Muhammed Shafeeque v. State of Kerala & XXX (Victim)

Crl.M.C.No.4481/2020 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 03RD DAY OF DECEMBER 2020 / 12TH AGRAHAYANA, 1942** ## **Crl.MC.No.4481 OF 2020(A)** **CRIME NO.1178/2017 OF Hill Palace Police Station , Ernakulam** ## **PETITIONER/S:** **MUHAMMED SHAFEEQUE, AGED 36 YEARS, S/O.PAREETHKUNJU, PULIMOOTTIL HOUSE, WEST MORAKKALA, KUMARAPURAM.P.O, KUNNATHUNADU VILLAGE.** ## **BY ADV.SRI.PAUL K.VARGHESE** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 XXX (VICTIM)** **R2 BY ADV.A.A.GEETHA** **SRI.SANTHOSH PETER, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC.CASE HAVING BEEN FINALLY HEARD ON 03.12.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.4481/2020 2 ## ALEXANDER THOMAS, J. -----------------------------------Criminal M.C. No. 4481 of 2020 -----------------------------------Dated this the 3[rd] day of December, 2020 ## **O R D E R** The prayers in the fore captioned Crl.M.C filed under Section 482 of Cr.P.C. are as follows: _“(i) Quash Annexure-I FIR, and annexure-II charge sheet and all further proceedings arising out of Crime No.1178/2017 of Hill Palace Police Station as against the petitioner._ _(ii) Issue such other order, direction as may be necessary, on the facts and circumstances of the case.”_ 2. Heard Sri.Paul K. Varghese, learned counsel for the petitioner/accused, Sri.Santhosh Peter, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala and Smt.A.A.Geetha, learned counsel appearing for the 2[nd] respondent-lady victim. 3. The petitioner herein has been arrayed as the sole accused in the instant impugned Annexure-I FIR in crime No.1178/2017 of Hill Palace Police Station for offences punishable under Sections 376(1), 417 and 420 of IPC on the basis of the First Information Statement given by the 2[nd] respondent lady defacto complainant. The alleged incident happened between the period from 01.08.2015 to 05.07.2017. The police after investigation has filed impugned Annexure-II Final Report/charge sheet in Annexure-I FIR in Crime No.1178/2017 of Hill Palace Police Station on 29.07.2017 as against the petitioner/accused for the above said offences. Crl.M.C.No.4481/2020 3 After, conclusion of the committal proceedings by the Jurisdictional Magistrate Court, Thripunithura, the case is now pending as SC.No.50/2018 on the files of the Addl.Sessions (Special) Court, Perumbavoor. The main contention urged by the petitioner is that the case has now been settled between the petitioner and the 2[nd] respondent. Later, he has married the 2[nd] respondent-victim on 11.09.2018 in accordance with the provisions of the Special Marriage Act as can be seen from Annexure-III statutory marriage certificate issued by the Registrar of Marriages, appointed under the Special Marriage Act. Further that the 2[nd] respondent has also sworn to AnnexureIV affidavit dated 29.09.2020, stating that she has no further pleadings against the petitioner and that the petitioner has married the 2[nd] respondent and that both of them are now living as spouses and that the impugned criminal proceedings may be quashed on the ground of settlement. The petitioner places reliance on the decisions rendered by this Court as in _**Freddy @ Antony Francis & Others v. State of Kerala & Another**_ [2017 KHC 344 = 2018 (1) KLD558 , _**Denu P. Thampi v. Ms.X & Another**_ [2019 (3) KHC 199 = 2019(2) KLT 996] etc., wherein it has been held that ordinarily it may not be right and proper for this Court to quash serious and grave offences under various sections of IPC on the ground of the settlement between the parties, but an exceptional approach could be made in cases where the allegations of rape are made with the consent of the woman, obtained on the basis of false promise to marry and after the initiation of the impugned criminal proceedings there, Crl.M.C.No.4481/2020 4 the accused marries the lady _de facto_ complainant and after such marriage lawfully solemnized, the parties are living as spouses, then the impugned criminal proceedings can be quashed, taking into account such extremity. 4. After hearing both the sides, it is seen that one of the specific allegations raised by the 2[nd] respondent in the impugned criminal proceedings as can be seen at internal page number 4 of Annexure-II Final Report/Charge Sheet is that the petitioner accused has already married to another woman and the said factum of his marriage with the other woman was suppressed by him and was never disclosed it to the 2[nd] respondent lady victim and the petitioner had promised her to marry. It is on the basis of such fraudulent suppression about his first marriage that the sexual incidents had happened. Further it is seen from the materials in this case that the petitioner is a Muslim and the 2[nd] respondent is Hindu by religion. There are no averments anywhere in this Crl.M.C that he has already married to another lady and later the marriage between the petitioner and the 2[nd] respondent was lawfully solemnized in accordance with Special Marriage Act after the petitioner had divorced his first wife. The specific case of the petitioner is that his marriage with the 2[nd] respondent has been solemnized in accordance with Special Marriage Act and the same can be seen from Annexure-IV affidavit. Section 4 of the Special Marriage Act lays down the conditions for the solemnization of special marriages and one of the conditions is that neither party to the said marriage should have a spouse living. Therefore, the marriage between the petitioner, who is a Crl.M.C.No.4481/2020 5 Muslim and the 2[nd] respondent, who is a Hindu could have been solemnized in accordance with the Special Marriage Act, only if both of them did not have a spouse living at the time of their marriage. In other words, a person like the petitioner, who had already married, should have lawfully obtained divorce in respect of the marital relationship with his first wife before he becomes eligible to seek solemnization of second marriage in accordance with Special Marriage Act. The same can be seen from Section 4 thereof. Therefore, it is highly necessary that the petitioner should have come clean with all the facts and should have given precise details that he was already married with another lady. Therefore, unless the petitioner has got a definite case that though he was already married to another woman, he has later secured dissolution of such marriage and it is only thereafter that he has solemnized the marriage with the 2[nd] respondent in accordance with the provisions under Section 4 of the Special Marriage Act. No case in that regard is set up in the pleadings of this Crl.M.C. Now it is submitted by Sri.Paul K.Varghese, learned counsel for the petitioner/accused that the petitioner belongs to Muslim community and had already married another lady, who also belongs to Muslim community and there arose serious disputes in their marital relationship on account of the affair between the petitioner and the 2[nd] respondent and after the initiation of the impugned criminal proceedings, the petitioner has lawfully obtained dissolution of his marriage with the first wife and it is only thereafter that the marriage between petitioner and the 2[nd] respondent has been solemnized in Crl.M.C.No.4481/2020 6 accordance with the provisions contained in the Special Marriage Act and that both parties do not suffer from any disqualifications and have fulfilled all the eligibility conditions as per the provisions of the Special Marriage Act as on the day of their marriage on 11.09.2018. 5. This Court had queried with Sri.Santhosh Peter, learned Public Prosecutor as to whether the police officer has conducted any enquiry about the fact of the alleged settlement between the petitioner and the lady victim and as to whether the police had any knowledge not only about the first marriage of the petitioner, but also as to whether he has secured divorce from the first wife before he had solemnized his marriage with the 2[nd] respondent. Sri.Santhosh Peter, learned Public Prosecutor would submit on the basis of the instruction that as per the instructions received by him, that the Investigating Officer conducted the enquiry and has taken the statement of the 2[nd] respondent who has apprised the Investigating Officer that she has voluntarily married the petitioner in accordance with the provisions with the Special Marriage Act and that in view of the subsequent development of the marriage between them, she has no further grievances and that she has no objection to quash the impugned criminal proceedings, as the petitioner is now none other than her husband. However, the learned Public Prosecutor would also submit that it appears that the Investigating Officer has not ascertained as to whether the petitioner had secured dissolution of his marriage with his first wife before he had solemnized marriage with the 2[nd] respondent as it was the specific case of the Crl.M.C.No.4481/2020 7 prosecution, it is more particularly as it is the specific case of the prosecution in the criminal proceedings that the petitioner was already married and he had suppressed the said marriage from the 2[nd] respondent victim and had obtained consent etc. 6. Since the petitioner has suppressed crucial and vital facts, he has approached this Court with unclean hands and more crucially the said conduct of the petitioner by suppressing the vital and crucial material facts while filing this criminal miscellaneous case, it is nothing but a fraud committed by him on the Court. Thus the Court would say as it is ” elementary that “fraud would be either _suggestio falsi_ or _suppressio veri_ and the instant case would fully come with the realm of the latter scenario “ _suppressio veri_ ”. Further, though it is the admitted case of both sides that the petitioner had already married to another woman, it is not known to this Court as to whether petitioner had secured dissolution of marriage with the first wife in accordance with law. This the Court would say, in the case of the petitioner, that he is a Muslim and he had earlier married a Muslim woman. The Tripple Talaque has already been declared as unconstitutional and thus invalidated by the Apex Court in the decision in the celebrated judgment in **Shayara Bano v. Union of India and Ors.[2017(9) SCC 1]** . Therefore, the petitioner, a Muslim male could have secured lawful dissolution of his marriage with the spouse only through “ _Talaqu-e-ahsan_ ” or by a manner, known to law. The prosecutor has not been able to get instructions from the investigating agency and the investigating agency has Crl.M.C.No.4481/2020 8 not been able to conduct any enquiry on that crucial material fact, as the petitioner has suppressed the crucial fact regarding his first marriage and has not furnished the details of the alleged dissolution of his first marriage. The petitioner was thus obliged to come clean with all the facts and disclose all the relevant particulars as to when he has married his first wife and as to the mode on the basis by which he allegedly secured dissolution of his marriage and the details thereof and some materials to show that the dissolution of the marriage with the first wife was valid and recognized in law, more particularly, in the light of the aforementioned judgment of the Apex Court in **Shayara Bano v. Union of India and Ors.[2017(9) SCC 1].** Therefore, on account of the said suppression of that crucial fact, the petitioner has even disabled the prosecution agency and consequently this Court to even make an attempt to ascertain the correctness or otherwise of this crucial aspect. If the petitioner had come clean with all the facts, then he would have convinced the prosecution agency as well as this Court whether or not he has secured dissolution of his first marriage and it is only thereafter that he has contracted marriage with the 2[nd] respondent in accordance with the provisions of the Special Marriage Act. Hence, the above said suppression of material facts made by the petitioner has to be viewed very seriously and the petitioner has to be imposed with exemplary cost. Sri.Paul K.Varghese, learned counsel for the petitioner would submit that leave may be granted to the petitioner to withdraw this case to file a comprehensive Crl.M.C dealing with all the full factual particulars regarding Crl.M.C.No.4481/2020 9 the details of his first marriage as to when and how he has secured dissolution of his first marriage and also as to the details to show the divorce so secured by him from his first wife was lawful and valid and consequently seek reliefs to quash the impugned criminal proceedings. This Court will not stand in the way of the petitioner withdrawing the Crl.M.C. However, in a case like this, irrespective of the fact whether the petitioner has intended to withdraw the Crl.M.C or not, the petitioner has to be imposed with exemplary cost. Counsel for the petitioner submits that the petitioner comes from an economically poor background and he may not be mulcted with heavy cost. Taking into account the totality of the facts and circumstances of the case, the petitioner is directed to pay a cost of Rs.35,000/- to the High Legal Service Committee. The petitioner can be given leave with liberty to initiate afresh appropriate proceedings only subject to following conditions: i) The petitioner should pay a cost of Rs.35,000/- to the High Legal Service Committee. ii) After that, the petitioner should convince this Court that the suppression of material facts done by him was not for suppressing any facts which are against him, but only the facts favourable to him, and he should give details of his first marriage and the children, if any, born in that marriage, whether he has obtained dissolution of his first marriage, before contracting the second marriage, the material facts in relation to the manner and mode by which he has obtained dissolution of his first marriage Crl.M.C.No.4481/2020 10 so as to convince this Court that the said dissolution of marriage was lawful and valid in the eye of law and that it is only after convincing the court that the marriage between the petitioner and the 2[nd] responded has been validly solemnized in accordance with the provisions contained in the Special Marriage Act and thus he should establish that he had nothing to gain by the aforesaid suppression etc. Subject to these directions and conditions, the above Crl.M.C will stand dismissed as withdrawn. Sd/- **ALEXANDER THOMAS JUDGE** DG Crl.M.C.No.4481/2020 11 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** ## **ANNEXURE I** **A TRUE COPY OF THE FIR IN CRIME NO.1178/2017 OF HILL PALACE POLICE STATION,DATED 5.7.2017** **ANNEXURE II A TRUE COPY OF THE FINAL REPORT SUBMITTED BY THE POLICE BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT,TRIPUNITHURA DATED 29.7.2017** **ANNEXURE III A TRUE OF CERTIFICATE OF MARRIAGE BETWEEN THE PETITIONER AND THE 2ND RESPONDENT,ISSUED BY MARRIAGE OFFICER,THRIPUNITHURA,DATED 11/09/2018** **ANNEXURE IV** **THE ORIGINAL OF THE AFFIDAVIT OF THE 2ND RESPONDENT DATED 28/9/2020.**