Shamnad v. State of Kerala and 2nd Respondent

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **FRIDAY ,THE 07TH DAY OF DECEMBER 2018 / 16TH AGRAHAYANA, 1940** ## **Crl.MC.No. 5439 of 2018** **AGAINST THE ORDER/JUDGMENT IN SC 1200/2017 of D.C. & SESSIONS COURT,KOLLAM** **CRIME NO. 767/2017 OF Karunaagapally Police Station , Kollam** ## **PETITIONERS:** **SHAMNAD AGED 26 YEARS KOCHUVETTIL,CLAPPANA P.O, KOLLAM** **BY ADV. PHILIP MATHEW V.** ## **RESPONDENTS:** **1 STATE OF KERALA REPRESENTED BY PP ,HIGH COURT OF KERALA,ERNAKULAM 2 VICTIM** **BY ADV. R.RAJESH(PULLIKADA)** ## **OTHER PRESENT:** ## **SMT K SHEEBA-PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 07.12.2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.5439/2018 2 ## **O R D E R ~~~~~~** This petition is filed under Section 482 of the Cr.P.C. 2. The petitioner herein is the accused in S.C.No.1200 of 2017 on the file of the Sessions Court, Kollam. In the aforesaid case, he faces indictment for having committed offence punishable under Section 376(2)(n) of the IPC. 3. The 2[nd] respondent herein is the victim. In the statement furnished by her to the Police, she alleged that she met the petitioner herein while she was studying in the Plus Two class. After a brief period, they fell in love. This was in the year 2013. The petitioner was working overseas and they used to contact often. He assured her that he would marry her and they acted accordingly. While on a brief holiday in the year 2015, the petitioner went to the house of her uncle and they are alleged to have had sexual intercourse. Under the belief that the applicant would marry her, she acceded to his request to have a physical relationship. In the year 2017, she received information that the marriage of the petitioner has been fixed with some other lady. Without Crl.M.C.No.5439/2018 3 wasting any more time, she approached the police and set the law in motion. 4. The learned counsel appearing for the petitioner would contend that the allegations will not make out a case of rape. The relationship was consensual between two willing adults is the submission. Much reliance was placed on the decision of the Hon'ble Supreme Court in **Uday v. State of Karnataka** [(2003) 4 SCC 46] to contend that there are no materials to show that the consent was given under a misconception of fact or that the petitioner was aware or had reason to believe that the consent was given by the lady in consequence of such misconception. 5. It is further submitted that during the pendency of the criminal proceedings, they have been able to sort out their differences. According to the learned counsel, the 2[nd] respondent has decided to marry another man and the pendency of the instant proceedings is a stumbling block. The learned counsel would refer to Annexure-III affidavit sworn to by the 2[nd] respondent and would contend that she has asserted that the FIR was lodged under some misconception and that she is not desirous of prosecuting the petitioner at this stage. Crl.M.C.No.5439/2018 4 6. The 2[nd] respondent has appeared through counsel. The learned counsel has submitted that the allegations in the subject Crime are purely personal in nature and the continuance of proceedings would adversely affect the future of the 2[nd] respondent. It is submitted that her marriage is scheduled to be held on 27.1.2019 and her life would be shattered if the case is dragged on. 7. The learned Public Prosecutor was directed to get instructions. It is submitted that the statement of the 2[nd] respondent has been recorded and that she has stated in unequivocal terms that she wants to start a fresh life and she has no grievance as against the petitioner herein. 8. I have considered the submissions advanced and have perused the materials made available. 9. 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 Section 320 of the Code. In what cases Crl.M.C.No.5439/2018 5 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, the Court will have to give 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 ] serve as guiding lights. 10. Insofar 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 noncompoundable 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 Crl.M.C.No.5439/2018 6 consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurized 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 pressurize 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. 11. However, in the instant case, the petitioner and the 2[nd] respondent were in love for a long period. They were both adults and their relation appears to have been consensual. There is no case for anyone that the dignity of the 2[nd] respondent was violated by a wanton act of the petitioner. 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. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 2[nd] respondent, if the prosecution is permitted to continue. She has also filed an affidavit stating that she is not desirous of prosecuting against the petitioner any further. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case Crl.M.C.No.5439/2018 7 is proceeded with. Furthermore, the 2[nd] 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 extraordinary powers under Section 482 of the Code to quash the proceedings. In the result, this petition is allowed. Annexure-2 final report and all proceedings pursuant thereto against the petitioner now pending as S.C.No.1200 of 2017 on the file of the Sessions Court, Kollam are quashed. ## **SD/-** ## **RAJA VIJAYARAGHAVAN. V** Ps/10/12/18 ## **JUDGE** //TRUE COPY//. P.A. TO JUDGE Crl.M.C.No.5439/2018 8 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE P1 COPY OF F.I.R NO.767/2017 IN CRIME NO.76/2017** **ANNEXURE P2 COPY F FINAL REPORT FILED IN CRIME NO.767/2017 ANNEXURE P3 AFFIDAVIT DATED 30-07-2018 SWORN BY 2ND RESPONDENT**