Uthayakumar v. State of Kerala and Victim X

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **MONDAY, THE 02ND DAY OF DECEMBER 2019 / 11TH AGRAHAYANA, 1941** ## **Crl.MC.No.8349 OF 2019(C)** **CRIME NO.308/2018 OF Vadakkanchery Police Station , Thrissur** ## **PETITIONER/S:** **UTHAYAKUMAR, AGED 29 YEARS S/O.M.RAMESH, DOOR NO.378, AZHAGAR STREET, NEIKUPPAI, PANDANALLUR P.O., THIRUVIDAIMARUTHUR TALUK, THANJAVUR DISTRICT, TAMIL NADU-609 807.** **PRESENTLY RESIDES AT. ERAKKATH HOUSE, MANALITHARA DESOM, WADAKKANCHERY, THRISSUR-680 589.** **BY ADVS. SRI.MANU TOM SRI.BALU TOM SRI.K.R.JITHIN** ## **RESPONDENT/S:** **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **2 VICTIM X** **R2 BY ADV. SHRI.BALAMURALI K.P. R2 BY ADV. SMT.P.DARLY JOHN R2 BY ADV. SRI.K.T.BOSCO** ## **OTHER PRESENT:** ## **SRI.T.R.RENJITH, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 02.12.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ::2:: **Crl.MC.No.8349 OF 2019(C)** ## **ALEXANDER THOMAS, J** . ----------------------------Crl.M.C.No.8349 Of 2019 --------------------------------Dated this the 2[nd] day of December, 2019. ## **O R D E R** The prayer in the above Criminal Miscellaneous Case filed under Sec.482 of the Cr.P.C is as follows: _“.................. to quash the (annexure-B) F.I.R and all further proceedings pursuant to it, in Crime No.308/2018 of Wadakkanchery Police station, Thrissur, against the petitioner/accused in the interest of justice.”_ 2. Heard Sri.Balu Tom Cheruvally, learned counsel for the petitioner-accused, Sri.T.R.Renjith, learned Prosecutor appearing for R-1 State of Kerala and Sri.K.P.Balamurali, learned counsel appearing for the contesting respondent R-2 (lady de facto complainant). 3. The petitioner has been arrayed as the sole accused in the impugned Anx-B FIR in Crime No.308/2018 of Wadakkanchery Police Station, Thrissur District, which has been registered for offences punishable under Secs.376(2), 376(2)(f) & 376(2)(n) of the I.P.C and Secs.6, 5j(ii), 5l & 5n of ::3:: ## **Crl.MC.No.8349 OF 2019(C)** the POCSO Act. The said Crime has been registered on the basis of the FI statement given by the victim on 9.6.2018 at about 6:00 p.m. in respect of the alleged incidents happened for the period from 1.12.2017 to 30.4.2018. 4. The case set up in the FI statement submitted on 9.6.2018 is to the effect that the victim's date of birth is 8.4.2000 and that she has completed the majority age of 18 years on 8.4.2018 and that in December, 2017, when she was a minor, the petitioner-accused had assured that he would marry her and had subjected her to sexual intercourse and that later in April, 2018, he again had sexual intercourse with the victim and later she became pregnant on account of that, etc. It is common ground that in the subsequent statement given by the 2[nd] respondent-victim, which has been recorded by the learned Magistrate under Sec.164 of the Cr.P.C that she has not stated about any of the incidents that she was subjected to sexual intercourse, after she had completed the age of 18 years. Further that the case of the victim all ::4:: ## **Crl.MC.No.8349 OF 2019(C)** throughout is that she had a love affair with the petitioneraccused and the alleged sexual relationship was with her consent. 5. It is now submitted that later the disputes between the parties have been resolved and the petitioner-accused had married the victim on 17.6.2018 and the said marriage has been so registered under the provisions of Tamil Nadu Registration of Marriages Act, 2019, and the statutory Marriage Registrar appointed under the said enactment has issued Anx-A marriage certificate wherein it is certified about the solemnization of the marriage between the parties on 17.6.2018. Further that, the 2[nd] respondent-victim has also sworn to Anx-C affidavit stating that her marriage was solemnized with the petitioner as evident from Anx-A marriage certificate, that a child has also born in the said wedlock and that the said affidavit has been sworn to at her own interest and this Court may quash the further proceedings as otherwise it will detrimentally affect the future married life, etc. ::5:: ## **Crl.MC.No.8349 OF 2019(C)** 6. Since the victim herself has not made any allegations in Sec.164 of the Cr.P.C statement given by her before the learned Magistrate about any incidents of sexual intercourse at the time when she was a minor and the entire incidents have happened after she had attained the majority age of 18 years, and the basic case projected by her is that there was a love affair between the parties and the alleged incidents of sexual relationship had occurred only with the consent of both parties and so the vital ingredients of offence of rape are not made out in this case. 7. 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 ::6:: ## **Crl.MC.No.8349 OF 2019(C)** decisions including the one as in _**Freddy @ Antony Francis & Ors. v. State of Kerala & Anr**_ . [2017 KHC 344 = 2018 (1) KLD 558) and _**Denu P. Thampi v. Ms. X**_ [2019 (3) KHC 199 = 2019 (2) KLT 996] that exception to the above approach could be taken 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. 8. In the light of the abovesaid aspects, more particularly, in the light of the abovesaid submission made on behalf of the 2[nd] respondent-victim, this Court is inclined to consider the plea for quashment of the impugned criminal ::7:: ## **Crl.MC.No.8349 OF 2019(C)** proceedings, as otherwise it will detrimentally affect the family life of the de facto complainant. Accordingly, it is ordered that the impugned Anx-B FIR in Crime No.308/2018 of Wadakkanchery Police Station, Thrissur District, and all further proceedings taken in pursuance thereof as against the petitioner-accused will stand quashed. The petitioner may produce certified copies of this order before the court below concerned and before the Investigating Officer concerned for necessary information. The Office of the Advocate General will also forward a copy of this order to the Investigating Officer concerned. With these observations and directions, the above Crl.M.C. stands finally disposed of. **Sd/ALEXANDER THOMAS, Judge.** bkn/- ::8:: **Crl.MC.No.8349 OF 2019(C)** ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **ANNEXURE A THE ATTESTED COPY OF THE MARRIAGE CERTIFICATE.** **ANNEXURE B CERTIFIED COPY OF THE FIR ALONG WITH FIS IN CRIME NO.308/2018 OF WADAKKANCHERY POLICE STATION, THRISSUR. ANNEXURE C THE ORIGINAL OF THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT/DEFACTO COMPLAINANT.**