Muhammed Sayyaf, K. Faizal, K. Nisar, and K. P. Rashid v. State of Kerala and Victim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 11TH DAY OF NOVEMBER 2019 / 20TH KARTHIKA, 1941** **CRL.MC.NO.7121 OF 2019(A)** **CRIME NO.137/2018 OF KUDIYANMALA POLICE STATION, KANNUR** ## **PETITIONERS/ACCUSED:** - **1 MUHAMMED SAYYAF, AGED 23 YEARS, S/O.ABDUL AZEEZ, “BAITHUL NOOR”, NEAR MINI STADIUM, MANNA, VALAPATTANAM POST, KANNUR DISTRICT-670010.** - **2 K.FAIZAL, AGED 46 YEARS, S/O.ABDUL KHADER, “SUFAIJAS”, MAYYICHANKUNNU, VALAPATTANAM POST, KANNUR DISTRICT-670010.** - **3 K.NISAR, AGED 50 YEARS, S/O.ADDUL KADER, “FATHIMA MAHAL”, MAYYICHANKUNNU, VALAPATTANAM POST, KANNUR DISTRICT-670010.** - **4 K.P.RASHID, AGED 38 YEARS, S/O.MUHAMMED KUNHI, “RASEENAS”, NEAR VALAPATTANAM POLICE STATION, VALAPATTANAM POST, KANNUR DISTRICT-670010.** **BY ADV. SRI.P.K.RAVISANKAR** ## **RESPONDENTS/STATE & DEFACTO COMPLAINANT:** - **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 VICTIM** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR FOR R1. ADV. D.ANIL KUMAR FRO R2.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.11.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## ALEXANDER THOMAS, J. -------------------------------------Crl.M.C. No. 7121 of 2019 -------------------------------------Dated this the 11[th] day of November, 2019 ## O R D E R The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C. is as follows: _“To quash the proceedings in Crime No.137 of 2018 of Kudiyanmala Police Station.”_ 2. Heard Sri.P.K.Ravi Sankar, learned counsel appearing for the petitioners (Accused Nos.1 to 4), Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-1 (State) and Sri.D.Anil Kumar, learned Advocate appearing for R-2 (lady defacto complainant). 3. The petitioners herein have been arrayed as accused Nos.1 to 4 among the 4 accused in the instant impugned Anx.D Crime No.137/2018 of Kudiyanmala Police Station, which has been registered for offences punishable under Secs.376, 420 & 506(ii) r/w 34 of the IPC, pursuant to the private criminal complaint filed by the 2[nd] respondent lady defacto complainant as per Anx.C Criminal Miscellaneous Petition CMP No.2805/2018 Crl.M.C. No. 7121 of 2019 ..3. dated 4.5.2018 before the JFCM, Thaliparamba. While entertaining Anx.C the learned Magistrate has directed the police to register the crime and to cause investigation in the matters raised in the said complaint. It is on this basis that the impugned Anx.D Crime has been registered on on 10.5.2018. 4. The case projected by the 2[nd] respondent in Anx.C private criminal complaint as well as in Anx.D FIR is to the effect that, A1 had assured the lady defacto complainant that he would marry her and on the basis of said assurance, he had forceful sexual intercourse with her for quite some time and later when she insisted that he should marry her, the other accused persons (A2 to A4) who are the close relatives of A1 had threatened and intimidated her that she should desist from proceeding any marital relationship with the 1[st] petitioner (A1), and thereby the 1[st] petitioner has committed the offence of rape as per Sec.376 of the IPC and the other accused persons have committed the other offences as mentioned herein above etc. 5. Earlier the 2[nd] respondent has filed a Writ Petition (Criminal) seeking for habeas corpus as per Anx.A WP(Crl.) No.110/2018 before this Court on 21.3.2018 wherein the 1[st] petitioner's father has been arrayed as 4[th] respondent therein and Crl.M.C. No. 7121 of 2019 ..4. the respondents 1 to 3 therein are the police officials concerned and the allegations in Anx.A writ petition is to the effect that the 2[nd] respondent herein had married the 1[st] petitioner (A1) herein on 14.3.2018 in accordance with the provisions contained in the Special Marriage Act and the said solemnization of the marriage was duly registered as per Anx.A1(9) Marriage Certificate dated 14.3.2018 issued by the statutory Marriage Officer in accordance with the provisions contained in the Special Marriage Act, and that R-1 therein (who is the father of A1 herein) and the other family members had taken the 1[st] petitioner (A1) herein away, and that they had forcefully and illegally detained A1 herein. 6. Based on the directions issued by this Court, A1 herein was produced before this Court in Anx.A writ of habeas corpus proceedings and the Division Bench of this Court had disposed of Anx.B WP(Crl.) No.110/2018 recording the stand of A1 herein that he was not forcefully detained by anyone, and that he is not willing to reside with the petitioner therein (R2 herein). The Division Bench of this Court has held in Anx.B judgment that the remedy of parties is only to move the Family Court in case they have any matrimonial disputes pending between the spouses, and that their Lorships in the Crl.M.C. No. 7121 of 2019 **==> picture [15 x 9] intentionally omitted <==** Division Bench has satisfied that there is no illegal detention as alleged in the writ petition for habeas corpus and accordingly the said writ petition was disposed of. It was thereafter that the 2[nd] respondent has filed the instant Anx.C private criminal complaint on 4.5.2018 making the abovesaid allegations, in which Anx.D Crime has been registered on 10.5.2018 for the abovesaid offences. Now it is stated that the 1[st] petitioner and the 2[nd] respondent has reached a consensus and they have resolved all the disputes and the parties have now decided to dissolve their marital relationship, etc. The 2[nd] respondent has filed Anx.E affidavit also. 7. Sri.D.Anil Kumar, learned Advocate appearing for the 2[nd] respondent lady defacto complainant would submit on the basis of instructions of his party that, earlier the marriage between the 1[st] petitioner and the 2[nd] respondent was duly solemnized in accordance with the provisions contained in the Special Marriage Act as evident from Anx.A1(9) Marriage Certificate and now they have decided to dissolve their marital relationship, and that the 2[nd] respondent is not in any manner interested to proceed with the impugned criminal proceedings, and that she has filed the abovesaid complaint only out of misunderstandings, etc. Crl.M.C. No. 7121 of 2019 ..6. 8. After hearing both sides and after perusing the pleadings and materials on record, the indisputable fact of the matter is that the marriage of the 1[st] petitioner and the 2[nd] respondent has been duly solemnized in accordance with the provisions contained in the Special Marriage Act on 14.3.2018 as evident from Anx.A1(9) Marriage Certificate issued by the statutory Marriage Officer. It appears that one of the main allegation is that the parties had entered into sexual relationship even prior to marriage and the case of the 2[nd] respondent is that she had entered into sexual relationship with the 1[st] petitioner based on his assurance that he would marry her. Though it has been held by this Court in the decisions as in _**Shimbhu & Anr. v. State of Haryana [(2014) 13 SCC 318], Parbatbhai Aahir v. State of Gujarat [(2017) 9 SCC 641], Anita Maria Dias v. State of Maharashtra [(2018) 3 SCC 290], Sebastian @ Solly v. State of Kerala [(2015) 1 KLJ 384, etc.**_ that ordinarily grave and serious offences as the one under Sec.376 (rape) of the I.P.C. may not be amenable for quashment in exercise of power under Sec.482 of the Cr.P.C., merely on the ground of settlement between the parties. However, it has been held by this Court in the decisions as in _**Freddy @ Antony Francis & Ors. v. State of Kerala & Anr** ._ Crl.M.C. No. 7121 of 2019 ..7. _[2017 KHC 344 = 2018 (1) KLD 558),_ _**Denu P.Thampi v. Ms.X** , [2019 (3) KHC 199],_ etc that in a case where the parties had entered into sexual relationship on the premise that the accused would marry the victim, and later the victim comes with a case that the accused has committed forceful sexual intercourse, then in such cases where the marriage of parties is subsequently solemnized, then it may be all more better in the interest of the lady defacto complainant herself for quashment of the impugned criminal proceedings, as otherwise it might detrimentally affect the marital life. In such cases, this Court exercises discretion for quashment of the impugned criminal proceedings where the accused subsequently marries the victim, and the factum of settlement on the basis of marriage between the parties is duly taken note of, and this is an exceptional approach made to the general approach as stated herein above. 9. Whereas the present case stands on a better footing than the cases as in _**Freddy @ Antony Francis**_ 's case supra and _**Denu P.Thampi** '_ s case supra. In the instant case also the allegation made by the 2[nd] respondent was to the effect that she had entered into sexual relationship with the 1[st] petitioner on account of his promise to marry. But the indisputable fact of the matter is that the 1[st] petitioner's Crl.M.C. No. 7121 of 2019 ..8. marriage with the 2[nd] respondent was duly solemnized on 14.3.2018. Now both sides would submit that they have voluntarily decided to dissolve their marital relationship by approaching the Family Court in appropriate proceedings. That apart, the allegations of sexual intercourse are belatedly made in Anx.C private criminal complaint on 4.5.2018 has not been remotely whispered anywhere in Anx.A writ of habeas corpus filed by the 2[nd] respondent herein before the Division Bench of this Court. Therein, her case was to the effect that her marriage with the 1[st] petitioner has been duly solemnized etc. No allegations of forceful sexual intercourse are made at that time or any time prior to the filing of Anx.C private criminal complaint. The incidents are said to have happened some time in the year 2017 whereas the private criminal complaint was filed as late as on 4.5.2018 and presumably after the 2[nd] respondent has got adverse verdict as per Anx.B judgment rendered by the Division Bench of this Court in the said habeas corpus writ proceedings dated 3.4.2018. The FIR is thus registered on 10.5.2018. Obviously there is long and unexplained delay in the initiation of the impugned criminal proceedings. That apart the very case set up in this case is contradictory to her earlier stand and the further indisputable fact of Crl.M.C. No. 7121 of 2019 **==> picture [17 x 9] intentionally omitted <==** the matter is that the parties have duly married and now they have decided to terminate the relationship. Therefore in this case the continuance of the impugned criminal proceedings will be an abuse of the process of court. In that view of the matter it is ordered in the interest of justice that all further proceedings pursuant to Anx.C criminal miscellaneous petition CMP No.2805/2018 before the JFCM, Thaliparamba, and the consequential Anx.D Crime No.137/2018 of Kudiyanmala Police Station, registered against the petitioners and all further proceedings emanating therefrom will stand quashed. 10. The petitioners will produce certified copies of this order before Investigating Officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the Investigating Officer concerned for information. With these observations and directions, the Criminal Miscellaneous Case stands finally disposed of. Sd/- ALEXANDER THOMAS, JUDGE MMG Crl.M.C. No. 7121 of 2019 ..10. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **ANNEXURE A TRUE COPY OF THE W.P.(CRL)NO.110 OF 2018 DATED 20.03.2018 ON THE FILES OF THIS HONOURABLE COURT.** **ANNEXURE B TRUE COPY OF THE JUDGMENT DATED 03.04.2018 IN W.P.(CRL)NO.110 OF 2018 DATED 20.03.2018 ON THE FILES OF THIS HONOURABLE COURT. ANNEXURE C TRUE COPY OF THE C.M.P.NO.2805 OF 2018 BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT, TALIPARAMBA.** **ANNEXURE D TRUE COPY OF THE F.I.R IN CRIME NO.137 OF 2018 OF KUDIYANMALA POLICE STATION. ANNEXURE E AFFIDAVIT DATED 01.10.2019 EXECUTED BY THE 2ND RESPONDENT.**