Muhammed Fasil v. Sabira and Shahana Sherin K and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** **Crl.MC.No. 383 of 2017 () -------------------------SC 1069/2015 OF FIRST ADDITIONAL SESSIONS COURT(POCSO), KOZHIKODE. CRIME NO.373/2014 OF MAVOOR POLICE STATION, KOZHIKODE.** **.........** ## **PETITIONER/ACCUSED:** **-------------------** **MUHAMMED FASIL, AGED 26 YEARS, S/O.ALIKOYA, VALAPPIL HOUSE, MAVOOR P.O., MAVOOR AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT(S)/COMPLAINANT & STATE:** **----------------------------------** **1. SABIRA, AGED 40 YEARS, D/O.ALI, VALLIYATTUPURATH, PALLIYOL, MAVOOR P.O., KOZHIKODE DISTRICT, PIN - 673 661.** **2. SHAHANA SHERIN K., AGED 19 YEARS, D/O.SABIRA, VALLIYATTUPURATH, PALLIYOL, MAVOOR P.O., KOZHIKODE DISTRICT, PIN - 673 661. NOW RESIDING AT SAUDI ARABIA.** **3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 682 031.** **R1 & R2 BY ADV. SRI.P.V.ANOOP R3 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 30-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **mbr/** ## **Crl.MC.No. 383 of 2017 () --------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** - **ANNEXURE A. TRUE COPY OF THE FIR IN CRIME NO.373/2014 OF MAVOOR POLICE STATION, KOZHIKODE.** - **ANNEXURE B. TRUE COPY OF THE FINAL REPORT IN CRIME NO.373/2014 WHICH IS NOW PENDING AGAINST THE PETITIONER AS S.C.NO.1069/2015 ON THE FILE OF FIRST ADDITIONAL SESSIONS COURT (POCSO), KOZHIKODE.** - **ANNEXURE C. TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MAVOOR BAZAR NOORUL JUMA MASJID COMMITTEE DATED 26.07.2015.** - **ANNEXURE D. TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE REGISTRAR OF MARRIAGES, MAVOOR GRAMA PANCHAYAT DATED 06.08.2015.** - **ANNEXURE E. TRUE COPY OF THE ORDER DATED 21.08.2015 IN CRL.M.C.NO.1752/2015 ON THE FILE OF SESSIONS COURT, KOZHIKODE.** - **ANNEXURE F. TRUE COPY OF THE AFFIDAVIT FILED BY THE 1ST RESPONDENT DATED 02.12.2016.** - **ANNEXURE G. TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 02.12.2016.** **RESPONDENTS' ANNEXURES: NIL.** **//TRUE COPY//** **P.S. TO JUDGE** **mbr/** ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - Crl.M.C. No. 383 of 2017 - - - - - - - - - - - - - - - - Dated 30[th] January, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This petition is filed under Section 482 of the Code of Criminal Procedure. - 2.The petitioner herein is the sole accused in S.C. No.1069 of 2015 on the file of the 1[st] Additional Sessions Court (Protection of Children from Sexual Offences Act), Kozhikode. - 3.On the basis of a statement given by the 1[st] respondent herein, Crime No. 373 of 2014 was registered under Section 376, 506(i) of the IPC and Section 3 read with Section 4 of the Protection of Children from Sexual Offences Act, 2012 against the petitioner and on completion of investigation, final report was laid before Crl.M.C. No.383 of 2017 -2- the jurisdictional court. - 4.The prosecution allegation is that the petitioner and the daughter of the 2[nd] respondent were in love with each other. While so, the petitioner is alleged to have induced the 2[nd] respondent to have sexual intercourse with him under the promise of marriage. The specific case of the prosecution is that the 2[nd] respondent was subjected to rape by the petitioner at 10.30 p.m. on 25.6.2014 and thus committed the offence. - 5.Heard the learned counsel appearing for the petitioner, the party respondents as well as the learned Public Prosecutor. - 6.According to the learned counsel appearing for the petitioner, the 1[st] respondent was initially opposed to the relationship that the petitioner had with her daughter. Under a misconception that the petitioner would not marry the 2[nd] respondent, the 1[st] respondent had rushed to the Crl.M.C. No.383 of 2017 -3- police and had set the law in motion. However, the petitioner who was abroad at the time of registration of Crime has married the 2[nd] respondent on 7.6.2015 and thereafter they are living as husband and wife in peace and harmony. The learned counsel has produced Annexure-C certificate of marriage issued by the Secretary of the Juma Masjid Committee and Annexure-D Certificate issued under Rule 11 of the Kerala Registration of Marriages (Common) Rules, 2008 to substantiate his contentions. According to the learned counsel, neither the 1[st] respondent or the 2[nd] respondent is desirous of prosecuting the petitioner due to the subsequent turn of events. 7.The respondents 1 and 2 have entered appearance through counsel. Separate affidavits sworn to by the mother and daughter have been placed on record. In both the affidavits, the deponents assert that they have no Crl.M.C. No.383 of 2017 -4- grievance against the petitioner and the continuance of proceedings will only be a thorn in the smooth and happy matrimonial relationship that exists between the parties. - 8.The learned Public Prosecutor on instructions submits that the enquiry conducted revealed that the petitioner had married the 2[nd] respondent and they are living together as husband and wife. - 9.I have considered the submissions and have perused the materials on record. - 10.The legal position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. It has been held that 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. In what cases power to quash the criminal proceeding or Crl.M.C. No.383 of 2017 -5- complaint or FIR 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 Court will have to give due regard to the nature and gravity of the crime. It is also settled that heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot quashed even though the victim or victim's family and the offender have settled the dispute. Such offenses are not private in nature and have serious impact on society. The directions of the Apex Court in **Gian singh v. State of Punjab** [(2012) 10 SCC 303] and in **Narinder singh v. State of Punjab** [(2014) 6 SCC 466 ] serve as guiding lights. 11.In so far as the offence of rape is concerned, there cannot be any doubt that the same cannot be settled on the strength of a compromise arrived at between the Crl.M.C. No.383 of 2017 -6- victim and the accused. The Apex Court in **State of M.P. V Madan Lal** (2015 (7) SCC 681), relying on the decision in **Shimbhu and Another v. State of Haryana** (2014 (13) SCC 318) has clearly reminded the Courts that rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. This was because of the fact that the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In such cases the accused may use all his influence to pressurise the victim for a compromise. It was taking note of this aspect that it was held that it would not be safe in considering the compromise arrived at between the parties in rape cases. Crl.M.C. No.383 of 2017 -7- In **Madan Lal** (supra) the Apex Court was hearing an appeal filed by the State against the Judgement of the High Court by which the conviction arrived at by the Trial Court was set aside on the basis of a compromise arrived at between the victim and the accused. 12.However, the facts of the instant case are entirely different. Annexures-C and D produced by the petitioner would unequivocally show that the parties have married and are living together. The de facto complainant is now the mother-in-law of the petitioner. It appears that the Crime was registered when the 1[st] respondent entertained an apprehension that the petitioner would withdraw from his promise to marry the 2[nd] respondent. There is no case for anyone that the dignity of the 2[nd] respondent was violated by a wanton act of the petitioner. This is not one of those cases wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the Crl.M.C. No.383 of 2017 -8- offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 2[nd] respondent if the prosecution is permitted to continue. When the respondent No. 2 has asserted that she is not desirous of prosecuting her husband any further, the prospects of an ultimate conviction is remote and bleak. Further more, the 2[nd] respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. 13. In the result this petition will stand allowed. Annexure-B final report and all proceedings pursuant thereto against the petitioner now pending as Crl.M.C. No.383 of 2017 -9- S.C.No.1069 of 2015 on the file of the 1[st] Additional Sessions Court (Protection of Children from Sexual Offences Act), Kozhikode are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/31.1.17