Sujeesh M.C. v. State of Kerala and Aparna V.V.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **WEDNESDAY, THE 23RD DAY OF JANUARY 2019 / 3RD MAGHA, 1940 Crl.MC.No. 5603 of 2018** **SC 27/2017 of ADDL. D.C. & SESSIONS COURT - I, KASARAGOD CRIME NO. 678/2016 OF NILESWAR POLICE STATION, KASARAGOD** ## **PETITIONER/ACCUSED:** **SUJEESH M.C. AGED 28 YEARS S/O.C.CHANDRAN, EACHITHADAM, MUNGATH HOUSE, MADIKAI VILLAGE, HOSDURG TALUK, KASARAGOD DISTRICT.** **BY ADVS. KARTHIK BHAVADASAN SRI.S.VISHNU (TRIPUNITHURA)** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA, REPRESENTED BY THE S.I OF POLICE, (CRIME 678/16), NILESHWARAM POLICE STATION, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 APARNA V.V., AGED 18 YEARS D/O SREEDARAN V.K., VADAKKEVEEDU, THEKKAN BANGALAM, MADIKAI VILLAGE, KASARAGOD DISTRICT-671125.** **BY ADVS.** **SRI.N.K.MANOJ KUMAR** ## **SRI T R RENJITH PP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 23.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.MC.No. 5603 of 2018 2 ## **ORDER** This petition is filed under Section 482 of the Code of Criminal Procedure (“the Code” for brevity) with a prayer to quash the proceedings pending against the petitioner. 2. The petitioner herein is the accused in S.C.No.27 of 2017 on the file of the Additional Sessions Judge (I), Kasaragod. He stands indicted for having committed offences punishable under Section 376 of IPC and Section 5(l) r/w Section 6 of the Protection of Children from Sexual Offences Act, 2012. 3. According to the prosecution, the victim in the instant case was a minor girl aged 16 years in the month of October, 2016. She was in love with the petitioner. The petitioner approached her sometime in the month of October, 2016 and is alleged to have threatened her that he would commit suicide if she did not accede to his wishes to have a sexual relationship. She further stated that even on previous occasions, the petitioner had subjected her to penetrative sexual intercourse. Based on the information furnished by the victim, the Crime was initially registered on 9.10.2016 and thereafter on Crl.MC.No. 5603 of 2018 3 completion of investigation, final report was laid before the jurisdictional court. 4. The learned counsel appearing for the petitioner submitted that during the pendency of the proceedings, the petitioner married the 2[nd] respondent on 1.6.2018 and they are now living together as husband and wife. He would refer to Annexure-II certificate of marriage to substantiate his contention. According to the learned counsel, the records would reveal that the petitioner and the de facto complainant were in love and it was based on a misunderstanding that the petitioner would not marry the victim that frivolous accusations were raised against the petitioner. There was no sexual relationship between the parties and the medical examination report also would not support the said fact. Now the parties are living together, further proceedings would clearly be an abuse of process of law, submits the learned counsel. 5. The de facto complainant has been arrayed as the 2[nd] respondent in the petition. She has filed Annexure-III affidavit wherein she has stated that the petitioner is her husband and she had lodged the complaint under the persuasion of her parents, who were initially Crl.MC.No. 5603 of 2018 4 not interested in marrying the petitioner. She would also place heavy reliance on Annexure-II marriage certificate and it was submitted that it would only lead to travesty of justice if the petitioner is proceeded further. 6. The learned Public Prosecutor was directed to get instructions. He placed before this Court the statement of the victim recorded by the investigating officer, wherein she has stated that she is living a happy married life and she does not want the same to be disturbed by a criminal prosecution. 7. I have considered the submissions advanced and have gone through the materials made available. 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 Section 320 of the Code. In Crl.MC.No. 5603 of 2018 5 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, 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 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 ] serve as guiding lights. 9. 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 non- Crl.MC.No. 5603 of 2018 6 compoundable 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 consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim 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. 10. However in the instant case, it is borne out from the statement recorded by the Sub Inspector of Police that the parties were in love and the Crime was registered under the premise that the petitioner would not marry the victim. However, in view of the subsequent turn of events, she has realized that her apprehension was baseless. The parties are living together as husband and wife. 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 Crl.MC.No. 5603 of 2018 7 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. When the 2[nd] respondent has asserted that she has married the petitioner and this facts finds corroboration from Annexure B certificate of marriage. She has also filed an affidavit stating that she is not desirous of prosecuting against her husband any further. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case 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 extra ordinary powers under Section 482 of the Code to quash the proceedings. In the result this petition will stand allowed. Annexure-I Final Report and all proceedings pursuant thereto against the Crl.MC.No. 5603 of 2018 8 petitioner herein in S.C.No.27 of 2017 on the file of the Additional District & Sessions Court (I), Kasaragod are quashed. **Sd/-** **RAJA VIJAYARAGHAVAN V** **JUDGE** IAP Crl.MC.No. 5603 of 2018 9 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE I** **A CERTIFIED COPY OF THE FINAL REPORT IN S.C. 27/2017 PENDING ON THE FILE OF ADDITIONAL DISTRICT & SESSIONS COURT(I) KASARAGOD** **ANNEXURE II ANNEXURE III** **TRUE COPY OF THE MARRIAGE CERTIFICATE** **AFFIDAVIT SWORN BY CW1 IN ANNEXURE-I** **RESPONDENTS' EXHIBITS:** NIL