Muhammed Rashid v. The Station House Officer, Thrikkunnappuzha Police Station, Alappuzha District and The State of Kerala

# **`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. 3772 OF 2024 ``` ``` CRIME NO.263/2024 OF Thrikkunnappuzha Police Station, ``` ## **`Alappuzha`** ## **`THRIKKUNNAPPUZHA POLICE STATION, ALAPPUZHA`** ## **`PETITIONER/ACCUSED:`** ``` MUHAMMED RASHID, AGED 60 YEARS, S/O HASSANKUNJU, THARAYIL (H), PANOOR, THRIKKUNNAPPUZHA, ALAPPUZHA, KERALA, PIN – 690515. ``` ``` BY ADV SUNNY MATHEW ``` ## **`RESPONDENTS/COMPLAINANTS & STATE:`** |**`1`**|**`XXX`**| |---|---| ||**`XXX XXX XXX, PIN – 690515.`**| |**`2`**|**`THE STATION HOUSE OFFICER`**| ||**`THRIKKUNNAPUZHA POLICE STATION,`**| ||**`ALAPPUZHA DISTRICT-, PIN – 690515.`**| |**`3`**|**`THE STATE OF KERALA`**| ||**`REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,`**| ||**`ERNAKULAM, PIN – 682031.`**| ## **`PUBLIC PROSECUTOR SRI SANAL P RAJ`** ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 24.07.2024, THE COURT ON 24.07.2024 PASSED THE FOLLOWING: ``` CRL.MC No.3772/2024 **`2`** ## _**A. BADHARUDEEN, J.**_ _**================================**_ _Crl.M.C No.3772 of 2024_ _================================ Dated this the 24th day of July, 2024_ ## _**O R D E R**_ This criminal miscellaneous case has been filed under Section 482 of the Code of Criminal Procedure, by the accused in Crime No.263 of 2024 of Thrikkunnappuzha Police Station, ## Alappuzha, with the following reliefs: _“i. To quash Annexure A1 FIR and all further proceedings thereon in Crime No.263/2024 registered by the Station House Officer, Thrikkunnapuzha Police Station._ _ii. Any other reliefs which may be prayed for from time to time”_ 2. Heard the learned counsel for the petitioner and the learned Public Prosecutor. Perused Annexure A1 FIR and the relevant documents. 3. Here the prosecution alleges commission of offences CRL.MC No.3772/2024 **`3`** punishable under Sections 354 and 354A(1)(i) of the Indian Penal Code and Section 8 r/w 7, 10, 9 (l) and 9(m) of the Protection of Children from Sexual Offences Act (`POCSO Act’ for short). The brief case of the prosecution is that at about 12.30 hours on 10.04.2024, when the victim, aged 10 years, went to a nearby shop, the petitioner herein assaulted her by pressing on her breast and buttex with sexual intent. 4. The learned counsel for the petitioner argued at length to substantiate this Court that the allegations in the prosecution would not make any offences, since the victim later given a statement that when the hand of the accused touched on her body, on misunderstanding, that she had earlier alleged sexual assault. 5. The learned Public Prosecutor vehemently opposed quashment of the proceedings, based on the affidavits filed by the mother and father of the victim, where the prosecution alleges commission of serious offences. CRL.MC No.3772/2024 **`4`** 6. The learned Public Prosecutor in this connection placed a decision of the Apex Court reported in [(2015) 7 SCC 681], _**State of Madhya Pradesh v. Madanlal**_ , where a 3 Judge Bench decision in [(2014) 13 SCC 318 : (2014) 5 SCC (Cri) 65], _**Shimbhu v. State of Haryana**_ , to contend 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. Since 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 she 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 fact, accepting this proposition will put an additional burden on the victim. The accused may use all his influence to pressurise her for a compromise. So, in the interest of justice and to avoid unnecessary pressure/harassment to the victim, it would not be safe in_ CRL.MC No.3772/2024 **`5`** _considering the compromise arrived at between the parties in rape cases to be a ground for the court to exercise the discretionary power under the proviso of Section 376(2) IPC._ _In a case of rape or attempt to rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. There are the offences which suffocate the breath of life and sully the reputation. Reputation, needless to emphasis, 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;_ CRL.MC No.3772/2024 **`6`** _and we say with emphasis 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 kind of liberal approach or though of mediation in this regard is thoroughly and completely sans legal permissibility._ 7. 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 CRL.MC No.3772/2024 **`7`** 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 v. **Gian Singh State of Punjab and Another** reported in **[(2012) 10 SCC 303], Narinder 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** v. reported in **[(2017) 9 SCC 641], State of Madhya Pradesh Laxmi Narayan & Ors** . reported in **[(2019) 5 SCC 688],** v. **Arun Singh and Others State of Uttar Pradesh Through its Secretary and Another** reported in **[(2020) (3) SCC 736],** v. **Ram Gopal & Another State of Madhya Pradesh** reported CRL.MC No.3772/2024 **`8`** 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). 8. In view of the rival submissions, I have perused the FIS form part of the case diary which would narrate the occurrence. In the F.I.S, the victim would say that on 10.04.2024 on the day of Eid, she went to purchase `Lize’ to the shop of one `Muhammad Ikka’ then she found presence of Rashi Ikka (accused) there. Rashi gave the `Lize’ to the victim. At the time when the `Lize’ was handed over, the accused caught hold of her left breast and she had thrown away his hand. Again caught hold on the breast and when she attempted to came out of the shop, he caught hold of her buttex. Thereby her modesty was outraged. 9. A subsequent statement given by the victim also form part of the case diary wherein the victim would say that CRL.MC No.3772/2024 **`9`** she had given an earlier statement on misunderstanding that the hand of the accused touched on her body. It is also stated that the accused touched on her body by mistake, even though the earlier statement (FIS) as well as 164 statement of the victim are in support of the prosecution allegations. Therefore, the subsequent statement would run contrary to the earlier statements and the subsequent statement, by itself is not a ground to quash the proceedings, though the subsequent statement can be used to contradict the maker, during her crossexamination. Since prosecution case is well made out, _prima facie,_ in such a case quashment cannot be considered since the victim was aged 10 years at the time of occurrence. In view of the matter, prayer for quashment is liable to be rejected. 10. In view of the matter, quashment prayed for cannot be allowed in a case where, _prima facie,_ the prosecution materials would show commission of the offence alleged by the prosecution. Therefore, quashment sought for by the accused is CRL.MC No.3772/2024 **`10`** dismissed with liberty to raise his contentions before the trial court during trial. 11. Accordingly this Crl.M.C stands dismissed. Registry shall forward a copy of this order to the jurisdictional court for information and further steps. Sd/- _**A. BADHARUDEEN, JUDGE**_ rtr/