Maneesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY ,THE 17TH DAY OF JANUARY 2019 / 27TH POUSHA, 1940 Crl.MC.No. 4546 of 2018** **SC 471/2018 of ADDL.DC & SESSIONS COURT, ERNAKULAM(SPECIAL COURT) CRIME NO. 177/2018 OF MULAVUKAD POLICE STATION , ERNAKULAM** ## **PETITIONER/ACCUSED:** **MANEESH AGED 29 YEARS, S/O. MOHANAN, KOONAMAVU, VELUPARAMBIL HOUSE, KONGORAPPALLY P.O., ALANGAD VILLAGE, ERNAKULAM.** **BY ADV. SRI.P.SHANES METHAR** ## **RESPONDENT/COMPLAINANT & STATE:** **1 VICTIM** **2 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADVS. SMT.R.REJI (ATTINGAL) SMT.R.REJI (ATTINGAL)** ## **SR.PP SRI.AMJAD ALI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 4546 of 2018 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure (“the Code” for brevity) with a prayer to quash the proceedings pending against the petitioner. 2. The petitioner herein is the accused in S.C.No.471 of 2018 on the file of the Additional District and Sessions Court, Ernakulam (Special Court). In the said case, he faces indictment under Sections 376(2)(j) and 376(2)(n) of the IPC and Sections 5(l) and 6 of the Protection of Children from Sexual Offences Act, 2012. 3. The aforesaid Crime was registered on 3.2.2018, based on a statement given by the 1[st] respondent herein. In her statement, she alleges that the petitioner herein and the 1[st] respondent were in a relationship. She was taken to a pilgrim centre by the petitioner in the year 2017 and thereafter, on repeated occasions, he is alleged to have subjected her to penetrative sexual intercourse. According to the de facto complainant, she was made to believe that the petitioner would marry her. However, after exploiting her sexually, the petitioner reneged from his assurance. This led her to lodge a complaint. After investigation in the aforesaid Crime, final report was laid before the Crl.MC.No. 4546 of 2018 3 jurisdictional court on 30.4.2018 and cognizance was taken by the learned Sessions Judge and the case is pending trial. 4. It is submitted by the learned counsel appearing for the petitioner that while criminal proceedings were pending, the petitioner has married the de facto complainant on 29.6.2018 and they have been living together as husband and wife. A child has been born in the wedlock and in view of the changed circumstances, the continuance of criminal proceedings is clearly an abuse of process, submits the learned counsel. 5. In the course of proceedings, the de facto complainant has entered appearance. She has filed Annexure-V affidavit, wherein she has stated the petitioner is her husband and the entire disputes have been settled. She has no subsisting grievance is her assertion. 6. The learned Public Prosecutor was directed to get instructions. The officer has recorded the statement of the victim and it is reported that the accused and the victim are living together as husband and wife and they are also blessed with a child. Crl.MC.No. 4546 of 2018 4 7. I have considered the submissions advanced and have gone through the materials made available. 8. The legal position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. It has been held that the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal Court for compounding the offences under Section 320 of the Code. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the Court will have to give due regard to the nature and gravity of the crime. It is also settled that heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot quashed even though the victim or victim's family and the offender have settled the dispute. Such offenses are not private in nature and have serious impact on society. The directions of the Apex Court in **Gian Singh v. State of Punjab** [(2012) 10 SCC 303] and in **Narinder singh v. State of Punjab** [(2014) 6 SCC 466] serve as Crl.MC.No. 4546 of 2018 5 guiding lights. 9. Insofar as the offence of rape is concerned, there cannot be any doubt that the same cannot be settled on the strength of a compromise arrived at between the victim and the accused. The Apex Court in **State of M.P. v. Madan Lal** [2015 (7) SCC 681], relying on the decision in **Shimbhu and Another v. State of Haryana** [2014 (13) SCC 318], has clearly reminded the Courts that rape is a noncompoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. This was because of the fact that the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In such cases, the accused may use all his influence to pressurise the victim for a compromise. It was taking note of this aspect that it was held that it would not be safe in considering the compromise arrived at between the parties in rape cases. 10. However in the instant case, it is borne out from the Crl.MC.No. 4546 of 2018 6 statement recorded by the Sub Inspector of Police that the parties were in love and the Crime was registered under the premise that the petitioner would not marry the victim. However, in view of the subsequent turn of events, she has realized that her apprehension was baseless. The parties are living together as husband and wife. There is no case for anyone that the dignity of the 1[st] respondent was violated by a wanton act of the petitioner. This is not one of those cases wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 1[st] respondent, if the prosecution is permitted to continue. When the 1[st] respondent has asserted that she has married the petitioner and this facts finds corroboration from Annexure III certificate of marriage. She has also filed an affidavit stating that she is not desirous of prosecuting against her husband any further. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case is proceeded with. Furthermore, the 1[st] respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Crl.MC.No. 4546 of 2018 7 Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. In the result this petition will stand allowed. Annexure-II Final Report and all proceedings pursuant thereto against the petitioner now pending as S.C.No.471 of 2018 on the file of the Additional District and Sessions Court, Ernakulam (Special Court) are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** IAP Crl.MC.No. 4546 of 2018 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I CERTIFIED COPY OF THE FIR IN CRIME NO. 177/2018 OF MULAVUKAD POLICE STATION, ERNAKULAM.** **ANNEXURE II CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO. 177/2018 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS (FOR THE TRIAL OF CASES RELATING TO ATROCITIES AND SEXUAL VIOLENCE AGAINST WOMEN AND CHILDREN) COURT, ERNAKULAM.** **ANNEXURE III TRUE COPY OF THE MARRIAGE CERTIFICATE NO. 48/2018 DATED 29.06.2018 ISSUED BY THE MARRIAGE OFFICER, ALANGAD.** **ANNEXURE IV TRUE COPY OF THE SUMMONS S.C.471/2018 ISSUED TO THE PETITIONER.** **ANNEXURE V TRUE COPY OF THE AFFIDAVIT OF THE 1ST RESPONDENT.** **RESPONDENTS' EXHIBITS:** NIL