Nithin Xavier v. State of Kerala; XXX (Victim) v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** ## **Crl.MC.No.6318 OF 2018** **AGAINST THE ORDER/JUDGMENT IN CRMP 7/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) CRIME NO.386/2018 OF MARADU POLICE STATION , Ernakulam** ## **PETITIONER/S:** **NITHIN XAVIER AGED 62 YEARS S/O. XAVIER THAKACHAN, NEREVEEDU, MAJOR ROAD, VYTTILA, ERNAKULAM - 682 019.** ## **BY ADV. SRI.DENIZEN KOMATH** ## **RESPONDENT/S:** |**1**|**STATE OF KERALA**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF**| ||**KERALA, ERNAKULAM - 682 031.**| |**2**|**REMYA.M**| ||**REMYA.M,**| ||**D/O MAHESH,**| ||**W/O NITHIN XAVIER,**| ||**AGED 19 YEARS,**| ||**NEREVEETIL HOUSE,**| ||**VYTTILA.P.O**| ||**ERNAKULAM-682019**| **R3 BY ADV. DOLLY FRANCIS** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.11.2020, ALONG WITH Crl.MC.5042/2020(A), THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **2** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 12TH DAY OF NOVEMBER 2020 / 21ST KARTHIKA, 1942** **Crl.MC.No.5042 OF 2020(A)** **CRIME NO.386/2018 OF MARADU POLICE STATION , Ernakulam** ## **PETITIONER/S:** **XXX (VICTIM) AGED 36 YEARS X** **BY ADV. SRI.DENIZEN KOMATH** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 03. 2 STATION HOUSE OFFICER MARADU POLICE STATION, ERNAKULAM - 682 304. 3 XXX X** **R3 BY ADV. DOLLY FRANCIS** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 12.11.2020, ALONG WITH Crl.MC.6318/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **3** ## **ALEXANDER THOMAS, J.** ## **= = = = = = = = = = = = = = = = = Crl.M.C. Nos.6318 of 2018 & 5042 of 2020** **- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -** Dated this the 12[th] day of November, 2020 ## **O R D E R** The prayer in the Crl.M.C. No.6318 of 2018 is as follows : _“....to call for the entire records pertaining to the registration of Annexure-A2 and A2(a) FIR & FIS and quash the same for the petitioner herein to reach the ends of justice.”_ ## 2. The prayer in the Crl.M.C. No.5042/2020 is as follows : _“....to call for the entire records leading to Annexure-A2 and A2 (a) and quash the same for the petitioner herein to reach the ends of justice.”_ 3. Heard Sri.Denizen Komath, learned counsel appearing for the petitioners in these two cases, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the respondent-State and Smt.Dolly Francis, learned counsel appearing for contesting respondent No.2 (lady victim) in both these cases. 3. Reference to the Annexures in this order will be with reference to the Annexures as produced in Crl.M.C.No.6318/2018. The sole petitioner in Crl.M.C.No.6318/2018 and the sole petitioner in Crl.M.C. No.5042/2020 have been arrayed as accused Nos. 1 and 2 among the two accused in the impugned Annexure-A2 FIR in Crime No.386/2018 of Maradu Police Station, Ernakulam for offences punishable under Secs. 323, 354 and 34 of the IPC and Sec.75 of the Juvenile Justice (Care and **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **4** Protection of Children) Act, 2015 and Secs. 7 and 8 of Protection of Children from Sexual Offences (POCSO) Act, 2012 on the basis of the First Information Statement given by the 2[nd] respondent – lady victim on 24.2.2018 about 8 p.m. in respect of the alleged incident which happened on 1.5.2017 onwards. The sole petitioner in Crl.M.C.No.6318/2018 will be referred for convenience as A1 and the sole petitioner in Crl.M.C. No.5042/2020 will be referred for convenience as A2 respectively. 4. The 2[nd] respondent-victim in this case is a minor girl aged 17 years at the time of the alleged occurrence of the offences and the case of the prosecution is that her date of birth is 26.9.2001. That the 2[nd] respondent was then residing with her mother, who is the petitioner in Crl.M.C.No.5042/2020 in the residential house let out to them by the petitioner in Crl.M.C.No.6318/2018. The 2[nd] respondent has alleged in her First Information Statement given in this case on 24.2.2018 that for the period when she was residing with her mother (A2) in the house let out to them by the A1 (the petitioner in Crl.M.C. No.6318/2018) that since the period she was studying in Standard VIII, she was subjected to sexual assault by A1 with the collusion and support of A2 on various occasions and she has thus been subjected to sexual abuse by A1 with the help of A2 and later, A1 and A2 had physically assaulted her and thus they have committed the abovesaid offences etc. 5. The case of the petitioners is that the 2[nd] respondent is suffering **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **5** from certain serious mental ailments and even on previous occasions, she has made false allegations that A1 herein has even committed rape on her and that a case was registered which led to the pendency of sessions case SC No.991/2017 on the file of the 1[st] Addl.Sessions Court, notified to deal with POCSO cases, Ernakulam, in which A1 herein was arrayed as the sole accused therein and that he was even remanded and thereafter, the Sessions court after due trial has acquitted him as per judgment dated 19.9.2020 in S.C. No.991/2017. 6. Further that, on account of the psychological anxiety and other mental ailments, the 2[nd] respondent was again made false allegations against the petitioners herein, which led to the registration of the abovesaid Crime No.386/2018 of Maradu Police Station, Ernakulam, for the abovesaid offences. That Annexure-A4 is a medical certificate dated 10.4.2018 issued by the Asst.Professor of Psychiatry of the Government Medical College, Hospital, Ernakulam that the 2[nd] respondent was admitted in the said hospital for evaluation and management of mental illness as requested by the Nirbhaya Shelter home, Kakkanad. Further that, in view of the mental ailments of the 2[nd] respondent, an application as Crl.M.P No.7/2018 was filed by the grandmother of the 2[nd] respondent before the Sessions court concerned in the instant crime No.386/2018 seeking for orders under Sec.15(2) of the Mental Health Care Act, 2017 and Annexure-A1 is the order dated 16.6.2018 passed by the said Sessions court **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **6** on the said application and para No.3 thereof would reveal that a report was called for from the Department of Psychiatry of the Government Medical College Hospital, Ernakulam with regard to the mental condition of the victim, where it was reported that she is diagnosed to have bipolar affective disorder and was then presently on treatment and that later, her mental condition was improved and that she was then fit for discharge etc. A1 would point out that the truth of the matter is not that he has sexually assaulted the 2[nd] respondent in any manner, but that in fact, despite all her problems, the petitioner and the 2[nd] respondent were having a love affair and she used to have unnecessary suspicions against the petitioner and has raised the abovesaid allegations falsely as instigated by the sister of A2 etc.It is also brought to the notice of this case that the Police has not completed the investigation in this case and hence, has not so far finalized the same by filing of final report etc. and that the case is still pending at the FIR/crime stage. 7. Now, it is submitted by the learned advocates appearing for the petitioners in these two cases as well as the learned advocate appearing for the 2[nd] respondent (lady victim) that later, the 2[nd] respondent has completed the majority age of 18 years on 26.9.2019 and thereafter, with the blessings of both the families and with the consent of both sides, the marriage of the A1 with the 2[nd] respondent has been lawfully solemnized on 11.12.2019 in accordance with the provisions contained in the Special **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **7** Marriage Act and that Annexure-A5 dated 11.12.2019 is the statutory marriage certificate issued by the statutory Registrar of Marriages under the Special Marriage Act evidencing the factum of solemnization of the registration of the marriage between the petitioner and the 2[nd] respondent. That marriage was arranged after the settlement of all issues and the mental health of the 2[nd] respondent had by then improved and now, the 2[nd] respondent have any issues with the petitioners and that she is no longer interested to prosecute the case any further. Further, it is submitted by both the petitioners that Annexure-A5 that the 2[nd] respondent has sworn to an affidavit dated 29.6.2020 as produced in Crl.M.C. No.6318/2018 and also has sworn to an affidavit dated 5.11.2020 as produced in Crl.C.No.5042/2020 stating about the factum of the solemnization of the registration of the marriage between the petitioner and the 2[nd] respondent and that the 2[nd] respondent does not wish to continue the impugned criminal proceedings against both the accused persons and that she has no objections in quashment of the impugned criminal proceedings and that it will be better in the interest and welfare of the future marital life of the 2[nd] respondent that the impugned criminal proceedings be quashed and that the allegations are really raised by her in the instant case out of misunderstandings and that the said allegations are wrong etc. 8. The learned Public Prosecutor was requested to get instructions in the matter and today when the matter has been taken up for **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **8** consideration, the learned Prosecutor would submit that on the basis of the instructions that the investigating officer has conducted an enquiry and has recorded the statement of the 2[nd] respondent-lady victim and that it has been revealed that after she had completed the majority age of 18 years, the marriage between the 2[nd] respondent and A1 was duly solemnized in accordance with the provisions under the Special Marriage Act and that she does not wish to continue the impugned criminal proceedings any longer and that she has no objection to quash the impugned criminal proceedings in view of the abovesaid extremity factors which have arisen out of subsequent marriage between the parties and that she has voluntarily executed the abovesaid affidavits produced in this Crl.M.C. etc. 9. There are no serious and grave offences like Sec.375 of the IPC or penetrative sexual assault as per Secs. 3 and 4 of the POCSO Act has been raised in this case. The offences alleged are those punishable under Secs. 323, 354 and 34 of the IPC and Sec.75 of the JJ Act. The offences alleged as per the POCSO Act are those punishable under Secs. 7 and 8, which deals with non penetrative sexual assault and it is common ground that there are no allegations of penetrative sexual assault in this case. The case in which allegations of rape and penetrative sexual assault was raised against A1 herein has already ended in his acquittal as per the judgment dated 19.9.2019 of the Sessions court concerned in SC No.991/2017. 10. In a catena of decisions, the Apex Court has held that, in appropriate **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **9** cases involving even non-compoundable offences, the High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 11. In the light of the abovesaid aspects, more particularly, in view of the subsequent solemnization of marriage between A1 and the 2[nd] respondent and since the allegations disclosed in the abovesaid case are mainly those punishable under Secs. 354 of the IPC and Secs.7 and 8 of the POCSO Act (non-penetrative sexual assault), this Court is of the considered view that the plea for quashment on the ground of settlement will be considered. Moreover, A2 is the mother of the 2[nd] respondent and A1 now, is none other than the husband of the 2[nd] respondent. **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **10** 12. The impugned criminal proceedings in respect of the impugned Annexure-A2 FIR in Crime No.386/2018 of Maradu Police Station, Ernakulam as against the petitioners/accused persons, and all consequential proceedings emanating therefrom as against the petitioners/accused will stand quashed and set aside. The petitioners will produce certified copies of this order before the investigating officer concerned as well as before the Addl.Sessions Court notified to deal with POCSO cases, who is dealing with Crime No.386/2018 of Maradu Police Station, Ernakulam for necessary information. With these observations and directions, the above Criminal Miscellaneous Cases will stand finally disposed of. **Sd/ALEXANDER THOMAS JUDGE** SKS **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **11** ## **APPENDIX OF Crl.MC 6318/2018** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE TRUE PHOTOCOPY OF THE ORDER DATED 16.6.2018 IN CRL.MP NO 7/2018 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS COURT ERNAKULAM.** **ANNEXURE A2 TRUE CERTIFIED COPY OF FIR IN CRIME NO 386/2018 OF MARADU POLICE STATION.** **ANNEXURE A2(A) TRUE CERTIFIED COPY OF FIR IN CRIME NO 386/2018 OF MARADU POLICE STATION AGREEMENT.** **ANNEXURE A3 TRUE PHOTOCOPY OF THE LETTER WRITTEN BY THE DE-FACTO-COMPLAINANT TO THE TRIAL COURT.** **ANNEXURE A4 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE DOCTOR OF GOVERNMENT MEDIAL COLLEGE,ERNAKULAM** **ANNEXURE A5 TRUE PHOTOCOPY OF THE CERTIFICATE OF MARRIAGE DATED 11.12.2019 ISSUED BY THE REGISTERING AUTHORITY.** **ANNEXURE A6 TRUE ORIGINAL AFFIDAVIT FILED BY THE DEFACTO COMPLAINANT IN THIS CRIME.** **Crl.MC.Nos. 6318 of 2018 & 5042 OF 2020** **12** ## **APPENDIX OF Crl.MC 5042/2020** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A1 TRUE PHOTOCOPY OF THE ORDER DATED 16/06/2018 IN CRL.M.P.NO.7/2018 ON THE FILE OF ADDITIONAL DISTRICT AND SESSIONS COURT, ERNAKULAM.** **ANNEXURE A2 TRUE PHOTOCOPY OF FIR CRIME NO.386/2018 OF 2ND RESPONDENT MARADU POLICE STATION. ANNEXURE A2(A) TRUE PHOTOCOPY OF FIS IN CRIME NO.386/2018 OF 2ND RESPONDENT MARADU POLICE STATION. ANNEXURE A3 TRUE PHOTOCOPY OF THE LETTER WRITTEN BY THE 3RD RESPONDENT DE-FACTO COMPLAINANT. ANNEXURE A4 TRUE PHOTOCOPY OF THE CERTIFICATE ISSUED BY THE DOCTOR OF GOVERNMENT MEDICAL COLLEGE, ERNAKULAM. ANNEXURE A5 TRUE PHOTOCOPY OF THE CERTIFICATE OF MARRIAGE DATED 11/12/2019. ANNEXURE A6 TRUE ORIGINAL AFFIDAVIT FILED BY THE DEFACTO COMPLAINANT IN THIS CRIME.**