Vishnu S.S. @ Unni v. State of Kerala and Arya A.S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V** **MONDAY, THE 16TH DAY OF JANUARY 2017/26TH POUSHA, 1938** **Crl.MC.No. 38 of 2017 () ------------------------CRIME NO. 904/2016 OF VIZHINJAM POLICE STATION. ......** ## **PETITIONER/ACCUSED:** **------------------------------------** **VISHNU S.S. @ UNNI, AGED 21, S/O. SREEKUMAR, RESIDING AT THOTTAM, KIZHANGUVILA VEEDU, MULLOOR P.O., THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.RAJESH P.NAIR.** **RESPONDENTS/STATE, DEFACTO COMPLAINANT & VICTIM: ----------------------------------------------------------------------------------------** |**1.**|**THE STATE OF KERALA,**| |---|---| ||**REPRESENTED BY THE PUBLIC PROSECUTOR,**| ||**HIGH COURT OF KERALA, ERNAKULAM, KOCHI-682 031.**| |**2.**|**ARYA A.S.,**| ||**D/O. ALEX A., VADAKKEVALIYAVILA,**| ||**MULLOOR, MULLOOR P.O.,**| ||**THIRUVANANTHAPURAM DISTRICT-695 003.**| **R1 BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. R2 BY ADV. SRI.S.MOHAMMED AL RAFI.** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 16-01-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## **Crl.MC.No. 38 of 2017** ## **APPENDIX** ## **PETITIONER'S ANNEXURES:-** **ANNEXURE A1 CERTIFIED COPY OF THE F.I.R. DATED 18.06.2016 IN CRIME NO.904/2016 OF VIZHINJAM POLICE STATION SUBMITTED BEFORE THE TEMPORARY JUDICIAL FIRST CLASS MAGISTRATE COURT, NEYYATTINKARA. ANNEXURE A2 TRUE COPY OF THE CERTIFICATE OF MARRIAGE ISSUED BY THE MARRIAGE OFFICER, VENGANNUR SUB REGISTRAR OFFICE DATED 22.08.2016. ANNEXURE A3 TRUE COPY OF SECONDARY SCHOOL LEAVING CERTIFICATE SHOWING THE DATE OF BIRTH OF THE PETITIONER. ANNEXURE A4 TRUE COPY OF SECONDARY SCHOOL LEAVING CERTIFICATE SHOWING THE DATE OF BIRTH OF THE SECOND RESPONDENT/DE-FACTO COMPLAINANT. ANNEXURE A5 NOTARIZED AFFIDAVIT SWORN TO BY THE SECOND RESPONDENT DATED 26.12.2016.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** **P.S. TO JUDGE** rs. ## **RAJA VIJAYARAGHAVAN.V., J** - - - - - - - - - - - - - - - - - - - - ## Crl.M.C. No. 38 of 2017 - - - - - - - - - - - - - - - - Dated 16[th] January, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **ORDER** - 1.This petition is filed under section 482 of the Code of Criminal Procedure. - 2.The petitioner herein is the sole accused in Crime No.904/2016 of Vizhinjam Police Station registered alleging offences punishable under Sections 3 and 4 of the Protection of Children from Sexual Offences Act, 2012 and Section 313 and 376 of the IPC. The 2[nd] respondent is the de facto complainant. - 3.The aforesaid crime has been registered on 18.6.2016 on the basis of the information given by the 2[nd] respondent herein. According to her, she was in love with the petitioner who was her neighbor. While she was in the 10[th] standard, in the year 2013, she used to work as a sales girl in a textile shop at Balaramapuram. In the month of October, 2013 as previously planned, the Crl.M.C. No.38 of 2017 -2- petitioner went to the house of the de facto complainant and they had physical relationship. She alleges that she became pregnant which ended up in an abortion. In the year 2016, it appears that the petitioner joined a company as computer mechanic and shifted to Parasala. From January, 2016 onwards, the petitioner stopped messaging and calling 2[nd] respondent. In February, 2016 she conducted a pregnancy test, which was positive. According to the 2[nd] respondent, the petitioner obtained her consent on the assurance that he would marry her. When he started withdrawing from her company, she furnished a statement on 18.6.2016 based on which aforesaid crime has been registered. In this context, it would be relevant to note that the incident mentioned in the F.I Statement took place in the year 2013 when the 2[nd] respondent was 15 year old. At the time of giving F.I Statement, she was 18 years old. - 4.After registration of the crime, it appears that the Crl.M.C. No.38 of 2017 -3- petitioner married the 2[nd] respondent on 22.8.2016 as per the provisions of the Special Marriage Act, 1954. The parties are now living together as husband and wife. It is in the aforesaid circumstance that this petition is filed seeking to quash the proceedings on the ground that continuance of proceedings against the petitioner is an abuse of process. - 5.The 2[nd] respondent has entered appearance and according to her, she is living with the petitioner and his mother and as the petitioner has married her, she does not want to continue the prosecution proceedings. - 6.The learned counsel appearing for the petitioner submits that the allegation of rape and commission of sexual offence against the petitioner was raised when the 2[nd] respondent was under the impression that the petitioner would not marry her. The undue delay of almost 3 years in registering the FIR is also highlighted by the learned counsel to contend that the only intention of the 2[nd] Crl.M.C. No.38 of 2017 -4- respondent was to marry the petitioner herein and nothing else. It is further urged by the learned counsel that the petitioner had all along been waiting for the 2[nd] respondent to attain majority before tying the knot. - 7.The learned Public Prosecutor on instructions submits that the enquiry conducted revealed that the petitioner had married the 2[nd] respondent and they were living together as husband and wife. It is submitted that the medical evidence did not support the case of the 2[nd] respondent and there was no material to show that she was violated or that she had underwent an abortion. - 8.I have considered the submissions and have perused the case diary. It appears that the FI statement was lodged on 18.06.2006 in respect of an incident which allegedly took place sometime in the month of October, 2013. Though several allegations are raised, it appears that the same is falsified by the medical evidence. The 2[nd] respondent specifically contends that she was fearful of losing the Crl.M.C. No.38 of 2017 -5- petitioner who had obtained employment elsewhere and she was forced to lodge the complaint as a result. The 2[nd] respondent in her affidavit has stated in detail the reason behind lodging a statement alleging various offences against the petitioner. It is borne out from Annexure A 2 certificate that the petitioner has married the 2[nd] respondent as per the provisions of the Special Marriage Act , 1954. It is also reported that they are living happily as husband and wife. - 9.Having regard to the facts and circumstances, it cannot be said that the allegations raised would fall in the category of offences that has a serious impact on the society. The offence of rape is clearly not made out. The extreme depravity, perversity or cruelty is not revealed. The 2[nd] respondent has married the petitioner and it will only be a futile and empty exercise to direct the petitioner to undergo the ordeal of a trial. - 10.The position with regard to quashing of proceedings on Crl.M.C. No.38 of 2017 -6- the basis of compromise between the parties is by now well settled. In **Gian singh v. State of Punjab (2012) 10 SCC 303** Apex Court has laid down that in appropriate cases, the High Court can take note of the amicable resolution of disputes between the victim and the wrongdoer to put an end to the criminal proceedings. It was observed as follows : _“61. In other words, the High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceedings or continuation of criminal proceedings would tantamount to abuse of process of law despite settlement and compromise between the victim and the wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in the affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceedings.”_ 11.The aforesaid dictum stands reiterated by the Apex Court ## in **Narinder singh v. State of Punjab. (2014) 6 SCC** **466,** the pertinent observations which are as under: _XXXXXXXXXXXX_ Crl.M.C. No.38 of 2017 -7- _29.2. When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:_ _(i) ends of justice, or_ _(ii) to prevent abuse of the process of any court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives._ _xxxxxxx_ _xxxxxxx_ 12.Though in **Narinder Singh** (supra), the Apex Court had held that the offence of rape falls in the grave category, in the instant case the said offence is not clearly made out. 13.After bestowing my anxious consideration to the various aspects of the instant case, I am of the view that the settlement arrived at between the parties can be taken note of to protect the interest of both the parties. In the fact scenario grave hardship and inconvenience will be caused to the 2[nd] respondent if the prosecution is permitted to continue. When the 2[nd] respondent herself Crl.M.C. No.38 of 2017 -8- has asserted that she is not inclined to prosecute the petitioner any further, the prospects of an ultimate conviction is remote and bleak. 14. Having considered all the relevant circumstances, I am of the considered view that 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-A1 FIR in Crime No.904 of 2016 of Vizhinjam Police Station and all proceedings pursuant thereto against the petitioner are quashed. Sd/- **RAJA VIJAYARAGHAVAN.V., JUDGE** kp/17.1.17