Thowfeek and Ansarudheen v. State of Kerala and Another

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A. BADHARUDEEN`** ``` THURSDAY, THE 25[TH] DAY OF JULY 2024 / 3RD SRAVANA, 1946 ``` ## **`CRL.MC NO. 4589 OF 2020`** ``` CRIME NO.1370/2018 OF KADAKKAL POLICE STATION, KOLLAM SC NO.463 OF 2019 OF 1ST ADDITOINAL SESSIONS COURT, KOLLAM ``` ## **`PETITIONERS/ACCUSED NUMBERS 1 AND 2:`** - **`1 THOWFEEK, AGED 22 YEARS S/O.SALEEM, ANNAYIL VEETTIL, KUMMIL VILLAGE, KUMMIL P.O., KOLLAM.`** - **`2 ANSARUDHEEN, AGED 22 YEARS S/O.HUSSAIN, NELLIKKAATTIL VEETTIL, KUMMIL ANNA, KUMMIL VILLAGE, KUMMIL P.O., KOLLAM.`** ``` BY ADV S.R.SREEJITH ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** - **`1 STATE OF KERALA THROUGH THE S.I. OF POLICE, KADAKKAL POLICE STATION, KOLLAM RURAL DISTRICT, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, PIN-682 018.`** - **`2 XXXX XXXX`** - **`R1 BY PUBLIC PROSECUTOR SRI.M.P.PRASANTH`** - **`R2 BY ADV.SAKIR.K.H.`** ``` THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25.07.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NO. 4589 OF 2020 2 ``` ## **ORDER** Dated this the 25[th] day of July, 2024 This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, 1973, by the petitioners, who are accused Nos.1 and 2 in Crime No.1370/2018 of Kadakkal police station, Kollam Rural District, now pending as S.C.No.463/2019 on the files of the 1[st] Additional Session Court, Kollam and the prayer herein is as under: _To quash all further proceedings against the petitioners/accused 1 and 2 in S.C.No.463/2019 on the file of the 1[st] Additional Sessions Court, Kollam._ 2. Heard the learned counsel for the petitioners and the learned Public Prosecutor. Perused the relevant records. 3. In this case, the prosecution alleges commission of offences punishable under Sections 341 and 506(i) r/w Section 34 of the Indian Penal Code as well as under Sections 11(i) and 12 of the Protection of Children from Sexual Offences Act, 2012 (for short, 'the PoCSO Act' hereinafter). The prosecution allegation is ## **`CRL.MC NO. 4589 OF 2020 3`** that, at about 17.00 hrs. on 24.7.2018, the 1[st] accused, along with the 2[nd] accused, in furtherance of their common intention and animosity against the victim, for the reason of denial of love towards the 1[st] accused, the 1[st] accused showed a gesture, by raising his middle finger against the de facto complainant, while she was standing at the bus stop. 4. The learned counsel for the petitioners pointed out that, the one and only allegation against the 1[st] accused is, showing a signal against the minor victim, while she was standing at the bus stop, by raising his middle finger and accordingly, the prosecution would allege that, that is a gesture with sexual intent. He also submitted that, now the victim attained majority and the victim filed affidavit stating that she has no grievance. Therefore, quashment may be allowed, holding that, prima facie, prosecution allegations not made out. 5. Though the learned Public Prosecutor opposed quashment, he also conceded the fact that the only allegation is showing of a sign by using the hand and no other over acts could be gathered from the prosecution records. ``` CRL.MC NO. 4589 OF 2020 4 ``` 6. In view of the rival arguments, the ingredients to attract Section 11 (i) of the PoCSO Act, required to be addressed. For this purpose, reference to Section 11(i) of the PoCSO Act, is necessary. The same is as under: ## _**S.11(i) of PoCSO Act:**_ _**11.** A person is said to commit sexual harassment upon a child when such person with sexual intent:-_ _(i) utters any word or makes any sound, or makes any gesture or exhibits any object or part of body with the intention that such word or sound shall be heard, or such gesture or object or part of body shall be seen by the child._ 7. Adverting to the power of this Court to quash criminal proceedings resorting to Section 482 of the Cr.P.C., indubitably, in respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim ``` CRL.MC NO. 4589 OF 2020 5 ``` can have no legal sanction at all. In a case of rape or attempt of rape, the conception of compromise under no circumstances can really be thought of. These are crimes against the body of a woman which is her own temple. These are offences which suffocate the breath of life and sully the reputation. And reputation, needless to emphasise, is the richest jewel one can conceive of in life. No one would allow it to be extinguished. When a human frame is defiled, the "purest treasure", is lost. Dignity of a woman is a part of her non-perishable and immortal self and no one should ever think of painting it in clay. There cannot be a compromise or settlement as it would be against her honour which matters the most. It is sacrosanct. Sometimes solace is given that the perpetrator of the crime has acceded to enter into wedlock with her which is nothing but putting pressure in an adroit manner; and that the Courts are to remain absolutely away from this subterfuge to adopt a soft approach to the case, for any kind of liberal approach has to be put in the compartment of spectacular error. Or to put it differently, it would be in the realm of a sanctuary of error. Such an attitude reflects lack of sensibility towards the dignity, the elan vital, of a ``` CRL.MC NO. 4589 OF 2020 6 ``` woman. Any kind of liberal approach or thought of mediation in this regard is thoroughly and completely sans legal permissibility. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences. In other words, grave or serious offences or offences which involve moral turpitude or have a harmful effect on the social and moral fabric of the society or involve matters concerning public policy, cannot be construed betwixt two individuals or groups only, for such offences have the potential to impact the society at large. Effacing abominable offences through quashing process would not only send a wrong signal to the community, but may also accord an undue benefit to unscrupulous habitual or professional offenders, who can secure a “settlement” through duress, threats, social boycotts, bribes or other dubious means. It is well said that “let no ``` CRL.MC NO. 4589 OF 2020 7 ``` guilty man escape, if it can be avoided.” 8. Thus, the law as it stands is that although High Court can invoke its jurisdiction u/s.482 Cr.P.C. even in noncompoundable offence and can quash the proceedings on the basis of settlement arrived at between the parties even in the cases of non-compoundable offences but while exercising its jurisdiction this Court must consider the fact that whether the proceeding relates to any serious and heinous offences and whether the crime in question has impact over the society. In cases of serious nature which affects the society at large this Court should not exercise its jurisdiction under Section 482 Cr.P.C. for quashing the proceedings on the basis of compromise executed between the v. parties. (See decisions in **Gian Singh State of Punjab and Another** reported in **[(2012) 10 SCC 303], Narinder Singh and Others** v. **State of Punjab and Another** reported in **[(2014) 9 SCC 466], Shimbhu** v. **State of Haryana** reported in **[AIR 2014 Supreme Court 739]** (three Bench) **, State of Madhya Pradesh** v. **Madanlal** reported in **[AIR 2015 Supreme Court 3003]** (two Bench), **Parbatbhai Aahir @** ## **`CRL.MC NO. 4589 OF 2020 8`** **Parbatbhai Bhimsinhbhai Karmur and Others** v. **State of Gujarat and Another** reported in **[(2017) 9 SCC 641], State** v. **of Madhya Pradesh Laxmi Narayan & Ors** . reported in **[(2019) 5 SCC 688], Arun Singh and Others** v. **State of Uttar Pradesh Through its Secretary and Another** reported in **[(2020) (3) SCC 736], Ram Gopal & Another** v. **State of Madhya Pradesh** reported in **[(2021 0 Supreme (SC) 529)], Daxaben** v. **The State of Gujarat & others** reported in **[2022** v. **LiveLaw (SC) 642], P.Dharmraj Shanmugam and others** decided on 8[th] September 2022 in Crl.Appeal Nos.15151516 of 2022). 9. At the same time, there is no hard and fast rule that, when the prosecution case not prima facie made out, quashment should be disallowed, particularly, when the victim has no grievance. In this matter, the allegation is too trivial to constitute the offences alleged and the allegation is confined showing of his middle finger to the victim. In such view of the matter, acting on the affidavit filed by the victim, in the interest of justice, quashment sought for can be allowed. ``` CRL.MC NO. 4589 OF 2020 9 ``` Accordingly, this Criminal Miscellaneous Case stands allowed and all further proceedings against the petitioners herein/accused Nos.1 and 2 in S.C.No.463/2019 on the files of the 1[st] Additional Sessions Court, Kollam, arose out of Crime No.1370/2018 of Kadakkal police station, Kollam Rural District, stand quashed. Registry is directed to inform this matter to the trial court forthwith. Sd/- **A. BADHARUDEEN JUDGE** Bb ``` CRL.MC NO. 4589 OF 2020 10 ``` ## **`APPENDIX OF CRL.MC 4589/2020`** ``` PETITIONERS’ ANNEXURES ``` ``` ANNEXURE A1CERTIFIED COPY OF THE F.I.R. IN CRIME NO.1370/2018 OF KADAKKAL POLICE STATION, KOLLAM RURAL DISTRICT. ``` ``` ANNEXURE A2TRUE COPY OF THE FINAL REPORT IN CRIME NO.1370/2018 OF KADAKKAL POLICE STATION, KOLLAM RURAL DISTRICT. ``` ``` ANNEXURE A3AFFIDAVIT DATED 27.08.2020 SWORN TO BY THE 2ND RESPONDENT BEFORE NOTARY PUBIC. ``` ``` RESPONDENTS’ ANNEXURES : NIL ```