Melvin James v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 29TH DAY OF SEPTEMBER 2020 / 7TH ASWINA, 1942 Crl.MC.No.1747 OF 2020(G)** **AGAINST SC 547/2019 OF DISTRICT & SESSIONS COURT, ALAPPUZHA CRIME NO.120/2019 OF VENMANI POLICE STATION, ALAPPUZHA** ## **PETITIONER:** **MELVIN JAMES AGED 23 YEARS, S/O. JAMES MATHEW, CARMEL MUTHUKULAM SOUTH P.O., ALAPPUZHA DISTRICT** **BY ADV. SRI.R.GIREESH VARMA** ## **RESPONDENT:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031 2 ELIZABETH THOMAS W/O. THOMAS CHACKO, MANGATTETHU, CHERUVALLOOR, KOLLAKADAVU.P.O.,-690 509 3 VICTIM XXXXX R2-3 BY ADV. V.K.NANDAKUMARAN** ## **OTHER PRESENT:** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 29.09.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No.1747 of 2020(G) 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C. No.1747 of 2020 (G) ---------------------------------------------Dated this the 29[th] day of September, 2020 ## **O R D E R** The prayer in the aforecaptioned Criminal Miscellaneous case filed on 27.02.2020, under Section 482 of the Code of Criminal Procedure (Cr.P.C.) is as follows:- _"….....to allow this Criminal Miscellaneous Case and to quash Annexure A1 Final Report as against the petitioner/accused to secure the the ends of justice."_ 2. The petitioner herein has been arrayed as the sole accused in the instant FIR in Crime No.120/2019 of Venmony Police Station, Alappuzha District, for offences punishable under Section 376 of the IPC and Sections 3 & 4 of the Protection of Children from Sexual Offences (PoCSO) Act, 2012, on the basis of the First Information Statement conveyed by the 2[nd] respondent herein (lady _de facto_ complainant), who is the mother of the 3[rd] respondent herein, who was then a minor victim girl, on 08.02.2019 at about 6.40 pm., alleging that the incident in question is said to have been happened for the Crl.MC.No.1747 of 2020(G) 3 period from 01.09.2018 to 31.10.2019 (the copy of the said FIR and FIS are placed in pages 39 to 41 of this paper book). 3. The Police, after investigation has filed the impugned Annexure A1 final report/charge sheet in the above said crime No.120/2019 of Venmony Police Station. The learned Magistrate has committed the case to the Sessions Court, concerned and pursuant thereto the case is now pending as Sessions Case, SC No.547/2019, which was initially pending before the First Additional Sessions Court, Alappuzha, notified to deal with PoCSO cases, and now it has been stated to have been transferred to the Fast Track Court (Special), Harippad, Alappuzha District. The gist of the allegations in the abovesaid FIR and FIS is to the effect that the Date of Birth of the 3[rd] respondent Victim is 14.11.2001 (see statement of the 2[nd] respondent – _de facto_ complainant) given as per Annexure A1 (13) on page 17 of the paper book. That, the petitioner then aged 22 years was having a love affair with the 3[rd] respondent then aged 17 years and that in the course of the said love affair the 3[rd] respondent used to frequently visit the residence of the petitioner herein when he was alone and there they had sexual Crl.MC.No.1747 of 2020(G) 4 relationship on some occasions during the period from 01.09.2018 to 31.10.2019. It appears that later the parents of the 3[rd] respondent came to know about it and thereafter a decision was taken by the parents of the petitioner/accused as well as the 3[rd] respondent that the marriage of the petitioner and the 3[rd] respondent will be solemnised after the 3[rd] respondent attaining majority age of 18 years, on 31.10.2019. Further it appears that the 3[rd] respondent's parents cautioned that she should keep aloof from the petitioner in the meanwhile and also that she should know very contact with the petitioner either by a social media, telephone calls, etc. That, on account of the 3[rd] respondent (victim) got depressed, her parents have taken her to a Psychologist and there the 3[rd] respondent had confided that she had a love affair with the petitioner and that they had sexual relationship in the residence of the petitioner on some occasions during the abovesaid period in question. The Psychologist, thereupon had-given the said information to the police authorities concerned and the FIS was so taken from the 2[nd] respondent, who is the mother of the 3[rd] respondent, which led to the registration of the instant crime and to the Crl.MC.No.1747 of 2020(G) 5 subsequent investigation and the filing of the 'final report/chargesheet', which later led to the pendency of the abovestated case. 4. The marriage between the petitioner accused and the 3[rd] respondent (victim) was duly solemnised under the provisions of the Special marriage Act on 27.01.2020 and Annexure A2 is the statutory marriage certificate issued by the Registrar appointed under the Special Marriage Act regarding the factum of solemnisation and registration of the marriage between the petitioner/accused and the 3[rd] respondent on 27.01.2020. Annexure A-2 dated 27.01.2020 is the statutory marriage certificate issued on the certification of the statutory Registrar, in terms of Section 13 of the Special Marriage Act, evidencing the factum of solemnisation and registration of the marriage between the petitioner/accused and the 3[rd] respondent (victim) on 27.01.2020. Now, the 2[nd] & 3[rd] respondents have filed separate affidavits as per Annexure A3 dated 14.02.2020 and Annexure A4 dated 14.02.2020, stating that the entire disputes between the petitioner and the 3[rd] respondent have been settled and that in the concurrence and Crl.MC.No.1747 of 2020(G) 6 blessings of the parents of both sides, the petitioner has married the 3[rd] respondent and that the 2[nd] & 3[rd] respondents have no interest to continue the impugned criminal proceedings and the same may be quashed on the ground of the amicable settlement as otherwise, it might detrimentally affect the future marital life of the 3[rd] respondent and that the 3[rd] respondent is now happily married with the petitioner, etc. It is in the light of these aspects that the petitioner has filed the instant Criminal Miscellaneous Case under Section 482 of the Cr.P.C. with the aforementioned prayers. 5. It is by now well settled that ordinarily it may not be right and proper for this Court to quash serious and grave offence of rape as per Sec.376 of the I.P.C solely on the ground of settlement between the parties [see _**Shimbhu v. State of Haryana**_ (2014) 13 SCC 318, _**Parbatbhai Aahir v. State of Gujarat**_ (2017) 9 SCC 641, **Anita Maria Dias v. State of Maharashtra,** (2018) 3 SCC 290, **Sebastian @ Solly v. State of Kerala,** 2015(1) KLJ 384, etc.]. However, this Court has held in various decisions including those in _**Freddy @ Antony Francis & Others v. State of Kerala & Another**_ [2017 KHC 344 = 2018 (1) KLD558 , _**Denu P. Thampi v. Ms.X & Another**_ [2019 (3) KHC 199 = Crl.MC.No.1747 of 2020(G) 7 2019(2) KLT 996], that an exception to the above approach should be made in cases where the accused had married the _de facto_ complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the _de facto_ complainant/victim, to ensure her better future life. It is only just and proper that this Court in exercise of the extra ordinary inherent powers conferred under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings in view of the solemnisation of the marriage between the accused and the lady victim, concerned. In the instant case, there is no dispute that the marriage was solemnised not only on the basis of compromise between the petitioner and the 3rd respondent victim but also on the basis of the concurrence and blessings of the parents of both of them. 6. The learned Public Prosecutor was also requested to get instructions in the matter and today, when the matter has come up for consideration the learned Public Prosecutor would submit that Investigating Officer concerned has conducted an enquiry and that recorded the statements of contesting respondent Nos.2 & 3, who has affirmed the abovesaid aspects that the marriage between the petitioner and the 3[rd] respondent has been duly solemnised on 27.01.2020, and that the said couple are happily married and that respondents 2 & 3 have voluntarily sworn to Annexures A3 & A4 Crl.MC.No.1747 of 2020(G) 8 affidavits and that the respondents 2 & 3 have also stated that it is in the better interest of their future life, more particularly in future marital life of the 3[rd] respondent that the impugned decision may be quashed as otherwise it will detrimentally affect the future life, etc. 7. Therefore, this Court is inclined to consider the plea for quashment of the impugned criminal proceedings in view of the subsequent marital relationship between the 2[nd ] & 3[rd] respondents, taking into account the legal principles consistently followed by this Court in cases as in _**Freddy’s**_ case (supra), _**Denu P. Thampi’s**_ case (supra), etc. This Court would also concur with the submissions of the parties concerned that it is in the better interest and welfare of the 3[rd ] respondent that the impugned proceedings may be quashed. 8. Accordingly, in exercise of the inherent powers conferred under Section 480 of the Cr.P.C., it is ordered that the impugned Annexure A1 Final Report/charge sheet, filed in Crime No.120/2019 of Venmony Police Station, which has now led to the pendency of Sessions Case in SC 547/2019, on the file of the Fast Track (Special Court), Harippad, Alappuzha District, as against the petitioner/accused and all further proceedings emanating therefrom will stand quashed and set aside. The petitioner will produce certified copies of this order before the Special Court concerned as well as to the Investigating Officer Crl.MC.No.1747 of 2020(G) 9 concerned, for necessary information. With these observations and directions, the above criminal miscellaneous case will stand finally disposed of. **Sd/-** **ALEXANDER THOMAS, JUDGE** Skk//13102020 Crl.MC.No.1747 of 2020(G) 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** |**ANNEXURE-A1**|**CERTIFIED COPY OF THE FINAL REPORT**| |---|---| ||**IN S.C NO.547/2019**| |**ANNEXURE-A2**|**TRUE COPY OF THE CERTIFICATE OF**| ||**MARRIAGE ISSUED BY THE MARRIAGE**| ||**OFFICER, KEERIKKAD, ALAPPUZHA**| ||**DISTRICT**| |**ANNEXURE-A3**|**AFFIDAVIT SWORN BY THE 3RD**| ||**RESPONDENT**| |**ANNEXURE-A4**|**AFFIDAVIT SWORN BY THE 2ND**| ||**RESPONDENT**| |**RESPONDENTS’ **|**EXHIBITS:**<br>**NIL**|