Nasir v. State of Kerala and Inspector of Police, Chevayur Police Station, Kozhikode and Victim

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY ,THE 18TH DAY OF JANUARY 2019 / 28TH POUSHA, 1940** **Crl.MC.No. 7763 of 2018** **AGAINST THE ORDER/JUDGMENT IN SC 20/2017 of ADDL. D.C. & SESSIONS COURT (ATROCITIES & SEXUAL VIOLENCE AG** **CRIME NO. 563/2016 OF Chevayur Police Station , Kozhikode** ## **PETITIONER/ACCUSED:** **NASIR AGED 64 YEARS S/O K.K.MAYIN,MANGADAN APARTMENT,5/2611C,WAYANAD ROAD,OPPOSITE FATHIMA HOSPITAL,KOZHIKODE HPO POST,KOZHIKKOSE 673001** **BY ADV. SRI.E.C.AHAMED FAZIL** ## **RESPONDENTS/STATE AND DE FACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM,KOCHI,PIN 682031** **2 INSPECTOR OF POLICE CHEVAYUR POLICE STATION, KOZHIKODE,PIN-673 017 3 VICTIM** **BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA SRI.M.S.BREEZ, PP** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 18.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No. 7763 of 2018** **2** ## **ORDER** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in S.C. No.20/2017 on the file of First Additional Sessions (POCSO) Court, Kozhikode. He is charged for having committed offence punishable under Section 376(2)(n) of the IPC. 3. The de facto complainant is a lady aged 40 years whose husband had expired 5 years back. She is the mother of two grown up children. The petitioner was introduced to her by a broker. He used to visit her home often and they used to have a sexual relationship. She was told by the petitioner that he would marry her. While so, he offered to purchase her property for a sum of Rs.10 lakhs. She was dissuaded by her daughters from doing so. Thereafter, the petitioner stopped contacting her. This prompted her to set the law in motion. 4. The learned counsel appearing for the petitioner would contend that a perusal of the FI statement would reveal that the allegation of rape levelled against him is without basis. Her specific **Crl.MC.No. 7763 of 2018** **3** case is that the relationship between them was consensual and when due to a strain in the relationship, the applicant stopped contacting her, she set the law in motion. He would refer to the decisions of the Hon'ble Supreme Court in **Uday v. State of Karnataka** _[(2003) 4 SCC 46]_ and **Deelip Singh @ Dilip Kumar v. State of Bihar** [(2005) 1 SCC 88] and it was contended that the allegations will not make out an offence as alleged. It is argued that the de facto complainant has now filed an affidavit stating that the complaint was filed on a misunderstanding as she wrongly assumed that the applicant would marry her. Now she has realised her folly and is not desirous of prosecuting the applicant. 5. The de facto complainant, who has been arrayed as the 3[rd] respondent, has entered appearance through counsel. She has filed Annexure-A2 affidavit, wherein she has stated that she has no subsisting grievance and the information was lodged under a thorough misunderstanding of the intentions of the petitioner. According to her, the entire disputes have been settled. 6. The learned Public Prosecutor after getting instructions, submitted that the statement of the de facto complainant has been recorded and she has stated in clear terms that the entire disputes **Crl.MC.No. 7763 of 2018** **4** have been resolved and the parties are living in harmony. 7. I have considered the submissions advanced and have gone through the materials made available. 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 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 **Crl.MC.No. 7763 of 2018** **5** **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 noncompoundable 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.MC.No. 7763 of 2018** **6** 10. However in the instant case, it is borne out from the statement of the 3[rd] respondent recorded by the Inspector of Police that the parties were in a live-in relationship for quite sometime and that the same was consensual. This fact is stated by the victim even in her statement.There is no case for anyone that the dignity of the 3[rd] 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 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. She has also filed an affidavit stating that she is not desirous of prosecuting against her husband any further. 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 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. **Crl.MC.No. 7763 of 2018** **7** In the result this petition will stand allowed. Annexure-A1 Final report and all proceedings pursuant thereto against the petitioner herein now pending as SC No 20 of 2017 on the files of the Assistant Sessions Court ( POSCO) , Kozhikkode shall stand quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V.,** **JUDGE** avs **Crl.MC.No. 7763 of 2018** **8** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE-A1** **CERTIFIED COPY OF THE FINAL REPORT IN CRIME NO.563 OF 2016 OF CHEVAYUR POLICE STATION** **ANNEXURE-A2 AFFIDAVIT SWORN BY THE THIRD RESPONDENT ANNEXURE-A3 A TRUE COPY OF THE STATEMENT DATED 11-5-** **A TRUE COPY OF THE STATEMENT DATED 11-52016 GIVEN BY THE THIRD RESPONDENT BEFORE THE SUB INSPECTOR OF POLICE CHEVAYUR POLICE STATION** ## **RESPONDENT'S/S EXHIBITS:** **NIL**