Mithin Johnson v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` WEDNESDAY, THE 24[TH] DAY OF JULY 2024 / 2ND SRAVANA, 1946 ``` ## **`CRL.MC NO. 6583 OF 2021`** ## **`CRIME NO.834/2021 OF SOORANADU POLICE STATION, KOLLAM PETITIONER/ACCUSED:`** ``` MITHIN JOHNSON AGED 31 YEARS S/O.JOHNSON, EDAVANA BHAVANAM THRIKUNNAPUZHA VADAKKUMURI, SOORANAD, KOLLAM – 690 522 BY ADVS. K.P.SATHEESAN (SR.) P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN ``` ## **`RESPONDENTS/STATE, COMPLAINANT & DEFACTO COMPLAINANT:`** - **`1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM KOCHI – 682 031`** - **`2 THE SUB INSPECTOR OF POLICE, SOORANAD POLICE STATION, KOLLAM – 690 522`** - **`3 XXXX XXXX SRI.M.P.PRASANTH, PUBLIC PROSECUTOR K.K.RAJEEV`** ## **`THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON`** ``` 11.07.2024, THE COURT ON 24.07.2024 PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 6583 OF 2021 ``` ``` 2 ``` ## **O R D E R** Dated this the 24[th] day of July, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure to quash the entire proceedings in Crime No.834/2021 of Soornad Police Station, Kollam District. The petitioner herein is the sole accused in the above crime. 2. Heard the learned counsel for the petitioner, the learned counsel for the 3[rd] respondent/complainant and the learned Public Prosecutor in detail. Perused the available documents. 3. In this matter, the prosecution alleges commission of offences punishable under Sections 376, 376(2)(n) and 509 of IPC as well as Section 67A of the Information Technology Act. The crime was registered based on a private complaint lodged by the complainant before the Judicial First Class Magistrate Court-I, Sasthamcotta, alleging commission of the above offences. The precise allegation in the complaint ``` CRL.MC NO. 6583 OF 2021 ``` ``` 3 ``` is that the complainant and the accused are hailing from same place and they made acquaintance through facebook. While so, when the complainant attended a marriage function of one of her friends, on 05.07.2018, the accused met her and expressed his intention to marry her. Later, the accused discussed the marriage proposal with her mother and went to Hyderabad in connection with his employment. Later, he sent to Sharjah on 08.02.2019. The complainant also reached Dubai in search of a job and stayed along with her mother’s sister. On 12.02.2019 and 14.02.2019, the accused reached there and repeated his promise of marriage. Then he demanded to have sexual intercourse on noticing that there was nobody at the house. Accordingly, on the promise of marriage, he subjected her to sexual intercourse and repeated the same on 28.12.2019 and 29.12.2019. Though the accused agreed to marry the complainant, later he retracted from the marriage. But during the month of January, 2020, he agreed to marry her and accordingly, she was ``` CRL.MC NO. 6583 OF 2021 ``` ``` 4 ``` subjected to sexual intercourse on 11.01.2020. Thereafter, the petitioner retracted from the marriage and married another lady on 27.12.2020. This is the base on which this crime was registered. While the investigation has been progressing, this petition has been filed along with an affidavit filed by the complainant stating that the complaint was filed on a misunderstanding and she did not intend to proceed further. 4. The learned counsel for the petitioner zealously argued to quash the proceedings acting on the affidavit in derogation to the allegations of the complainant and the statement given by the complainant in support of the prosecution allegations. 5. Whereas the learned Public Prosecutor strongly opposed quashment of the proceedings where the offences are _prima facie_ made out from the complaint as well as the statement of the victim. Now the investigation has been completed and the final report is ready. But filing of final report has been stalled because of the interim order passed in this case. ``` CRL.MC NO. 6583 OF 2021 ``` ``` 5 ``` 6. Going by the prosecution case, it is discernible that the complainant and the accused are hailing from same place and they made acquaintance through facebook. While so, when the complainant attended a marriage function of one of her friends, on 05.07.2018, the accused met her and expressed his intention to marry her. Later, the accused discussed the marriage proposal with her mother and went to Hyderabad in connection with his employment. Later, he sent to Sharjah on 08.02.2019. The complainant also reached Dubai in search of a job and stayed along with her mother’s sister. On 12.02.2019 and 14.02.2019, the accused reached there and repeated his promise of marriage. Then he demanded to have sexual intercourse on noticing that there was nobody at the house. Accordingly, on the promise of marriage, he subjected her to sexual intercourse and repeated the same on 28.12.2019 and 29.12.2019. Though the accused agreed to marry the complainant, later he retracted from the marriage. But during the month of January, ``` CRL.MC NO. 6583 OF 2021 ``` ``` 6 ``` 2020, he agreed to marry her and accordingly, she was subjected to sexual intercourse on 11.01.2020. Thereafter, the petitioner retracted from the marriage and married another lady on 27.12.2020. This is the base on which this Thus the allegation as to commission of offences punishable under Sections 376, 376(2)(n) and 509 of IPC and Section 67A of the Information Technology Act, made _prima facie._ 7. Adverting to the power of this Court to quash criminal proceedings resorting to Section 482 of the Cr.P.C. is concerned, indubitably, in respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes ``` CRL.MC NO. 6583 OF 2021 ``` ``` 7 ``` against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. Such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any ``` CRL.MC NO. 6583 OF 2021 ``` ``` 8 ``` kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community, but may also accord an undue benefit to ``` CRL.MC NO. 6583 OF 2021 ``` ``` 9 ``` unscrupulous habitual or professional offenders, who can secure a “settlement” through duress, threats, social boycotts, bribes or other dubious means. It is well said that “let no guilty man escape, if it can be avoided.” 8. Thus, the law as it stands is that although High Court can invoke its jurisdiction u/s.482 Cr.P.C. even in noncompoundable offence and can quash the proceedings on the basis of settlement arrived at between the parties even in the cases of non-compoundable offences but while exercising its jurisdiction this Court must consider the fact that whether the proceeding relates to any serious and heinous offences and whether the crime in question has impact over the society. In cases of serious nature which affects the society at large this Court should not exercise its jurisdiction under Section 482 Cr.P.C. for quashing the proceedings on the basis of compromise executed between the parties. (See decisions in **Gian Singh** v. **State of Punjab and Another** reported in **[(2012) 10 SCC 303], Narinder** ``` CRL.MC NO. 6583 OF 2021 ``` ## **`10`** **Singh and Others** v. **State of Punjab and Another** reported in **[(2014) 9 SCC 466], Shimbhu** v. **State of Haryana** reported in **[AIR 2014 Supreme Court 739]** (three Bench) **, State of Madhya Pradesh** v. **Madanlal** reported in **[AIR 2015 Supreme Court 3003]** (two Bench), **Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others** v. **State of Gujarat and Another** reported in **[(2017) 9 SCC 641],** v. . **State of Madhya Pradesh Laxmi Narayan & Ors** reported in **[(2019) 5 SCC 688], Arun Singh and Others** v. **State of Uttar Pradesh Through its Secretary and Another** reported in **[(2020) (3) SCC 736], Ram Gopal & Another** v. **State of Madhya Pradesh** reported in **[(2021 0 Supreme (SC) 529)], Daxaben** v. **The State of Gujarat & others** reported in **[2022 LiveLaw (SC) 642], P.Dharmraj** v. **Shanmugam and others** decided on 8[th] September 2022 in Crl.Appeal Nos.1515-1516 of 2022). 9. Coming to the facts of this case, merely acting on the affidavit filed by the complainant after registration of the ``` CRL.MC NO. 6583 OF 2021 ``` ``` 11 ``` crime, quashment prayer cannot be considered since the matter would require further proceedings based on the final report to be filed. Accordingly, this petition stands dismissed. Interim order of stay, if any, stands vacated. Registry is directed to forward a copy of this order to the trial court for information and further steps. **Sd/A. BADHARUDEEN JUDGE** nkr ``` CRL.MC NO. 6583 OF 2021 ``` ``` 12 ``` ## **`APPENDIX OF CRL.MC 6583/2021`** ``` PETITIONER ANNEXURES ANNEXURE -ICERTIFIED COPY OF THE COMPLAINT FILED BY THE 3RD RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT, SASTHAMCOTTA ANNEXURE -IICERTIFIED COPY OF THE F.I.R IN CRIME NO. 0834/2021 OF SOORANAD POLICE STATION DATED 1-7-2021 ANNEXURE- IIIAFFIDAVIT SWORN BY THE 3RD RESPONDENT DATED 14-12-2021 ``` ``` RESPONDENTS ANNEXURES : NIL ```