Mahi @ Mahesh Kumar & Reshma T.S. v. State of Kerala and Adhilekshmi (minor), represented by Sareesh M.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941** **Crl.MC.No.4574 OF 2019(B)** **CRIME NO.728/2019 OF Narakkal Police Station , Ernakulam** **PETITIONERS/ACCUSED 1 & 2:** - **1 MAHI @ MAHESH KUMAR,AGED 35 YEARS,S/O.MOHANAN.N.R., NEERANIPOIKAYIL HOUSE, CHERUPUZHA, PRAPOYIL, KANNUR DISTRICT, PIN-670511, NOW RESIDING AT ANUPAMA, MURAKKAL HOUSE, ELAMKUNNAPUZHA, ERNAKULAM DISTRICT, PIN-682511.** - **2 RESHMA.T.S.,AGED 33 YEARS,D/O.SATHYAN.T.A., THAIKKATTU HOUSE, KUZHUPPILLY, AYYAMBILLY.P.O., ERNAKULAM DISTRICT, PIN-682501, NOW RESIDING AT ANUPAMA, MURAKKAL HOUSE, ELAMKUNNAPUZHA, ERNAKULAM DISTRICT, PIN-682511.** **BY ADV. SRI.K.G.RAJEESH** ## **RESPONDENTS/STATE/VICTIM/DEFACTO COMPLAINANT:** - **1 STATE OF KERALA,REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** - **2 ADHILEKSHMI,AGED 6 YEARS (MINOR), REPRESENTED BY HER FATHER SARESH.M.V., AGED 38 YEARS, S/O.VASU.M.P., MANAKKAPARAMBIL HOUSE, PERUMPADANNA, KALLUCHIRA, N.PARAVUR, PIN-683513, NOW RESIDING AT DEEPAM BUILDING, NO.39/3081, NEAR LAKSHMI HOSPITAL, PALLIYIL LANE, ERNAKULAM-682016.** - **3 SARESH M.V.,AGED 38 YEARS, S/O.VASU.M.P., MANAKKAPARAMBIL HOUSE, PERUMPADANNA, KALLUCHIRA, N.PARAVUR, PIN-683513, NOW RESIDING AT DEEPAM BUILDING, NO.39/3081, NEAR LAKSHMI HOSPITAL, PALLIYIL LANE, ERNAKULAM-682016.** **R2-3 BY ADV. P.B.AJOY BY ADV. SMT.MARIA ELIZABETH WILSON BY ADV. SMT.SUZANNE KURIAN** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1, SRI.P.B.AJOY FOR R2 AND R3** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.08.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.4574/2019 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C.No.4574 of 2019 ---------------------------------------------Dated this the 29[th] day of August, 2019 ## **ORDER** The petitioners herein have been arrayed as accused Nos.1 and 2 among the two accused in the impugned Annexure-A1 F.I.R. in Crime No.728/2019 of Njarakkal Police Station, which has been registered for offences punishable under Section 328 of the IPC and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 on the basis of the First Information Statement given by the minor victim girl aged then 7 years on 17.5.2019 at 04.05 p.m. in respect of the alleged incident, which had happened for the period from 16.6.2018 to 8.5.2019. 2. The 2[nd] petitioner herein (A2) had married the 3rdrespondent herein and the 2[nd] respondent is the girl child born in their wedlock. Later, due to difference of opinion, the marital relationship became strained and they have secured decree of divorce by mutual consent from the Family Court, Ernakulam as per Annexure-A4 judgment and decree dated 20.12.2017 rendered by the said Court in O.P.No.2242/2017. After the divorce, the 2[nd] petitioner (A2) has married the 1[st] petitioner (A1) and further it also appears Crl.M.C.No.4574/2019 3 that the 3[rd] respondent has also married another woman. AnnexureA3 is the terms and conditions of the settlement arrived at between the parties under Section 13B of the Hindu Marriage Act and in clause 5 of Annexure-A3, it is agreed between the parties that permanent custody of the 2[nd] respondent minor girl child would be with the 3[rd] respondent (father) and that on every Saturday afternoon by 2 p.m., the 3[rd] respondent herein will handover the custody of the child to the 2[nd] petitioner herein, who could enjoy the custody of the child till the next Monday morning. 3. The brief of the prosecution case in relation to the impugned Annexure-A1 FIR is that when the 2[nd] respondent girl child was given to the custody of the 2[nd] petitioner on 16.6.2018, she was compelled by the 1[st] petitioner to consume beer and she was also scolded and beaten for not addressing 1[st] petitioner as ‘pappa’. Further that when she complained about these aspects to the 2[nd] petitioner, the latter also scolded her. That the above incidents had happened on quite a few occasions thereafter. It is on the basis of these allegations Annexure-A1 crime has been registered for the above said offences.. 4. Now it is submitted by the petitioners as well as the respondents 2 and 3 that the above said allegations were made out of misunderstandings of the 2[nd] respondent and that the parties have Crl.M.C.No.4574/2019 4 fully resolved the disputes and that 3[rd] respondent has filed an affidavit Annexure-A2 dated 29.6.2019 on his behalf and also on behalf of the 2[nd] respondent herein stating that the entire disputes between the parties have been resolved and the respondents 2 and 3 do not wish to continue the impugned criminal proceedings any further and that the child does not face any problems when the interim custody is given to the 2[nd] petitioner as per the consent decree of the Family Court and that continuance of the impugned criminal proceedings would not be conclusive to the peaceful and harmonious growth of the 2[nd] respondent. 5. It is in the light of these aspects that the petitioners have filed the instant Criminal Miscellaneous Case under Section 482 of the Cr.P.C. with the following prayer: _“........pleased to quash Annexure-A1 F.I.R. in the light of Annexure-A2 notarized affidavit of the 2[nd] respondent, in the interest of justice.”_ 6. Heard Sri. K.G. Rajesh, learned counsel appearing for the petitioners, Sri. Saiji Jacob Palatty, learned Public Prosecutor appearing for R1 State of Kerala and Sri. P.B. Ajoy, learned counsel appearing for contesting respondent Nos.2 and 3. 7. After hearing both sides and taking into consideration the nature of the allegations disclosed in the above Annexure-A1 FIR, this Court felt it appropriate that two young women Advocates of this Crl.M.C.No.4574/2019 5 Bar be entrusted the responsibility to interact with the 2[nd] respondent minor girl child to know whether she has any subsisting problems and also to know whether she has voluntarily agreed for the settlement as stated in Annexure-A3 affidavit etc. Accordingly, this Court had passed order dated 21.8.2019 in this Crl.M.C. ordering that Ms. Maria Elizabeth Wilson, Advocate and Ms. Suzanne Kurian Thomas, Advocate may interact with the 2[nd] respondent minor girl child, by 25.8.2019 and to ascertain from the child on the above said aspects. Now, the above said Advocates have reported that they have interacted with the 2[nd] respondent minor girl child on 22.8.2019 for about three hours and that the child has not shown any signs of any fear or shyness or inhibitions and that now she is aged 8 years and is studying in 3[rd] standard in St.Teresa's School, Ernakulam and that during the course of their interaction, the 2[nd] respondent girl child does not appear to have any problems or issues with the petitioners and that she has candidly stated that she loves staying at her mother’s place in order to play with her one year old baby sister (child born in the wedlock of the petitioners) and that she calls the 1[st] petitioner as “Pappa”, etc. Further that the child has stated that the above said allegations were made out of misunderstandings etc. This Court had directed and issued the said order dated 21.8.2019 in order to know the child's mind as the welfare of the child is one of the paramount Crl.M.C.No.4574/2019 6 consideration even dealing with the matters of this issue. Further the Investigating was also directed to ascertain from respondents 2 and 3 about the genuineness of the matters stated in Annexure-A2 and whether the settlement arrived at between the parties are genuine. The learned Public Prosecutor has also submitted that the Investigating Officer has conducted an enquiry and has taken statements of both 2[nd] and 3[rd] respondents and that they have been found that the above said allegations have been made out of misunderstandings and that it is only to better interest of both sides, more particularly, the interest of the 2[nd] respondent that the matter is resolved and that further continuance of the impugned criminal proceedings is not desired by them. 8. That apart, after hearing both sides and after going through the nature of allegations disclosed in the above said impugned Annexure-A1 FIR and FIS, it is highly doubtful whether the necessary ingredients of the offence as per Section 328 of IPC are brought out. Section 328 of IPC reads as follows: _“_ _**328. Causing hurt by means of poison, etc, with intent to commit an offence.-** Whoever administers to or causes to be taken by any person any poison or any stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt to such person, or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”_ Crl.M.C.No.4574/2019 7 It is highly doubtful whether even making a child of the age of 7 years drink a small quantity of beer would amount to administering any poison or any stupefying, intoxicating or unwholesome drug or other thing of the said nature. It cannot be even contemplated for a moment that sale and consumption of beer which is otherwise permitted by law would amount to consumption of a stupefying, intoxicating or unwholesome drug or any other thing of the like nature. That apart one of the other necessary ingredients is that the above said act should be with intent to cause hurt to such person or with intent to commit or to facilitate the commission of an offence or knowing it to be likely that he will thereby cause hurt etc. “Hurt” is precisely defined in Section 319 of the IPC has to mean, _“whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.”_ Therefore, it cannot be contended even for a moment that the process of making a child consume a small quantity of beer would amount to administering any poison or intoxicating or unwholesome drug or such other related thing and that thereby it would cause “hurt” as understood in Section 319 of IPC. 9. In the light of the above said aspects, more particularly, in view of the above said aspects reported by the above said learned Advocates, after interaction with the child, this Court is persuaded to take the view that the plea for quashment of the impugned criminal proceedings at Crl.M.C.No.4574/2019 8 Annexure-A1 would be considered on the basis of the settlement in exercise of the extraordinary inherent powers conferred under Section 482 of Cr.P.C. 10. 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 affidavits 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 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. Crl.M.C.No.4574/2019 9 11. Accordingly, it is ordered in the interest of justice that the impugned proceedings at Annexure-A1 FIR in Crime No.728/2019 of Njarakkal Police Station, wherein the petitioners have been arrayed as accused and all further proceedings taken in pursuance thereof will stand quashed. 12. The petitioners will produce certified copy of this order before the court below concerned as well as the Investigating officer concerned. The office of the Advocate General will also forward a certified copy of this order to the Investigating Officer concerned. Before parting with this case, this Court would like to place on records its appreciation of the sincere services rendered by Ms. Maria Elizabeth Wilson, Advocate and Ms.Suzanne Kurian Thomas, Advocate for having interacted with the child and on reporting it before this Court, which also has facilitated the resolution of the issues in this case. With these observations and directions, the above Criminal Miscellaneous Case stands finally disposed of. Sd/- ## **ALEXANDER THOMAS, JUDGE** acd Crl.M.C.No.4574/2019 10 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 CERTIFIED COPY OF THE FIR IN CRIME NO.0728/2019 DATED 17.05.2019 OF NJARAKKAL POLICE STATION, ERNKAULAM RURAL.** **ANNEXURE A2 NOTARIZED AFFIDAVIT OF THE 2ND RESPONDENT DATED 29.06.2019.** ## **ANNEXURE A3** **TRUE COPY OF THE MUTUAL DIVORCE PETITION O.P. NO-2242/2017 ON THE FILE OF FAMILY COURT,ERNAKULAM DATED 15.11.2017** **ANNEXURE A4 TRUE COPY OF THE JUDGMENT IN O.P.NO2242 OF 2017 OF THE FAMILY COURT,ERNAKULAM.** True Copy P.S. To Judge.