Naveen Kumar .K S/o Baskara K v. State of Kerala (and Victim) - Crl.M.C No.1444 of 2020

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942** ## **Crl.MC.No.1444 OF 2020(A)** **AGAINST CRIME NO.187/2018 OF BADIADKA POLICE STATION IN SC 860/2018 ON THE FILE OF ADDITIONAL DISTRICT SESSIONS JUDGE (I), KOZHIKODE** ## **PETITIONER/ACCUSED:** **NAVEEN KUMAR .K S/O. BASKARA K, AGED 22 YEARS, KAYYALA MOOLA, GOURIYADUKA POST, KUMBADAJE VIA, KASARAGOD DISTRICT.** ## **BY ADV. SMT.K.PUSHPAVATHI** ## **RESPONDENTS/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031.** - **2 VICTIM** **X** **R2 BY ADV. P.N.ANOOP** ## **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 20.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.1444 of 2020 2 # **ALEXANDER THOMAS, J. =========================== Crl.M.C No.1444 of 2020** **===========================** Dated this the 20[th] day of October, 2020 ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : _“......... to quash Annexure A1 final report in Crime No.187/2018 of Badiadka Police and consequent case bearing S C No.860/2018 on the file of Additional District and Sessions Judge, Kasaragod against the petitioner”_ 2. Heard Smt.K.Pushpavathi, learned counsel appearing for the petitioner, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent-State of Kerala and Sri.P.N.Anoop, learned counsel appearing for the 2[nd] respondent (lady victim). 3. The petitioner herein has been arrayed as the sole accused in the instant Crime No.187/2018 of Badiadka Police Station, Kasaragod District, for offences punishable under Sec.376 of the Indian Penal Code (IPC) & Sec.5(j)(ii)(n) read with Sec.6 of the Protection of Children from Sexual Offence (POCSO) Act, 2012 on the basis of the First Information Statement (FIS) given by the 2[nd] respondent-lady Crl.M.C No.1444 of 2020 3 victim, then a minor on 13.04.2018 in respect of the alleged incident, which is said to have happened on a day in November, 2017. The police after investigation, has filed the impugned Annexure-A1 final report/charge sheet in the said Crime No.187/2018 of Badiadka Police Station for the abovesaid offences and the case has now pending as sessions case S.C.No.860/2018 on the file of the I[st] Additional Sessions Court notified to deal with POCSO cases, Kasaragod. The date of birth of the 2[nd] respondent-victim is stated to be 27.01.2001 and she was of the age of 16 years at the time of the alleged incident, which happened on a day in November, 2017. The allegations in the abovesaid crime are to the effect that the petitioner then aged 20 years had sexual relationship with the 2[nd] respondent-victim, who was then a minor aged 16 years on a day in November,2017 and she had become pregnant on account of the said sexual relationship and that the petitioner has thereby committed the abovesaid offences. 4. The main submission made by the learned counsel for the petitioner is that later the 2[nd] respondent-victim has completed the majority age of 18 years on 27.01.2019 and with the blessings and consent of both the families, the marriage of the petitioner and the Crl.M.C No.1444 of 2020 4 2[nd] respondent was duly solemnized on 03.11.2019, in accordance with the provisions of the Hindu Marriage Act and that Annexure-A2 is the invitation card issued by the parents of the petitioner and Annexure-A3 is the marriage certificate dated 04.11.2019 issued by the temple authorities, where the marriage of the petitioner and the 2[nd] respondent was solemnized. Further that, the 2[nd] respondent has filed affidavit dated 22.01.2020 stating that the entire issues between the petitioner and the 2[nd] respondent have been duly resolved and that the marriage between the petitioner and the 2[nd] respondent have been duly solemnized on 03.11.2019, as per the customs and rites and the practices prevailing in the community of the parties. Further that, a child has been born in the said relationship between the petitioner and the 2[nd] respondent and that the 2[nd] respondent is now happily living with the petitioner herein and the child and that it is more in her interest that the impugned criminal proceedings are quashed, as otherwise it may detrimentally affect her future married life. 5. It is by now well settled that it may not be right and proper for this Court to quash the offence of rape as per Sec.376 of the IPC solely on the ground of settlement between the parties [see _**Shimbhu**_ Crl.M.C No.1444 of 2020 5 _**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.]. However, this Court has held in decisions as in _**Freddy @ Antony Francis v. State of Kerala**_ [2017 KHC 344 = 2018 (1) KLD 558], _**Denu P.Thampi v. Ms.X**_ [2019 (3) KHC 199 = 2019 (2) KLT 996] that in a case where the petitioner/accused has married the respondent-lady victim and they have started their married life, then in appropriate cases, this Court could exercise its discretion conferred under Sec.482 of the Cr.P.C to quash offences, as per Sec.376 of the IPC on the ground that the victim has subsequently married the accused, as otherwise and where it is ascertained that the marriage was on the basis of consent of the parties and not on the basis of any coercion or threat on the victim, etc. 6. The main submission now urged by the petitioner is that in the light of the abovesaid decisions rendered by this Court in cases as in _**Freddy's case**_ (supra) [2017 KHC 344], _**Denu P.Thampi's case**_ (supra) [2019 (3) KHC 199], etc., this Court may quash the impugned criminal proceedings in view of the fact that the petitioner/accused has Crl.M.C No.1444 of 2020 6 subsequently married the 2[nd] respondent-lady victim and as they are leading their married life peacefully, etc. 7. The learned Public Prosecutor was requested to get instructions in the matter. When the matter had come up for consideration on the previous occasion, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent-State has submitted on the basis of instructions that the Investigating Officer has conducted an enquiry and that the statements of the 2[nd] respondent-victim and her parents have been taken, wherein they have stated that the 2[nd] respondent has subsequently married the petitioner and that the said marriage was on the basis of consent of the parties and that the petitioner and the 2[nd] respondent are now living with the child and that the 2[nd] respondent has also stated that it is better in her interest that the impugned criminal proceedings be quashed, as otherwise it may detrimentally affect her married life, etc. However, the learned Public Prosecutor appearing for the 1[st] respondent-State would point out that in this case, the 2[nd] respondent-victim when she had become pregnant, had initially raised an allegation that the sexual relationship in question was with her father's brother and that it is on account of this Crl.M.C No.1444 of 2020 7 relationship that she became pregnant, etc. That initially, the crime was registered, in which the accused therein was the 2[nd] respondent's father's brother based on the allegations made by the 2[nd] respondent. Later, in the course of the investigation it was revealed that the 2[nd] respondent herself disclosed that the allegations earlier made by her that it was her father's brother who made her pregnant, etc. are absolutely false and baseless and that she had sexual relationship with the petitioner/accused and she had made the abovesaid false allegations against her father's brother only to protect the petitioner, as she was having a love affair with the petitioner, etc. Hence, the learned Public Prosecutor would point out that this is a case wherein the 2[nd] respondent has admittedly made very grave allegations which are absolutely false and baseless and has thus abused the criminal law process and that this Court should impose exemplary cost on the 2[nd] respondent for considering the plea for quashment, as otherwise it would send a wrong message to the society. 8. Accordingly, when the case had come up for consideration on the previous occasion, this Court had requested the learned counsel for the petitioner and the learned counsel for the 2[nd] respondent to get Crl.M.C No.1444 of 2020 8 instructions, as to whether the 2[nd] respondent is prepared to pay exemplary cost in this matter, as otherwise it will not be proper to exercise discretion in a case like this. Today when the matter has been taken up for consideration, the learned counsel appearing for the petitioner and the learned counsel appearing for the 2[nd] respondent would submit that the 2[nd] respondent and the petitioner belongs to the Scheduled Caste community and that they belong to extremely economically deprived sections of the society and that in view of the COVID-19 pandemic issues, they are facing grave financial hardships and both the petitioner and the 2[nd] respondent are quite young and that the 2[nd] respondent is prepared to pay cost amount of `10,000/- (Rupees Ten Thousand only) within two weeks. As regards the quantum of the cost amount, the learned Public Prosecutor would submit that the said amount now offered by the 2[nd] respondent is on the lower side. But taking into consideration of the fact that the petitioner and the 2[nd] respondent belongs to economically and socially weaker sections of the society, the prosecution agency will not stand in the way of this Court exercising discretion in the manner, it deems fit and proper and that it may be made clear by this Court that in case, the 2[nd] respondent Crl.M.C No.1444 of 2020 9 does not pay the abovesaid cost amount within a period of two weeks, then the 1[st] respondent-State will be at liberty to file appropriate application under Sec.482 of the Cr.P.C to recall the order in this Crl.M.C regarding quashment of the impugned criminal proceedings on the ground of not honouring the payment of the cost amount. 9. Taking into account the facts and circumstances of the case, it appears that the 2[nd] respondent was hardly at the age of 16 years at the time of the incident and the petitioner was then aged 20 years and both of them belong to extremely economically and socially deprived sections of the society and also taking into account that they belong to Scheduled Caste community, it is ordered that the 2[nd] respondent should pay a cost amount of `10,000/- (Rupees Ten Thousand only) to the High Court Legal Services Committee, within three weeks from the date notified for receiving a certified copy of this order and produce receipt in that regard before the Registry of this Court along with the memo of the learned counsel and a copy of the said memo of the counsel along with a copy of the said receipt evidencing payment of the said cost amount of `10,000/- (Rupees Ten Thousand only) should be given in advance to the learned Public Prosecutor appearing for this Crl.M.C No.1444 of 2020 10 case. Subject to the abovesaid condition, this Court is of the considered view that the abovesaid dictum laid down by this Court in the aforementioned judgments as in _**Freddy’s case**_ (supra) [2017 KHC 344], _**Denu P.Thampi’s case**_ (supra) [2019 (3) KHC 199], etc. could be befittingly be invoked in the facts and circumstances of the case, taking into account that the petitioner has subsequently married the 2[nd] respondent and a child has been born in that relationship and that as they are now living peaceful family life, etc. 10. Accordingly, the following directions and orders are passed : _(i) Taking into account the totality of the facts and circumstances of the case and subject to the 2[nd] respondent paying the cost amount of_ ` _10,000/- (Rupees Ten Thousand only) to the High Court Legal Services Committee, within the aforementioned period, it is ordered that the impugned criminal proceedings at Annexure-A1 final report/charge sheet filed in Crime No.187/2018 of Badiadka Police Station, which has now led to the pendency of sessions case S.C.No.860/2018 on the file of the I[st] Additional Sessions Court notified to deal with POCSO cases, Kasaragod and all further proceedings emanating therefrom as against petitioner/accused will stand quashed and set aside._ _(ii) The 2[nd] respondent should pay the said cost amount of_ ` _10,000/- (Rupees Ten Thousand only) to the High Court Legal_ Crl.M.C No.1444 of 2020 11 _Services Committee, within a period of three weeks from the date notified for receiving a certified copy of this order and the receipt of the same should be produced along with a memo of the learned counsel for the 2[nd] respondent before the Registry in these proceedings. A copy of the said memo along with the receipt of payment of the cost amount should be served to the learned Public Prosecutor._ _(iii) In case, the 2[nd] respondent does not pay the abovesaid cost amount of_ ` _10,000/- (Rupees Ten Thousand only) to the High Court Legal Services Committee, within the abovesaid time limit and produce receipt along with memo of the learned counsel, as aforedirected, then the 1[st] respondent-State will be at liberty to file appropriate application under Sec.482 of the Cr.P.C to recall this order and for dismissal of the Crl.M.C. Further it is also made clear that this Court would also reserve its inherent powers to be exercised suo motu under Sec.482 of the Cr.P.C to recall this order, on the ground of non-payment of the abovesaid cost amount to the High Court Legal Services Committee, within the aforementioned time period._ _(iv) After payment of the said cost amount, the petitioner will produce a certified copy of this order along with a copy of the abovesaid receipt of payment of the cost amount before the Investigating Officer concerned and before the I[st] Additional Sessions Court notified to deal with POCSO cases, Kasaragod, who is dealing with sessions case S.C.No.860/2018, for necessary information._ Crl.M.C No.1444 of 2020 12 11. The Registry will post this case on 19/11/2020 to enable this Court to ascertain, as to whether the 2[nd] respondent has paid the said cost amount to the High Court Legal Services Committee. With these observations and directions, the above petition will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd Crl.M.C No.1444 of 2020 13 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 A CERTIFIED COPY OF THE FINAL REPORT DATED 31.10.2018 SUBMITTED BY BADIADKA POLICE BEFORE THE DISTRICT AND SESSIONS COURT, KASARAGOD.** - **ANNEXURE A2 TRUE COPY OF THE INVITATION LETTER EVIDENCING THE MARRIAGE OF THE PETITIONER AND THE 1ST RESPONDENT.** **ANNEXURE A3 THE TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE EXECUTIVE OFFICER OF THE KANIPURA SREE GOPLA KRISHNA TEMPLE EVIDENCING THE MARRIAGE OF THE PETITIONER WITH THE 2ND RESPONDENT.** - **ANNEXURE A3(A) A TRUE COPY OF THE PHOTOGRAPH EVIDENCING THE MARRIAGE OF THE PETITIONER AND THE 2ND RESPONDENT.** **ANNEXURE A4 THE SOLEMNLY AFFIRMED AFFIDAVIT OF THE 2ND RESPONDENT.** **ANNEXURE A5 CERTIFIED COPY OF THE FIR ALONG WITH F1 STATEMENT OF THE 2ND RESPONDENT. ANNEXURE A6 A TRUE COPY OF THE PHOTOGRAPH OF THE FAMILY.**