Majeed P.P v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 30TH DAY OF SEPTEMBER 2020 / 8TH ASWINA, 1942** ## **Crl.MC.No.615 OF 2020(F)** **SC 1051/2018 OF SPECIAL COURT UNDER POCSO ACT, KANNUR** **CRIME NO.255/2018 OF Sreekandapuram Police Station , Kannur** ## **PETITIONER/SOLE ACCUSED:** **MAJEED.P.P AGED 49 YEARS S/O.KHADER @ KHADIRI, PUDHIYAPURAYIL HOUSE, SREEKANDAPURAM, AMSHAM, KOTTOOR, KANNUR, PIN-670631** **BY ADV. SRI.K.R.SUNIL** ## **RESPONDENTS/STATE/COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, SREEKANDAPURAM POLICE STATION, SREEKANDAPURAM, THALASSERI REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031 2 JIJI SHIBO AGED 40 YEARS W/O.SHIBU, MANJALIYIL HOUSE, SREEKANDAPURAM, MADAMBAM AMSHAM, SREEKANDAPURAM, KANNUR, PIN-670631** **BY ADVS. SRI.B.JAYASURYA, PUBLIC PROSECUTOR Ms.SABI C SHAJI** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 30.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No. 615 of 2020 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 615 of 2020 -----------------------------------Dated this the 30[th ] day of September, 2020 ## **O R D E R** The prayer in the afore captioned Criminal Miscellaneous Case filed under Sec.482 of the Cr.PC is as follows: _“....to call for the records pursuant to Anx.A1 & A2 the First Information Report dated 10-06-2018 and the Final Report submitted before the Additional District Sessions Court, Thalassery (POCSO) presently pending as S.C No.1051/2018 and quash the same in the interest of justice.”_ 2. Heard Sri.K.R.Sunil, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 State of Kerala and Ms.Sabi.C.Shaji, learned counsel appearing for contesting respondent No.2 (lady defacto complainant/mother of the minor victim girl). 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Anx.A1 FIR in crime No.255/2018 of Sreekandapuram Police Station, Kannur District for offences punishable under Secs. 7, 8, 9 (m) and 10 of the Protection of Children from Sexual Offences (POCSO) Act, 2012, on the basis of the First Information Statement given by the 2[nd] respondent herein Crl.M.C No. 615 of 2020 3 (mother of the minor victim girl, aged 11 years) on 10-06-2018 at about 5.00 p.m in respect of the alleged incidents said to have happened on 09-06-2018 at about 10.30 a.m in the morning. The Police after investigation has filed impugned Anx.A2 Final Report/Charge sheet, which has now led to the pendency of Sessions Case S.C No.1051/2018 on the file of the First Additional Sessions Court, notified to deal with POCSO cases, Thalassery, Kannur District. 4. Now it is submitted by Sri.K.R.Sunil, learned counsel appearing for the petitioner (sole accused) and Ms.Sabi.C.Shaji, learned Advocate appearing for contesting respondent No.2 (lady defacto complainant) that the disputes between those parties have been settled and that the 2[nd] respondent has sworn to Anx.A3 affidavit dated 16-01-2020 stating that the disputes have been settled and that she does not wish to proceed with the matter any further and that the complaints have been made on the basis of misunderstandings and misconceptions and that on realising the truth they do not wish to prosecute the matter any further etc. 5. The learned Prosecutor was requested to get instructions in Crl.M.C No. 615 of 2020 4 the matter, today when the matter has been taken up for consideration, Sri.B.Jayasurya, learned Public Prosecutor appearing for R1 State of Kerala would submit that the Investigating Officer has conducted an enquiry and has also recorded the statement of both the 2[nd] respondent as well as her daughter (minor victim girl, aged 11 years), who are submitted that the matter has been settled and the abovesaid complaints were arisen on account of misunderstandings and misconceptions and that the 2[nd] respondent later on realising the truth does not want to continue the impugned criminal proceedings any further and she has voluntarily sworn to Anx.A3 affidavit and that the facts made therein are correct etc, and that they have no objections in this Court quashing the impugned criminal proceedings in this case in view of the abovesaid aspects. 6. The allegations disclosed in the impugned Anxs.A1 & A2 proceedings are to the effect that the minor daughter of the 2[nd] respondent, then aged 11 years while she was studying in 6[th] standard, the petitioner had caught hold of her and pressed her in the chest while she was playing with her friend in the terrace area of their quarters. Crl.M.C No. 615 of 2020 5 7. The case of the petitioner is that the petitioner is the owner of the property in which the quarters where the 2[nd] respondent is living and that on a heavy rainy day victim girl along with her friend was continuing to play in the open terrace and the petitioner as a elderly person, admonished her not to do, since they continued it, the petitioner had intervened out of her welfare and made effort to go away from there, as otherwise children would have suffered serious fever and cold and in this process he would have accidentally touched her and these are the incidents misunderstood by the minor victim girl, who was hardly then aged 11 years and it is on account of the misunderstandings that the complaint has been given by the 2[nd] respondent after two days, which led to the registration of the FIR etc. 8. A reading of the impugned Anxs.A1 & A2 would reveal that all the alleged offences are those in relation to non-penetrative sexual assaults and does not disclose any case of penetrative sexual assaults. Going by the nature of the allegations disclosed in this case, this Court is of the considered view that case for quashment will be considered on the ground of settlement between the parties. Crl.M.C No. 615 of 2020 6 9. 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 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. 615 of 2020 7 10. Moreover, the Investigating Officer has now submitted before this court after conducting an enquiry and after recording the statements of both the 2[nd] respondent and the minor victim girl that they have voluntarily entered into the settlement and that the 2[nd] respondent has voluntarily filed Anx.A3 affidavit that the disputes arose on account of the misunderstandings and misconceptions and that the 2[nd] respondent when realise the truth of the matter she could understand that the allegations were made by her out of the misunderstandings. Further the prosecution does not have any case that the petitioner has at any point of time done any such acts either before or after the present incidents. 11. In view of all these aspects this Court is of the considered view that the plea for quashment would be considered. Accordingly it is ordered that the impugned Anx.A2 Final Report/Charge sheet filed in Anx.A1 FIR in Crime No.255/2018 of Sreekandapuram Police Station, Kannur District, which has now led to the pendency of Sessions Case S.C No.1051/2018 on the file of First Additional Sessions Court, Thalassery, Knnur District as against the petitioner/accused and all further proceedings emanating therefrom Crl.M.C No. 615 of 2020 8 as against the petitioner/accused will stand quashed and set aside. 12. The petitioner will produce certified copies of this order before the Sessions Court concerned and the Investigating Officer concerned 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. 615 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A1**|**THE CERTIFIED COPY OF THE FIRST**| |---|---| ||**INFORMATION REPORT REGISTERED BY THE**| ||**1ST RESPONDENT**| |**ANNEXURE A2**|**THE CERTIFIED COPY OF THE FINAL REPORT**| ||**SUBMITTED BEFORE THE ADDITIONAL**| ||**DISTRICT SESSIONS COURT,**| ||**THALASSERI(POCSO)**| |**ANNEXURE A3**|**AFFIDAVIT SWORN BY THE 2ND**| ||**RESPONDENT/DEFACTO COMPLAINANT**| ## **RESPONDENT'S/S EXHIBITS: NIL**