IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE [ENTITY] V MONDAY, THE 12TH DAY OF NOVEMBER 201[SECTION] / 21ST KARTHIKA, 1940 Crl.MC.No. 7004 of 201[SECTION] SC 730/2015 OF THE ADDITIONAL SESSIONS COURT NO.1, PALAKKAD CRIME NO. [SECTION]20/2015 OF OTTAPALAM POLICE STATION, PALAKKAD PETITIONER/ACCUSED: MUHAMMED SHAFFEEK, AGED 2[SECTION] YEARS, S/O. MUHAMMED BASHEER, PAZHAMKULAM VEEDU, CRUSHER ROAD, KUNNATHUPEEDIKA, CHUNANGAD, OTTAPALAM, PALAKKAD. BY ADV. SRI.V.A.JOHNSON (VARIKKAPPALLIL) RESPONDENTS/DE FACTO COMPLAINANT, CWS.2,3 AND STATE: 1 HUSSAIN, AGED 51 YEARS, S/O. KUNJAYAMU, NAMBEETTUKULAM VEEDU, KALLADIKUNNU, CHUNANGAD, OTTAPALAM, PALAKKAD - 679 511. 2 ASMA, AGED 40 YEARS, W/O. HUSSAIN, NAMBEETTUKULAM VEEDU, KALLADIKUNNU, CHUNANGAD, OTTAPALAM, PALAKKAD - 679 511. 3 ASLIYA, AGED 19 YEARS, W/O. MUHAMMED SHAFFEEK, D/O. HUSSAIN, NAMBEETTUKULAM VEEDU, KALLADIKUNNU, CHUNANGAD, OTTAPALAM, PALAKKAD - 679 511. 4 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-6[SECTION]2031. R1 TO R3 BY ADV. SRI.UNNI SEBASTIAN KAPPEN R3 BY SRI.C K PRASAD, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 12.11.201[SECTION], THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl.MC.No. 7004 of 201[SECTION] 2 ORDER
This petition is filed under [SECTION] of the [ACT] ("the Code" for brevity) with a prayer to quash the proceedings pending against the petitioner.
2. The petitioner herein is the accused in [CASE NUMBER] on the file of the Additional Sessions Court-I, Palakkad. The above crime was registered in the year 2015 under [SECTION] of the [ACT] and [SECTION] and [SECTION] of the [ACT].
3. The prosecution allegation is that the petitioner herein abducted the minor child and subjected her to sexual assault.
4. The learned counsel appearing for the petitioner would contend that the allegations are frivolous and baseless. According to the learned counsel, the petitioner herein is a young man, who fell in love with the victim and when opposition was raised by the parents of the 3rd respondent, they decided to elope and get married. The 1st respondent approached the police and had lodged a statement, based on which, the subject crime was registered. The learned counsel would contend that thereafter, the petitioner herein had married the victim on 06.12.2017 as per customs and rites and reference is made to Annexure-B Marriage Certificate. A child was born and the learned counsel refers to Annexure-C Birth Certificate.
5. The de facto complainant and her parents have entered appearance through the counsel and they have filed separate affidavits stating that the petitioner and the 3 rd respondent are living together as husband and wife. It is submitted that the continuance of proceedings will be nothing but an abuse of process.
6. The learned Public Prosecutor was directed to get specific instructions. The learned Public Prosecutor, on instructions, submits that the statement of the victim was recorded and she has stated that she has been living with the petitioner herein.
7. I have considered the submissions advanced and have gone through the materials made available.
[SECTION]. The legal position with regard to quashing of proceedings on the basis of compromise between the parties is by now well settled. It has been held that the power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal Court for compounding the offence under [SECTION] of the Code. In what cases power to quash the criminal proceeding or complaint or FIR may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed. However, before exercise of such power, the Court will have to give due regard to the nature and gravity of the crime. It is also settled that heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc., cannot quashed even though the victim or victim's family and the offender have settled the dispute. Such offenses are not private in nature and have serious impact on society. The directions of the Apex Court in [PRECEDENT] and in [PRECEDENT] serve as guiding lights.
9. Insofar as the offence of rape or gross sexual abuse which reeks of depravity, there cannot be any doubt that the same cannot be settled on the strength of a compromise arrived at between the victim and the accused. The Apex Court in State of M.P. v. Madan Lal [2015 (7) SCC 6[SECTION]1], relying on the decision in Shimbhu and Another v. State of Haryana [2014 (13) SCC 31[SECTION]] has clearly reminded the Courts that rape is a non-compoundable offence and it is an offence against the society and is not a matter to be left for the parties to compromise and settle. This was because of the fact that the Court cannot always be assured that the consent given by the victim in compromising the case is a genuine consent. There is every chance that the victim might have been pressurised by the convicts or the trauma undergone by her all the years might have compelled her to opt for a compromise. In such cases, the accused may use all his influence to pressurise the victim for a compromise. It was taking note of this aspect that it was held that it would not be safe in considering the compromise arrived at between the parties in rape cases.
10. However in the instant case, it is borne out from the statement recorded by the Sub Inspector of Police of the 3 rd respondent that the parties were in love and the Crime was registered under the premise that the petitioner would not marry the victim. 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 3rd respondent was violated by a wanton act of the petitioner. This is not one of those cases wherein the allegations reek of extreme depravity, 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 3rd respondent, if the prosecution is permitted to continue. When the 3rd respondent has asserted that she has married the petitioner and this facts finds corroboration from Annexure-B certificate of marriage. She has also filed an affidavit stating that she is not desirous of prosecuting against her husband any further. In that view of the matter, the prospects of an ultimate conviction is remote and bleak even if the case is proceeded with. Furthermore, the 3 rd respondent 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 extraordinary powers under [SECTION] of the Code to quash the proceedings.
In the result this petition will stand allowed. Annexure-A final report and all proceedings pursuant thereto against the petitioner herein in [CASE NUMBER] on the file of the Additional Sessions Court-I, Palakkad are quashed.
[ENTITY] V JUDGE DSV/-
APPENDIX PETITIONER'S/S EXHIBITS:
ANNEXURE A CERTIFIED COPY OF THE FINAL REPORT IN S.C.730/2015 OF THE COURT OF ADDITIONAL SESSIONS COURT NO.I, PALAKKAD.
ANNEXURE B TRUE COPY OF THE MARRIAGE CERTIFICATE DATED 14.9.201[SECTION].
ANNEXURE C TRUE COPY OF THE BIRTH CERTIFICATE DATED 13.9.201[SECTION].
ANNEXURE D THE AFFIDAVIT SWORN BY THE 1ST RESPONDENT HEREIN EVIDENCING THE AFORESAID FACTUM OF SETTLEMENT ANNEXURE E THE AFFIDAVIT SWORN BY THE 2ND RESPONDENT HEREIN EVIDENCING THE AFORESAID FACTUM OF SETTLEMENT ANNEXURE F THE AFFIDAVIT SWORN BY THE 3RD RESPONDENT HEREIN EVIDENCING THE AFORESAID FACTUM OF SETTLEMENT RESPONDENT'S/S EXHIBITS:
NIL TRUE COPY P.A.TO JUDGE