Mohammed Shameel v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 26[TH] DAY OF MAY 2023 / 5TH JYAISHTA, 1945 ``` ## **`CRL.MC NO. 9521 OF 2022`** ## **`CRIME NO.513/2022 OF Thrikkakara Police Station, Ernakulam`** ## **`PETITIONER/ACCUSED:`** ``` MOHAMMED SHAMEEL, AGED 26 YEARS, S/O ABDUL SALAM, THAIPARAMBIL HOUSE, VELLARAMKUNNU, EDAKKARA P.O, NILAMBUR TALUK, MALAPPURAM DISTRICT., PIN – 679331 BY ADV SRI.P.SAMSUDIN ``` ## **`RESPONDENTS/STATE AND VICTIM:`** ``` 1STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 2XXX XXX XXXX XXX XXX XXXX BY ADV SRI.G.SUDHEER, PP SRI.MURSHID ALI M., R2 ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 26.05.2023, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` Crl.M.C.No.9521 of 2022 2 ## **K.BABU, J** . -------------------------------------- ## Crl.M.C.No.9521 of 2022 --------------------------------------Dated this the 26[th] day of May, 2023 ## **O R D E R** This Crl.M.C. has been filed to quash all further proceedings against the petitioner/accused in Annexure A1 FIR in Crime No.513/2022 of Thrikkakara Police Station, Ernakulam. 2. The petitioner is the sole accused. 3. Respondent No.2 is the defacto complainant. 4. The offence alleged against the petitioner is punishable under Section 376(2)(n) of IPC. The prosecution case is that in June 2021, and on many occasions thereafter, the petitioner, by giving false promise to marry, committed rape on respondent No.2. 5. Heard the learned counsel appearing for the petitioner, the learned Public Prosecutor and the learned counsel for the defacto complainant. 6. The learned counsel for the petitioner submitted that the allegations levelled against the accused are false and baseless and do not constitute any offence of rape. The petitioner and the victim are friends and neighbours. They fell Crl.M.C.No.9521 of 2022 3 in love with each other and had consensual sexual intercourse. The case of the petitioner is that he had not given any false promise of marriage and the consent for sexual intercourse was not obtained on such promise. 7. Respondent No.2, the defacto complainant entered appearance through counsel and filed an affidavit, wherein she stated thus: “ 3.It is submitted that the petitioner is my friend and I have voluntarily gone with him. We are in love with each other. We had sexual intercourse with my full and free consent and participation. Petitioner has not given me any false promise to marry me and the consent for sex is not given on such promise. 4. Now the disputes are settled between me and the petitioner. I do not intend to prosecute the case against the petitioner which may detrimentally affect my future prospects. I have no grievances subsisting against the petitioner. I have no objection in quashing the proceedings against the petitioner as all the disputes are settled between me and the petitioner.” 8. The learned Public Prosecutor, on instructions, submitted the matter was enquired into through the Investigating Officer, who has taken the statement of the defacto complainant, and it is reported that the victim stated that they had consensual sexual intercourse. 9. The Apex Court In **Gian Singh v. State of Punjab [2012 (4) KLT 108 (SC)], Narinder Singh and others v. State of Punjab and Others [(2014) 6 SCC 466],** and **State of Madhya** Crl.M.C.No.9521 of 2022 4 ## **Pradesh v. Laxmi Narayan and Others [(2019) 5 SCC 688]** considered the power of the High Court to quash criminal proceedings in FIR/complaint in exercise of its inherent jurisdiction where the offences are not compoundable under Section 320 Cr.P.C. ## 10. In **Gian Singh (supra)** the Apex Court held thus:- “57. The position that emerges from the above discussion can be summarised thus: 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 S.320 of the Code. Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz; (i) to secure the ends of justice or (ii) to prevent abuse of the process of any Court. In what cases power to quash the criminal proceeding or complaint or F.I.R 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 High Court must have due regard to the nature and gravity of the crime. Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot be fittingly quashed even though the victim or victim's family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society. Similarly, any compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences. But the criminal cases having overwhelmingly and pre-dominatingly civil flavour stand on different footing for the purposes of quashing, particularly the offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or Crl.M.C.No.9521 of 2022 5 the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.” ## 11. In **Narinder Singh and others (supra)** the Apex ## Court held thus:- “29.5. While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. 29.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delicate parts of the body, Crl.M.C.No.9521 of 2022 6 nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.” Crl.M.C.No.9521 of 2022 7 12. In **State of Madhya Pradesh v. Laxmi Narayan and Others (supra)** , approving the ratio in **Gian Singh and Narinder Singh** a three-Judge Bench of the Apex Court held that in the exercise of powers under Section 482 Cr.P.C., on the ground that the parties have resolved their entire dispute between themselves, High Court would not rest its decision merely because there is a mention of a penal section of a heinous crime in the FIR or charge. The Apex Court added that it would be open to the High Court to examine as to whether incorporation of a penal section of heinous crime is there for the sake of it or the prosecution has collected sufficient evidence which if proved would lead to framing of charges under the said penal section. 13. In **Kapil Gupta v. State of NCT of Delhi and Another (2022 SCC OnLine SC 1030),** following **Narinder Singh and others (supra)** , the Apex Court held that though the Court should be slow in quashing the proceedings wherein heinous and serious offences are involved, the High Court is not foreclosed from examining as to whether there exists material for incorporation of such an offence or as to whether there is sufficient evidence which if proved would lead to proving the Crl.M.C.No.9521 of 2022 8 charge for the offence charged with. The Apex Court further observed that High Court has also to consider whether the settlement between the parties will result in harmony between them, which may improve their mutual relationship. The Supreme Court added that the stage of the proceedings at which the application for quashing the proceedings is brought before the Court is also to be taken into account. 14. In **Kapil Gupta,** the Apex Court was considering the legality of quashing an FIR wherein the offence alleged was Section 376 IPC. In paragraphs 15, 16 & 17 the Apex Court observed thus:- “15. The facts and circumstances as stated hereinabove are peculiar in the present case. Respondent No. 2 is a young lady of 23 years. She feels that going through trial in one case, where she is a complainant and in the other case, wherein she is the accused would rob the prime of her youth. She feels that if she is made to face the trial rather than getting any relief, she would be faced with agony of undergoing the trial. 16. In both the cases, though the charge sheets have been filed, the charges are yet to be framed and as such, the trial has not yet commenced. It is further to be noted that since the respondent No. 2 herself is not supporting the prosecution case, even if the criminal trial is permitted to go ahead, it will end in nothing else than an acquittal. If the request of the parties is denied, it will be amounting to only adding one more criminal case to the already overburdened criminal courts. 17. In that view of the matter, we find that though in a heinous or serious crime like rape, the Court should not normally exercise the powers of quashing the proceedings, in the peculiar facts and circumstances Crl.M.C.No.9521 of 2022 9 of the present case and in order to give succour to Respondent No. 2 so that she is saved from further agony of facing two criminal trials, one as a victim and one as an accused, we find that this is a fit case wherein the extraordinary powers of this Court be exercised to quash the criminal proceedings.” 15. In the given case, both sides concede that Annexure A1 FIR was registered based on a misunderstanding. This is more substantiated by the filing of the affidavit by the victim before this Court and the statement given to the Investigating Officer. 16. On a perusal of the materials made available, this Court concludes that though there is mention of Section 376 IPC in the FIR, the incorporation of the penal section is only for the sake of it, and the said penal section was included in the crime based on mistaken facts. The sexual relationship alleged to have occurred could only be termed a consensual sexual relationship. Even if the allegations of sexual intercourse are accepted, no evidence under Section 376 IPC has been made out. 17. This Court feels that all further proceedings pursuant to the registration of FIR.No.513/2022 of Thrikkakara Police Station and Annexure A3 Final Report and all further proceedings in C.P.No.4/2023 on the file of the Judicial First Class Magistrate Court, Kakkanad are liable to be quashed. Crl.M.C.No.9521 of 2022 10 In the result, the Crl.M.C. is allowed. Annexure A3 Final Report in Crime No.513/2022 of Thrikkakara Police Station and all further proceedings in C.P.No.4/2023 on the file of the Judicial First Class Magistrate Court, Kakkanad stand quashed. Sd/- **K.BABU JUDGE** VPK Crl.M.C.No.9521 of 2022 11 ## **`APPENDIX OF CRL.MC 9521/2022`** ``` PETITIONER ANNEXURES ``` ``` Annexure A1TRUE COPY OF THE FIRST INFORMATION STATEMENT AND FIR DATED 08.06.2022 IN CRIME NO.513/2022 OF THRIKKAKARA POLICE STATION Annexure A2THE ORIGINAL AFFIDAVIT SWORN IN BY THE 2ND RESPONDENT DATED 08.12.2022 ```