Muhammed Shamnas P.V. v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **TUESDAY, THE 08TH DAY OF JANUARY 2019 / 18TH POUSHA, 1940** **Crl.MC.No. 2383 of 2018** **CRIME NO. 108/2018 OF Edakkad Police Station, Kannur** ## **PETITIONER/ACCUSED:** **MUHAMMED SHAMNAS P.V., S/O. MOIDU, AGED 24 YEARS, 'ZUBAIDA', P.O. MUZHAPPILANGAD, KANNUR TALUK, KANNUR DISTRICT.** **BY ADVS. SRI.K.GOPALAKRISHNA KURUP (SR.) SMT.DEEPTHI S.MENON SRI.K.SURESH** ## **RESPONDENTS/STATE, DEFACTO COMPLAINANT AND VICTIM:** **1 STATE OF KERALA. REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682031. 2 ANWAR A.K. S/O. MUHARI, AGED 52 YEARS, 'SANAH', P.O. MUZHAPPILANGAD, MADAM, PIN-670662, KANNUR TALUK, KANNUR DISTRICT. 3 VICTIM. BY ADV. SRI.P.N.SUKUMARAN R1 BY SRI. C. K. PRASAD PP.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 08.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 2383 of 2018** **2** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in Crime No.108 of 2018 registered at the Edakkad Police Station. He faces accusation for having committed offence punishable under Sections 370(1) and 376 of the IPC. 3. The 2[nd] respondent is the de facto complainant and the 3[rd] respondent is his daughter. In the complaint lodged on 06.02.2018, he would state that his daughter is a married woman and her husband is employed in Gulf. His daughter used to be moody and started showing suicidal tendencies. On 6.2.2018, she went to her College for attending exams. At noon, the wife of the de facto complainant was informed by her teacher that her daughter was not seen around. She immediately contacted the 3[rd] respondent, who gave some excuses. In the evening, the 3[rd] respondent called her mother up and told her that she was going to a distant place and asked her not to make any inquiries. She was also told that she would commit suicide if any attempt is made to trace her whereabouts. The 2[nd] respondent rushed to the Police and lodged a **Crl.MC.No. 2383 of 2018** **3** complaint, based on which a crime was registered initially under Section 57 of the Kerala Police Act, 2011. Later, the 3[rd] respondent was traced out. She is alleged to have stated to the police that the petitioner had taken her to Bangalore and she was subjected to rape. Sections were altered and graver offences were incorporated as above. 4. The learned Senior counsel appearing for the petitioner submitted that the true facts are otherwise. The 3[rd] respondent was a mature adult woman and she was in a relationship with the petitioner. She had voluntarily gone with the petitioner and they had stayed at Bangalore. This fact is evident from the First Information Statement itself. When she was traced out, she was made to state a false version to implicate the petitioner. According to the learned Senior counsel, the relationship that the petitioner and the 3[rd] respondent was consensual. It is further submitted that in the course of proceedings, the de facto complainant and his daughter has come forward and have filed separate affidavits stating that the Crime was registered due to the circumstances prevailing then. The daughter of the de facto complainant was a married woman and when she had eloped with the petitioner, they had no other option to **Crl.MC.No. 2383 of 2018** **4** get the Crime registered on the said allegations. It is further submitted that the party respondents have no further grievance and they are desirous of terminating the proceedings as the petitioner herein is innocent. 5. The learned counsel appearing for the respondents 2 and 3 submitted that the incident which took place on 6.2.2018 is best forgotten. The 3[rd] respondent is now living a contended life with her husband and the entire disputes between her and the petitioner has been resolved. Heavy reliance is placed on the affidavits filed by the party respondents. It is submitted that if the proceedings are permitted to continue it may cause disruption in the matrimonial life of the 3[rd] respondent and will result in gross hardship. 6. The learned Public Prosecutor would submitted that the statement of the victim had recorded and she has given certain justification for furnishing a distorted statement before the police after she was traced out. 7. I have considered the submissions advanced and have perused the materials on record. Annexure-1 is the FIR lodged at the instance of the 2[nd] respondent herein and it is evident that his **Crl.MC.No. 2383 of 2018** **5** specific case was that his married daughter had left the home on her own. After she was traced out, she had stated that she had gone to Bangalore with the petitioner herein with whom she was having a relationship. Now both the de facto complainant as well as the victim have come forward and have filed separate affidavits asserting the circumstances under which the Crime was registered and contending that they have no further grievance. In AnnexureA5 and A6 affidavits, they state that they are not desirous of prosecuting the petitioner. 8. 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 Section 320 of the Code. In what cases power to quash the criminal proceeding or 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 **Crl.MC.No. 2383 of 2018** **6** 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. 9. Insofar 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 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 **Crl.MC.No. 2383 of 2018** **7** 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. 10. However, the facts in the instant case are otherwise. The parties were in a relationship and the 3[rd] respondent was a married woman. Now they have settled their entire disputes and the de facto complainant has now joined her husband. This is not one of those cases wherein the allegations reek of extreme depravity, perversity or cruelty. It cannot be said that the 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 3[rd] respondent, if the prosecution is permitted to continue. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case is proceeded with. Furthermore, the 3[rd] respondent can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that **Crl.MC.No. 2383 of 2018** **8** this is a fit case in which this Court will be well justified in invoking its extraordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-A1 FIR in Crime No.108 of 2018 of the Edakkad Police Station and all proceedings pursuant thereto against the petitioner are quashed. ## **SD/-** **RAJA VIJAYARAGHAVAN V., JUDGE** **//TRUE COPY// P.A. TO JUDGE** avs **Crl.MC.No. 2383 of 2018** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE**|**1**|**CERTIFIED COPY OF THE F.I.R IN CRIME**| |---|---|---| |||**NO.108/2017 OF EDAKKAD POLICE STATION.**| |**ANNEXURE**|**2**|**CERTIFIED COPY OF THE STATEMENT LODGED BY**| |||**THE 2ND RESPONDENT ON 6.2.2018 BEFORE THE**| |||**EDAKKAD POLICE, ON THE BASIS OF WHICH**| |||**ANNEXURE-1 IS REGISTERED.**| |**ANNEXURE**|**3**|**CERTIFIED COPY OF THE REPORT DATED**| |||**9.2.2018 SUBMITTED BY THE S.I. OF POLICE,**| |||**EDAKKAD BEFORE THE ADDITIONAL CHIEF**| |||**JUDICIAL MAGISTRATE'S COURT, THALASSERY**| |||**IN CRIME NO.108/2018.**| |**ANNEXURE**|**4**|**CERTIFIED COPY OF THE REPORT DATED**| |||**10.2.2018 SUBMITTED BY THE INSPECTOR OF**| |||**POLICE, KANNUR CITY BEFORE THE ADDITIONAL**| |||**CHIEF JUDICIAL MAGISTRATE'S COURT,**| |||**THALASSERY IN CRIME NO. 108/2018.**| |**ANNEXURE**|**5**|**AFFIDAVIT (IN ORIGINAL) DATED 28.3.2018**| |||**SWORN TO BY THE 2ND RESPONDENT HEREIN.**| |**ANNEXURE**|**6**|**AFFIDAVIT (IN ORIGINAL) DATED 28.3.2018**| |||**SWORN TO THE 3RD RESPONDENT HEREIN (THE**| |||**VICTIM IN CRIME NO.108/2018 OF EDAKKAD**| |||**POLICE STATION).**| ## **RESPONDENT'S/S EXHIBITS:** **NIL**