S. Aasai v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **THURSDAY, THE 5TH DAY OF JANUARY 2017/15TH POUSHA, 1938** ## **Crl.MC.No. 8717 of 2016 ()** ## **--------------------------CRIME NO. 875/2015 OF TIRURANGADI POLICE STATION, MALAPPURAM DISTRICT -----------------** ## **PETITIONER/ACCUSED:** **-----------------------------------** **S. AASAI, AGED 21 YEARS, S/O.SUNDARESAN, PERMANENT RESIDENT OF: MIDDLE STREET, VANGUDI P.O, UDAIYARPALAYAM TALUK, ARIYALUR DISTRICT, TAMILNADU, PRESENTLY RESIDING AT: PERARASU THERU, KATTUMANNARKOIL TALUK, CUDDALORE DISTRICT, TAMILNADU, PIN: 608 301.** ## **BY ADV. SRI.P.VENUGOPAL** ## **RESPONDENT(S)/STATE, DEFACTO COMPLAINANT & VICTIM:** **-----------------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN: 682 031.** **2. SUBRAMANIAN,AGED 43 YEARS, S/O.KANNAN (LATE), CHERAYI HOUSE, POOTHERIVALAPPIL, VELIMUKKU P.O, MALAPPURAM DISTRICT, PIN: 676 317.** **3. SANGEETHA V., AGED 19 YEARS, D/O.VAITHIYANATHAN, PERMANENT RESIDENT OF: KURUNGUDI, AZHAGARVATTOM P.O, KATTUMANNARKOIL TALUK, CUDDALORE DISTRICT, TAMILNADU, PIN: 608 301 PRESENTLY RESIDING AT: CHERAYI HOUSE, POOTHERIVALAPPIL, VELIMUKKU P.O, MALAPPURAM DISTRICT, PIN: 676 317.** **R1 BY PUBLIC PROSECUTOR SRI.E.C.BINEESH R2 & R3 BY ADV. SMT.T.J.MARIA GORETTI** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **sts** ## **Crl.MC.No. 8717 of 2016 () --------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' ANNEXURES:** **--------------------------------------------** **ANNEX.A TRUE COPY OF THE FIR REGISTERED BY THE TIRURANGADI POLICE ANNEX.B TRUE COPY OF THE JUDGMENT DATED 29.07.2015 PASSED BY THIS HONOURABLE COURT IN WP(CRL) NO.287/2015 ANNEX.C TRUE COPY OF THE CERTIFICATE OF BIRTH OF THE THIRD RESPONDENT ANNEX.D TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED BY THE MARRIAGE REGISTRAR/SUB REGISTRAR, MANNARGUDI DATED 06.10.2016 ANNEX.E AFFIDAVIT EXECUTED BY THE SECOND RESPONDENT ANNEX.F AFFIDAVIT EXECUTED BY THE THIRD RESPONDENT** **RESPONDENT(S)' ANNEXURES: NIL** **----------------------------------------------** ## **/TRUE COPY/** ## **P.S.TO JUDGE** **sts** ## **RAJA VIJAYARAGHAVAN.V, J** **---------------------------------------Crl.M.C. No.8717 of 2016** **----------------------------------------Dated this the 5[th] day of January, 2017** ## **O R D E R** 1.This petition is filed under section 482 of the Code of Criminal Procedure (hereinafter referred to as 'the Code' for brevity) seeking to quash the proceedings pending against the petitioner herein. 2.The 2[nd] respondent is the uncle of the 3[rd] respondent. The 3[rd] respondent and her mother were residing with him in his house at Malappuram during June 2015. The 3[rd] respondent, who had not attained majority was deeply in love with the petitioner since her childhood. The family members were aware of this relationship. While so, the 3[rd] respondent left the house without the knowledge of the 2[nd] respondent. Her whereabouts was not known. The 2[nd] respondent rushed to the Tirurangadi Police Station and gave information based on which Annexure A crime was registered under section 57 Crl.M.C.8717/2016 2 of the Kerala Police Act. He also approached this Court and filed a Writ seeking relief of Habeas Corpus. The police swung into action and the 3[rd] respondent was traced from the house of the petitioner. She was produced before the learned Magistrate and later before this Court. By order dated 29/07/2015 in W.P( Cri) No.287 of 2015, she was permitted to go with her grandmother. The petitioner was remanded to judicial custody and later was enlarged on bail. Offence under section 366 A of the IPC was later added and the petitioner herein was arrayed as the accused. 3.While proceedings were pending as aforesaid, the near relatives of the 3[rd] respondent and the petitioner herein acknowledged their deep seated love and commitment and accordingly decided to give the hand of the 3[rd] respondent in marriage to the petitioner. The marriage was solemnized on 17/08/2016 at the Sree Pragatheeswara Alayam, Gangaikondacholapuram in Ariyalur district. The marriage was duly registered with the marriage registrar under the Crl.M.C.8717/2016 3 provisions of the Tamil Nadu Hindu Marriage (Registration) Rules, 1967. Since then the petitioner and the 3[rd] respondent are living under the same roof as husband and wife. In the meantime, it appears that offence under section 376 of the IPC and section 3 and 4 of the POCSO Act were added. It is in the above fact scenario that this petition is filed. 4.Essentially the contention raised is that the allegation that the 3[rd] respondent was subjected to rape and sexual assault is false. According to the victim and the de facto complainant, the crime happened to be registered under a misconception which prevailed at that time. The 3[rd] respondent had voluntarily left the company of her mother and had joined the petitioner. Her father also resides next to the house of the petitioner. Now that the marriage has been solemnized and the parties are living in peace and harmony, the continuance of proceedings is an abuse of process is the submission. Crl.M.C.8717/2016 4 5.Heard the learned counsel appearing for the petitioner, the respondents 2 and 3 and also the learned public prosecutor. 6.The counsel appearing for the petitioner asserted that the petitioner was in love with the 3[rd] respondent. Relatives from her mothers side strongly objected to the relationship. The 3[rd] respondent in the said circumstances had voluntarily left them and had traveled all the way to Tamil Nadu to join the petitioner. According to the learned Counsel, the allegation of Rape and is clearly unfounded. It is also argued that section 366 A has no application as the prosecution has no case that the petitioner had induced the 3[rd] respondent to go from one place to another with intent that she would be forced or seduced to illicit intercourse with another person. According to the learned Counsel, this is a fit case wherein this Court will be justified in quashing the frivolous criminal proceedings taking note of the fact that the parties are living in matrimony. Crl.M.C.8717/2016 5 7.The respondents 2 and 3 have appeared through counsel and have filed separate affidavits. In the affidavit filed by the 3[rd] respondent she has stated in detail as to what had transpired. She has highlighted the fact that she was in love with the petitioner and that she had voluntarily gone with the petitioner. She has also stated that the petitioner has not caused any harm to her and that it was under a misconception that the crime was registered. She stated that she is residing with the petitioner in the house of the 2[nd] respondent and that they are living happily. 8.The 2[nd] respondent, who is the de facto complainant, has stated in the affidavit filed by him that the grave allegations were all raised under a wrong impression. He has also stated that the 3[rd] respondent had left his house and had gone to Tamil Nadu to be with the petitioner. The complaint was lodged in the heat of passion under a wrong premise according to him. He has also asserted that the petitioner Crl.M.C.8717/2016 6 as well as the 3[rd] respondent are living together in his house. 9.The learned Public Prosecutor on instructions submits that the investigating officer has reported that the parties have married and are living together. The authenticity of Annexure D certificate was ascertained and it is submitted that the same is genuine. The 164 statement of the victim was recorded on 7.09.2015. 10.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 S.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 Crl.M.C.8717/2016 7 each case and no category can be prescribed. However, before exercise of such power, the Court will have to have 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 offences 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 **Narinder singh v. State of Punjab [** (2014) 6 SCC 466 ] are the guiding lights. 11.In the instant case crime was initially registered under section 366 A of the IPC. Later it was altered to section 376 of the IPC and under section 3 and 4 of the POCSO Act. In so far 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 Crl.M.C.8717/2016 8 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 non -compoundable 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 she 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. In **Madan Lal** ( supra ) the Apex Court was hearing an appeal filed by the State against the Crl.M.C.8717/2016 9 Judgement of the High Court by which the conviction arrived at by the Trial Court was set aside on the basis of a compromise arrived at between the victim and the accused. 12.However the facts of the instant case is clearly distinguishable. The victim was admittedly in love with the petitioner and she had left her house and had joined the petitioner. The crime initially registered is under section 366A of the IPC. The 164 statement of the victim which was recorded after the arrest of the petitioner would reveal that the prosecution allegation had no tinge of truth. The 2[nd] respondent has filed an affidavit wherein he has asserted that the complaint was lodged in a fit of passion due to the circumstances prevailing then. The 3[rd] respondent has no case that the petitioner had violated her. She has married the petitioner and is living happily as husband and wife. There is no case for anyone that the dignity of the 3[rd] respondent was violated by a wanton act of the petitioner. On the other hand what is revealed is only the elopment of a Crl.M.C.8717/2016 10 girl with her lover against the wishes of her family members. 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. The facts of the instant case when looked at dispassionately would reveal a long term love affair between two young people which weathered all storms and ended up in the altar of marriage. 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. When the respondents 2 and 3 have asserted that they are not desirous of prosecuting the petitioner any further, the prospects of an ultimate conviction is remote and bleak. Further more, 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 Court will be well justified in Crl.M.C.8717/2016 11 invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-A FIR in Crime No.875 of 2015 of Tirurangadi Police Station and all proceedings pursuant thereto against the petitioner are quashed. **RAJA VIJAYARAGHAVAN.V. JUDGE** vps