XXX X v. State of Kerala and Another

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **MONDAY, THE 20[TH] DAY OF DECEMBER 2021 / 29TH AGRAHAYANA, 1943 CRL.MC NO. 1780 OF 2021** **(ARISING OUT OF THE CRIME NO.388/2019 OF MUKKAM POLICE STATION TO QUASH THE FINAL REPORT BEARING NO. 846/19 DATED 04.07.2019 OF MUKKAM POLICE STATION AND THE FURTHER PROCEEDINGS IN SC NO.131/2020 ON THE FILE OF THE FAST TRACK SPECIAL COURT, (FTSC) FOR SPEEDY DISPOSAL OF RAPE CASES AND CASES REGISTERED UNDER POCSO ACT, KOZHIKODE)** ## **PETITIONER/ACCUSED:** **XXX X** **BY ADVS. T.D.SUSMITH KUMAR SRI.C.SIVADAS** ## **- RESPONDENTS/STATE/COMPLAINANT/DE FACTO COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM** - **2 SUB INSPECTOR OF POLICE MUKKAM POLICE STATION, MUKKAM-673 602** - **3 XX X BY ADV P.JERIL BABU** ## **PP RENJIT GEORGE, SR GP** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 20.12.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** CRL.MC NO.1780 OF 2021 2 ## **ORDER** Dated this the 20[th] day of December, 2021 This Crl.M.C. has been filed seeking to quash the entire proceedings against the petitioner in S.C. No.131/2020 on the file of Fast Track Special Court, Kozhikode which arise out of Crime No.388/2019 of Mukkam Police Station, which has been registered for the offence punishable under Section 376 of Indian Penal Code, 1860 (hereinafter referred to as “IPC” for the sake of brevity, and Sections 5(j)(ii) r/w Section 6 of Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “POCSO Act” for the sake of brevity). 2. According to the learned counsel for the petitioner, the petitioner and the defacto complainant/victim were in love for three years. The prosecution allegation is that the victim aged 16 years, was pursuing her Plus Two studies. The petitioner is a coolie, and got a job opportunity in Oman. On 22.2.2019, the petitioner went to the house 3[rd] respondent, while she was alone there and they had physical contact. CRL.MC NO.1780 OF 2021 3 Later, on 03.7.2019 it has declared that she is 5 months pregnant. 3. According to the learned counsel for the petitioner, petitioner now married the defacto complainant. The marriage certificate is produced as Annexure-3, which would prove that the petitioner married the defacto complainant on 19.12.2020, after she obtained majority. Now they are living together and a child also born out of their relationship. It is also contended that the intimation to the police officers was actually given by the hospital authorities. 4. Adv.Jeril Babu.P., filed vakalath on behalf of the defacto complainant. 5. The learned Public Prosecutor produced copy of the report of the SHO along with copy of the signed statement of the defacto complainant. 6. Annexure A1 is the certified copies of the FIS and FIR. It would go to show that it has given while she was undergoing treatment at Medical College Hospital. That would fortify the contention of the petitioner’s counsel that the intimation was given from the Hospital. Now the petitioner is CRL.MC NO.1780 OF 2021 4 living with his wife and child. 7. It is relevant in this context to quote **Mohammed** **Rasal v. State of Kerala and Another (2019 (5) KHC 904 = 2020 (1) KLT 126)** and **Unni.A. v. State of Kerala and Another (Crl.M.C.2459/2018 dated 8.9.2020).** 8. **Mohammed Rasal'** s case was one charged under Section 376 read with Section 5(j)(ii) of the PoCSO Act, 2012 and the question arose whether the proceedings against the petitioner, accused in that case, can be quashed under Section 482, in view of the fact that the couple have a child and is leading a peaceful married life. The Court took into account the fact that the families on both sides arranged the marriage when the accused was 25 years old and the victim, the 2[nd] respondent, was 17 years old. It is true that, that was a case in which they entered into a sexual relationship after the solemnization of marriage. The Court also has taken note of the fact that the alleged offence was committed before 11.10.2017 before the pronouncement of the dictum in **Independent Thought v. Union of India & Anr (2017 (1) SCC 800 = AIR 2017 SC 4904)** wherein the Apex Court held CRL.MC NO.1780 OF 2021 5 that in view of the provisions contained in the PoCSO Act and other provisions in Section 375 IPC, age limit should be 18 years envisaged in Section 375 as per clause sixthly (wherein the age is mentioned as 16 years). 9. However it is the admitted case of the victim and the petitioner that they were in deep love and their affair was known to the parents and there was an understanding that she will be given in marriage to the petitioner after she attained majority. In the meantime, it so happened that they had physical contact with each other and she conceived also. So a criminal intent is absolutely lacking on the part of petitioner. In **Denu P.Thampi v. Ms.X and Another (2019 (3) KHC 199)** this Court has categorically held that when accused promised to marry the victim and had sexual relationship with the victim and thereafter he is charged with the offence of rape and when subsequently parties got married, the allegation of false promise vanishes and in such circumstances, this Court exercised the discretion vested under Section 482 Cr.P.C and quashed the criminal proceedings. CRL.MC NO.1780 OF 2021 6 10. **Unni.A. v. State of Kerala** also is a case charged against the accused under Sections 3, 4 and 17 of the PoCSO Act and Sections 9 and 10 of th Prohibition of Child Marriage Act, 2006. In that case also, there was no formal complaint and the hospital authorities after recording her age finding that she is a minor, informed the police authorities and subsequently the case was registered. So taking into account the fact that the victim has not approached the police authorities and further that her marriage was arranged on an understanding between both the families and the accused and his family members were never aware that the victim was a minor at the time of marriage proposal etc., the Court based on the dictum laid down in **Mohammed Rasal'** s case, ultimately quashed the proceedings against the accused persons. It has come out that the petitioner and the defacto complainant/victim girl were in love for a long period of three years, during that period she became pregnant. Subsequently, after she attaining her majority the petitioner married the victim girl. So the continuation of the criminal proceedings as CRL.MC NO.1780 OF 2021 7 against the petitioner would definitely affect their peaceful marital life. So for doing complete justice to the parties I find it just and proper to quash the entire proceedings against the petitioner in S.C. No.131/2020 on the file of Fast Track Special Court, Kozhikode which arise out of Crime No.388/2019 of Mukkam Police Station. In the result, Crl.M.C. stands allowed. Sd/- **M.R.ANITHA JUDGE** SMF CRL.MC NO.1780 OF 2021 8 ## **APPENDIX OF CRL.MC 1780/2021** |**PETITIONER ANNEXURES**|| |---|---| |**ANNEXURE A1**|**THE CERTIFIED COPY OF THE FIR ALONG WITH FIS**| ||**DATED 04.07.2019 IN CRIME NO.388 OF 2019 OF**| ||**MUKKAM POLICE STATION, MUKKAM.**| |**ANNEXURE A2**|**THE CERTIFIED COPY OF THE UNDATED FINAL**| ||**REPORT BEARING NO.846/19 OF MUKKAM POLICE**| ||**STATION**| |**ANNEXURE A3**|**THE TRUE COPY OF THE MARRIAGE CERTIFICATE**| ||**DATED 06.01.2021 ISSUED BY LOCAL REGISTRAT**| ||**OF MARRIAGE (COMMON), MUKKAM MUNICIPALITY,**| ||**MUKKAM.**| |**ANNEXURE A4**|**THE AFFIDAVITS DATED 06.2.2021 SWORN BY THE**| ||**3RD RESPONDENT.**| //TRUE COPY// PA TO JUDGE