Madhu K.R. and Jayaprasad @ Ani and Addl. P3 Rajesh @ Shaji v. State of Kerala and Reji Kumar

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 12TH DAY OF DECEMBER 2019 / 21ST AGRAHAYANA, 1941** ## **Crl.MC.No.8690 OF 2019(E)** **AGAINST THE ORDER/JUDGMENT IN SC 256/2016 OF SPECIAL COURT UNDER POCSO ACT, KOTTAYAM** **CRIME NO.87/2016 OF Karukachal Police Station , Kottayam** ## **PETITIONERS:** **1 MADHU K.R., AGED 46 YEARS S/O.M.K.RAGHAVAN, PADINJARE MANA HOUSE, MANNANANIKKAL BHAGOM, KANGAZHA VILLAGE, KANGAZHA KARA, KOTTAYAM DISTRICT, PIN- 686515. 2 JAYAPRASAD @ ANI, S/O.NARAYANAN, PADINJARE MANNANANIKKAL HOUSE, KULANGARA PADY BHAGOM, NEDUKUNNAM VILLAGE, NEDUKUNNAM KARA, CHANGANACHERRY TALUK, KOTTAYAM DISTRICT, PIN686542.** |***ADDL.**|**RAJESH @ SHAJI, AGED 38 YEARS**| |---|---| |**P3**|**S/O CHANDRAN, PUTHUPPARAMBIL KAROTTU HOUSE,**| ||**MANNANANIKKAL BHAGOM, KANGAZHA VILLAGE, KANGAZHA**| ||**KARA, KOTTAYAM DISTRICT 686 515**| ***IS IMPLEADED AS ADDL.P3 AS PER ORDER DATED 12.12.2019 IN CRL.M.A. NO.2/2019** ## **BY ADV. SRI.M.P.MADHAVANKUTTY** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN- 682031.** - **2 REJI KUMAR, AGED 49 YEARS S/O.THANKAPPAN NAIR, SREE SHYLAM HOUSE, MANNANANIKKAL, KANGAZHA, KOTTAYAM DISTRICT, PIN686515.** ## **R2 BY ADV. GOKUL DAS V.V.H.** ## **OTHER PRESENT:** **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.8690 OF 2019(E)** **2** ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.8690 of 2019 ---------------------------------------------Dated this the 12[th] day of December, 2019 ## **O R D E R** The two petitioners herein and R3 herein have been arrayed as accused Nos.1 2, and 3 respectively among the 3 accused in the instant Crime No.87/2016 of Karukachal Police Station, Kottayam District for offences punishable under Secs.354, 323 and 34 of the IPC and Secs. 4 and 5 of the Protection of Children from Sexual Offences Act, 2012. The Police after investigation has filed the impugned Annexure-I final report/charge sheet which has now led to the pendency of sessions case S.C.No.256/2016 on the files of the Additional Sessions Court notified to deal with POCSO cases, Kottayam for the abovementioned offences. The petitioners now seek quashment of the impugned criminal proceedings on the ground of settlement between the parties. It is pointed out by the learned counsel for the petitioners that the settlement between parties as reflected in Annexures II, III and IV affidavits filed by the 2[nd] respondent/defacto complainant (the father of the victim girl), the mother of the minor victim girl as well as the minor victim girl. 2. It is pointed out by the counsel for the petitioner that a mere reading of the impugned prosecution materials including the FIR and the **Crl.MC.No.8690 OF 2019(E)** **3** FIS would make it clear that the only allegation made therein regarding anything remotely to do with the alleged incidents, if any is that A2 had caught hold of the T-shirt worn by the minor victim girl, then aged 16 years (who is the daughter of the 2[nd] respondent/defacto complainant) and that the said incident has happened in the midst of a scuffle between the accused persons and the 2[nd] respondent/the father of the minor victim girl. Reference in this connection is made to page 21 of this paper book which has incorporated with the FI statement in this case. On this basis, it is pointed out that none of the ingredients of Secs. 4 and 5 of the POCSO Act which deals with aggravated penetrative sexual assault and the punishment thereof are even remotely disclosed in this case. So also the prosecution cannot have any case that the said act of A2 in pulling away and catching hold of the T-shirt worn by the minor victim girl in the midst of the heat of a scuffle between the accused persons and her father can be said to have been done by A2 with any sexual intent and therefore, none of the ingredients of sexual assault as envisaged in Sec.7 of the POCSO Act which is punishable under Sec.8 thereof is disclosed in this case. 3. Further that, even if it is assumed for argument sake that the element of sexual intend would be pre-supposed, the alleged act of catching hold of the T-shirt of the minor victim girl in the midst of the heat of a scuffle between the accused persons and the 2[nd] respondent/defacto complainant (R2) is so trivial that it could certainly be the subject matter of **Crl.MC.No.8690 OF 2019(E)** **4** the quashment of the impugned criminal proceedings on the ground of settlement between the parties. 4. On being queried, the learned Prosecutor has also fairly submitted that except the allegation that A2 had pulled the T-shirt worn by the minor victim girl as aforestated, there are no other allegations so as to attract the POCSO offences. In the instant case, this court is constrained to take the view that neither any of the serious offences as per Secs.4 and 5 nor any lesser offences like Secs. 7 and 8 of the POCSO Act are disclosed in this case. Assuming that any offence under Secs. 7 and 8 regarding sexual assault (other than penetrative sexual assault) is made out by the said allegation on the ground that the sexual intend could be pre-supposed etc., such a trivial act could be the subject matter of quashment on the ground of settlement between the parties. 5. It has turned out that the disputes have occurred between the accused persons herein on the one hand and the family members of the 2[nd] respondent on the other hand. The offences alleged are those punishable under Secs.323, 354 and 34 of the IPC. Those offences could certainly be considered for quashment on the ground of the settlement between the parties. It is pointed out that the accused No.3 is now not having any contact with the petitioners and therefore, he could not be included in the array of the petitioners herein and he has been formerly impleaded as additional respondent No.3. **Crl.MC.No.8690 OF 2019(E)** **5** 6. Sri.V.V.H.Gokuldas, learned counsel appearing for R2 (defacto complainant) would submit on the basis of the instructions of the party that R2 has already filed a statement before this Court that he is willing for qaushment of the impugned criminal proceedings on the ground of settlement not only as against the petitioners herein (A1 and A2), but also as against A3 as otherwise the continuance of the impugned criminal proceedings only as against A3 on the basis of the partial quashment could be more of a problem for the criminal court and the prosecution agency concerned. Further, it is pointed out by the learned counsel for the R2 that no serious allegations have been raised as against R3 herein (A3 in the case). 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 **Crl.MC.No.8690 OF 2019(E)** **6** 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 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. Accordingly, it is ordered that the proceedings pursuant to impugned Annexure-I final report/charge sheet filed in crime No.87/2016 of Karukachal Police Station, which has now led to the pendency of sessions case S.C.No.256/2016 on the file of the Addl.Sessions Court, notified to deal with POCSO cases, Kottayam as against the accused persons therein and all further proceedings arising therefrom as against the accused persons therein will stand quashed. The petitioners will produce certified copies of this order to the Investigating Officer concerned and the competent court below concerned. Office of Advocate General will forward copy of this order to the Investigating Officer concerned, for necessary information. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. Sd/- **ALEXANDER THOMAS, JUDGE.** **SKS** **Crl.MC.No.8690 OF 2019(E)** **7** ## **APPENDIX OF Crl.MC 8690/2019** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **THE CERTIFIED COPY OF THE FINAL REPORT SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT-I, CHANGANACHERRY BY THE KARUKACHAL POLICE STATION BEARING F.I.R.NO.87/2016 DATED 10.01.2016.** **ANNEXURE II THE AFFIDAVIT SWORN IN BY THE 2ND RESPONDENT DATED 06.11.2019.** **ANNEXURE III THE AFFIDAVIT SWORN IN BY THE WIFE OF THE 2ND RESPONDENT DATED 06.11.2019.** **ANNEXURE IV THE AFFIDAVIT SWORN IN BY THE DAUGHTER OF THE 2ND RESPONDENT DATED 06.11.2019.** **Crl.MC.No.8690 OF 2019(E) 8**