, etc. **4** **Crl.M.C.No.8402 of 2018** 5. The gist of the prosecution case is that the petitioner/accused had given promise to the 2[nd] respondent/defacto complainant/victim that he would marry her and thus he had sexual intercourse with her at different houses including her own house and that he had fraudulently made her believe that he had married her and manipulated a marriage certificate and that thereafter he had abandoned her etc. and taken her money and gold ornaments etc. 6. On a reading of Annexure A final report of the impugned criminal proceedings, it can be seen that the very genesis of the relationship between the parties was on the basis of consensual relationship and the 2[nd] respondent would allege that she had acted on the petitioner's promise to marry her and that later the petitioner had abandoned her etc. 7. Per contra the case of the petitioner/accused is that both the parties had been previously married and that the petitioner had eloped with the 2[nd] respondent defacto complainant about which the petitioner’s first wife had given a complaint, in which the petitioner had given a statement to the police that his marriage with the 2[nd] respondent has not been legally solemnized and that on hearing this 2[nd] respondent had got offended and given complaint to the police alleging construction **Crl.M.C.No.8402 of 2018** **5** of the offence of rape, etc. Further that both the parties are belonging to Muslim religion and that they have married as per the present laws and that they are living together as husband and wife for the last more than 10 years and a girl child has already been born the said matrimonial relationship and both the parties had divorced their spouses, etc. 8. It has now been well settled by series of decisions of the apex court including and various citation _**Uday v. State of Karnataka**_ [(2003) 4 SCC 46 _**and Deelip Singh @ Dilip Kumar v. State of Bihar**_ [(2005) 1 SCC 88] _**, Kaini Rajan v. State of Kerala**_ 2013 9 SCC 113, etc. that even if the allegations of the defacto complainant are admitted is indirectly and pointed out to the fact that she had voluntarily an consciously to accepting the relationship with the accused and then consent obtained on the prefaces of any promise to marry or false promise to marry, etc. cannot be construed as misconception of fact as envisaged in Section 90 of of the IPC. Further in _**Dr.Dhruvaram Murlidhar Sonar v. The State of Maharashtra and ors.**_ (2019) (1) SCALE 64, the apex court has held that there is substantial distinction between rape as understood in Section 376 of the IPC and considering the decision in _**Shivashankar @ Shiva v. state of Karnataka and Another**_ (judgment date **Crl.M.C.No.8402 of 2018** **6** 6.04.2018 in criminal appeal No.504 of 2018) of the apex court has held that it is rather difficult to hold sexual intercourse in the relationship which has continued for quite some time is rape as understood in Section 376 of the IPC especially, in the phase of the complaint/allegations that she had consented for sexual intercourse and that promise to marry or false promise to marry, by itself cannot be construed as misconception of the fact as envisaged in Section 90 of the IPC code, etc. These aspect has been also dealt with in the aforementioned decision from this Court in _**Freddy @ Antony Francis and anr. v. State of Kerala & anr**_ [2017 KHC 344 = 2018 (1) KLD 558] _**, Jinu Joseph v. State of Kerala and others [**_ 2018 (3) KHC 263 = 2018 (3) KHC 663] _**,**_ wherein this Court has held that where the that were the section mentioned one of the common cases of the parties and the parties have latter married, taking into account the interest of the defacto complainant/victim it may be just and proper that the impugned criminal proceeding for offences under Section 376 of the IPC be quashed on the ground of settlement between the parties and on account of subsequent marriage between the parties. In this case also, the parties are now married and they are living together as husband and wife for the last more than 10 years and though child is also born in the **Crl.M.C.No.8402 of 2018** **7** said marital relationship. Taking into account of the interest of the 2nd respondent/ defacto complainant and the child, in just and proper that this Court accede to the plea for quashment of the impugned criminal proceedings on the ground of the subsequent marital relationship between the parties. 9. In that view of the matter it is ordered that all further proceedings in relation to Annexure A first information report in Crime No.279 of 2010 of Perumbavoor Police station which has let to the institution of Criminal proceedings No.C.P.33/2017 on the files of Judicial First Class Magistrate Court-1, Perumbavoor and all further proceedings taking into account thereof as against the accused will stand quashed. The petitioner may produce a certified copy of judgment before the investigating officer concerned and before the Court below concerned for necessary information. With these observations and directions the above criminal proceedings will stand disposed of . **Sd/ALEXANDER THOMAS** **JUDGE** mpm **Crl.M.C.No.8402 of 2018** **8** ## **APPENDIX** **PETITIONER'S EXHIBITS:** **ANNEXURE A:** **CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.279/2010 OF PERUMBAVOOR POLICE STATION.** **ANNEXURE B: AFFIDAVIT SWORN BY THE 2ND RESPONDENT. ANNEXURE C: ONE AND THE SAME CERTIFICATE FROM VENGOLA VILLAGE OFFICE.** **ANNEXURE D: TRUE COPY OF BIRTH CERTIFICATE OF THE CHILD OF PETITIONER AND 2ND RESPONDENT. ANNEXURE E: TRUE COPY OF VOTERS ID OF THE RESPONDENT NO.2/DEFACTO COMPLAINANT. ANNEXURE F: TRUE COPY OF RATION CARD OF THE RESPONDENT NO.2/DEFACTO COMPLAINANT.** //TRUE COPY// PA TO JUDGE