Shambu Thilak v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY, THE 6TH DAY OF JANUARY 2017/16TH POUSHA, 1938** **Crl.MC.No. 3810 of 2016 ()** **--------------------------Bail Appl. 811/2015 of THIS HON'BLE COURT CRIME NO. 2084/2014 OF VARKALA POLICE STATION, THIRUVANANDAPURAM DISTRICT** **----------** **PETITIONER(S):** **-------------** **SHAMBU THILAK AGED 20 YEARS, S/O. THILAKAN, PUTHENVILA (H), PULLANICODE, EDAVA, THIRUVANANTHAPURAM DIST.** **BY ADVS.SRI.P.N.SUKUMARAN SRI.K.A.ANAS SRI.AKHIL S.VISHNU** **RESPONDENT(S):** **--------------** ## **1. STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **2. INSPECTOR OF POLICE,** **VARKALA POLICE STATION, PIN- 695 141.** **3. PRATHIBHA PRASAD,** **AGED 21 YEARS, D/O. RAJENDRAPRASAD, VIJAYALAM (H), MELVETTOR, VETTOR VILLAGE, THIRUVANANTHAPURAM DIST., NOW RESIDING AT PUTHENVILA (H) PULLANICODE, EDAVA, THIRUVANANTHAPURAM DIST.-695 141.** **R1 & R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATH R3 BY ADV. SMT.V.SREEJA** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **bp** ## **Crl.MC.No. 3810 of 2016 ()** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------** **ANNEXURE 1: TRUE COPY OF THE FIR IN CRIME NO. 2084/2014 OF VARKALA POLICE STATION.** **ANNEXURE 2: TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED FROM EDAVA GRAMA PANCHAYATH** **ANNEXURE 3: TRUE COPY OF THE ORDER IN BAIL APPLICATION NO.811/2015** **RESPONDENT(S)' EXHIBITS : NIL.** **//TRUE COPY//** **P.S. TO JUDGE** ## **bp** ## **RAJA VIJAYARAGHAVAN.V, J ---------------------------------------Crl.M.C. No.3810 of 2016 ----------------------------------------Dated this the 6[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). The petitioner is the accused in Crime No.2084 of 2014 of Varkala Police Station. - 2.The sum and substance of the allegations in the FIR, which is produced as Annexure-1 are as follows:- - The petitioner and the 3[rd] respondent were school mates and were deeply in love. While so the 3[rd] respondent went missing from the house of her friend, one Asha. The mother of the 3[rd] respondent approached the Petta Police Station and filed a complaint based on which Crime No 1272 of 2014 was registered under section 57 of the Kerala Police Act. The 3[rd] respondent was traced out. She was produced before the Magistrate who permitted her to Crl.M.C.3810/2016 2 go with her mother. Investigation revealed that they had engaged in sexual intercourse and hence Crime No 2084 of 2014 was registered under section 376 of the IPC and under section 3 (a) and 4 of the Protection of Children from Sexual Offences Act, 2012. The petitioner was aged 20 at the time of the incident and the 3[rd] respondent was 17 years of age. In the course of the proceedings, when both the parties attained the age of consent, their marriage was solemnized on 13.11.2015 at Parambil Sree Bhadrakali Temple, Odayam, Edava. The said marriage has also been registered. The petitioner as well as the 3[rd] respondent are living under the same roof as husband and wife with the blessings and support of their families. - 3.It is in this backdrop that this petition is filed to quash the proceedings upon the contention that the continuance of proceedings is an abuse of process of law. - 4.Heard the learned counsel appearing for the petitioner, the respondent 3 and also the learned public prosecutor. Crl.M.C.3810/2016 3 5.The counsel appearing for the petitioner asserted that the petitioner and the 3[rd] respondent were school mates and they were in love. The mother of the 3[rd] respondent objected to this relationship. The 3[rd] respondent stealthily went to her friends house and from there eloped with the petitioner. According to the learned Counsel, the allegation of Rape and is clearly unfounded. They have married on 13.11.2015 and are endeavoring to carry on with their life . According to the learned Counsel, the continuance of the proceedings is an abuse of process. 6.The respondent No 3 has appeared through counsel and have an affidavits. In the affidavit she has stated that she has married the petitioner and they are living as husband and wife in the home of the petitioner. According to the learned counsel, this is not a case wherein the petitioner had violated the 3[rd] respondent. On the other hand they were in love and in view of the solemnization of marriage , it is only just and proper that the criminal proceedings Crl.M.C.3810/2016 4 against her husband is terminated. 7.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 2 certificate was ascertained and it is submitted that the same is genuine. 8.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 each case and no category can be prescribed. However, before exercise of such power, Crl.M.C.3810/2016 5 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 offenses 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. 9.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 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 Crl.M.C.3810/2016 6 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 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. 10.However the facts in the instant case is entirely different. Crl.M.C.3810/2016 7 The victim was admittedly in love with the petitioner and she had eloped to join the petitioner. The 3[rd] respondent has married the petitioner and they are 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 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. Crl.M.C.3810/2016 8 When the respondent No 3 has asserted that she is not desirous of prosecuting her husband 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 is a fit case in which 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-1 FIR in Crime No.2084 of 2014 of the Varkala Police Station and all proceedings pursuant thereto against the petitioner are quashed. **Sd/RAJA VIJAYARAGHAVAN.V. JUDGE** vps