Riyas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 22[ND] DAY OF JULY 2024 / 31ST ASHADHA, 1946** ## **CRL.MC NO. 2013 OF 2022** **CRIME NO.537/2017 OF ANTHIKAD POLICE STATION, THRISSUR** ## **PETITIONER/ACCUSED:** **RIYAS,** **AGED 32 YEARS, S/O. ABDUL AZEEZ, KARAPARAMBIL HOUSE, KAIPAMANGALAM VILLAGE, KAIPAMANGALAM POST, KODUNGALLOOR TALUK, THRISSUR DISTRICT, PIN-680681.** **BY ADVS.M.G.JEEVAN SANIYA JOSE MAMPILLY** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682031.** ## *** ADDL.R2 XXXXX** **ADDL.R2 IMPLEADED AS PER ORDER DATED 22.07.2024 IN CRL.M.A.NO.2/2022** **R1 SRI.M.P.PRASANTH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C. No.2013 of 2022 ## -:2:- ## **ORDER** ## **Dated this the 22[nd] day of July, 2024** This Crl.M.C. has been filed under Section 482 of the Code of Criminal Procedure by the petitioner, who is the sole accused in Crime No.537/2017 of Anthikad Police Station, Thrissur. He seeks quashment of Annexure A1 FIR and Annexure A2 Final Report in the above said Crime. 2. Heard the learned counsel for the petitioner, the learned counsel for the defacto complainant and the learned Public Prosecutor in detail. Perused the relevant records. 3. In this matter, the prosecution allegation is that the accused herein maintained a love affair with the defacto complainant starting from 2016 during her school days and continued the same till 2009 and in the meanwhile, the accused went abroad. Thereafter, the accused returned on 10.03.2016 and met the defacto complainant at her residence. On Crl.M.C. No.2013 of 2022 -:3:- 14.03.2016 also, the accused reached the residence of the defacto complainant and offered to marry her. Thus on the promise of marriage, she was subjected her to sexual intercourse. Another day in March, 2016 also, he repeated the same and he recorded the above overt acts on his mobile phone. Later, it was revealed that the marriage of the accused was fixed and accordingly, she inflicted cut injury on her left hand because of the tension caused by knowing about the marriage fixation of the defacto complainant. Later, the defacto contacted the mother of the accused on complainant 24.03.2017, for which, the accused scolded her, and she again inflicted cut injury on her hand. This is the substratum where from this crime was registered. 4. According to the learned counsel for the petitioner, in this matter, a broken love relationship and consensual sex are the inference to be drawn from the entire prosecution case Crl.M.C. No.2013 of 2022 -:4:- and therefore, quashment of the proceedings is essential. Holding so, no offence under Section 376 of the Indian Penal Code ('IPC' for short hereinafter) is made out. 5. While opposing quashment, the learned Public Prosecutor submitted that in this case, both parties maintained the love affair to solemnise marriage and believing the promise given by the accused, defacto complainant was subjected to sexual intercourse. Therefore, consent is on misconception of fact on the promise of marriage, in such a case, quashment cannot be considered since materials are prima facie made out to attract offence under Section 376 of IPC. 6. Adverting to the power of this Court to quash criminal proceedings resorting to Section 482 of the Cr.P.C. is concerned, indubitably, in respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, Crl.M.C. No.2013 of 2022 -:5:- like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter Crl.M.C. No.2013 of 2022 -:6:- into wedlock with her which is nothing but putting pressure in an adroit manner; and that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. Such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a woman. Any kind of liberal approach or thought of mediation in this is and sans regard thoroughly completely legal permissibility. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in Crl.M.C. No.2013 of 2022 -:7:- punishing persons for serious offences. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community, but may also accord an undue benefit to habitual or unscrupulous professional offenders, who can secure a “settlement” through duress, threats, social boycotts, bribes or other dubious means. It is well said that “let no guilty man escape, if it can be avoided.” 7. The law as it stands is that although High Court can invoke its Cr.P.C. even in jurisdiction u/s.482 non-compoundable offence and can quash the proceedings on Crl.M.C. No.2013 of 2022 -:8:- the basis of settlement arrived at between the parties even in the cases of non-compoundable offences but while exercising its jurisdiction this Court must consider the fact that whether the proceeding relates to any serious and heinous offences and whether the crime in question has impact over the society. In cases of serious nature which affects the society at large this Court should not exercise its jurisdiction under Section 482 Cr.P.C. for quashing the proceedings on the basis of compromise _v._ executed between the parties. (See decisions in _**Gian Singh State of Punjab and Another**_ reported in **[(2012) 10 SCC 303],** _v._ _**Narinder Singh and Others State of Punjab and Another Shimbhu** v._ reported in **[(2014) 9 SCC 466],** _**State of Haryana**_ reported in **[AIR 2014 Supreme Court 739]** (three Bench) **,** _**State of Madhya Pradesh** v._ _**Madanlal**_ reported in **[AIR 2015 Supreme Court 3003]** (two Bench), _**Parbatbhai Aahir @ Parbatbhai Bhimsinhbhai Karmur and Others** v._ _**State of**_ Crl.M.C. No.2013 of 2022 -:9:- _**Gujarat and Another**_ reported in **[(2017) 9 SCC 641],** _**State of** v. ._ _**Madhya Pradesh Laxmi Narayan & Ors**_ reported in **[(2019)** _v._ **5 SCC 688],** _**Arun Singh and Others State of Uttar Pradesh Through its Secretary and Another**_ reported in **[(2020) (3)** _v._ **SCC 736],** _**Ram Gopal & Another State of Madhya Pradesh**_ reported in **[(2021 0 Supreme (SC) 529)],** _**Daxaben** v._ _**The State of Gujarat & others**_ reported in **[2022 LiveLaw (SC) 642],** _**P.Dharmraj** v._ _**Shanmugam and others**_ decided on 8[th] September 2022 in Crl.Appeal Nos.1515-1516 of 2022). 8. Whether the relationship is consensual, is a matter to be decided during evidence and merely relying on the Annexures produced by the petitioner without proof of the same, this Court cannot quash the proceedings, holding that there are no materials, _prima facie_ , to go for trial. 9. Coming to the prosecution case, the relationship started during school days and continued the same thereafter with offer to marry the defacto complainant. Thus defacto Crl.M.C. No.2013 of 2022 -:10:- complainant also was subjected to sexual intercourse on the promise of marriage. The defacto complainant's attempt to solemise the marriage went in vain and she caused injuries on her hand two times when she got dejected, on knowing the marriage fixation of the accused. In such a case, prima facie, consent is on the promise of marriage. Therefore, the prosecution shall be permitted to adduce evidence. Therefore, quashment cannot be considered. 10. Therefore, the quashment, as prayed for, stands disallowed, with liberty to the petitioner to raise his contentions before the trial court during trial. 11. Accordingly, this Crl.M.C. stands dismissed. Registry shall forward a copy of this order to the trial court for information and compliance. Sd/- **A. BADHARUDEEN JUDGE** bpr Crl.M.C. No.2013 of 2022 -:11:- ## **APPENDIX OF CRL.MC 2013/2022** ## **PETITIONER'S ANNEXURES** **Annexure A1 CERTIFIED COPY OF FIR IN CRIME NO.537/2017 DATED 31.05.2017 OF ANTHIKAD POLICE STATION. Annexure A2 CERTIFIED COPY OF FINAL REPORT IN CRIME NO.537/2017 OF ANTHIKAD POLICE STATION SUBMITTED BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE COURT NO.II, THRISSUR. Annexure A3 TRUE COPY OF ORDER DATED 09.01.2019 IN B.A.NO.8688/2018 OF THIS HONOURABLE COURT.**