Manoj M.K. v. State of Kerala and Rajitha Narayanan

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY,THE 19TH DAY OF DECEMBER 2018 / 28TH AGRAHAYANA, 1940 Crl.MC.No. 8004 of 2017** **AGAINST THE ORDER/JUDGMENT IN SC 35/2017 of D.C. & SESSIONS & MACT,KASARAGOD CRIME NO. 218/2016 OF Vellarikundu Police Station , Kasargod** ## **PETITIONER/S:** **MANOJ M.K., AGED 31 YEARS, S/O. MADHAVAN, RESIDING AT PLANTHADAM, VANNARKADAVU, P.O. KINANOOR, PANNITHADAM, PARAPPA VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT.** **BY ADV. SRI.T.K.VIPINDAS** ## **RESPONDENTs/STATE & DE FACTO COMPLAINANT:** **1 THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING S.H.O VELLARIKUNDU POLICE STATION. 2 RAJITHA NARAYANAN, AGED 24 YEARS, D/O. NARAYANAN, THAZHATH VEEDU, MUNDAMANI, BALAL VILLAGE, VELLARIKUNDU TALUK, KASARGOD DISTRICT-671 121.** **BY ADV.SRI.A.L.GEORGE** ## **OTHER PRESENT:** **SRI.AMJAD ALI-SR.PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 19.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC:8004/17 2 ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in S.C.No.35 of 2017 on the file of the Sessions Court, Kasaragod. In the aforesaid case, he is proceeded against for having committed offence punishable under Section 376 of the IPC. 3. The de facto complainant is a nurse, who had worked for a period of 4 years at Bangalore. She fell in love with the applicant herein sometime in the year 2015. She alleges that commencing from the month of March, 2015, she was taken to various places by the applicant and on a promise of marriage, she was subjected to sexual intercourse. Later, he started distancing himself from the victim. She then approached the police and lodged a complainant, based on which the subject crime was registered. 4. The learned counsel appearing for the petitioner submitted that the allegations in the final report, even if admitted as Crl.MC:8004/17 3 such and taken to be true, would not make out an offence under Section 376 of the IPC. According to the learned counsel, the petitioner as well as the victim were adults, who were fully conscious and aware of the implications of their acts and the relationship that they had was purely consensual. It is further submitted that when their relationship became known to the parents of the 2[nd] respondent, they had persuaded the lady to lodge a complaint leveling untenable allegations. Both the parties have drifted apart and they are not desirous of having a marital relationship. The marriage of the 2[nd] respondent with another man has been fixed and she is desirous of terminating the instant proceedings and to start life afresh. She has filed an affidavit before this Court, wherein she has stated in clear terms that the relationship was consensual and that it was at the instance of her parents that she had set the law in motion. The pendency of the criminal proceedings will have an adverse affect in her future life, is her contention. 5. Heard the learned Public Prosecutor and also the learned counsel, who has entered appearance for the 2[nd] respondent. The learned Public Prosecutor submitted that the statement of the 2[nd] respondent has been recorded and she has stated in clear terms that Crl.MC:8004/17 4 it is not in her best interest to continue with the prosecution proceedings. 6. 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** Crl.MC:8004/17 5 ## **Punjab** [(2014) 6 SCC 466 ] serve as guiding lights. 7. 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 non-compoundable 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. 8. However, in the instant case, it is borne out from the Crl.MC:8004/17 6 statement of the 2[nd] respondent recorded by the Sub Inspector of Police that the parties were in love and the Crime was registered under the influence of her family members. She has re-iterated that the relationship was consensual. There is no case for anyone that the dignity of the 2[nd] 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 2[nd] respondent, if the prosecution is permitted to continue. She has also filed an affidavit stating that she is not desirous of prosecuting the petitioner. 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 2[nd] 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 Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. Crl.MC:8004/17 7 In the result, this petition will stand allowed. Annexure-A2 final report and all proceedings pursuant thereto now pending as S.C. No.35 of 2017 on the files of the Additional District and Sessions Court, Kasaragod against the petitioner herein are quashed. **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** Ps/ //TRUE COPY// P.A. TO JUDGE Crl.MC:8004/17 8 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 THE TRUE COPY OF THE FIR IN CRIME NO. 218/2016 OF VELLARIKUNDU POLICE STATION. ANNEXURE A2 THE TRUE COPY OF THE FINAL REPORT IN CRIME NO. 218/2016 OF VELLARIKUNDU POLICE STATION. ANNEXURE A3 THE TRUE COOPY OF THE AFFIDAVIT SWORN TO BY THE 2ND RESPONDENT DATED 30-09-2017.** **RESPONDENT'S/S EXHIBITS:** **NIL** **//TRUE COPY//** **P.A.TO JUDGE**