Ratheesh v. State of Kerala & Victim X

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942** ## **Crl.MC.No.8826 OF 2019(C)** **AGAINST THE ORDER/JUDGMENT IN SC 988/2018 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT (VIOLENCE AGAINST WOMEN & CHILDREN) CRIME NO.1971/2018 OF Kothamangalam Police Station , Ernakulam** ## **PETITIONER/ACCUSED:** **RATHEESH AGED 28 YEARS S/O RAJAN, PARAMBATHU HOUSE, ALANALLOOR KARA, NEAR CHUNDOTTU KUNNU SCHOOL, MANNARKKAD VILLAGE, MANNARKKAD TALUK, PALAKKAD DISTRICT, NOW RESIDING AT THE HOUSE OF PUNCHAKKAL THEYYAMMA, NADUKANI KARA, KEERAMPARA VILLAGE - 686 681.** **BY ADV. SRI.S.DILEEP (KALLAR)** ## **RESPONDENTS/STATE AND DEFACTO COMPLAINANT:** **1 THE STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031. 2 VICTIM X** **R2 BY ADV. SIJI BALAKRISHNAN PP SRI.SAIGI JACOB PALATTY** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 11.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.8826 OF 2019(C)** **2** ## **ALEXANDER THOMAS, J.** ## **-----------------------------------Crl.M.C No.8826 of 2019 -----------------------------------Dated this the 11[th] day of November, 2020** ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C. is as follows: _“...to direct the Honourable Additional District Court (Special Court for the Sexual Offences against women and Children) at Ernakulam to release the petitioner on bail in the event of surrender in SC No.988/2018 on the same day.”_ 2. Heard Sri.Dileep S. Kallar, learned counsel appearing for the petitioner (sole accused), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for R1, State of Kerala and Smt.Siji Balakrishnan, learned counsel appearing for contesting respondent No.2 (lady de facto complainant). 3. The petitioner herein has been arrayed as the sole accused in instant Crime No.1971/18 of Kothamangalm Police Station, Ernakulam District which has been registered for the offences punishable under Section 376(1) of IPC and Sections 3 & 4 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Section 3(2)(v) of SC/ST Prevention of Atrocities Act **Crl.MC.No.8826 OF 2019(C)** **3** 1989. The police after investigation has filed the Final Report/chargesheet in the said Crime No.1971/18 of Kothamangalam Police Station, which initially led to the pendency of Sessions Case SC No.988/2018 on the files of the First Additional Sessions Court notified to deal with POCSO cases, Ernakulam. Now it is apprised to this Court that subsequently the sessions case has been transferred from the file of the said Court at Ernakulam to the Special Sessions Court notified to deal with POCSO cases, Perumbavoor, Ernakulam District, wherein also the case is numbered as SC No.988/18. 4. The brief of the prosecution case is that the petitioner/accused, then aged 27 years, does not belong to the SC/ST community and that the 2[nd] respondent lady victim was then a minor girl aged 17 years and that there was love affair between the two and that the petitioner assured that he would marry her and that on this basis they had entered into sexual relationship and that time the 2nd respondent was a minor and that thereby the petitioner has committed the above said offences. The case of the prosecution is that the date of birth of the 2[nd] **Crl.MC.No.8826 OF 2019(C)** **4** respondent is 14.07.2001 as can be seen from Annexure-A S.S.L.C certificate. Further the case of the petitioner is that the 2[nd] respondent had subsequently completed the majority age of 18 years on 14.07.2019 and that with consent both sides and with the blessings of both their families, the marriage between the petitioner and the second respondent has been solemnized in accordance with the provisions of the Hindu Marriage Act in a Hindu Temple in Tamilnadu on 04.09.2019 as can be seen from Annexure-C certificate issued by the temple authority concerned. The learned counsel for the second respondent would point out that subsequently the marriage between the petitioner and the 2[nd] respondent has also been registered in accordance with the provisions contained in the Special Marriage Act on 04.09.2020 before the notified Registrar for Marriages under that Act etc. The petitioner would place reliance on various judgments of this Court including the decisions in _**Freddy @ Antony Francis & Anr. v. State of Kerala and Anr.**_ [2017 KHC 344 = 2018 (1) KLD 558], _**Denu P. Thampi v. Ms.X**_ [2019 (3) KHC 199= 2019(2) KLT 996]. 5. Though it is well established that ordinarily it will not **Crl.MC.No.8826 OF 2019(C)** **5** be right and proper for this Court to consider the plea for quashment of a serious offence as per Section 376 of IPC solely on the ground of settlement between the parties, it has also been held by this Court that an exception will be made to this general approach. In cases where the accused has entered into sexual relationship with the lady victim on the assurance of marriage and after the registration of the case, the parties have lawfully married with the consent of both sides, then the plea for quashment of the offence under Section 376 of the IPC could be considered on such extenuating factors, taking into account the over all interest and welfare of future marital life of the lady victim, etc. 6. The learned counsel for the petitioner would point out that after the case was transferred to the Special Sessions Court at Perumbavoor, non-bailable warrant was issued against him and that the limited plea made by the petitioner in this case is that directions may be issued by the this Court to consider and grant bail to him in view of the abovesaid aspects and that thereafter he would file a proper petition seeking quashment of the impugned criminal proceedings on the ground of settlement etc. The learned **Crl.MC.No.8826 OF 2019(C)** **6** Public Prosecutor was requested to get instructions in this matter. Today when the matter has been taken up for consideration, Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent State would submit on the basis of instructions that the Investigating Officer has conducted an effective enquiry and has also recorded the statement of the 2[nd] respondent lady victim, who has stated that she has no further subsisting grievances against the petitioner and that the disputes between them have been duly resolved and that the 2[nd] respondent has duly married the petitioner/accused on the basis of the consent and the blessings of both families on 04.09.2019 and that the parties are now living together as husband and wife and that the second respondent has stated that she voluntarily executed Annexure-E affidavit and that she has no objections in the grant of bail to the petitioner and for quashment of the impugned proceedings in view of the abovesaid subsequent developments, etc. 7. Taking note of the above said aspects, the limited plea made in this petition is only in the matter of grant of bail. Taking note of the above said facts and circumstances, it is ordered that **Crl.MC.No.8826 OF 2019(C)** **7** the petitioner will immediately surrender before the Special Sessions Court notified to deal with POCSO cases, Perumbavoor, Ernakulam District in the matter in SC No.988/18 without any further delay and may make necessary application for recall of non-bailable warrant and for grant of bail under Section 437 of Cr.P.C. and after affording reasonable opportunity of being heard to the petitioner's counsel and the learned Public Prosecutor, the said court may pass orders thereon on the same day of the appearance of the petitioner and may grant bail to the petitioner in the light of the above said extenuating circumstances. Subject to conditions, that may be appropriately invoked, the said court may grant bail and may also pass orders in the matter of recall of non-bailable warrant and for grant of bail. The petitioner should surrender and make the above said application before the above said Special Court, within 4 weeks and should ensure that advance copy of the above said application for recall of the warrant and application of bail should be given to the learned Public Prosecutor concerned as well as the Investigating Officer atleast 48 hours prior to the proposed surrender, so that they are **Crl.MC.No.8826 OF 2019(C)** **8** notified about the surrender and appearance of the petitioner on the day in question. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.8826 OF 2019(C)** **9** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A** **THE TRUE COPY OF THE SECONDARY SCHOOL LEAVING CERTIFICATE OF THE 2ND RESPONDENT.** **ANNEXURE B THE TRUE COPY OF MARRIAGE CERTIFICATE. ANNEXURE C THE TRUE COPY OF ENGLISH TRANSLATION. ANNEXURE D THE PHOTOGRAPHS SHOWING THE MARRIAGE OF THE PETITIONER AND THE 2ND RESPONDENT.** **ANNEXURE E** **THE TRUE COPY OF THE AFFIDAVIT FILED BY THE 2ND RESPONDENT DATED 28.11.2019.** //TRUE COPY// PA TO JUDGE