Sharun K. Kurian v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **FRIDAY, THE 06TH DAY OF NOVEMBER 2020 / 15TH KARTHIKA, 1942** ## **Crl.MC.No.3543 OF 2020(C)** **AGAINST THE ORDER/JUDGMENT IN SC 89/2018 OF SPECIAL COURT FOR SC/ST (PREVENTION OF ATTROCITIES)** **CRIME NO.1083/2017 OF TOWN NORTH POLICE STATION, PALAKKAD** ## **PETITIONER/ACCUSED:** **SHARUN K.KURIAN AGED 29 YEARS S/O.KURIACHAN, KUNNAMPURATH HOUSE, UDHAYAPURAM, KODOTH, KASARGODE, NOW RESIDING AT A2-JOYLAND ANNEXE, VALYAPADAM ROAD, MAMANGALAM, ERNAKULAM (PIN - 682 024).** **BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P** ## **RESPONDENTS/DEFACTO COMPLAINANT & STATE:** - **1 VICTIM X XXXXXXXXXX XXXXXXXXXX** - **2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA - 682 031.** **R1 BY ADV. VINOD KUMAR.C** ## **SRI.B.JAYASURYA, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 06.11.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C No.3543 of 2020 2 # **ALEXANDER THOMAS, J.** ## **=========================== Crl.M.C No.3543 of 2020** **===========================** Dated this the 06[th] day of November, 2020 ## **ORDER** The prayer in the aforecaptioned Crl.Miscellaneous case filed under Sec.482 of the Cr.P.C is as follows : “............... _to call for the records relating to Ann-A Final report in Crime No.1083/2017 of Town North Police Station, Palakkad, quash the same and proceedings initiated there under as SC No.89/2018 on the file of Special Court for SC/ST (POA) Act, Mannarkkad, Palakkad, as against the petitioner and acquit him forthwith.”_ 2. Heard Sri.K.Sajan Vargheese, learned counsel appearing for the petitioner (sole accused), Sri.B.Jayasurya, learned Public Prosecutor appearing for the 2[nd] respondent-State of Kerala and Sri.C.Vinod Kumar, learned advocate appearing for contesting respondent No.1 (lady de facto complainant/lady victim). 3. The petitioner herein has been arrayed as the sole accused in the instant First Information Report in Crime No.1083/2017 of Palakkad Town North Police Station, which has been registered on 06.10.2017, for offences punishable under Secs.366 & 376(2)(n) of the Indian Penal Code and Secs.3(1)w(i), 3(2)(v) of the Scheduled Crl.M.C No.3543 of 2020 3 Castes/Scheduled Tribes (Prevention of Atrocities) Act 1989, as amended, on the basis of the First Information Statement conveyed by the 1[st] respondent-lady victim on the abovesaid day, in respect of the alleged incident which happened for the period from 01.07.2017 to 27.08.2017, etc. The police after investigation have filed the impugned Annexure-A final report/charge sheet in the said Crime No.1083/2017 of Palakkad Town North Police Station against the petitioner/accused for the abovesaid offences, which has now led to the pendency of sessions case S.C.No.89/2018 on the file of the Special Sessions Court for SC/ST (POA) Cases, Mannarkkad, Palakkad District. Later the abovesaid court has framed charges, as per Annexure-B dated 02.07.2020. 4. The gist of the prosecution is that the petitioner/accused then aged about 26 years belongs to the community other than the Scheduled Caste/Scheduled Tribe and that the 1[st] respondent-lady victim then aged 26 years belongs to the Scheduled Tribe community and that the petitioner was very well aware that the 1[st] respondent belongs to the said ST community and that the petitioner was having a love affair with the 1[st] respondent-victim and that he had consistently assured her and promised that he would marry her and on the basis of Crl.M.C No.3543 of 2020 4 that assurance, they had sexual relationship on three occasions and that later, the petitioner lost his interest to keep his promise to marry her and she felt cheated and has given the said complaint to the police, which has led to the registration of the abovesaid crime and the submission of the final report/charge sheet, etc. 5. Now it is submitted by Sri.K.Sajan Vargheese, learned Advocate for the petitioner/accused and Sri.C.Vinod Kumar, learned advocate appearing for the 1[st] respondent-lady victim that even before the filing of the impugned Annexure-A final report/charge sheet on 22.01.2018 and with the blessings and consent of both families and with the consent of the petitioner and the 1[st] respondent, the marriage between the petitioner and the 1[st] respondent has been lawfully solemnized on 08.01.2018 under Sec.13 of the Special Marriage Act and that Annexure-C is the statutory marriage certificate issued by the Statutory Registrar of Marriages under the said Act, which would certify the solemnization and registration of the marriage between them on 08.01.2018. Further that, a child has been born to them in the said wedlock and the petitioner, 1[st] respondent and the child are living happily in their marital home. Further that, the 1[st] respondent has filed Annexure-B affidavit stating about the factual aspects about her Crl.M.C No.3543 of 2020 5 solemnization of marriage with the petitioner on 08.01.2018, as evident from Annexure-C certificate and that the marriage has been solemnized with the consent of both sides and their families and that the allegations were made earlier on some misunderstandings and that she does not wish to continue the impugned criminal proceedings and that she has no objection for quashment of the impugned criminal proceedings. Further that, the future family of the 1[st] respondent and the child would detrimentally affect, if the impugned criminal proceedings is quashed, as the petitioner is now the husband of the 1[st] respondent and the father of the child born to her in the said marital relationship, etc. 6. The learned Public Prosecutor was requested to get instructions in the matter. Today when the matter has been taken up for consideration, Sri.B.Jayasurya, learned Public Prosecutor would submit on the basis of instructions that the Investigating Officer concerned has conducted an enquiry and has recorded the statement of the 1[st] respondent (victim), wherein it has been revealed that she has sworn to Annexure-B affidavit voluntarily and that the facts stated by her in Annexure-B affidavit are correct and true and that the marriage between the petitioner and the 1[st] respondent are lawfully solemnized Crl.M.C No.3543 of 2020 6 on 08.01.2018, as evident from Annexure-C marriage certificate. 7. It is by now well settled that it may not be right and proper for this Court ordinarily quash serious and grave offence of rape as per Sec.375 of the IPC, solely on the ground of settlement between the parties [see _**Shimbhu 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 decisions as in _**Freddy @ Antony Francis v. State of Kerala**_ [2017 KHC 344 = 2018 (1) KLD 558], _**Denu P.Thampi v. Ms.X**_ [2019 (3) KHC 199 = 2019 (2) KLT 996] that in a case where the petitioner/accused has married the respondent-lady victim and they have started their married life, then in appropriate cases, this Court could exercise its discretion conferred under Sec.482 of the Cr.P.C to quash offences, as per Sec.376 of the IPC on the ground that the victim has subsequently married the accused, as otherwise and where it is ascertained that the marriage was on the basis of consent of the parties and not on the basis of any coercion or threat on the victim, etc. Crl.M.C No.3543 of 2020 7 8. After hearing all the parties concerned and after due consideration of the facts and circumstances of the case as well as the pleadings and materials on record and taking into account the totality of the facts and circumstances of the case, this Court is of the considered view that the impugned criminal proceedings will be considered for quashment. This Court would take that view, taking into account the facts that even as per the allegations of the prosecution, the relationship started on the basis of love affair, in which there is an assurance of marriage and now the parties are married and a child born in that relationship and they are living together, etc. 9. In that view of the matter, it is ordered that the impugned Annexure-B final report/charge sheet filed in Annexure-A Crime No.1083/2017 of Palakkad Town North Police Station, which has now led to the pendency of sessions case S.C.No.89/2018 on the file of the Special Sessions Court for SC/ST (POA) Act cases, Mannarkkad, Palakkad as well as Annexure-B charges and all consequential proceedings arising therefrom as against the petitioner/accused, will stand quashed and set aside. Crl.M.C No.3543 of 2020 8 10. The petitioner will produce certified copies of this order to the Investigating Officer concerned as well as before the abovesaid Special Sessions Court, Mannarkkad, Palakkad, who is dealing with S.C.No.89/2018, for necessary information. With these observations and directions, the above Crl.M.C will stand disposed of. **Sd/-** **ALEXANDER THOMAS JUDGE** vgd Crl.M.C No.3543 of 2020 9 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** |**ANNEXURE A**|**CERTIFIED COPY OF THE FINAL REPORT IN**| |---|---| ||**CRIME NO.1083/2017 OF TOWN NORTH POLICE**| ||**STATION, PALAKKAD.**| |**ANNEXURE B**|**CERTIFIED COPY OF THE CHARGE FRAMED IN**| ||**SC NO.89/2018 ON THE FILE OF SPECIAL**| ||**COURT FOR SC/ST(POA) ACT, MANNARKKAD,**| ||**PALAKKAD.**| |**ANNEXURE C**|**TRUE COPY OF THE MARRIAGE CERTIFICATE**| ||**DATED 08/01/2018 ISSUED BY THE MARRIAGE**| ||**OFFICER, PALAKKAD.**| |**ANNEXURE D**|**ORIGINAL AFFIDAVIT DATED 23/07/2020**| ||**EXECUTED BY THE 1ST RESPONDENT HEREIN.**|