Samuel George v. State of Kerala and Shymol

## **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. 8683 of 2016** ## **-------------------------------------** **CRIME NO. 1015/2016 OF AROOR POLICE STATION** **------------------** ## **PETITIONER(S)/ACCUSED :** **-----------------------------------------** **SAMUEL GEORGE, AGED 24 YEARS, S/O.P.K.GEORGE, PANAKKAPARAMBIL, AROOR.** **BY ADVS. SRI.C.D.JOHNY SMT.MEREENA JOSEPH SRI.P.K.ANTONY** ## **RESPONDENT(S)/STATE & DE-FACTO COMPLAINANT :** **--------------------------------------------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **2. SHYMOL, AGED 33 YEARS, W/O.JOSHI, RESIDING AT PANAKKAPARAMBIL HOUSE, XIITH WARD, AROOR PANCHAYAT, AROOR VILLAGE, CHERTHALA TALUK, ALAPPUZHA DISTRICT- 688 001.** **R1 BY PUBLIC PROSECUTOR SRI. E.C.BINEESH R2 BY ADV. SMT.C.J.LIZY** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 05-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Msd. **Crl.MC.No. 8683 of 2016 ------------------------------------** ## **APPENDIX** **PETITIONER(S)' ANNEXURES :** **ANNEXURE-A1: CERTIFIED COPY OF THE F.I.R. IN CRIME NO.1015/2016 OF AROOR POLICE STATION. ANNEXURE-A2: AFFIDAVIT SWORN BY 2ND RESPONDENT/DE-FACTO COMPLAINANT DATED 09.12.2016. RESPONDENT(S)' ANNEXURES :** ## **NIL** **//TRUE COPY//** **P.A.TO JUDGE** Msd. ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.8683 of 2016** ## **----------------------------------------Dated this the 5[th] day of January, 2017** ## **O R D E R** - 1.This petition is filed under S.482 of the Code of Criminal Procedure ( hereinafter referred to as the Code ) with a prayer to invoke the extraordinary inherent powers and to quash the pending criminal proceedings. - 2.The petitioner is the accused in Crime No.1015 of 2016 of Aroor Police Station. The said crime has been registered at the instance of the 2[nd] respondent herein alleging offence punishable under Section 376 of the IPC. - 3.On 30.11.2016, the 2[nd] respondent gave a complaint before the Vanitha Cell, Alappuzha alleging that in the month of January, 2016, at about 6.a.m, the petitioner herein entered the kitchen of the house of the 2[nd] respondent and sexually assaulted her. It is also alleged that the petitioner made an attempt to commit rape. Crl.M.C.8683/2016 2 Based on these allegations, Annexure-A1 FIR was registered on 3.12.2016 for the offence under Section 376 of the IPC. - 4.I have heard the learned counsel appearing for the petitioner and the party respondent and also the learned Public Prosecutor. - 5.The learned counsel appearing for the petitioner would submit that the registration of the offence under Section 376 of the IPC was unwarranted. The de facto complainant had no case that rape was committed. It is further argued that the husband of the 2[nd] respondent is a near relative of the petitioner and in the course of proceedings, the disputes have been resolved. The long delay in registering the Crime is highlighted by the learned counsel to contend that the allegations are false. The learned counsel appearing for the 2[nd] respondent submitted that during the relevant period she was undergoing treatment under a Psychologist for certain Crl.M.C.8683/2016 3 family problems and it was on account of her particular mental state that a complaint was filed against the petitioner alleging attempt to commit rape. According to the 2[nd] respondent, she is living with her husband and two sons and prays that the proceedings be terminated for her own welfare and mental well being. - 6.The learned Public Prosecutor on instructions submits that the Inspector of Police, Kuthiathode Police Station had recorded the statement of the 2[nd ] respondent immediately after registration of the crime. At that stage, the petitioner had backed out from her earlier version and stated that the petitioner had only caught hold of her hand. According to the learned Public Prosecutor, the 2[nd] respondent had stated that the matter has been resolved. It is pointed out that the 2[nd] respondent had refused to give a statement under Section 164 of the Cr.P.C. - 7.I have considered the submissions and I have perused the case diary and the statement of the Inspector of Police. Crl.M.C.8683/2016 4 Though Annexure-A1 crime has been registered under Section 376 of the IPC, it does not appear that the 2[nd] respondent was raped by the petitioner. At the most, an offence under Section 511 of 376 will be made out. The 2[nd] respondent in her affidavit has stated in detail the reason behind lodging a statement alleging various offences against the petitioner. It is also borne out from the statement that the petitioner herein is a near relative of her husband. She has stated that she is no desirous of prosecuting the petitioner for various reasons. 8.Having regard to the facts and circumstances, it cannot be said that the allegations raised would fall in the category of offences that has a serious impact on the society. The offence of rape is clearly not made out. The extreme depravity, perversity or cruelty is not revealed. The 2[nd] respondent is a married lady and she asserts that during the relevant period she was undergoing treatment at the Medical Trust Hospital due to certain personal problems. Crl.M.C.8683/2016 5 9.The position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. In **Gian singh v. State of Punjab (2012) 10 SCC 303** Apex Court has laid down that in appropriate cases, the High Court can take note of the amicable resolution of disputes between the victim and the wrongdoer to put an end to the criminal proceedings. It was observed as follows : _“61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”_ 10.The aforesaid dictum stands reiterated by the Apex Court ## in **Narinder singh v. State of Punjab. (2014) 6 SCC** **466,** the pertinent observations which are as under: Crl.M.C.8683/2016 6 ## _XXXXXXXXXXXX_ _29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:_ _(i) ends of justice, or_ _(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives._ _xxxxxxx_ _xxxxxxx_ 11.Though in **Narinder Singh** (supra), the Apex Court had held that the offence of rape falls in the grave category, in the instant case the said offence is not clearly made out. 12.After bestowing my anxious consideration to the various aspects of the instant case, I am of the view that the settlement arrived at between the parties can be taken note of to protect the interest of both the parties. In the fact scenario grave hardship and inconvenience will be caused to the 2[nd] respondent if the prosecution is permitted to continue. When the 2[nd] respondent herself Crl.M.C.8683/2016 7 has asserted that she is not inclined to prosecute the petitioner any further, the prospects of an ultimate conviction is remote and bleak. Further more, the 2[nd] respondent can continue with her life without the stigma. 13. Having considered all the relevant circumstances, I am of the considered view that this Court will be well justified in invoking its extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition will stand allowed. Annexure-A1 FIR in Crime No.1015 of 2016 of Aroor Police Station and all proceedings pursuant thereto against the petitioner are quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps