YYYY YYYY v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **WEDNESDAY, THE 22[ND] DAY OF DECEMBER 2021 / 1ST POUSHA, 1943** ## **CRL.MC NO. 3769 OF 2021** **AGAINST THE ORDER/JUDGMENT IN SC 94/2020 OF ADDITIONAL DISTRICT & SESSIONS** **COURT-I ,PATHANAMTHITTA** ## **PETITIONER/SOLE ACCUSED:** **YYYY YYYY BY ADVS. RAAJESH S.SUBRAHMANIAN V.R.RAJESH** ## **RESPONDENTS/STATE/DEFACTO COMPLAINANT/RESPONDENT:** **1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682031. 2 XXXX X BY ADVS. 1 C.S.SUMESH** ## **OTHER PRESENT:** **PP SANGEETHARAJ N.R** **THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 22.12.2021,** **THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** Crl.M.C.No.3769 of 2021 2 ## **O R D E R** Petitioner is the sole accused in S.C.No.94/2020 on the file of Additional District & Sessions Court-I, Pathanamthitta, which arose out of Crime No.871/2019 of Keezhvaipur police station, charged under Sections 450, 376 (2)(n) of IPC, Section 6 r/w.5(j) (ii)(l), 4 r/w.3(a)(iii) of the Protection of Children from Sexual Offences Act, 2012 and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. This Crl.M.C has been filed seeking to quash further proceedings in the above said case. 2. Prosecution case is that petitioner/accused during the period from 11.12.2018 to 16.04.2019 visited the 2[nd] respondentdefacto complainant's house and had sexual relationship with her, out of which, she became pregnant, when she was a minor aged only 17 years, thereby accused committed the offences aforementioned. 3. Adv. Sri.C.S.Sumesh appeared on behalf of the 2[nd] respondent - defacto complainant and reported that the petitioner married the defacto complainant and now they are Crl.M.C.No.3769 of 2021 3 living together as husband and wife with a girl child born out of their wedlock. Hence she has no further grievance against the petitioner. 4. Learned Public Prosecutor filed report of the Inspector of Police, Keezhvaipur Police Station along with signed statement of the defacto complainant. 5. It has come out from Annexure A2 - copy of certificate of marriage of the petitioner and the defacto complainant - 2[nd] respondent that the petitioner married the defacto complainant on 04.08.2020. Annexure A3 is the affidavit sworn in by the defacto complainant. It has also come out from the affidavit as well as the copy of the signed statement of the defacto complainant that the petitioner and the defacto complainant are presently living together as husband and wife and she has no further grievance against the petitioner. A child also born out of their wedlock. 6. It is relevant in this context to quote **Freddy @ Antony Francis and Another v. State of Kerala and Another (2017 KHC 344 = 2018 (1) KLD 558), Mohammed Rasal v. State of Kerala and Another (2019 (5) KHC 904 = 2020 (1)** Crl.M.C.No.3769 of 2021 4 **KLT 126)** and **Unni.A. v. State of Kerala and Another (Crl.M.C.2459/2018 dated 8.9.2020).** 7. **Freddy,** referred above, was a case registered against the accused under Section 376 IPC and Section 3(1)(XII) of SC/ST Act and during the pendency of the criminal proceedings, accused married the victim and they filed a joint petition to quash the proceedings. So this Court considered the question whether power under Section 482 Cr.P.C can be exercised or not. Paragraph 9 of the said judgment is relevant which reads thus : “It is borne out from the statement recorded by the Sub Inspector of Police of the 2[nd] petitioner that the parties were in love and the Crime was registered when the 2[nd] petitioner was under the impression that the 1[st] petitioner would resile from his earlier promise. However, in view of the subsequent turn of events, she has realized that her apprehension was baseless. The parties are living together as husband and wife. There is no case for anyone that the dignity of the 2[nd] petitioner was violated by a wanton act of the 1[st] petitioner. This is not one of those cases wherein the allegations reek of extreme deparavity, perversity or cruelty. It cannot be said that the offence in the instant case would fall in the category of offences that have a serious impact on society. In the peculiar facts of the instant case, grave hardship and inconvenience will be caused to the 2[nd] petitioner, if the prosecution is permitted to continue. When the 2[nd] petitioner has asserted that she is not Crl.M.C.No.3769 of 2021 5 desirous of prosecuting her husband any further, the prospects of an ultimate conviction is remote and bleak. Further more, the 2[nd] petitioner can continue with her life with dignity and respect. Having considered all the relevant circumstances, I am of the considered view that this is a fit case in which this Court will be well justified in invoking its extra ordinary powers under S.482 of the Code to quash the proceedings. 8. The above decision would go to show that the offence under Section SC/ST (PoA) Act has also been incorporated along with Section 376 IPC. The allegation is sexual assault upon a member of scheduled caste/scheduled tribe by a person who is not a member of scheduled cast or scheduled tribe. Even in such situation, this Court was inclined to quash the proceedings against the petitioner in view of the fact that parties were living together as husband and wife and further that grave hardship and inconvenience will be caused to the de facto complainant if the prosecution is permitted to continue. She has also asserted that she is not desirous of prosecuting her husband. 9. **Mohammed Rasal'** s case was also 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 Crl.M.C.No.3769 of 2021 6 482, 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 also a case they entered into a sexual relationship after the solemnization of marriage. The Court also has taken note of the fact that the offence was alleged to have been committed before 11.10.2017 before the pronouncement of the dictum in **Independent Thought v. Union of India & Anr [(2017) 10 SCC 800 = AIR 2017 SC 4904]** wherein the Apex Court held 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). 10. However it is the admitted case of the victim and the petitioner that petitioner had physical contact with the victim promising to marry her. That has been fulfilled when actually their marriage was conducted and marriage certificate is also produced before Court. In **Denu P.Thampi v. Ms.X and Another [2019 (3) KHC 199]** this Court has categorically held Crl.M.C.No.3769 of 2021 7 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. 11. **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. 12. In the case in hand, it has come out that the petitioner Crl.M.C.No.3769 of 2021 8 is now living with the defacto complainant, a child was also born out of their relationship. So if the criminal proceedings against the petitioner in the above crime is proceeded further, it would affect their peaceful married life and it will put the petitioner, the de facto complainant and their daughter in grate hardship, miseries and inconveniences since there are no surviving grievance to the de facto complainant and her family members against the petitioner. There is no chance for ending the case in a conviction also. So the entire process of trial will be a waste of valuable time of the Court without serving any useful purpose. So for doing complete justice to the parties, I find it just and proper to quash further proceedings against the petitioner in S.C.No.94/2020 on the file of Additional District & Sessions Court-I, Pathanamthitta, which arose out of Crime No.871/2019 of Keezhvaipur police station. Ordered accordingly. In the result Crl.M.C. stands allowed. Sd/- **M.R.ANITHA** **JUDGE** shg Crl.M.C.No.3769 of 2021 9 ## **APPENDIX OF CRL.MC 3769/2021** |**PETITIONER ANNEXURES**|| |---|---| |**Annexure A1**|**CERTIFIED COPY OF THE FINAL REPORT DATED 28/01/2020**| ||**FILED BEFORE THE ADDITIONAL DISTRICT AND SESSIONS**| ||**COURT-I, PATHANAMTHITTA IN CRIME NO.871/2019 OF**| ||**KEEZHVAIPUR POLICE STATION, PATHANAMTHITTA DISTRICT.**| |**Annexure A2**|**TRUE COPY OF THE MARRIAGE CERTIFICATE DATED**| ||**04/08/2020 ISSUED BY THE MARRIAGE OFFICER,**| ||**MALLAPPALLY, PATHANAMTHITTA DISTRICT.**| |**Annexure A3**|**NOTARIZED AFFIDAVIT DATED 13/04/2021 SWORN BY THE**| ||**2ND RESPONDENT.**|