Yasib v. State of Kerala and XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A. BADHARUDEEN ``` ``` TUESDAY, THE 23[RD] DAY OF JULY 2024 / 1ST SRAVANA, 1946 CRL.MC NO. 677 OF 2023 ``` ``` CRIME NO.12/2020 OF Kuttiyadi Police Station, Kozhikode SC NO.750 OF 2020 OF FAST TRACK SPECIAL COURT, KOYILANDY ``` ## **`PETITIONER/ACCUSED:`** ``` YASIB AGED 28 YEARS S/O MOIDU, POKKITTATH MEETHAL HOUSE,PERUVAYAL.P.O, CHOYIMODOM, KUTTIADY,KOZHIKODE, PIN – 673008. ``` ``` BY ADV U.P.BALAKRISHNAN ``` ## **`RESPONDENTS/STATE & DEFACTO COMPLAINANT:`** - **`1 THE STATE OF KERALA REP.BY STATION HOUSE OFFICER, KUTTIADI POLICE STATION, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM-682031, PIN - 682031`** - **`2 XXXXXXXXXX XXXXXXXXXX XXXXXXXXXX`** ``` PUBLIC PROSECUTOR SRI M P PRASANTH ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 09.07.2024, THE COURT ON 23.07.2024 PASSED THE FOLLOWING: ``` CRL.MC No.677 0f 2023 **`2`** ## _**A. BADHARUDEEN, J.**_ ## _**================================**_ _Crl.M.C No.677 of 2023_ _================================ Dated this the 23rd day of July, 2024_ ## _**O R D E R**_ This Criminal Miscellaneous Case has been filed under Section 482 of the Code of Criminal Procedure, by the accused in S.C.No.750/2020 on the files of Fast Track Special Court, Koyilandy, arising out of Crime No.12 of 2020 of Kuttiyadi Police Station, Kozhikode, seeking the following reliefs: (i) _Call for the records in Crime No.12/2020 of Kuttiady police station now pending as SC No.750/2020 on the files of the Fast Track Special Court (FISC) for Disposal of Rape Cases and Cases Registered Under POCSO Act, Koilandy and quash all the proceedings against the petitioner._ _(ii) Grant such other reliefs as this Hon’ble Court may deem fit and proper as on the facts and circumstances of the case.”_ 2. Heard the learned counsel for the petitioner and the CRL.MC No.677 0f 2023 **`3`** learned Public Prosecutor. Perused the relevant documents. 3. In this matter precisely the allegation of the prosecution is that at about 8.30 a.m on 13.02.2019 the accused herein wrongfully restrained the minor victim while she was going to school and caught hold of her hand with intention to outrage her modesty, asking her, why not, she could love him and thereafter, he followed the victim. He also threatened the parents of the victim that he would pour petrol and burn the victim if the victim would not be given in marriage to him. That apart, the photographs of the victim was taken and the same were published through social media. This is the base on which the prosecution alleges commission of offences punishable under Sections 341, 354A, 354D and 506 of the Indian Penal Code and Section 12 read with Section 11(iv) of the Protection of Children from Sexual Offences Act, 2012. 4. The learned counsel for the petitioner argued at length to convince this Court that the entire allegations are CRL.MC No.677 0f 2023 **`4`** false. According to him, now the victim attained majority and she filed an affidavit stating that the matter has been settled and she has no objection in quashing the proceedings. Accordingly, the learned counsel for the petitioner pressed for quashment of the proceedings. 5. As far as quashment of serious offences is concerned, the following decisions are to be ... 6. In the decision in _**Vineet Kumar & Ors. v. State of U.P & anr.**_ , reported in [2017 KHC 6274 : AIR 2017 SC 1884 : 2017 (13) SCC 369], the Apex Court held in paragraph 39 that, _inherent power given to the High Court under Section 482 Cr.P.C. is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the Categories as_ _illustratively enumerated by this Court in [AIR 1960 SC 866],_ CRL.MC No.677 0f 2023 **`5`** _**State of Haryana v. Bhajan Lal** . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are material to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 Cr.P.C. to quash the proceeding under Category 7 as enumerated in_ _**State of Haryana v. Bhajan Lal** (supra), which is to the following effect:_ - _“(7) Where a criminal proceeding is manifestly_ _attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.”_ 7. Similarly, in another decision in _**Mahmood Ali v.**_ CRL.MC No.677 0f 2023 **`6`** _**State of U.P.**_ reported in [2023 KHC 7029 : 2023 KHC OnLine 7029 : 2023 LiveLaw (SC) 613 : 2023 KLT OnLine 1751 : AIR 2023 SC 3709 : AIR OnLine 2023 SC 602 : 2023 CriLJ 3896], the Apex Court while considering the power under Section 482 Cr.P.C, in paragraph 12 held that, ‘ _whenever an accused comes before the Court invoking either the inherent powers under S.482 of the Code of Criminal Procedure or extraordinary jurisdiction under Art.226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that_ CRL.MC No.677 0f 2023 **`7`** _the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under S.482 of the Cr.P.C. or Art.226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation / registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period_ CRL.MC No.677 0f 2023 **`8`** _of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.’_ 8. Therefore, the legal position is clear that quashment of criminal proceedings can be resorted to when the prosecution materials do not constitute materials to attract the offence/s alleged to be committed. Similarly, the Court owes a duty to look into the other attending circumstances, over and above the averments to see whether there are materials to indicate that a criminal proceeding is manifestly attended with _mala fide_ and proceeding instituted maliciously with ulterior motives. Once the said fact is established, the same is a good reason to quash the criminal proceedings. 9. In this matter, it appears that the overt acts are much less and now the victim attained majority. That apart, she married another man and she is living happily. Since the overt acts are CRL.MC No.677 0f 2023 **`9`** much less and the same are confined to the request for love and minor overt acts thereof, even though offences under the POCSO Act could not be quashed on settlement, the facts and circumstances of the case discussed would show that quashment can be granted in the interest of justice. 10. It is submitted that the matter has been amicably settled and the victim filed affidavit in this regard. The victim stated in the affidavit that she has no objection in quashing all further proceedings in this matter. 11. The learned Public Prosecutor, even though zealously opposed settlement, submitted that the matter has been settled between the parties and statement of the victim to that effect has been recorded. 12. Since the matter has been amicably settled between the parties, in a case, where the allegations are much less, there is no reason to disallow the prayer for quashment so as to retain them in hazards of litigation. Therefore, in the interest of CRL.MC No.677 0f 2023 **`10`** justice, I am inclined to allow this petition. In the result, this Criminal Miscellaneous Case stands allowed. S.C.No.750/2020 on the files of Fast Track Special Court (FTSC) for Disposal of Rape Cases and Cases Registered under POCSO Act, Koilandy, arising out of Crime No.12/2020 of Kuttiyady Police Station, Kozhikode, stands quashed. _Sd/-_ _**A. BADHARUDEEN, JUDGE**_ rtr/ CRL.MC No.677 0f 2023 **`11`** ## **`APPENDIX OF CRL.MC 677/2023`** ## **`PETITIONER’S ANNEXURES`** |**`Annexure`**|**`A1`**|**`COPY OF THE PASSPORT OF THE PETITIONER`**| |---|---|---| |||**`ISSUED ON 08.02.2016`**| |**`Annexure`**|**`A2`**|**`ORDER ISSUED BY THE BUREAU OF`**| |||**`IMMIGRATION DATED 16.11.2023 TO THE`**| |||**`PETITIONER`**| |**`Annexure`**|**`A3`**|**`THE COPY OF THE STAY ORDER IN CRL.MC`**| |||**`NO.677/2023 DATED 14.03.2023`**| |**`Annexure`**|**`4`**|**`THE TRUE COPY OF THE ORDER EXTENDING`**| |||**`THE STAY DATED 06.03.2024`**| |**`Annexure`**|**`5`**|**`TRUE COPY OF THE ORDER DATED`**| |||**`24.11.2022 OF THE REGIONAL PASSPORT`**| |||**`OFFICER, CALICUT`**|