Mohammed Harees and Teena Harees v. State of Kerala and XXXX

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE GOPINATH P. FRIDAY, THE 22[ND] DAY OF DECEMBER 2023 / 1ST POUSHA, 1945 CRL.MC NO. 1820 OF 2022`** ## **`CRIME NO.159/2022 OF ALAPPUZHA NORTH POLICE STATION, Alappuzha`** ## **`PETITIONERS/ACCUSED NOS.1 AND 2:`** - `1 MOHAMMED HAREES, AGED 42 YEARS S/O ABDUL MAJEED, HANA VILLA, SEA VIEW WARD, BAZAR P.O, ALAPPUZHA DISTRICT, PIN – 688012` ``` 2TEENA HAREES, AGED 40 YEARS W/O MOHAMMED HAREES, HANA VILLA,SEA VIEW WARD, BAZAR P.O, ALAPPUZHA DISTRICT, PIN - 688012 BY ADVS. R.SANJITH C.S.SINDHU KRISHNAH(K/942/2008) ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, KOCHI, PIN - 682031` - `2 XXXX AGED 24 YEARS XXXX, PIN - 682021 BY ADVS. ABHISHEK V.S ALEX ABRAHAM(K/000508/2017)` ``` SRI NOUSHAD K.A. (SR PP) ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.12.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` `CRL.MC NO. 1820 OF 2022` 2 ## **ORDER** Petitioners have approached this Court seeking to quash all further proceedings against the petitioners in Crime No.159/2022 of Alappuzha North Police Station, Alappuzha district, which has been registered alleging commission of offences under Sections 376(2)(n), 354, 420 & 506 r/w Section 34 of the Indian Penal Code. 2. The allegation against the petitioners is that the 1[St] petitioner had entered into sexual relationships with the 2[nd] respondent/victim after convincing her that he was a divorcee and promising to marry her while in a subsisting marriage with the 2[nd] petitioner. It is further alleged that the petitioners together had induced the 2[nd] respondent/victim to pay an amount of Rs.18,00,000/(Rupees Eighteen Lakhs only) and to hand over gold ornaments worth Rs.2,00,000/- (Rupees Two lakhs only) promising that she will be given a partnership in the business of the 1[St] petitioner. It is alleged that after receiving the money and the gold ornaments, the 2[nd] `CRL.MC NO. 1820 OF 2022` 3 respondent/defacto complainant/victim was never inducted into the business, and the money taken from her was not repaid to her. It is thus alleged that the petitioners have committed the offences alleged against them. 3. The only ground taken in support of the prayer for quashing further proceedings is that subsequent to the registration of the crime, all issues between the petitioners and the 2[nd] respondent/defacto complainant/victim have been settled. This Court, on 29-08-2022, had passed an interim order staying the arrest of the petitioners in connection with Crime No.159/2022 of Alappuzha North Police Station on the premise that the issues had been settled between parties. Thereafter, on 18-01-2023, this Court had passed the following order: “This Crl.M.C has been filed to quash the proceedings on the ground of settlement. The victim has sworn in an affidavit stating that the matter is settled. When the matter has been enquired by the police also, the victim stated that the matter has been settled. Now the learned counsel for the victim submits that the matter has not been settled. Hence, the victim is directed to be present before this Court on 23/1/2023 at 10.15 am. Post on 23/1/2023”. `CRL.MC NO. 1820 OF 2022` 4 ## On 23-01-2023, this Court passed the following order: “Respondent No.2, the victim is present. She denied having entered into a settlement as alleged by the petitioners. Post before the Bench on 03-02-2023”. Thereafter, the interim order has been extended from time to time till today. 4. When this matter is taken up for consideration today, the learned Senior Public Prosecutor and the learned counsel for the 2[nd] respondent/defacto complainant/victim pointed out that the question as to whether there had actually been any settlement between the petitioners and the 2[nd] respondent/defacto complainant/victim, was considered by this Court while considering B.A.No.1862/2022, which was an anticipatory bail application filed by the petitioners. It is submitted that the findings of this Court while disposing of B.A.No.1862/2022 are sufficient to hold that this Crl.M.C is only to be `CRL.MC NO. 1820 OF 2022` 5 ## dismissed. 5. I have gone through the order dated 05-07-2022 in B.A.No.1862/2022, through which this Court denied anticipatory bail to the 1[St] petitioner and granted anticipatory bail to the 2[nd] petitioner, on the finding that as far as the 2[nd] petitioner is concerned, the only allegation was that she had threatened the defacto complainant as indicated in paragraph 12 of the order disposing of BA No 1862/2022. 6. The learned Senior Public Prosecutor submits that, since the only order in this Crl. M.C was that the petitioners should not be arrested, the investigation of the case has almost been completed, and all that remains to be done is the recording of the arrest of the 1[St] petitioner and a potency test to be carried out on him. It is submitted that the 1[St] petitioner will have to be directed to make himself available for the potency test before the investigating officer in Crime No.159/2022 of Alappuzha North Police Station so as to ensure that the investigation is completed and the final report is filed. `CRL.MC NO. 1820 OF 2022` 6 7. Having heard the learned counsel for the petitioners, learned Senior Public Prosecutor and the learned counsel for the 2[nd] respondent/defacto complainant/victim, I am of the view that this Crl.M.C is only to be dismissed, as the grounds taken in support of the prayer sought in the Crl.M.C is on the basis of the alleged settlement arrived at between the parties. It is clear from the order dated 05-07-2022 in B.A.No.1862/2022 that the settlement was doubted by this Court while considering the anticipatory bail application filed by the petitioners. This Court observed thus while disposing of B.A No.1862/2022:- ‘’6. Smt. Isamol Baby, learned counsel appearing on behalf of the survivor-second respondent argued that the survivor had been subjected to repeated sexual intercourse with the promise of marriage after convincing her that the first petitioner was a divorcee. It was further pointed out that the survivor came to know about the subsisting marriage of the first petitioner only when Crime No.29 of 2022 of Alappuzha South Police Station was registered by the brother of the first petitioner [copy of which is produced as Annexure R2(1)] indicating that the first petitioner has a subsisting marriage with a foreign lady. The learned counsel further contended that the first petitioner has been indulging in several illegal activities and exploiting persons, especially ladies at the resort owned by him and though complaints were understood to have been filed, the same were all either closed or withdrawn using the first petitioner’s influence. The learned Counsel contended that the statement allegedly given to the police was manipulated by the first petitioner and the same is not the reality. It was also submitted that on 25.05.2022 the first petitioner manipulated records in such a way to make it appear that amounts have been transferred to the survivor, which were nothing but his machination. Learned counsel also submitted that due to the sexual `CRL.MC NO. 1820 OF 2022` 7 and financial exploitation committed by the petitioners, the survivor has fallen into total despair and also that grant of prearrest bail would enable the destruction of the remaining evidence. 7. I have considered the rival contentions raised and have perused the case diary. 8. The survivor is a young girl of 24 years. She alleges to have been repeatedly exploited both sexually and financially. Though a statement is alleged to have been given before the Police Station as per Annexure-II, stating that she was aware about the subsisting marriage while she indulged in the sexual relationship, there is no mention of the date on which the said statement was given. Despite having allegedly given such a statement, the survivor now asserts that the subsistence of the marriage was not known to her and that the statement was obtained by deceit after the first petitioner pretended to have affectionate feelings for the defacto complainant and even offered to marry her once the case is closed. The statement is allegedly obtained to attempt quashing of the FIR. As held in **Gian Singh v. State of Punjab and Another** (2012) 10 SCC 303], heinous offences cannot be quashed by settlement. Apart from the above, it is a statement given before a police officer and that too after filing of the FIR. Therefore, the said statement has no binding effect legally and cannot be relied upon for any purpose. In this context, the contention of the learned counsel for the second respondent as well as the learned Public Prosecutor that the statement was manipulated by the first petitioner cannot be ignored. 9. The allegation regarding the manipulation of the amount paid on 25.05.2022 is also a matter which requires detailed investigation, as pointed out by the learned counsel for the second respondent. The documents produced by the petitioners themselves show certain financial transactions on 25.5.2022 indicating a semblance of possibility in the allegation of the survivor that those transactions were manipulated to indicate that petitioners had paid to the survivor a part of the amounts due to her. The account statement shows that first petitioner had taken a loan from a finance company on 25-05-2022 and paid the petitioner the amount by cash cheque and on the same day the amount was credited back into the first petitioner’s account and the loan to the finance company also repaid on the same day. These transactions create doubt in the mind of the Court as being a clever attempt to hoodwink others. Anyway these are all matters that require interrogation. ‘’ This Court has also dismissed a subsequent application for anticipatory bail filed by the 1[st] petitioner. (See order in B.A 11207/2023). `CRL.MC NO. 1820 OF 2022` 8 Thus, it is clear that the petitioners have not made out any grounds for granting relief. Accordingly, this Crl.M.C will stand dismissed. **Sd/GOPINATH P. JUDGE** ats `CRL.MC NO. 1820 OF 2022` 9 ## **`APPENDIX OF CRL.MC 1820/2022`** |`PETITIONER ANNEXURES`|| |---|---| |`Annexure-I`|`A True copy of the First Information Report`| ||`dated 9-02-2022 in Crime No.0159 of 2022 of`| ||`the Alappuzha North Police Station,`| ||`Alappuzha District`| |Annexure-II|A true copy of the Statement of the 2nd respondent recorded by| ||the Inspector, Alappuzha North Police Station| |Annexure-III|Afdavit dated 15-02-2022 sworn by the 2nd respondent| |`Annexure A4`|`ORIGINAL COPY OF THE REGISTER OF PETITIONS`| ||`OF THRIKAKKARA POLICE STATION, ERNAKULAM`| ||`DATED 25/01/2023`| |`Annexure A4 (A)`|`ORIGINAL COPY OF THE COMPLAINT DATED`| ||`12/12/2022 PREFERRED BY THE PETITIONERS TO`| ||`THE STATION HOUSE OFFICER, THRIKAKKARA`| ||`POLICE STATION, ERNAKULAM`| |`Annexure A5`|`ORIGINAL COPY OF THE BANK ACCOUNT STATEMENT`| ||`FROM 01/06/2021 TO 31/05/2022OF ACCOUNT NO.`| ||`00000038650306877 MAINTAINED WITH STATE BANK`| ||`OF INDIA BANK, VYTILLA BRANCH, ERNAKULAM OF`| ||`THE 1ST PETITIONER`| |`Annexure A6`|`ORIGINAL COPY OF THE BANK ACCOUNT STATEMENT`| ||`FROM 14/06/2022 TO 13/12/2022 OF ACCOUNT NO.`| ||`00000038650306877 MAINTAINED WITH STATE BANK`| ||`OF INDIA BANK, VYTILLA BRANCH, ERNAKULAM OF`| ||`THE 1ST PETITIONER`| |`Annexure A7`|`Certified copy of the first Information`| ||`report dated 09/02/2022 in crime`| ||`No.0159/2022 of Alappuzha North Police`| ||`station, Alappuzha District`| |`Annexure A8`|`ORIGINAL COPY OF THE BANK ACCOUNT STATEMENT`| ||`FROM 25/12/2021 TO 06/10/2022 OF ACCOUNT NO.`| ||`00000067204911175 MAINTAINED WITH STATE BANK`| ||`OF INDIA BANK, ALAPPUZHA BRANCH, ALAPPUZHA`| ||`OF THE 1ST PETITIONER`| |`Annexure A9`|`True copy of the FIR No.428/2022 dated`| ||`24/05/2022 ofAlappuzha South Police Station,`| ||`Alappuzha District is produced herewith and`| ||`marked as Annexure A9`| |`RESPONDENT’S`|| |`EXHIBITS`|| |`ANNEXURE R2(b)`|`True Copy of the complaint dated 03.03.2023`| ||`before the Station House Officer Thrikkakara`| ||`Police Station`| |`ANNEXURE R2(c)`|`True Copy of the receipt of acknowledgement`| `CRL.MC NO. 1820 OF 2022` 10 ``` issued by the Alappuzha North Police Station dated 03.03.2023 ANNEXURE R2(d)True Copy of the FIR in Crime No. 1315 dated 22.06.2023 by the Palarivattom Police Station ```