Shameera K.H. v. Nishad P.A. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE R.BASANT** **MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930** **Crl.MC.No. 2837 of 2008(B)** **--------------------------------------** - **(CP.NO.98/2007 OF JUDL. MAGISTRATE OF FIRST CLASS COURT, KODUNGALLUR)** **....................** ## **PETITIONER/ DE-FACTO COMPLAINANT:** **----------------------------------------------------------** **SHAMEERA.K.H., D/O.HANEEFA, AGED 27 YEARS, KALAPPURACKAL HOUSE, PATHIYASSERI, PATHAZHAKADU POST, KODUNGALLOOR, THRISSUR.** **BY ADV. SRI.DENIZEN KOMATH, ADV. SRI.SHERRY J. THOMAS.** ## **RESPONDENTS/ ACCUSED AND STATE:** **---------------------------------------------------------** **1. NISHAD.P.A.@ NOUSHAD, S/O.ABDUL MAJEED, AGED 30 YEARS, PONNATHU HOUSE, PATHAZHAKADU POST, PATHIYASSERI, KODUNGALLOOR,THRISSUR.** **2. STATE OF KERALA, REPRESENTED BY THE CIRCLE INSPECTOR OF POLICE, VALAPPADU CIRCLE THRISSUR, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. S.U. NAZAR, R1 BY ADV. SMT.A.S.SANISHA.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 01/12/2008,THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **prv.** R.BASANT, J ## ------------------------------------ ## Crl.M.C. No.2837 of 2008 ## ------------------------------------- ## Dated this the 1[st] day of December, 2008 ## ORDER Petitioner is the defacto complainant/alleged victim in a prosecution under Section 376 I.P.C. Investigation is complete. Final report has already been filed. The 1[st] respondent on the basis of the final report faces allegations under Section 376 I.P.C. The committal proceedings has been registered and is pending before the court below now. 2. At this stage, the parties appear to have settled their disputes. The 1[st] respondent is working abroad. The petitioner herein, the defacto complainant, has come to this Court to apprise this Court of the fact that the dispute between the parties have been settled and the petitioner does not want to further prosecute the 1[st] respondent/accused. 3. The crux of the allegations in the final report filed against the 1[st] respondent/accused is that he had sexual relationship over a period of time with the petitioner herein. In such relationship, the petitioner herein had become pregnant. She had given birth to a child also. Thereafter the 1[st] respondent was making himself scarce and was not willing to undertake the Crl.M.C. No.2837 of 2008 2 responsibilities of pregnancy/paternity. It is, in these circumstances, that the petitioner alleged that all the instances of sexual intercourses which commenced on one particular day were the result of force and coercion and without her consent and against her will. 4. The petitioner has now come before this Court to report to the Court that she does not want to prosecute the 1[st] respondent. She is represented by a counsel. She has filed an affidavit. She is present in court. The learned counsel for the petitioner identifies her. It is submitted that the petitioner has no grievance that the sexual intercourses were without consent. She was aged more than 23 years at the relevant time and it is stated that she happened to lodge the complaint after the child birth only because she suspected that the 1[st] respondent was trying to wriggle out of the obligations of paternity. The parties have now settled their disputes. The 1[st] respondent has accepted the paternity of the child. He has already made arrangements for the maintenance of the child. In these circumstances the petitioner does not want to further prosecute the 1[st] respondent. She accepts that the sexual intercourses were not without her Crl.M.C. No.2837 of 2008 3 consent and against her will and that such sexual intercourses were consensual. 5. Notice was given to the learned Public Prosecutor. The learned Public Prosecutor after taking instructions submits that the police had questioned the petitioner and it is now confirmed that she does not want to prosecute the 1[st] respondent and accepts that the sexual intercourses were not without consent. The 1[st] respondent has not appeared. 6. I have considered all the relevant inputs. The offence alleged is not compoundable. But the learned counsel for the petitioner heavily relies on the decision in **Madan Mohan Abbot v. State of Punjab** [2008 (3) KLT 19], **Nikhil Merchant v. C.B.I** [2008(3) KLT 769 (SC)] and **Manoj Sharma v. State** [2008 (4) KLT 417 (SC)] and contends that in any view of the matter, this prosecution does not deserve to be continued. It has become unnecessary and irrelevant now. Parties have settled their disputes. The petitioner accepts that the sexual intercourses did not amount to rape. That admission is a very probable admission in the peculiar nature of the facts and circumstances of this case. In these circumstances, on the Crl.M.C. No.2837 of 2008 4 ground of the crucial admission made by the petitioner now as also from the reported composition of the offence by the petitioner/victim, this Court may be pleased to invoke the extraordinary inherent jurisdiction under Section 482 Cr.P.C to quash the proceedings against the 1[st] respondent, it is prayed. It is submitted that the decisions in the 3 cases referred above convincingly support the plea of the petitioner to prematurely terminate the proceedings against the 1[st] respondent-the father of the child, to whom she has given birth. 7. Having considered all the relevant circumstances, notwithstanding the fact that the offence, in which the 1[st] respondent faces prosecution, is a serious offence punishable under Section 376 I.P.C, I am satisfied that a reasonable and realistic view can be taken by this Court and proceedings against the 1[st] respondent can be quashed. 8. In the result: i) This Crl.M.C is allowed; ii) The prosecution initiated against the petitioner on the basis of the final report in Crime No.477 of 2004 of Mathilakam Police Station on the basis of which C.P.No.98 of 2007 was 5 ## Crl.M.C. No.2837 of 2008 registered, in which the petitioner is the victim and the 1[st] respondent is the accused, now pending before the Judicial Magistrate of the First Class, Kodungallur is hereby quashed; iii) Needless to say, proceedings, if any, pending against the 1[st] respondent/accused and his sureties, shall be disposed of in accordance with law. **(R.BASANT, JUDGE)** rtr/- Crl.M.C. No.2837 of 2008 6 ## R.BASANT, J -----------------------------------Crl.M.C. No.2837 of 2008 ------------------------------------Dated this the 12[th] day of August, 2008 ## ORDER The learned Public Prosecutor confirms that there has been a settlement and the parties shall be getting married as soon as the 1[st] respondent returns to India. The learned counsel for the petitioner submits that the 1[st] respondent is unable to come to India because of the pendency of the warrant issued against him. 2. I am satisfied, in these circumstances, that an interim order can be issued that coercive processes issued against the 1[st] respondent shall not be executed till the next date of posting. Crl.M.C. No.2837 of 2008 7 3. Call on 16.09.08. By that date, the petitioner and the 1[st] respondent shall report to the Court the steps taken for settlement of the dispute. **(R.BASANT, JUDGE)** rtr/-