Venugopalan V.A. @ Venugopal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **TUESDAY, THE 13TH DAY OF OCTOBER 2020 / 21ST ASWINA, 1942** ## **Crl.MC.No.34 OF 2020(D)** **CRIME NO.549/2019 OF ALAPPUZHA NORTH POLICE STATION , Alappuzha** ## **PETITIONER/ACCUSED:** **VENUGOPALAN V.A. @ VENUGOPAL AGED 50 YEARS S/O.ACHUTHAN, VADAYIL HOUSE, NEHRU TROPHY WARD, ALAPPUZHA DISTRICT.** **BY ADVS.** **SRI.S.SHANAVAS KHAN SMT.S.INDU** ## **RESPONDENTS/STATE/COMPLAINANT/VICTIM:** **1 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 MOTHER OF LADY VICTIM X 3 LADY VICTIM X** **BY ADVS. R2-3 BY ADV. K.NAJEEB SRI.SAIGI JACOB PALATTY, PUBLIC PROSECUTOR** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 13.10.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.MC.No.34 OF 2020(D)** **2** ## **ALEXANDER THOMAS, J. -----------------------------------Crl.M.C.No.34 of 2020 -----------------------------------Dated this the 13[th] day of October, 2020** ## **ORDER** The prayer in the aforecaptioned Criminal Miscellaneous Case filed under Section 482 of the Cr.P.C. is as follows: _“....to quash the FIR in Crime No.549/2019 of Alappuzha North Police Station, by allowing this Memorandum of Criminal Miscellaneous Case.”_ 2. Heard Sri.S.Shanavas Khan, learned counsel appearing for the petitioner (sole accused), Sri.Saigi Jacob Palatty, learned Public Prosecutor appearing for the R1-State of Kerala and Sri.K.Najeeb, learned Advocate appearing for contesting respondent Nos.2 and 3 (mother of the victim girl and the victim girl, respectively). 3. The petitioner herein has been arrayed as the sole accused in the instant Annexure A FIR in Crime No.549 of 2019 of Alappuzha North Police Station, which has been registered for offences punishable under Sections 354 A, 354 D of the IPC, Section 9 read with Section 10 of the Protection of Children From Sexual Offence Act, 2012 (POSCO Act, 2012) and Sections 3 (1)(w)(i) of the SC/ST (Prevention of Atrocities) Act, 1989 as amended in 2015. 4. The gist of the prosecution case is that the petitioner is a **Crl.MC.No.34 OF 2020(D)** **3** police official and he is neighbour of the minor victim girl, then aged 17 years and that her date of birth is 20.10.2001 and that on 04.04.2019 at about 7.45 p.m. the petitioner/accused had outraged the modesty of the girl by putting his hand over her shoulder and touched her chest. It is now common ground that as the victim girl belongs to Cheramar Christian Community, she does not belong to the notified Scheduled Community and therefore, the offense as to the provisions of the Sections 3 of the SC/ST (POA) Act does not lie and hence the said offence was already deleted by the prosecution agency from the impugned crime. 5. The counsel for the petitioner would point out that the abovesaid allegations have been falsely foisted on his party at the instance of the family of the victim girl due to prior enmity and it is pointed out that the victim girl's cousin brother had taken away the petitioner's sister's minor daughter and the petitioner's sister had complained to the same Police Station and the girl was brought back to the petitioner's sister's house. After the petitioner's niece had completed the age of the majority, the cousin brother of the minor victim girl had again taken away girl etc. which also led to complaints and in relation to these incidents, the family of 3[rd] respondent victim girl was under the impression that the petitioner being a police official **Crl.MC.No.34 OF 2020(D)** **4** had helped his sister in the abovesaid incidents and it is on account of the prior animosity that the abovesaid allegations have been falsely foisted on him as retaliation. Further that since the petitioner's family could gather that some serious efforts have been taken by the minor victim girl's family to lodge a false complaint against the petitioner, the petitioner's wife had immediately given a complaint to the Police on 05.04.2019 apprehending that some false complaint will be lodged by the minor victim girl's family as against the petitioner and that the instant crime as per Annexure A has thus been registered on 08.04.2019 by showing as if the FI Statement was recorded on 04.04.2019 and that as a matter of fact, if the FI Statement was actually given on 04.04.2019, then ordinarily FIR would also been registered immediately thereafter on the same day and the very belated registration of Annexure A FIR on 08.04.2019 at about 4 p.m. would clearly raise serious doubts and credibility about the very believability and credibility of the prosecution allegation in the instant case. As per Annexure B order, this Court has granted anticipatory bail to the petitioner in relation to his involvement in the instant crime. 6. Now, it is submitted by Sri.S. Shanavas Khan, learned counsel appearing for the petitioner/accused and Sri.K. Najeeb, **Crl.MC.No.34 OF 2020(D)** **5** learned Advocate appearing for respondent Nos.2 and 3 that the issues between the abovesaid parties have been settled by the intervention of mutual friends and well-wishers and that contesting respondent Nos.2 and 3 have filed separate affidavits as per Annexure C dated 23.12.2019 and Annexure D dated 23.12.2019 stating that the minor victim girl has already completed the majority age of 18 years and that the abovesaid allegations have been made out of her misunderstandings and that contesting respondent Nos.2 and 3 are no longer interested to prosecute the matter any further etc. The petitioner has also produced a compromise petition signed by all the parties concerned which has been produced along with Crl MA No.2 of 2020 in the above said Crl MC. 7. The learned Public Prosecutor was requested to get instructions in the matter from the investigating officer concerned. Today when the matter has been taken for consideration, the learned Public Prosecutor appearing for the respondent State of Kerala would submit that the investigating officer in this case has already conducted the enquiry and has recorded the statements of both R2 and R3 and now it is revealed that the 3[rd] respondent victim girl has already completed the majority age of 18 years and that respondents Nos.2 and 3 have voluntarily executed Annexures C and D affidavits and that the **Crl.MC.No.34 OF 2020(D)** **6** settlement and compromise arrived between them appear to be bonafide and done voluntarily, etc. 8. After hearing both sides, it is seen that the main allegations raised in this crime are those of punishable under Sections 354 A and 354 D of the IPC and the offences alleged under POSCO Act are those as per Section 9(a) which is punishable under Section 10 thereof. The said offences deal with non-penetrative sexual assault. There are no serious allegations of any penetrative sexual assault in this case. The petitioner has made out strong grounds for raising serious question marks about the very believability and credibility of the prosecution allegations in view of the submissions noted hereinabove. So also, there is substantial delay in registration of the FIR. If, as a matter of fact, the FIS was recorded as early as on 04.04.2019, it does not stand to reason as to why the Police have belatedly registered the FIR on 08.04.2019. Now, going by internal page 6 of Annexure A FIR it is seen that the date of birth of the 3[rd] respondent victim girl is 20.10.2001 and she has completed the majority age of 18 years on 20.10.2019. The parties have now settled the issues. There are no allegations of penetrative sexual assault. 9. In a catena of decisions, the Apex Court has held that, in appropriate cases involving even non-compoundable offences, the **Crl.MC.No.34 OF 2020(D)** **7** High Court can quash prosecution by exercise of the powers under Sec.482 of the Cr.P.C., if the parties have really settled the whole dispute or if the continuance of the prosecution will not serve any purpose. Here, this Court finds a real case of settlement between the parties and it is also found that continuance of the prosecution in such a situation will not serve any purpose other than wasting the precious time of the court, when the case ultimately comes before the court. On a perusal of the petition and on a close scrutiny of the investigation materials on record and the affidavit of settlement and taking into account the attendant facts and circumstances of this case, this Court is of the considered opinion that the legal principles laid down by the Apex Court in the cases as in _**Gian Singh** v._ _**State of Punjab**_ reported in 2013 (1) SCC (Cri) 160 = (2012) 10 SCC 303 and _**Narinder Singh and others v. State of Punjab and anr**_ . reported in (2014) 6 SCC 466, more particularly paragraph 29 thereof, could be applied in this case to consider the prayer for quashment. 10. Taking note of the totality of the facts and circumstances of the case, this Court is of the considered view that the inherent powers for quashment of the impugned criminal proceedings could be considered in this case. Accordingly, it is ordered in the interest of justice that the impugned Annexure A FIR in crime No.549 of 2019 of **Crl.MC.No.34 OF 2020(D)** **8** Alappuzha North Police Station in which the petitioner has been arrayed as the sole accused therein and all further proceedings emanating therefrom as against the petitioner/accused shall stand quashed and set aside. The petitioner will produce certified copies of this order before the investigating officer concerned as well as before the First Additional Sessions Court notified to deal with POSCO cases, Alappuzha for necessary information. With these observations and directions, the above Criminal Miscellaneous Case will stand disposed of. **Sd/ALEXANDER THOMAS JUDGE** SCS **Crl.MC.No.34 OF 2020(D)** **9** ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **ANNEXURE A TRUE COPY OF THE FIR IN CRIME NO.549/2019 OF ALAPPUZHA NORTH POLICE STATION. ANNEXURE B TRUE COPY OF THE ORDER DATED 30.5.2019 IN B.A.NO.3242/2019 OF THIS HON'BLE COURT.** **ANNEXURE C TRUE COPY OF THE AFFIDAVIT OF THE SECOND RESPONDENT EVIDENCING THE FACTUM OF SETTLEMENT BETWEEN THE PARTIES.** **ANNEXURE D TRUE COPY OF THE AFFIDAVIT OF THE THIRD RESPONDENT EVIDENCING THE FACTUM OF SETTLEMENT BETWEEN THE PARTIES.** //TRUE COPY// PA TO JUDGE