Shamseer v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 10TH DAY OF DECEMBER 2019 / 19TH AGRAHAYANA, 1941** ## **Crl.MC.No.7749 OF 2018(G)** **AGAINST 1006/2016 OF ADDITIONAL DISTRICT & SESSIONS COURT-1 MOTOR ACCIDENT CLAIMS TRIBUNAL ,THALASSERY** **CRIME NO.376/2016 OF Chokli Police Station , Kannur** ## **PETITIONER/ACCUSED:** **SHAMSEER AGED 32 YEARS S/O.MOHAMMED, VALIYAKAATTIL, KOCHANGADY, PULLOOKKARA, THALASSERY, KANNUR DISTRICT.** **BY ADVS. SRI.P.N.SUKUMARAN SRI.AKHIL S.VISHNU** ## **RESPONDENT/DE FACTO COMPLAINANT:** **1 STATE OF KERALA REPRESENTED BY THE C.I. OF POLICE, PANOOR POLICE STATION, KANNUR DIST., WHO IS REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 (VICTIM)** **R2 BY ADV. SRI.JAISON JOSEPH** ## **OTHER PRESENT:** **SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 10.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.7749/2018 2 ## **ALEXANDER THOMAS, J.** ------------------------------------------Crl.M.C.No.7749 of 2019 ---------------------------------------------Dated this the 10[th] day of December, 2019 ## **ORDER** The petitioner herein has been arrayed as the sole accused in the instant Crime No.376/2016 of Chokli Police Station, Thalassery, for offence punishable under Section 376(2) (f) of IPC and Section 3(a), r/w. 4 and 5(f) and 6 of the Protection of Children from Sexual Offences Act, 2012 on the basis of the First Information Statement given by the 2[nd] respondent lady victim on 28.3.2016 in respect of the alleged incident which happened in the year 2012. The Police, after investigation, has filed the impugned Annexure -A1 final report/charge sheet in Crime No.376/2016 of Chokli Police Station. The case, after committal, was pending as Sessions Case, S.C. No.1006/2016 on the file of the Addl. Sessions Court-1, notified to deal with POCSO Cases, Thalassery for the above said offences. The petitioner seeks quashment of the impugned criminal proceedings by urging grounds raised on abuses of the process as well as on the ground of settlement with the lady de facto complainant. 2. Heard Sri. P.N.Sukumaran, learned counsel appearing for the petitioner/accused, Sri. Saigi Jacob Palatty, learned Public Prosecutor appearing for the 1[st] respondent State of Kerala and Sri. Jaison Joseph, learned counsel appearing for R2 (lady victim). Crl.M.C.No.7749/2018 3 3. The short of the prosecution case is as follows:- That the date of birth of the 2[nd] respondent victim is 30.9.1997 and she has completed the then prescribed considering age of 16 years on 30.9.2013 and that she has completed the majority age of 18 years on 30.9.2015. While so, when she was only a minor at the age of 14 years, the petitioner/accused had befriended her and had forcible sexual intercourse with her on quite a few occasions in the year 2012. It is not specified by the prosecution with any certainty of precision as to when the alleged incidents had taken place, more particularly as to whether it had happened on or after 14.11.2012, which is the date of coming into force of the POCSO Act. Further, it is seen that the petitioner/accused had married the 2[nd] respondent on 3.3.2014 and Annexure-4 is the marriage certificate issued by the Khazi/Secretary of the Jamath concerned certifying that the petitioner/accused had married the 2[nd] respondent lady victim on 3.3.2014 in accordance with personal applicable to Muslims as the said parties having the said religious faith. It appears that there are serious marital disputes between the petitioner/accused and the 2[nd] respondent and presumably on account of such disputes, the 2[nd] respondent has given the instant First Information Statement before the Police on 28.3.2016, which has led to the registration of the instant crime and submission of the impugned Annexure-A1 final report which in turn led to the pendency of the Sessions Case etc. Therefore, it is admitted case that even when the crime was registered on 28.3.2016 and after the alleged sexual incidents had taken place in the year 2012, the petitioner/accused had married the 2[nd] respondent on 3.3.2014 in accordance with personal applicable to the Muslim as Crl.M.C.No.7749/2018 4 evident from Annexure-4 marriage certificate. The case has taken further interesting twists and turns. Later, the 2[nd] respondent and the petitioner had sorted out the marital disputes and they had arrived at a settlement as per Annexure-2 for settling all the marital disputes. Annexure-A2 dated 5.12.2017 is the agreement entered between the parties laid down various terms and conditions regarding settlement of various issues in the marital disputes and including legal proceedings. The 2[nd] respondent had approached the Family Court, Thalassery by filing O.P.No.673/2017 seeking dissolution of the marriage between her and the petitioner/accused and based on the agreement between the parties, the Family Court has given a decree in the said Original Petition dissolving the marital ties between the 2[nd] respondent and the petitioner/accused, so that the 2[nd] respondent could marry another person of her choice. It is the case of the petitioner and the 2[nd] respondent that the marriage between them has now been legally dissolved and thereafter, after the divorce, the 2[nd] respondent has remarried another man and is now leading a family life with her new husband. 3. Sri. P.N. Sukumaran, learned counsel appearing for the petitioner/accused submits that even as on the date of filing of the FIS on 28.3.2016 in respect of the alleged sexual incident which happened in the year 2012, the 2[nd] respondent had already married the petitioner on 3.3.2014 and therefore, the initiation of the criminal proceedings as per the said FIR is nothing but sheer abuse of the process of the Court. Further that now as the parties have already settled their marital disputes, the 2[nd] respondent had already remarried Crl.M.C.No.7749/2018 5 another man, no worthwhile purpose will be subserved by the continuation of the impugned criminal proceedings against the petitioner and that this Court may quash the impugned criminal proceedings. 3. The learned counsel for the 2[nd] respondent would submit on the basis of the instructions of his party and also on the basis of Annexure-3 affidavit sworn to by her before this Court that she has settled all the marital disputes between the petitioner and their marital relationship has been dissolved in the manner known to law and that she had already remarried another man and she wants to give a quietus to this complaint and further the 2[nd] respondent would state that when she gave the complaint to the Police on 28.3.2016, which led to the registration of the FIR, she has already married the petitioner on 3.3.2014 and they were living upon separately due to the marital disputes and it is only on account of such disputes, she had given the complaint about the alleged incident, which happened in the year 2012 etc. 4. It is by now well settled that grave and serious offences as the one under Sec.376 (rape) of the I.P.C cannot be the subject matter of quashment of the impugned criminal proceedings on the ground of settlement between the accused and the victim. {see _**Shimbhu & Anr.**_ v. _**State of Haryana**_ [2014 (13) SCC 318], _**Parbatbhai Aahir**_ v. _**State of Gujarat**_ [ (2017) 9 SCC 641], _**Anita Maria Dias**_ v. _**State of Maharashtra**_ [(2018) 3 SCC 290], _**Sebastian @ Solly**_ v. _**State of Kerala**_ [2015 (1) KLJ 384 etc.}. However, this Court has held in various decisions including the one as in _**Freddy @ Antony Francis & Ors**_ . v. _**State of Kerala & Anr.**_ [2017 KHC 344= 2018 (1) KLD 558] that the exception to the above approach Crl.M.C.No.7749/2018 6 could be in cases where the accused has married the defacto complainant and they have decided to settle all the disputes and for the predominant purpose of the welfare of the defacto complainant/victim, to ensure her better future life, it is only just and proper that this Court in exercise of the extra ordinary inherent powers under Sec.482 of the Cr.P.C could quash the impugned criminal proceedings on the ground of settlement between the parties in cases where the accused has married the defacto complainant and the defacto complainant is insisting for quashment of the impugned criminal proceedings, etc. Therefore, it may not be right and proper for this Court to quash the impugned criminal proceedings mainly on account of the settlement between the parties as the offence alleged are those punishable under Section 376 of the IPC and Sections 3 and 4 of the POCSO Act, which deals with penetrative sexual assault of minors. At the outset, it has to be noted that the prosecution has no definite or precise case as to when the alleged sexual incident had happened in the year 2012. Unless the prosecution has a definite and precise case along with supporting materials that the alleged sexual incidents had happened on or before 14.11.2012 which is the date of coming into force of the POCSO Act, 2012, none of the offences as per POCSO Act could be pressed into service. In view of the said cardinal aspects, it is only to be held that the impugned criminal proceedings which has led to the inclusion of the offence as per Section 3(a), 4 and 5(f) and 6 of the POCSO Act, 2012 is liable to be quashed on that sole ground and it is accordingly, declared and ordered so. What remains is the offence as per Section 376 (2)(f) of the IPC. Crl.M.C.No.7749/2018 7 5. It has been held by this Court in the aforecited decisions as in _**Freddy @ Antony Francis & Ors**_ . v. _**State of Kerala & Anr.**_ [2017 KHC 344= 2018 (1) KLD 558] that in a case where the accused commits sexual intercourse on the victim on the assurance that he would marry the latter and later he is charged the offence of rape at the instance of the complaint given by the victim and subsequently, the accused marries the victim, then this Court could fittingly exercise the discretionary inherent powers under Section 482 of Cr.P.C. for quashing the impugned criminal proceedings for the offence of rape in a case involving an accused, who has subsequently married the victim. If that be so, this Court would only say that the said approach could also be fittingly invoked in a case like the present one where the alleged sexual incidents took place in the year 2012 and later the petitioner/accused had married the 2[nd] respondent on 3.3.2014. Taking note of the said fact, it is to be noted that when the 2[nd] respondent had lived separately from the petitioner/accused, she had given the impugned F.I.S. to the Police on 28.3.2016 which led to the registration of the instant crime. Even long prior thereto, the parties were married as early as on 3.3.2014 as per evident from Annexure-4 marriage certificate and also the admitted case of the 2[nd] respondent in the prosecution material. Therefore, at least further continuance of the impugned criminal proceedings could be interdicted as otherwise it would amount to sheer abuse of the process of the Court. Further it also appears that the 2[nd] respondent has already secured a valid decree of divorce from the Family Court, Thalassery in the aforementioned Original Petition, O.P.No.673/2017, whereby the 2[nd] respondent' marital ties with Crl.M.C.No.7749/2018 8 the petitioner/accused had already been dissolved. That apart she has now remarried another man and she is leading peaceful and harmonious marital life. 6. In the light of all these cumulative aspects, this Court has no hesitation to hold that at least further continuance of the impugned criminal proceedings would amount to sheer abuse of the process of the Court. Hence, in exercise of the inherent powers under Section 482 of Cr.P.C. it is ordered in the interest of justice that the impugned order Annexure-1 Final Report/Charge sheet filed in Crime No.376/2016 of Chokli Police Station, Thalassery, which has led to the pendency of Sessions Case, S.C.No.1006/2016 on the file of the First Addl. Sessions Court, Thalassery and all furthter proceedings emanating therefrom against the petitioner will stand quashed. The petitioner will produce certified copies of this order before the investigating officer concerned and the competent court below concerned. The office of the Advocate General will forward copy of this order to the investigating officer concerned for information. sd/- ## **ALEXANDER THOMAS, JUDGE.** acd Crl.M.C.No.7749/2018 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE 1 TRUE COPY OF THE FINAL REPORT IN SC NO. 1006/2016 OF ADDL. DIST. & SESSIONS COURT1, THALASSERY ANNEXURE 2 TRUE COPY OF THE AGREEMENT DATED 5.12.2017, EXECUTED BETWEEN THE DEFACTO COMPLAINANT/2ND RESPONDENT AND THE PETITIONER ANNEXURE 3 TRUE COPY OF THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT ANNEXURE 4 TRUE COPY OF THE MARRIAGE CERTIFICATE ISSUED FROM THE PULLOOKKARA JAMATH PALLI MAHAL COMMITTEE, PULLOOKKARA.**