High Court of KeralaSingle Judge2020-10-07Quashed and disposed in favor of the petitioner...

Lenin Jose, Xavi Leon, and Jithin v. State of Kerala

Case / Petition Number:Crl.M.C. No. 5768 of 2019 (A)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Alexander Thomas
Judgment Date: 2020-10-07
Court Decision / Holding: In exercise of the powers under Sec.482 Cr.P.C., the impugned Anx-I Final report/Charge sheet in Crime No.592/2017 of Thadiyittaparambu PS, which led to Sessions Case SC 433/2018, is quashed and set aside against the petitioners/accused; all proceedings emanating therefrom are quashed. Certified copies of the order must be produced before the IO and the First Additional Sessions Court for necessary information. The matter stands disposed of.
Final Disposition: Quashed and disposed in favor of the petitioners; proceedings against them are quashed under Sec.482 Cr.P.C.

Parties to the Case

Appellants / Petitioners

Lenin Jose
Xavi Leon
Jithin

Respondents

State of Kerala represented by Public Prosecutor, High Court of Kerala, Ernakulam
Ashmi
Lissy

Legal Representation & Advocates

Counsels for Petitioners

• K.S. Arun Kumar
• Justine Jacob
• Amrutha P. S.

Counsels for Respondents

• K.P. Amrutha
• Saigi Jacob Palatty
• Public Prosecutor

Case Synopsis & Summary

This is a Kerala High Court criminal miscellaneous case (Crl.M.C. No. 5768 of 2019) disposed on 07.10.2020 by Justice Alexander Thomas. The petitioners—Lenin Jose, Xavi Leon, and Jithin—were arrayed as accused 1–3 in FIR No. 592/2017 of Thadiyittaparambu PS, Ernakulam, for offences under IPC sections 541, 354A(1)(IV), 354C, 500, 509 and Sec. 34, and under the POCSO Act, 2012 (sections 7 read with 8, and 11(IV) read with 12). The investigation led to Final report/charges in Sessions Case SC 433/2018 before the First Additional Sessions Court, Ernakulam. The respondents include the State/Public Prosecutor and the mother (R3) with R2 being the minor victim. The main allegations relate to non-penetrative sexual harassment/assault by the petitioners on R2, who was a minor at the time. The petition contends that the dispute arises from misunderstandings; there is no penetrative sexual assault, and the 2nd respondent is now married and residing in Nagaland. Crucially, the 2nd and 3rd respondents have filed affidavits (Anx-II/Anx-III) stating settlement and non-object to prosecution. The Public Prosecutor advised that the IO found the victim had attained majority, and with no objection from the parties, quashing would be warranted. Relying on Gian Singh and Narinder Singh, the Court held that, where a genuine settlement exists and continuation serves no purpose, Sec.482 Cr.P.C. permits quashing. The impugned Final report/charge sheet and related proceedings were quashed against the petitioners, with directions to inform IO and the Sessions Court. The petition was disposed of accordingly.

Provisions of Law Cited

Sec. 541 IPCSec. 354A(1)(IV) IPCSec. 354C IPCSec. 500 IPCSec. 509 IPCSec. 34 IPCSec. 7 read with Sec. 8, Sec. 11(IV) read with Sec. 12 of the Protection of Children from Sexual Offences Act, 2012Sec. 482 Cr.P.C.

Legal Doctrines & Maxims

In the interest of justice
Power of High Court under Sec. 482 Cr.P.C. to quash criminal proceedings in appropriate cases
Settlement between parties can justify quashing even in cases involving non-compoundable offences

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners argued that the gravity of the allegations was overstated and rooted in a misunderstanding. They highlighted that there is no penetrative sexual assault, and that the second respondent is now an adult, married, and residing elsewhere (Nagaland). They cited the affidavits of settlement (Anx-II/Anx-III) filed by the second and third respondents indicating their willingness not to prosecute further. It was urged that quashing the proceedings under Section 482 Cr.P.C. would serve the interests of justice and conserve judicial time, given the genuine settlement and lack of ongoing risk to the victim. They relied on Supreme Court rulings such as Gian Singh v. State of Punjab and Narinder Singh v. State of Punjab to support the exercise of inherent power to quash after settlement and where continuation would be futile.

Contentions of Respondents

The State Public Prosecutor, after instructing the Investigating Officer, indicated that the victim had crossed the age of majority and currently resides in Nagaland; the 2nd respondent and 3rd respondent had no objection to quashing in light of settlement. The State did not oppose quashing; the argument rested on the need to consider the broader principles laid down by the Apex Court in Gian Singh and Narinder Singh, ensuring that quashing is permissible where the dispute is settled and continuing the prosecution would waste resources and serve no legitimate purpose.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Gian Singh v. State of Punjab	2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303	Positive	Cited to justify the Court’s power under Sec.482 Cr.P.C. to quash prosecutions in settled disputes, even in non-compoundable offences, where continuing would be futile.
Narinder Singh and others v. State of Punjab and anr	(2014) 6 SCC 466	Positive	Used to support the principle that settlement and the best interests of the victim can justify quashing under inherent powers, particularly per paragraph 29.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 07TH DAY OF OCTOBER 2020 / 15TH ASWINA, 1942** ## **Crl.MC.No.5768 OF 2019(A)** **SC 433/2018 OF ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM CRIME NO.592/2017 OF ThadiyittaparambU Police Station, Ernakulam** ## **PETITIONERS/ACCUSED:** **1 LENIN JOSE AGED 29 YEARS S/O.JOSE, CHAKKALAKKAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT.** **2 XAVI LEON, AGED 22 YEARS S/O.LEO VARGHESE, CHAKKALAKKAL HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT.** **3 JITHIN, AGED 24 YEARS S/O.MATHAI, KAVUNGALPARAMBIL HOUSE, KIZHAKKAMBALAM, ERNAKULAM DISTRICT.** **BY ADVS. SRI.K.S.ARUN KUMAR SRI.JUSTINE JACOB SMT.AMRUTHA P S** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN -682031.** Crl.M.C No. 5768 of 2019 2 **2 ASHMI, AGED 19 YEARS D/O.GILSON GASPER, CHERIYAKUMARAKATH HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN-683562.** **3 LISSY, AGED 48 YEARS W/O.GILSON GASPER, CHERIYAKUMARAKATH HOUSE, THAMARACHAL KARA, KIZHAKKAMBALAM, ERNAKULAM DISTRICT, PIN-683562.** **BY ADVS. SMT.K.P.AMRUTHA -R2 & R3 SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR-R1** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 07.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 5768 of 2019 3 ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 5768 of 2019 -----------------------------------Dated this the 7[th ] day of October, 2020 ## **O R D E R** The petitioners herein have been arrayed as accused Nos.1 to 3 among the three accused in the instant impugned FIR in crime No.592/2017 of Thadiyittaparambu Police Station, Ernakulam District for the offences punishable under Secs.541, 354A(1)(IV), 354C, 500, 509 and Sec.34 of the Indian Penal Code and Secs.7 read with 8, 11(IV) read with Sec.12 for the Protection of Children from Sexual Offences (POCSO) Act, 2012 on the basis of the First Information Statement given by R3 herein (who is the mother of the R2 minor victim girl). The Police after investigation has filed the impugned Anx-I Final report/Charge sheet in the said crime No.592/2017 of Thadiyittapamabu police station and the case is now pending as Sessions Case S.C No.433/2018 on the file of the First Additional Sessions Court notified to deal with POCSO cases, Ernakulam. 2. The petitioners are immediate neighbours and relatives of R2 & R3. The 3[rd] respondent lady defacto complainant is the mother Crl.M.C No. 5768 of 2019 4 of the 2[nd] respondent victim girl. The allegations are to the effect that A1 and other accused have committed sexual harassment and nonpenetrative sexual assault on the 2[nd] respondent victim girl, who was then a minor. 3. According to the petitioners the 1[st] petitioner (A1) had an affair with the 2[nd] respondent and when the same came to the knowledge of the 3[rd] respondent she admonished them to stop it and for that purpose the 3[rd] respondent has forced the 2[nd] respondent to make these false allegations. Further that the 2[nd] respondent has now married and he is living elsewhere and the petitioners and respondents 2 & 3 who are closes relatives and neighbours and they have settled disputes. Further that the 2[nd] & 3[rd] respondents have separately filed Anx-II affidavit dated 08-08-2019 and Anx-III affidavit dated 08-08-2019, stating that the disputes between the parties have been settled and that they do not wish to prosecute the matter any further, etc. 4. Smt.K.P.Amrutha, learned counsel appearing for R2 & R3 would submit on the basis of instructions of her parties the abovesaid allegations were made out of the misunderstandings and that the 2[nd] respondent is now married and that the respondents 2 & 3 do not Crl.M.C No. 5768 of 2019 5 wish to continue with the impugned criminal proceedings any further and that the continuance of the impugned criminal proceedings may be more detrimental to the future life of the 2[nd] respondent and that they do not wish to proceed with the matter any further and that there are no allegations of penetrative sexual assault and that this Court in the interest of justice may quash the impugned criminal proceedings. 5. The learned Public Prosecutor was requested to get instructions in the matter and today when the matter has been taken up for consideration, learned Public Prosecutor would submit that on the basis of the instructions from the Investigating Officer concerned that the Investigating Officer conducted a enquiry and it is revealed that the 2[nd] respondent has already completed the majority age of 18 years more than a year back and that she is now residing and working in Nagaland and that the statement of the 3[rd] respondent has also been recorded and she has stated that respondents 2 & 3 have no objections for quashment of the impugned criminal proceedings and that in view of the subsequent developments, it may be better in the interest of respondent No.2 that the impugned criminal proceedings may be quashed on the ground of settlement. Crl.M.C No. 5768 of 2019 6 6. The learned counsel for the petitioner submits that the allegations had been made on the basis of misunderstandings and that there are no allegations of penetrative sexual assault and that this Court in the interest of justice may quash the impugned criminal proceedings, etc. 7. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 Crl.M.C No. 5768 of 2019 7 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 8. Taking note of the abovesaid aspects and taking note of the fact that the 2[nd] respondent is now already married and she is now working and residing in a north-eastern state (Nagaland) and also taking into account the crucial fact that there are no allegations of penetrative sexual assault in this case and that also taking into account the better interest of the 2[nd] respondent and taking into account the the abovesaid plea of respondents 2 & 3 etc, this Court is of the considered view that the plea for quashment will be considered in this case. 9. Accordingly it is ordered that in exercise of the powers conferred under Sec.482 of the Cr.PC, it is ordered that the impugned Anx-I Final report/Charge sheet filed in crime No.592/2017 of Thadiyittaparambu police station, Ernakulam, which has now led to the pendency of Sessions Case S.C No.433/2018 on the file of the First Additional Sessions Court, notified to deal with POCSO cases, Ernakulam as against the petitioners/accused and all proceedings Crl.M.C No. 5768 of 2019 8 emanating therefrom as against the petitioners/accused will stand quashed and set aside. 10. The petitioners will produce certified copies of this order before the Investigating Officer concerned as well as before the First Additional Sessions Court, notified to deal with POCSO cases, Ernakulam, who is dealing with S.C No.433/2018 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS, JUDGE** KAS Crl.M.C No. 5768 of 2019 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I TRUE COPY OF THE FINAL REPORT IN CR. NO.592/2017 OF THADIYITTAPARAMBU POLICE STATION. ANNEXURE II AFFIDAVIT SWORN BY THE 2ND RESPONDENT. ANNEXURE III AFFIDAVIT SWORN BY THE 3RD RESPONDENT.** **RESPONDENT'S/S EXHIBITS: NIL**