Midhun K.V., Jithin K.P., Sarathbabu T.V. & Rasheed v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 15TH DAY OF DECEMBER 2020 / 24TH AGRAHAYANA, 1942** ## **CRL.MC.NO.4670 OF 2020(C)** **SC 663/2019 OF FAST TRACK SPECIAL COURT, TALIPARAMBA CRIME NO.20/2019 OF CHERUPUZHA POLICE STATION, KANNUR** ## **PETITIONERS/ACCUSED 1, 2, 3 & 4:** |**1**|**MIDHUN K.V.,**| |---|---| ||**S/O.CHANDRAN K.P., KUNJU VEEDU HOUSE,**| ||**VAYAKARAAMSHAM, POONANVAYAL, PADIOTCHAL P.O.,**| ||**KANNUR DISTRICT, KERALA.**| |**2**|**JITHIN K.P., AGED 23 YEARS,**| ||**S/O.RAVEENDRAN, KANDOTHUPARAMBU HOUSE,**| ||**VAYALKKARAAMSHAM, PONNAMVAYAL,**| ||**PADIYOTACHAL, KANNUR.**| |**3**|**SARATHBABU T.V., AGED 23 YEARS,**| ||**S/O.SURENDRAN, THALIYIL HOUSE, VAYALKKARAAMSHAM,**| ||**PONNAMVAYAL, PADIYOTACHAL, KANNUR.**| |**4**|**RASHEED, AGED 30 YEARS,**| ||**S/O.HUSSAINAR, ARIKARAN MOTTAMMAL HOUSE,**| ||**PODIOTTICHAL P.O., HAJI MUKKU, KANNUR DISTRICT.**| ||**BY ADV. SRI.AMEER.K.M.**| ## **RESPONDENTS/COMPLAINANT & STATE, VICTIM'S MOTHER AND VICTIM:** - **1 THE STATE OF KERALA THROUGH THE STATION HOUSE OFFICER, PAYYANNOOR POLICE STATION, KANNUR DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 XXX 3 XXX, VICTIM.** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1 ADV. E.ADITHYAN, FOR R2 & R3** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 15.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ALEXANDER THOMAS, J. -----------------------------------------Crl.M.C. No. 4670 of 2020 -----------------------------------------Dated this the 15[th] day of December, 2020 ## O R D E R The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“..........quash Annexure-A1 final report and all further proceedings pursuant to it in Crime No.20/2019 of Cherupuzha Police Station, pending on the files of Additional District and Sessions Court (ADC 1), Thalassery as SC No.663/2019, now made over to Fast Track Special Court, Taliparamba as against the petitioner, so as to secure the ends of justice.”_ 2. Heard Sri.K.M.Ameer, learned counsel appearing for the petitioners (A1 to A4), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R-1 (State) and Sri.E.Adithyan, learned counsel appearing for respondents 2 & 3 (mother of the victim and the lady victim respectively). 3. This case arose initially out of Anx.A2 FIR in Crime No.20/2019 of Cherupuzha Police Station, Kannur district, which was initially registered on 16.1.2019 under Sec.57(a) of the Kerala Police Act, 2011, as a “person missing case” in pursuance of the first information conveyed by the 2[nd] respondent mother of lady victim stating that, the 3[rd] respondent, who is her minor daughter, was found missing from Crl.M.C. No. 4670 of 2020 ..3.. home since that day, and that the 2[nd] respondent has reasons to believe that the 3[rd] respondent would have gone away with the 1[st] petitioner (A1) as they were having a love affair, and as the marriage of the 3[rd] respondent was fixed to be conducted with another person subsequently. 4. It appears that, the police after investigation could trace out the 3[rd] respondent minor victim girl along with the 1[st] petitioner, and the investigation conducted by the police revealed that date of birth of the 3[rd] respondent victim girl is 26.4.2001, and that she had not completed the majority age of 18 years at that time, and that she had gone along with the 1[st] petitioner (A1) and that, the said process of abduction was aided and assisted by 2[nd] to 4[th] petitioners (A2 to A4) and that later, the 1[st] petitioner (A1) and the 3[rd] respondent had stayed together in the residence of A4 and that at that time, the 1[st] petitioner had sexual intercourse with the 3[rd] respondent who was then a minor girl. After tracing out the 3[rd] respondent along with the 1[st] petitioner, it appears that after completing necessary formalities of medical examination, recording of statement of the 3[rd] respondent before the Police under Sec.161 Cr.P.C., as well as before the learned Magistrate as Crl.M.C. No. 4670 of 2020 **==> picture [19 x 9] intentionally omitted <==** per Sec.164 Cr.P.C. etc the police have altered the offences alleged in abovesaid FIR in Crime No.20/2019 of Cherupuzha Police Station, by including in the accused array the 4 petitioners herein and the offences as per the relevant provisions thereof were also included in the said altered FIR. Thereafter, the police has completed the investigation and has filed Anx.A1 final report/charge sheet in Crime No.20/2019 of Cherupuzha Police Station, and since as offences as per the POCSO Act are also disclosed since the 3[rd] respondent was a minor at the time of alleged incidents, Anx.A1 final report was filed before the Additional Sessions Court (ADC 1), Thalassery, and after taking cognizance, the Sessions Case is now pending as S.C. No. 663/2019 and the case was later made over to the Fast Track Special Court, Taliparamba, Kannur district. It is this proceedings at Anx.A1 final report which has led to the pendency of Sessions Case S.C. No. 663/2019 on the file of the Fast Track Special Court, Taliparamba, Kannur district, which is now under challenge in this proceedings. 5. It appears that the minor victim girl had completed the majority age of 18 years on 26.4.2019. It also appears from the submissions of the learned Advocate appearing for the petitioners Crl.M.C. No. 4670 of 2020 **==> picture [18 x 9] intentionally omitted <==** as well as the Advocate appearing for respondents 2 & 3 that, thereafter, with the blessings and consent of families on both sides, the marriage of the 3[rd] respondent with the 1[st] petitioner (A1) was solemnized in accordance with the Hindu marriage customary rites in the Payyanur Sree Nambiathra Kovval Siva Temple, on 23.5.2019, and Anx.A3 is the marriage certified issued by the Local Registrar of Marriages in terms of the provisions contained in Rule 11(1) of the Kerala Registration of Marriages (Common) Rules, 2008, wherein it has been certified that the marriage between the 1[st] petitioner (whose date of birth is 11.4.1994) and the 3[rd] respondent (whose date of birth is 26.4.2001) has been solemnized in the said temple in accordance with the Hindu customary rites on 23.5.2019. Further it is pointed out that, now the 1[st] petitioner (A1) and the 3[rd] respondent are living together as husband and wife, and a child has also been born to them on 5.2.2020 as certified as per Anx.A4 Birth Certificate dated 24.9.2020 issued by the statutory Registrar of Births & Deaths. Further it is pointed out that, 2[nd] respondent who is the mother of the lady victim and the 3[rd] respondent lady victim has now separately sworn to affidavits dated 12.10.2020 as per Anxs.A5 & Crl.M.C. No. 4670 of 2020 **==> picture [19 x 9] intentionally omitted <==** A6 respectively before this Court in this case, wherein they have stated that the entire issues have been settled with the 1[st] petitioner, and that the marriage of the 3[rd] respondent has been duly solemnized lawfully with the 1[st] petitioner after the 3[rd] respondent had completed the majority age of 18 years. That, the 3[rd] and 2[nd] respondents do not wish to continue the impugned criminal proceedings in this case any longer, and that though the 3[rd] respondent was then a minor, she had voluntarily gone along with the 1[st] petitioner out of her own choice, etc. Further it is stated in Anxs.A5 & A6 affidavits, that the respondents 2 & 3 do not have any objections for quashment of impugned criminal proceedings, and further that, it will be better in the interest of the 3[rd] respondent that the impugned criminal proceedings be quashed, as otherwise the 1[st] petitioner herein is now none other than her husband and therefore the continuance of impugned criminal proceedings may detrimentally affect the 3[rd] respondent's future marital life. 6. The learned Public Prosecutor was requested to get instructions in the matter. Today when the matter has been taken up for consideration, Sri.Saigi Jacob Palatty, learned Public Crl.M.C. No. 4670 of 2020 **==> picture [18 x 9] intentionally omitted <==** Prosecutor would submit on the basis of instructions that the Investigating Officer has conducted an enquiry in this case and has also recorded the statements of respondents 2 & 3, wherein they have reiterated that they have voluntarily executed Anxs.A5 & A6 affidavits, and the facts stated therein are true, and that it has also verified that the marriage of the 3[rd] respondent with the 1[st] petitioner (A1) was solemnized in accordance with the Hindu marriage customary rites on 23.5.2019 as evident from Anx.A3 Marriage Certificate, and that a child has also been born to them on 5.2.2020 as certified as per Anx.A4 Birth Certificate. 7. It is by now well settled that it may not be right and proper for this Court to ordinarily quash serious and grave offence of rape as per Sec.376 of the IPC solely on the ground of settlement between the parties {see _**Shimbhu & Anr. 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, it has been held by this Court in decisions as in _**Freddy @ Antony Francis & Ors. v. State of Kerala & Anr**_ .[2017 KHC 344 = 2018 (1) Crl.M.C. No. 4670 of 2020 ..8.. KLD 558], _**Denu P.Thampi v. Ms.X** , [2019 (3) KHC 199],_ that an exception could be made in cases where the accused has subsequently married the lady victim and they have decided to settle all the disputes and for the predominant purpose of welfare of the defacto complainant/victim to ensure her a better marital life, it may be only just and proper for this Court in exercising extra ordinary discretionary inherent powers conferred under Sec.482 of the Cr.P.C. may quash the impugned criminal proceedings on the basis of such extenuating factors, after verifying that the marriage between the parties was entered into voluntarily by the lady victim, etc. 8. In this case, it can be seen from the narration of allegations in Anx.A2 FIR itself that, even going by the case of prosecution the 3[rd] respondent who was then a minor girl was in love with the 1[st] petitioner, and she had gone along with the 1[st] petitioner at a time when her marriage with another person was fixed by her family members and further that, after completion of majority age of 18 years, her marriage with the 1[st] petitioner has been lawfully solemnized etc. Therefore, the abovesaid exceptional approach made by this Court in the afore cited decisions could be Crl.M.C. No. 4670 of 2020 **==> picture [19 x 9] intentionally omitted <==** befittingly invoked in the facts and circumstances of this case. The 3[rd] respondent has completed the majority age of 18 years on 26.4.2019 even going by the case of prosecution, and marriage has also now solemnized on 23.5.2019 and a child is also born to her on 5.2.2020. Therefore, it may be better for the future marital life of the 3[rd] respondent that the impugned criminal proceedings be quashed, as A1 is now none other than her husband. The allegations against 2[nd] to 4[th] petitioners (A2 to A4) are to the effect that they have aided and abetted the 1[st] petitioner in taking away the 3[rd] respondent, and that later the 1[st] petitioner and the 3[rd] respondent was given facility to stay in the residence of the 4[th] respondent, etc. The 2[nd] to 4[th] petitioners appear to be close friends of the 1[st] petitioner. 9. Taking note of the totality of the facts and circumstances of the case, and also taking note of the details now borne out from the enquiry conducted by the Investigating Officer about the facts verified about the solemnization of marriage, etc this Court is inclined to take the view that the inherent extra ordinary discretionary powers saved in terms of Sec.482 of the Cr.P.C. could be invoked the facts and circumstances of this case Crl.M.C. No. 4670 of 2020 ..10.. taking into consideration the extenuating circumstances. In that view of the matter it is ordered that the impugned Anx.A1 final report/charge sheet filed in Crime No.20/2019 of Cherupuzha Police Station, Kannur, which has now led to the pendency of Sessions Case S.C. No. 663/2019 now presently on the file of the Fast Track Special Court, Taliparamba, Kannur, as against the petitioners (accused persons) and all other proceedings emanating therefrom as against the petitioners (accused persons) will stand quashed and set aside. 10. The petitioners will produce a certified copy of this order before the Investigating Officer concerned, as well as before Fast Track Special Court, Taliparamba, Kannur, who is dealing with S.C. No. 663/2019 for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 4670 of 2020 ..11.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** |**ANNEXURE A1**|**THE CERTIFIED COPY OF THE FINAL REPORT**| |---|---| ||**IN CRIME NO.20/2019 IN SC 663/2019.**| |**ANNEXURE A2**|**THE COPY OF THE FIR IN CRIME**| ||**NO.20/2019 OF CHERUPUZHA POLICE**| ||**STATION.**| |**ANNEXURE A3**|**THE TRUE COPY OF THE MARRIAGE**| ||**CERTIFICATE**<br>**NO.10199/2019**<br>**DATED**| ||**01.06.2019 ISSUED UNDER RULE 11(1) OF**| ||**THE KERALA REGISTRATION OF MARRIAGES**| ||**(COMMON) RULES 2008, ISSUED BY**| ||**PAYYANUR MUNICIPALITY.**| |**ANNEXURE A4**|**THE TRUE COPY OF THE BIRTH CERTIFICATE**| ||**NO.634/2020 DATED 24.09.2020 OF THEIR**| ||**NEW BORN BABY GIRL.**| |**ANNEXURE A5**|**THE AFFIDAVIT DATED 12.10.2020 SWORN**| ||**IN BY THE 2ND RESPONDENT.**| |**ANNEXURE A6**|**THE AFFIDAVIT DATED 12.10.2020 SWORN**| ||**IN BY THE 3RD RESPONDENT/VICTIM.**|